TITLE 29

State Government

Departments of Government

CHAPTER 79. DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Subchapter VI. Division of Long-Term Care Residents Protection


(a) It is the intent of the General Assembly that the primary purpose of the Long-Term Care Consumer Protection Act shall be:

(1) To ensure that individuals receiving long-term care services are safe and secure, receive quality care and are free from abuse, neglect, mistreatment and financial exploitation;

(2) To promote the quality of care and quality of life for individuals receiving long-term care services; and

(3) To ensure that training programs for certified nursing assistants comply with state and federal statutes and regulations, that such programs are regularly monitored for compliance, and that they are subject to sanctions for violations.

(b) Further, it is the intent of the General Assembly to ensure that in carrying out the State's quality assurance services, the responsible state agencies and law enforcement agencies will coordinate and communicate effectively and will respond to and investigate complaints in a timely and effective manner and undertake enforcement action, civil or criminal, as warranted.

71 Del. Laws, c. 486, § 2; 77 Del. Laws, c. 382, § 1.;

(a) There is hereby established the Division of Long-Term Care Residents Protection within the Department of Health and Social Services.

(b) Definitions.

(1) "Adult Abuse Registry" is a central registry of information established by § 8564 of Title 11 that relates to substantiated cases of adult abuse, neglect, mistreatment, or financial exploitation. Health care facility employers must check the Adult Abuse Registry before hiring employees who would have direct access to patients/residents;

(2) "Director" shall mean the Director of the Division of Long-Term Care Residents Protection of the Department of Health and Social Services;

(3) "Division" shall mean the Division of Long-Term Care Residents Protection of the Department of Health and Social Services;

(4) "Long-Term Care Facility" means any facility, foster home, group living arrangement, adult care home or any other facility which is required to be licensed under Chapter 11 of Title 16 dealing with nursing homes, rest homes and related facilities.

(c) The purpose of the Division of Long-Term Care Residents Protection shall be to promote the quality of life of individuals receiving long-term care services and to ensure that they are safe and secure, receive quality care and are free from abuse, neglect, mistreatment and financial exploitation.

(d) The Division shall have the following duties and functions:

(1) Establish and implement policies and procedures, promulgate regulations, enforce state statutes and regulations regarding the quality of care and quality of life of individuals receiving long-term care services and refer federal violations to the appropriate authorities with recommendations for enforcement;

(2) License facilities and services on an annual basis and conduct a variety of inspections including annual, complaint-driven and surprise inspections to determine compliance with federal and state statutes and regulations;

(3) Receive and investigate complaints of abuse, neglect, mistreatment, financial exploitation and other concerns which may adversely affect the health, safety, welfare or rights of such individuals including alleged violations of federal and state statutes and regulations and in connection with such duties and functions shall have the authority to obtain an individual's hospital records in cases where the Division is engaged in an investigation or survey involving the care or treatment of the individual at a facility licensed by the Division, and the individual has been admitted to a hospital from the facility or discharged from a hospital to the facility;

(4) Provide for systematic and timely notification, coordinated investigation and referral of abuse, neglect, mistreatment and financial exploitation complaints to the appropriate law enforcement agencies and the Attorney General's office;

(5) To protect the privacy of the individual receiving long-term care services and that individual's family. In furtherence of this, the Division shall establish guidelines concerning the disclosure of information concerning abuse and/or neglect involving the long-term care resident or recipient of community-based long-term care services. The Division may require persons to make written requests for access to records maintained by the Division. The Division may only release information to persons who have a legitimate public safety need for such information and such information shall be used only for the purpose for which the information is released;

(6) Maintain the Adult Abuse Registry as established by § 8564 of Title 11;

(7) In conjunction with the Attorney General's Office, develop and conduct training for Department of Health and Social Services staff and providers of long term care services on applicable statutes and regulations, as well as provide other educational workshops, including accident prevention and health promotion training, and other technical assistance as needed;

(8) Promote and advocate for consumers' rights;

(9) Meet regularly with individuals receiving long term care services and their families;

(10) Publish an annual report to the Governor, Secretary and General Assembly on the Division's activities, including comprehensive data analysis and monitoring of trends in the quality of care and quality of life of individuals receiving long-term care services in Delaware;

(11) Conduct quality assurance demonstration projects;

(12) Provide updated consumer information materials on an ongoing and as needed basis;

(13) Establish, maintain and publicize a 24-hour state-wide toll free telephone hotline operating at all times and capable of receiving reports of abuse and neglect complaints;

(14) Regulate the certification of nursing assistants, by:

a. Certifying nursing assistants pursuant to Chapter 30A of Title 16 and certifying nursing assistants from out of state who meet Delaware requirements.

b. Suspending or revoking the certificate of a certified nursing assistant for cause. Cause to suspend or revoke a certificate shall include, but is not limited to:

1. Placement of a finding of abuse, neglect or mistreatment against a certified nurse assistant on the Delaware Certified Nurse Assistant Registry;

2. The suspension or revocation of the certified nursing assistant's certificate by another state; and

3. Circumstances where the certificate was obtained using false information;

(15) Regulate nurse assistant training programs, including to:

a. Approve curricula and develop criteria and standards for evaluating such training programs;

b. Provide for surveys of such programs at such times as it may deem necessary;

c. Ensure that such programs meet the requirements of Chapter 30A of Title 16 and 42 C.F.R., Ch. IV, Subchapter G, Part 483;

d. Deny or withdraw approval from training programs for failure to meet approved curricula or other criteria;

e. Establish requirements for mandatory continuing education;

f. Provide public access through an online source to the pass rates of all approved training programs;

