Long-Term Care Facilities and Services

Del. Code tit. 16, ch. 11
in effect

Del. Code tit. 16, § 1101 Purpose and overview.

(a) It is the intent of the General Assembly that the primary purpose of the licensing and regulation of long-term care facilities is to ensure that these facilities provide a high quality of care and quality of life to their residents. (b) This chapter and the regulations adopted to implement it establish minimum acceptable levels of care. A violation of a minimum acceptable level of care is prohibited by law. (c) The State shall undertake measures to prevent violations. Prevention shall be promoted through education, particularly regarding any new laws and regulations adopted by the State. (d) The State shall undertake measures to assure that violations of this chapter and the regulations promulgated under this chapter are remedied. To that end, the Department shall do all of the following: (1) Set standards of care. (2) Determine compliance with those standards through inspections, investigations and other compliance measures. (3) Impose sanctions and remedies for noncompliance. (e) (1) The Department shall be responsible for issuing licenses and certifying the compliance of facilities with state laws and regulations. (2) Each facility licensed under this chapter shall, at a minimum, provide quality care in accordance with this chapter and the regulations promulgated thereunder. Components of quality of care and quality of life addressed by this chapter and regulations promulgated thereunder include all of the following: a. Access to care. b. Continuity of care. c. Comprehensiveness of care, including activities. d. Coordination of services. e. Humaneness of treatment and respect for the dignity of each resident. f. Safety of the environment. g. Qualifications of caregivers. (f) This chapter and its regulations are intended for use in state inspections of facilities licensed under this chapter and any investigations and enforcement actions, and are designed to be useful to consumers and providers in assessing the quality of care provided in a facility. (g) The consumer protection goal of ensuring that residents of long-term care facilities receive quality care shall be strived for in the following ways: (1) Monitoring the factors relating to the health, safety, welfare and dignity of each resident. (2) Providing effective remedies and requiring their prompt imposition for noncompliance with licensing standards. (3) Providing the public with information concerning the operation of long-term care facilities in this State. (h) This chapter shall be construed broadly to accomplish the purposes set forth in this section.

Del. Code tit. 16, § 1102 Definitions [Effective until Feb. 27, 2027].

