TITLE 16
Health and Safety
Mental Health
CHAPTER 51. The Department of Health and Social Services
Subchapter VIII. Behavioral and Mental Health Commission
(a) For the purposes of this section:
(1) “Designated psychiatric treatment facility” means as defined in § 5001 of this title.
(2) “Serious and persistent mental illness” means a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet diagnostic criteria and that has been manifest in the last year, has resulted in functional impairment which substantially interferes with or limits 1 or more major life activities, and has episodic, recurrent, or persistent features.
(3) “Treatment facility” means as defined in § 5181 of this title.
(b) There is established an Adult Mental Health Peer Review Commission, referred to in this subchapter as the “Commission.” The Commission shall provide peer review of matters relating to the provision of behavioral and mental health services in this State to adult individuals with serious and persistent mental illness and shall advise the Secretary of the Department of Health and Social Services accordingly.
(c) The scope of the Commission’s authority and review is expressly limited to review of the provision of behavioral and mental health services to those adult individuals who meet all of the following criteria:
(1) Are diagnosed with a serious and persistent mental illness.
(2) Meet 1 or more of the following additional criteria:
a. Have had an admission to the Delaware Psychiatric Center or to a private institution for mental disease in the last 2 years.
b. Have had 1 or more emergency room visits in the last year due to mental illness or substance abuse.
c. Have been arrested, incarcerated, or had any other encounter with the criminal justice system in the last year due to conduct related to serious and persistent mental illness.
d. Have been homeless for 1 year or had 4 or more episodes of homelessness in the last 3 years.
(d) Commission membership; governance. —
(1) The Commission shall be composed of the following members:
a. The Secretary of the Department of Health and Social Services, or the Secretary’s designee, who shall serve as a Co-Chair of the Commission.
b. The Director of the Division of Substance Abuse and Mental Health, or his or her designee.
c. The Director of the Division of Medicaid and Medical Assistance, or his or her designee.
d. A representative of the “protection and advocacy agency” as defined in § 5181 of this title.
e. A representative of the Delaware Psychiatric Society.
f. A representative of the Delaware Psychological Association.
g. A representative from the Mental Health Association.
h. A representative from the National Alliance on Mental Illness in Delaware.
i. A representative from the Ability Network of Delaware.
j. Two representatives of the behavioral and mental health peer community who have been trained and certified to provide peer recovery support to individuals with behavioral and mental health conditions by appointment by the Governor. For the purpose of this paragraph, "peer recovery support" means services delivered by trained and certified individuals who have personal experience with mental illness and recovery to help people develop skills in managing and coping with symptoms of illness, self-advocacy, and identifying and using natural supports.
k. A representative from the Delaware Healthcare Association.
(2) The Department of Justice shall advise the Secretary of the Department of Health and Social Services on all questions relating to the nature and scope of peer review privilege relating to the Commission’s activities.
(3) To the extent possible, at least 50% of the members of the Commission must be mental health clinicians licensed to practice in this State, at least 1 of whom must be a licensed physician.
(4) The Commission shall, by affirmative vote of a majority of all members of the Commission, appoint a Co-Chair from among the licensed physicians in its membership on an annual basis.
(5) A quorum of the Commission consists of a majority of the currently serving members of the Commission.
(6) The Commission shall establish bylaws consistent with the requirements of this section, and subject to approval of the Secretary of the Department of Health and Social Services.
(e) Confidential treatment of records and meetings of the Commission.
(1) The Commission is not a “public body,” as defined in and for purposes of the Freedom of Information Act (“FOIA”), Chapter 100 of Title 29.
(2) The meetings of the Commission are closed to the public unless otherwise determined by the Chair of the Commission.
(3) The Commission shall provide an annual report to the General Assembly containing recommendations for improvements to behavioral and mental health services provided to adult individuals with a serious and persistent mental illness who may be at risk for psychiatric hospitalization.
(4) Any document received or generated by the Commission is not a “public record’' as defined in and for purposes of FOIA, and is confidential under § 1768(b) of Title 24. Notwithstanding the foregoing, documents received from the public at, agendas for, or minutes of the Commission’s public meetings shall, following appropriate legal review for confidentiality and privacy requirements, be a “public record” as defined in and for purposes of FOIA.
(5) The Commission is a “peer review committee” under § 1768(a) of Title 24.
(f) Nothing in this subchapter shall give rise to any right, entitlement, or private cause of action for civil damages or injunctive relief for any public or private party.
(g) Reporting obligations of the Department of Health and Social Services. —
The Department of Health and Social Services shall do all of the following:
(1) Provide the Commission with all critical incident reports and death reports in the Department’s possession related to behavioral and mental health-care services to adult individuals meeting the criteria in subsection (c) of this section and provided by a service provider, including services received in the community at a designated psychiatric treatment facility or at a treatment facility.
(2) Provide the Commission with copies of all investigations and reports, including root cause analyses and corrective action plans generated by the Department or any service provider who has a contract with the Department to provide behavioral and mental health services related to a critical incident report or death report of an adult individual meeting the criteria in subsection (c) of this section.
(h) The Commission may not direct, nor interfere with, any state agency or service provider’s internal review process for investigating and evaluating critical incidents and deaths.
(i) The Commission may not direct Department of Health and Social Services resources, personnel, or activities, but may provide advice and recommendations to the Department as the Commission determines to be appropriate.
80 Del. Laws, c. 411, § 1; 82 Del. Laws, c. 32, § 1;