(16) The Division may impose civil penalties against any nurse assistant training program, whether approved or not, for violations of the provisions of this chapter or of Chapter 30A of Title 16, or the regulations adopted pursuant thereto. The maximum civil penalty shall be $5,000 per violation.

a. In determining the amount of the penalty to be assessed, the Division shall consider:

1. The seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

2. The history of violations committed by the person or the person's affiliate, employee, or controlling person;

3. The efforts made to correct the violation;

4. The culpability of the person or persons who committed the violation;

5. Whether a misrepresentation was made to the Division or to another person regarding:

A. The quality of services provided;

B. The academic performance of the program; or

C. The identity of an owner or controlling person of the program.

6. Whether the program refused to allow a representative of the Division to inspect without notice at any time:

A. Any portion of the premises of the program; or

B. Any documents, records, or files required to be maintained by the program.

7. Whether the program wilfully interfered with the work of a representative of the Division or with the enforcement of any statute or regulation;

8. Any other matter that affects the operating requirements of the program, or the educational experience of its students.

b. Each day of a continuing violation constitutes a separate violation.

c. All civil penalties collected under this chapter shall be remitted to the State Civil Penalty Trust Fund.

d. The Division may add the amount of the civil penalty to the licensing fee for the program. If the licensee refuses to make the payment at the time of the application for renewal of its license, its license shall not be renewed.

e. The Division may also proceed for the collection of the civil money penalty in an action brought in the name of the Department in any court of competent jurisdiction.

f. Any entity upon which a penalty is imposed may request an administrative hearing pursuant to Department of Health and Social Services regulations before such penalty becomes final. The hearing officer for the administrative hearing shall have the power to compel the attendance of witnesses and the production of evidence. The finding by the hearing officer shall constitute the final decision of the Department of Health and Social Services and shall be appealable, on the record, by either party to Superior Court.

71 Del. Laws, c. 486, § 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 489, § 1; 75 Del. Laws, c. 387, §§ 2, 5; 77 Del. Laws, c. 89, §§ 4, 6; 77 Del. Laws, c. 382, §§ 2, 3.;

(a) Purpose.

(1) It is the purpose of this section to establish an electronic system (Background Check Center) for the consolidation of various data streams necessary to provide a prospective employer or a current employer with information related to the suitability for employment of a person who provides care or services:

a. In any capacity, including as an employee, an agent, or an independent contractor working in a nursing facility or similar facility licensed pursuant to Chapter 11 of Title 16.

b. As an employee of a hospice agency, a home health agency, or a personal assistance services agency (home care agency) licensed pursuant to § 122(3)(m), (3)(o) and (3)(x) of Title 16 working in an private residence.

(2) It is the further purpose that the Background Check Center be self-supporting after the initial construction and initial operational phase.

(3) Utilization of the Background Check Center by an employer is mandatory to ensure that all persons working in a nursing facility or similar facility or for a home care agency are subject to comprehensive screening and updating of their criminal record.

(4) The Background Check Center must be a reliable source of information which enables prompt decision making.

(5) Each person screened through the Background Check Center shall have a right of appeal.

(b) Definitions. — As used in this chapter:

(1) "Background Check Center (BCC)" means the electronic system which combines the data streams from various sources within and outside the State in order to assist an employer in determining the suitability of a person for employment in a nursing facility or similar facility, or home care agency.

(2) "Department" means the Department of Health and Social Services (DHSS).

(3) "Employer" is a person or other legal entity which employs people to work in a nursing facility or similar facility licensed pursuant to § 1103 of Title 16, or for a home care agency, as defined below.

(4) "Home care agency" includes all programs or agencies licensed pursuant to § 122(3)(m), or (3)(o), or (3)(x) of Title 16.

(5) "Nursing facility or similar facility" means any nursing facility or similar facility licensed pursuant to Chapter 11 of Title 16, including but not limited to nursing facilities (commonly referred to as nursing homes), assisted living facilities, intermediate care facilities for persons with intellectual disability, neighborhood group homes, family care homes, rest residential facilities, and intensive behavioral support and education residences.

(6) "Private residence" means the domicile of the individual in need of care, either personally owned by that individual or considered the place of residence of that individual. A private residence does not include those healthcare facilities licensed by the Department of Health and Social Services under Chapter 11 of Title 16.

(c) Mandatory participation. — All employers who are required to secure criminal background checks pursuant to § 1141 or § 1145 of Title 16 must process all applicants for employment through the BCC.

(d) Assessment of cost. — The Department's Division of Management Services, with the approval of the Secretary of Health and Social Services, shall establish the appropriate fee to collect from BCC users. The fee shall approximate and reasonably reflect all costs necessary to defray the maintenance, operation, and development of the BCC after September 30, 2012. At the beginning of each calendar year the Division of Management Services, or any other state agency acting in its behalf, shall compute the appropriate fee and determine the effective date of any fee modification. All revenue generated pursuant to this section shall be deposited in a special BCC fund account in the Division of Management Services.

(e) Appeal. — Due process protections of notice and opportunity to be heard shall be provided to an applicant for employment who wishes to appeal BCC errors, or to appeal the imposition of sanctions under § 1141 or § 1145 of Title 16. The hearing process shall be consistent with the Administrative Procedures Act, Chapter 101 of this title.

78 Del. Laws, c. 303, § 1.;