As used in this chapter: (1) “Affiliate” means a person, as defined in § 302 of Title 1, who directly or indirectly through 1 or more intermediaries, controls or is controlled by, or is under common control with, a specified entity or person. (2) “CMS” means the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services. (3) “Controlling person” means: a. A person who has the ability, acting alone or in concert with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of a facility or other person. b. For purposes of this chapter, “controlling person” includes the following: 1. A management company, landlord, or other business entity that operates or contracts with others for the operation of a facility. 2. Any person who is the controlling person of a management company or other business entity that operates a facility or who contracts with another person for the operation of a facility. 3. Any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility. c. A controlling person described by paragraph (3)b.3. of this section does not include a person, such as an employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over the operation of a facility. d. The Department may adopt regulations to define the ownership interest and other relationships that qualify a person as a controlling person. (4) “Department” means the Department of Health and Social Services. (5) “Division” means the Division of Health Care Quality. (6) “Facility owner” means any person with direct or indirect ownership or controlling interest in a long-term care facility of 5% or more. (7) a. “Long-term care facility” means a residential facility that provides shelter and food to more than 1 individual who meets all of the following: 1. Because of the individual’s physical or mental condition, require a level of care and services suitable to the individual’s needs to contribute to the individual’s health, comfort, and welfare. 2. Is not related within the second degree of consanguinity to the facility’s controlling person. b. “Long-term care facility” includes all of the following: 1. A nursing facility. — As used in this chapter, “nursing facility” commonly referred to as a “nursing home,” means a residential facility that provides services to residents including resident beds, continuous nursing services, and health and treatment services for individuals who do not currently require continuous hospital care and that provides care in accordance with a physician’s order and requires the supervision of a registered nurse (RN). 2. An assisted living facility. — As used in this chapter, “assisted living facility” means a special combination of housing, supportive services, supervision, personalized assistance, and health care designed to respond to the individual needs of those who need help with activities of daily living or instrumental activities of daily living. Facilities offer living arrangements to medically stable adult individuals who do not require the skilled nursing services of a nursing facility. 3. Intermediate care facility for persons with intellectual disabilities. — As used in this chapter, “intermediate care facility for persons with intellectual disabilities” means a residential facility that provides services to residents with intellectual disabilities including resident beds, continuous nursing services, and health and treatment services for individuals who do not currently require continuous hospital care and that provides care in accordance with a physician’s order and requires the supervision of a registered nurse (RN). 4. A neighborhood home. — As used in this chapter, a “neighborhood home” means a residence for no more than 5 individuals that is fully integrated in the community, not on the grounds of an institution, has shared common living areas, is where the individual chooses to live, and offers 24-hour supports to individuals with intellectual or developmental disabilities. 5. A group home for persons with mental illness. — As used in this chapter, a “group home for persons with mental illness” means a residence that provides 24-hour supports, mental health treatment, rehabilitation, housing for between 3 and 10 adults with a primary diagnosis of psychiatric disabilities, and is fully integrated in the community, not on the grounds of an institution, has shared common living areas, and is where the individual chooses to live. “Group home for persons with mental illness” does not include supervised apartments. 6. A group home for persons with AIDS. — As used in this chapter, a “group home for persons with AIDS” means a residence for 16 or less individuals with AIDS that only admits those individuals with an established diagnosis and disease progression such that the individual requires a routine and frequent combination of physician, professional nursing, and supportive services. 7. A family care home. — As used in this chapter, a “family care home” means a home, including a physical structure and the necessary equipment, that provides beds and personal care services for 2 or 3 residents who cannot live independently and who need or could benefit from a family living situation, and that provides shelter, housekeeping services, food, meals, and personal care for residents. 8. A rest residential facility. — As used in this chapter, a “rest residential facility” means a facility that provides resident beds and personal care services in a homelike environment for adult individuals who are normally able to manage their own activities of daily living. 9. An intensive behavioral support and educational residence. — As used in this chapter, an “intensive behavioral support and educational residence” means a residential facility that provides services to adult individuals with autism, developmental disabilities, or severe mental or emotional disturbances who have specialized behavioral needs. (8) “Long-Term Care Residents’ Trust Fund” means a fund maintained by the Department to which civil monetary penalties are to be remitted consistent with the federal Centers for Medicare and Medicaid Services (“CMS”) regulations, 42 C.F.R. § 488.442(g). (9) “Memory care services” means ongoing specialized care for residents who demonstrate symptoms of memory-impacting conditions, including traumatic brain injuries, Alzheimer’s disease, or other dementias, to an extent that such symptoms interfere with activities of daily living. Such care is designed to manage the behavioral and psychological symptoms of memory-impacting conditions, including traumatic brain injuries, Alzheimer’s disease, or other dementias. Such care includes planned group and individual programming and person-centered care practices to support activities of daily living for residents living with memory-impacting conditions, including traumatic brain injuries, Alzheimer’s disease, or other dementias. Memory care services may be provided in a facility that is not or does not include a secured memory care unit. Memory care services includes dementia care services. (10) “Person” means an individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company, or any other legal entity, and includes a legal successor of those entities. (11) “Protection and advocacy agency” means the Community Legal Aid Society, Inc. or successor agency designated the state protection and advocacy system under 42 U.S.C. § 10801 et seq.; 42 U.S.C. § 15001 et seq.; or 29 U.S.C. § 794e. (12) “Resident” means an individual, whether identified as a patient, guest, or other designation, residing and receiving services in a long-term care facility. (13) “Secured memory care unit” means a designated area or setting designed for individuals who demonstrate symptoms of memory-impacting conditions, including traumatic brain injury, Alzheimer’s disease, or other dementias, that is secured for the purpose of preventing a resident from exiting, or for the purpose of limiting a resident’s ability to exit, the secured area or setting. A secured memory care unit is not solely an individual resident’s personal living area. A secured memory care unit does not include all facilities that provide memory care services. (14) “State Civil Penalty Trust Fund” means a fund maintained by the Department to which civil money penalties imposed for violations of state statute or regulation are to be remitted. Money deposited into this Trust Fund may not be used for salaries or general operating costs of the Department but must be used for the benefit and protection of long-term care residents to further the purposes set forth in this chapter and Chapter 79 of Title 29. (15) “Temporary staffing agency” means a business entity or subdivision that provides temporary staff to a long-term care facility within this State.

Del. Code tit. 16, § 1103 License and renewal requirement.

(a) A person may not establish, conduct, or maintain any long-term care facility in this State without first obtaining a license from the Department and thereafter renewing this license on an annual basis. Failure to comply with this subsection shall result in the imposition by the Department of a civil penalty not to exceed $10,000 per violation. (b) A nursing facility, assisted living facility, or rest residential facility must operate under the direction of an individual authorized or licensed to perform the functions of a nursing home administrator under Chapter 52 of Title 24.

Del. Code tit. 16, § 1104 License and renewal application.

(a) An application for a license or renewal of a license shall be submitted to the Division on forms provided by the Division and must be accompanied by the applicable license fee. (b) In addition to the general information requested on the application forms, the applicant or license holder must furnish evidence to affirmatively establish the applicant’s or license holder’s ability to comply with all of the following: (1) Minimum standards of medical care or nursing care, as applicable by type of facility. (2) Financial capability. (3) Any other applicable state and federal laws and regulations for that category of facility. (c) The Department shall consider the background and qualifications of the applicant or license holder and it may also consider the background and qualifications of all of the following: (1) Any partner, officer, director, or managing employee of the applicant or license holder. (2) Any person who owns or controls the physical plant in which the facility operates or is to operate. (3) Any controlling person with respect to the facility for which a license or license renewal is requested. (d) In making the evaluation described in subsection (c) of this section, the Department shall require the applicant or license holder to file a sworn affidavit of a satisfactory compliance history and any other information required by the Department to substantiate a satisfactory compliance history relating to each state or other jurisdiction in which the applicant operated a facility any time during the 5-year period preceding the date on which the application is made. The Department by regulation shall define what constitutes a satisfactory compliance history. The Department may also require the applicant to file information relating to its financial condition during the 5-year period preceding the date on which the application is made. The Department may also request any of the above-described information about any other person described by subsection (c) of this section. (e) The Department may monitor the financial capability and financial health of licensed long-term care facilities. The Department shall promulgate regulations regarding the financial disclosure requirements for long-term care facilities and documents provided are not public records under the Freedom of Information Act, Chapter 100 of Title 29. (f) (1) The license shall terminate if and when there is a transfer of a long-term care facility to another person or controlling person or the business ceases legal existence or discontinues operation. (2) No license granted by the Department shall be assigned or otherwise transferred to another person or controlling person. (g) The Department shall grant an initial license to any newly established long-term care facility, provided that the requirements of this section are met. The term of such initial license may be no more than 365 days. (h) A license, unless sooner suspended or revoked, may be renewed annually upon filing by the licensee and payment of an annual licensure fee. A provisional license, as authorized by the Department, may be issued when requirements are not met and the annual licensure fee has been submitted. A long-term care facility which has been issued a provisional license shall resubmit the application fee for re-inspection prior to the issuance of an annual license.

Del. Code tit. 16, § 1104A Voluntary accreditation for assisted living facilities.

(a) The Department shall maintain a publicly accessible registry of assisted living facilities not subject to CMS regulations that have attained accreditation by the Joint Commission, a successor organization, or an independent accrediting organization approved by the Department. (b) An assisted living facility that wishes to be included on the Department’s registry must submit proof of accreditation to the Department at least once a year and at least 90 days prior to license renewal. (c) The Department may promulgate and adopt rules and regulations to implement the provisions of this section.

Del. Code tit. 16, § 1104B Certification for assisted living facilities that provide memory care services.

(a) In the voluntary accreditation registry maintained by the Department under § 1104A of this title, the Department shall designate which accredited assisted living facilities that provide memory care services have submitted proof of a certification for the provision of memory care services by the Joint Commission, a successor organization, or an independent accrediting organization approved by the Department. (b) Assisted living facilities that wish to have their certification for the provision of memory care services included in the accreditation registry must submit proof of certification to the Department at least once a year and at least 90 days prior to license renewal. (c) The Department may promulgate and adopt rules and regulations to implement the provisions of this section.

Del. Code tit. 16, § 1105 Denial of license or its renewal.

(a) The Department may deny a license to any applicant or refuse to renew a license to any license holder if the Department finds that the applicant or license holder or any partner, officer, director, managerial employee or controlling person of the applicant or license holder has done any of the following: (1) Failed to meet the requirements of § 1104 of this title. (2) Operated any long-term care facility without a license or under a revoked or suspended license in any jurisdiction. (3) Knowingly, or with reason to know, made a false statement of a material fact in an application for license or renewal, or any data attached thereto, or in connection with any matter under investigation by the Department, or in any document submitted to the Department, including a plan for the correction of all violations of applicable laws or regulations. (4) Refused to allow representatives or agents of the Department to inspect a portion of the premises of the facility or any resident-related documents, records, and files required to be maintained by the facility. (5) Interfered with or attempted to impede in any way the work of any authorized representative of the State or protection and advocacy agency or the lawful enforcement of any provision of this chapter. (6) Has a history of noncompliance with federal or state law or regulations in providing long-term care. (b) The due process protections of notice and an opportunity to be heard must be provided to facilities prior to the denial of a license or its nonrenewal. The hearing process must be consistent with the Administrative Procedures Act, Chapter 101 of Title 29. (c) In deciding whether to deny a license or its renewal under this section, the factors to be considered by the Department must include the severity and recurrence of the noncompliance.

Del. Code tit. 16, § 1106 License fees.

(a) (1) The fees for issuance and renewal of licenses pursuant to this chapter for nursing facilities, assisted living facilities, rest residential facilities, and intermediate care facilities for persons with intellectual disabilities may not exceed $150 plus the following: a. $250 for facilities with less than 100 units of capacity or bed space for which a license is sought. b. $400 for facilities with 100 or more units of capacity or bed space. c. A background examination fee for initial applications in an amount set by the Department necessary to defray its expenses in administering its duties under § 1104(c) and (d) of this title, but not to exceed $500. (2) The total fee for all other facilities with 16 or fewer units of capacity or bed space is $50. (b) The license fee required under subsection (a) of this section must be paid with each application for initial license, a renewal license, or an initial license. (c) The State is not required to pay the license fee for any facilities it operates or owns which require licensure under this chapter. (d) All license fees collected by the Department must be remitted to the General Fund. (e) A new application and a fee of $50 must be submitted for changes to a license which occur during the licensure year, including any of the following changes: (1) An approved increase in bed space. (2) An approved decrease in bed space. (3) A facility change of name.

Del. Code tit. 16, § 1107 Inspections and monitoring.

(a) The Department shall inspect each long-term care facility as follows: (1) The Department must conduct an inspection of each long-term care facility not later than 15 months after the last day of the previous inspection. (2) The statewide average interval between inspections of long-term care facilities must be 12 months or less, computed in accordance with paragraph (a)(3) of this section. (3) The statewide average interval is computed at the end of each fiscal year by comparing the last day of the most recent inspection for each participating facility to the last day of each facility’s previous inspection. (b) The Department shall have the authority to assess additional fees to recover the actual costs and expenses of the Department for any monitoring or inspections needed beyond the standard inspection in those cases in which substantiated violations are found. (c) Any duly authorized employee or agent of the Department may enter and inspect any facility licensed under this chapter without notice at any time. All licensees are required to provide immediate access to Department personnel to conduct inspections. Such inspections may include any of the following: (1) Interviewing residents. (2) Interviewing family members or staff. (3) Reviewing and photocopying any records and documents maintained by the licensee. (4) Inspecting any portion of the physical plant of the facility. (5) Enforcing any provision of this chapter and the regulations pursuant to it, as well as applicable federal law and regulations. (6) Determining whether a facility complies with the inspection participation requirements. (7) Confirming that the facility has corrected deficiencies previously cited. (d) Advance notice may not be given to any facility of any inspection conducted under this chapter unless specifically authorized by the Secretary of the Department or the Secretary’s designee or as otherwise required by federal law or regulation. Failure to comply with this subsection results in the imposition by the Department of a civil penalty not to exceed $5,000 per violation. (e) At the conclusion of each inspection, the Department shall promptly notify the facility of any violations of this chapter and its regulations as well as of federal law and regulations. It shall provide a comprehensive exit interview at the conclusion of each inspection whereby the facility is made aware of any problems found, including violations of applicable law or regulations. Representatives from the Long-Term Care Ombudsperson’s Office shall be invited to attend each exit interview. (f) [Repealed.] (g) Any person who is a former employee of a long-term care facility is disqualified from participating for 2 years in any manner in any inspection of that facility. (h) Any person who has a relative residing or working in a long-term care facility is disqualified from participating in any manner in any inspection of that facility.

Del. Code tit. 16, § 1108 Posting of inspection summary and other information and public meetings.

(a) Each facility shall prominently and conspicuously post for display in a public area of the facility that is readily available to residents, employees, and visitors the following: (1) The license issued under this subchapter. (2) A sign prescribed by the Department that specifies complaint procedures and provides the “1-800” hotline number to receive complaints 24 hours a day, 7 days a week. (3) The most recent state survey report prepared by the Department of the most recent inspection report for the facility. (4) A notice, as required by regulation, in the form prescribed by the Department stating that informational materials relating to the compliance history of the facility are available for inspection at a location in the facility specified by the sign and online at a web site specified by the sign. The notice shall also provide the telephone number to reach the Department to obtain the same information concerning the facility. (5) A notice, as required by regulation, that the Division of Professional Regulation can provide information about the facility administrator along with the Division of Professional Regulation telephone number to call for this information. (b) [Repealed.] (c) The compliance history information required to be maintained for public review must be maintained in a well-lighted accessible location. The compliance history material must include all inspection reports produced for that facility during the preceding 3-year period. The information must be updated as each new inspection or other Department report is received by the facility. (d) Following completion of the annual inspection report, the Department shall schedule a meeting, as required under regulations, to take place at the facility to present the findings of the annual report. (1) The Department shall require the facility to notify residents and their families of the meetings required under this subsection. (2) The Department shall provide staff for these meetings and the staff shall be prepared to present the findings of the surveys and to answer questions regarding the surveys and plans of action. (e) A long-term care facility must disclose, in the manner and form determined by the Department, the facility owner of the long-term care facility, including all controlling persons of an entity or affiliate that is not a publicly traded corporation or nonprofit corporation. A long-term care facility must update this disclosure within 30 calendar days of any change to the information previously disclosed. (f) The Department shall publish the disclosed information of the current facility owner, including any controlling persons, of each long-term care facility on the Department’s website. (g) A long-term care facility must prominently and conspicuously post the current facility owners of the long-term care facility on the long-term care facility’s website. Any printed informational brochures that are provided and used in direct consultation with potential residents and their families must include a statement directing recipients of the materials to the website of the long-term care facility and to the Department’s website for information about the ownership of the long-term care facility.

Del. Code tit. 16, § 1108A Required disclosure for transfer of ownership.

(a) In addition to required modification of ownership and control paperwork, the proposed new facility owner of a long-term care facility must disclose to the Department, in the manner and form determined by the Department, information related to any other licensed long-term care facilities owned by the proposed new facility owner, or any affiliates of the proposed new facility owner, seeking to assume ownership of the long-term care facility, including: (1) Any licensed long-term care facility owned, operated, or managed by the proposed new facility owner, or any affiliates of the proposed new facility owner, in any state or territory of the United States or in the District of Columbia in the preceding year. (2) Any disciplinary actions related to a material risk to the health, safety, or welfare of a resident imposed during the preceding year against any facility owned, operated, or managed by the proposed new facility owner or any affiliates of the proposed new facility owner in any jurisdiction. (b) Within 30 days of receiving approval of the required modification of ownership and control paperwork from the Department, the current facility owner of the long-term care facility must disclose to each current resident of the long-term care facility and, if applicable, each authorized representative of a current resident of the long-term care facility the following information: (1) The name of the proposed new facility owner of the long-term care facility. (2) Any licensed long-term care facility owned, operated, or managed by the proposed new facility owner, or any affiliates of the proposed new facility owner, in any state or territory of the United States or in the District of Columbia in the preceding year. (3) Any disciplinary actions related to a material risk to the health, safety, or welfare of a resident imposed during the preceding year against any facility owned, operated, or managed by the proposed new facility owner or any affiliates of the proposed new facility owner in any jurisdiction. (c) Within 30 days of the Department’s issuance of a new license under the new facility owner, the new facility owner must provide a second notice to each current resident of the long-term care facility, and, if applicable, each authorized representative of a current resident, confirming the information required under subsection (b) of this section and the effective date of the transfer of ownership. (d) This section does not apply to the transfer of ownership of a long-term care facility when either of the following apply: (1) A binding agreement of sale has been executed prior to July 23, 2026. (2) An application for licensure, change of ownership, or other required regulatory approval has been submitted to the Department prior to July 23, 2026.

Del. Code tit. 16, § 1109 Civil penalties.

(a) (1) The Department may impose civil money penalties for the violation of provisions of this chapter or the regulations adopted pursuant to it. (2) A licensee or other person is liable for a civil penalty of not less than $2,000 nor more than $20,000 per violation for violations which the Department determines pose a serious threat to the health and safety of a resident. (b) In determining the amount of the penalty to be assessed under subsection (a) of this section, the Department must consider all of the following: (1) The seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard or potential hazard created by the violation to the health or safety of a resident or residents. (2) The history of violations committed by the person or the person’s affiliate, employee, or controlling person. (3) The efforts made by the facility to correct the violation. (4) The culpability of the person who committed the violation. (5) A misrepresentation made to the Department or to another person regarding any of the following: a. The quality of services provided by the facility. b. The compliance history of the facility. c. The identity of an owner or controlling person of the facility. (6) Any other matter that affects the health, safety, or welfare of a resident. (c) For all other violations that do not constitute a serious threat to the health and safety of a resident, but do violate this chapter or the regulations adopted pursuant to it, the maximum civil penalty is $10,000 per violation. Violations in this category include any of the following: (1) Making a false statement that the person knows or should know is false, about 1 of the following: a. A material fact on an application for issuance or renewal of a license or any document attached to an application. b. A material fact with respect to a matter under investigation by the Department. (2) Refusing to allow a representative of the Department to inspect without notice at any time either of the following: a. Any portion of the premises of a facility. b. Any documents, records, or files required to be maintained by a facility. (3) Wilfully interfering with the work of a representative of the Department or with the enforcement of this chapter. (4) Wilfully interfering with the preservation of evidence of a violation of this chapter or regulation pursuant to it. (d) In determining the amount of the penalty to be assessed under subsection (c) of this section, the Department shall consider the factors in subsection (b) of this section. (e) Each day of a continuing violation constitutes a separate violation. However, a penalty for a health and safety violation may not exceed $5,000 per day beyond the initial day. A penalty for a nonhealth and safety violation may not exceed $2,500 per day beyond the initial day.

Del. Code tit. 16, § 1111 Overlap of state licensing and federal certification penalties.

(a) The Department may not collect a civil monetary penalty for the same deficient practice for which the federal government has levied a civil monetary penalty. (b) In the event that a civil monetary penalty has been collected by the State and the federal government subsequently collects a penalty for the same conditions, the State shall refund the previously collected penalty.

Del. Code tit. 16, § 1112 Collection of civil penalties.

(a) All civil penalties collected under this chapter must be remitted to the Long-Term Care Residents’ Trust Fund if based on a federal regulation, or to the State Civil Penalty Trust Fund, if based on a state statute or regulation. (b) Payment of any civil penalty by a facility is not an allowable cost for reimbursement under the state Medicaid program or under other state-funded programs. (c) If a long-term care facility, after notice and opportunity for hearing, does not pay a properly assessed penalty in accordance with this subchapter, the Department shall deduct the amount of the civil penalty from amounts otherwise due from the State to the long-term care facility and remit that amount to the State Civil Penalty Trust Fund. (d) Alternatively, the Department may add the amount of the civil penalty to the licensing fee for the long-term care facility. If the licensee refuses to make the payment at the time of the application for renewal of its license, its license may not be renewed. (e) The Department 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) In the event of financial hardship, as determined by the Department, the Department may redirect the payment of penalties by the facility to take remedial action to correct the violation or violations.

Del. Code tit. 16, § 1113 Other remedies for noncompliance.

In addition to civil money penalties, the Department may impose any or all of the following remedies for noncompliance with this chapter and the regulations promulgated pursuant to it or for noncompliance with § 1731A of Title 24 or § 903 of this title: (1) Require monitoring at facility expense, according to the terms and conditions, including timeframes, determined necessary by the Department. (2) Suspend the admission or readmission of residents to the long-term care facility under the terms and conditions, including timeframes, determined by the Department. (3) Transfer residents whose care needs are not being met by the licensee. (4) Suspend, revoke, or refuse to renew a license. (5) In cases where the physical health or safety of residents is in imminent risk, issue an emergency order temporarily transferring the management of the facility to another qualified entity under the terms and conditions, including timeframes, determined by the Department. (6) Issue a provisional license for a long-term care facility that is in substantial but not full compliance with applicable laws and regulations.

Del. Code tit. 16, § 1114 Right to hearing on deficiencies and remedies for noncompliance.

The due process protections of notice and opportunity to be heard shall be provided to facilities to appeal survey deficiencies, as well as the imposition of remedies for noncompliance imposed under §§ 1112 and 1113 of this title. The hearing process shall be consistent with the Administrative Procedures Act, Chapter 101 of Title 29.

Del. Code tit. 16, § 1115 Injunctive relief.

In addition to any other remedy provided by law, the Department may bring an action in Chancery Court to enjoin a long-term care facility from engaging in activities that pose a threat to the health or safety of a resident of the long-term care facility. A temporary restraining order may be granted by the court if continued activity by the long-term care facility would create an imminent risk to a resident at the facility.

Del. Code tit. 16, § 1116 Coordination of enforcement actions with the attorney general’s office.

(a) The Department and the Attorney General shall work in close cooperation throughout any legal proceeding initiated by the Department to enforce this chapter and the regulations promulgated under it. (b) The Secretary of the Department or the Secretary’s designee must be fully consulted before concluding any settlement agreement to a lawsuit brought under this chapter or any other law relating to the health and safety of residents in long-term care facilities.

Del. Code tit. 16, § 1117 Retaliation or discrimination against complainant.

(a) A licensee or other person may not discriminate or retaliate in any manner against a resident or employee in its facility on the basis that such resident or employee or any other person on behalf of the resident or employee has initiated or participated in any proceeding pursuant to this chapter, including providing information in connection with an inspection or facilitating a protection and advocacy agency investigation. The Department shall impose a civil penalty of not more than $10,000 per violation upon any licensee or other person who violates this subsection. (b) Any attempt to expel a resident of the long-term care facility or any other type of retaliatory or discriminatory treatment of a resident or employee or any other person by whom, or upon whose behalf, a complaint has been submitted to the Department or protection and advocacy agency or who has participated in any proceeding instituted under this chapter within 1 year of the filing of the complaint or the institution of such action, shall raise a rebuttable presumption that such action was taken by the licensee or other person in retaliation for the filing of the complaint or the cooperation with the proceeding.

Del. Code tit. 16, § 1118 Third-Party reimbursement.

Consistent with federal law, 42 U.S.C. § 1395i-3(c)(5), with respect to admissions policy and practices, a long-term care facility must not require a third-party guarantee or payment to the facility as a condition of admission or expedited admission to, or continued stay in the facility.

Del. Code tit. 16, § 1119A Confidentiality of resident records.

To protect the privacy of residents of a long-term care facility, the Department shall establish guidelines to protect the confidentiality of any records, documents, or files pertaining to such residents.

Del. Code tit. 16, § 1119B Pediatric nursing services.

A facility that provides services to a resident younger than 18 years of age shall ensure all of the following: (1) Nursing services for a resident younger than 18 years of age are provided by staff who have received training and demonstrated competence in the care of children. (2) Consultative pediatric nursing services are available to the staff.

Del. Code tit. 16, § 1119C Regulations.

(a) The Department has the authority to adopt, amend, repeal, or issue regulations to implement this chapter. In addition to regulations by category of facility to be licensed, the Department shall also develop pediatric regulations regarding the care of children in long-term care facilities and regulations regarding the operations of temporary staffing agencies. (b) The Department shall include in its regulations for all facilities licensed under this chapter a requirement of full cooperation with the protection and advocacy agency in fulfilling functions authorized by this chapter. Without limiting the protection and advocacy’s agency’s pursuit of other legal remedies, the Department shall enforce violations of such regulations consistent with §§ 1109 and 1113 of this title.

Del. Code tit. 16, § 1119D Temporary staffing agencies.

(a) A temporary staffing agency is required to register with the Division and renew the registration annually. In the event of a change in ownership, operation, or location, the temporary staffing agency shall update the registration under the rules adopted by the Department. (b) A temporary staffing agency shall ensure that each employee the staffing agency assigns or refers for a position at a long-term care facility meets state and federal qualification requirements and has the appropriate work experience for that position. A temporary staffing agency shall maintain a record for each employee that must include documented evidence of credentials and required immunizations and documentation of any orientation, in-service education, and completion of training or educational program required by law. A temporary staffing agency shall make the record described in this subsection available to the Department or the long-term care facility where the employee is assigned upon either party’s request. (c) A temporary staffing agency may not require, as a condition of employment, assignment, or referral, that an employee of the temporary staffing agency or staff contracted to the temporary staffing agency recruit new employees for the temporary staffing agency from among the permanent employees of the long-term care facility to which the temporary staffing agency employees or contracted staff have been assigned or referred. (d) A temporary staffing agency shall provide an annual report to the Division that includes all of the following information: (1) The number of total employees placed, the health-care settings where they were placed, the average duration of the placements, and the state of licensure for those employees. (2) The total and average amounts charged during each quarter of the reporting period to a long-term care facility per employee providing services to the long-term care facility. (3) Documentation showing that the temporary staffing agency has records that each employee contracted to a health-care facility during the reporting period had a current, unrestricted license or certification in good standing and met the training and continuing education standards required by state and federal law for the position with the long-term care facility throughout the entirety of the reporting period. (4) Documentation showing that the temporary staffing agency has records that each employee contracted to a long-term care facility had satisfied all background checks required by federal and state law relating to the position and long-term care facility in which the employee was placed during the reporting period. (e) The Division may charge a reasonable registration fee to temporary staffing agencies that may not exceed the costs to the Division of administering this section.

Del. Code tit. 16, § 1120 Insurance requirement [Effective Feb. 27, 2027].

(a) A covered long-term care facility must maintain insurance coverage in a minimum amount of $1 million per claim/$3 million in the aggregate each for general liability and professional liability, respectively. These policies must also include abuse and molestation coverage. (b) A covered long-term facility must, as a condition of receiving and maintaining an active license, certification, or other authority to provide health-care services in this State, furnish proof of the required insurance to the Department. (c) A covered long-term care facility must provide proof of the required insurance with any application for renewal of such license, certification, or authority. (d) An insurance company providing coverage to a covered long-term care facility must notify the Department within 14 days of any lapse in or cancellation of coverage for the covered long-term care facility. (e) Failure to maintain minimum insurance limits under this section will result in revocation of the covered long-term care facility’s license. (f) This section does not apply to a covered long-term care facility owned and operated by this State.

Del. Code tit. 16, § 1121 Resident’s rights.

(a) It is the intent of the General Assembly, and the purpose of this section, to promote the interests and well-being of the residents in long-term care facilities. (b) It is the public policy of this State that the interests of the resident must be protected by a declaration of a resident’s rights, and by requiring that all facilities treat their residents in accordance with such rights, which must include the following: (1) Each resident shall have the right to receive considerate, respectful, and appropriate care, treatment and services, in compliance with relevant federal and state law and regulations, recognizing each person’s basic personal and property rights which include dignity and individuality. (2) Each resident and the authorized representative under § 1122 of this title of such resident shall, prior to or at the time of admission, receive a written statement of the services provided by the facility including those required to be offered on an “as needed” basis, and a statement of related charges for services not covered under Medicare or Medicaid, or not covered by the facility’s basic per diem rate. Upon receiving such statement, the resident and the resident’s authorized representative under § 1122 of this title representative shall sign a written receipt which must be retained by the facility in its files. (3) After admission, each facility shall submit to the resident or authorized representative, on a monthly basis, a written, itemized statement detailing, in language comprehensible to the ordinary layperson, the charges and expenses the resident incurred during the previous month. a. The statement shall contain a description of specific services, equipment and supplies received, and expenses incurred for each such item. b. The statement shall include an explanation of any items identified by code or by initials, but shall not include nursing home based physician charges if billed separately. c. The facility shall make reasonable efforts to communicate the contents of the individual written statement to persons who it has reason to believe cannot read the statement. (4) Each resident shall receive from the attending physician or facility physician complete and current information concerning the resident’s diagnosis, treatment, and prognosis in terms and language the resident can reasonably be expected to understand, unless medically inadvisable. (5) Each resident shall participate in the planning of the resident’s medical treatment, including attendance at care plan meetings. (6) Each resident may refuse medication or treatment and must be informed of the medical consequences of all medication and treatment alternatives. (7) Each resident shall give prior informed consent to participation in any experimental research after a complete disclosure of the goals, possible effects on the resident and whether or not the resident can expect any benefits or alleviation of the resident’s condition. a. In any instance of any type of experiment or administration of experimental medicine, there shall be written evidence of compliance with this section, including the signature of the resident or the resident’s authorized representative if the resident has been adjudicated incompetent. b. A copy of signed acknowledgment or informed consent, or both when required, shall be forwarded to each signer and a copy shall be retained by the facility. (8) At the bedside of each resident, the facility shall place and maintain in good order the name, address, and telephone number of the physician responsible for the resident’s care. (9) Each resident shall receive respect and privacy in the resident’s own medical care program. Case discussion, consultation, examination, and treatment shall be confidential, and shall be conducted discreetly. a. At the resident’s discretion, persons not directly involved in the resident’s care may not be permitted to be present during such discussions, consultations, examinations or treatment, except with the consent of the resident. b. Personal and medical records shall be treated confidentially, and shall not be made public without the consent of the resident, except such records as are needed for a resident’s transfer to another health-care institution or as required by law or third-party payment contract. c. No personal or medical records shall be released to any person inside or outside the facility who has no demonstrable need for such records. (10) Each resident shall be free from chemical and physical restraints imposed for purposes of discipline and convenience, and not necessary to treat the resident’s medical condition. (11) Each resident shall receive from the administrator or staff of the facility a courteous, timely, and reasonable response to requests, and the facility shall make prompt efforts to resolve grievances. Responses to requests and grievances shall be made in writing upon written request by the resident. (12) Each resident shall be provided with information as to any relationship the facility has with other health-care and related institutions or service providers, including pharmacy and rehabilitation services, to the extent the resident is offered care or services from these related entities. Such information shall be provided in writing upon admission, and thereafter when additional services are offered. (13) Each resident shall receive care that meets professional standards of care. (14) a. Each resident may associate and communicate, including visits and visitation, privately and without restriction with persons and groups of the resident’s own choice, on the resident’s own or their initiative, at any reasonable hour. b. Nothing in 77 Del. Laws, c. 49 precludes a long-term care facility, as defined in § 1102 of this title, from restricting visitations due to attempts to interfere with resident care, the presentation of a threat to staff, and residents, or personnel, or other actions disruptive to the facility’s operations. (15) Each resident may send and shall receive mail promptly and unopened. (16) Each resident shall have access at any reasonable hour to a telephone where the resident may speak privately. (17) Each resident shall have access to writing instruments, stationery, postage, and the Internet. (18) Each resident has the right to manage the resident’s own financial affairs. a. If, by written request signed by the resident, or by the authorized representative of a resident who has been adjudicated incompetent, the facility manages the resident’s financial affairs, it shall have available for inspection a monthly accounting, and shall furnish the resident and the resident’s authorized representative with a quarterly statement of the resident’s account. b. The resident shall have unrestricted access to such account at reasonable hours. (19) Each resident shall enjoy privacy in visits by the resident’s spouse or domestic partner and, if spouses or domestic partners are both residents of the facility, they shall be afforded the opportunity where feasible to share a room, unless medically contraindicated. (20) Each resident has the right of privacy in the resident’s own room, and personnel of the facility shall respect this right by knocking on the door before entering the resident’s room. (21) Each resident has the right, personally, through other persons, or in combination with others to do any the following: a. Exercise the resident’s own rights. b. Present grievances. c. Recommend changes in facility policies or services on behalf of the resident’s self or others. d. Present complaints or petitions to the facility’s staff or administrator, the Department of Health and Social Services, the protection and advocacy agency, or other persons or groups without fear of reprisal, restraint, interference, coercion, or discrimination. (22) A resident may not be required to perform services for the facility. (23) Each resident shall have the right to retain and use the resident’s own personal clothing and possessions where reasonable, and shall have the right to security in the storage and use of such clothing and possessions. (24) The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility, except as provided in § 1127 of this title. (25) Each resident has the right to inspect all records pertaining to the resident, upon oral or written request, within 24 hours of notice to the facility. Each resident has the right to purchase photocopies of such records or any portion of them, at a cost not to exceed the community standard, upon written request and 2 working days’ advance notice to the facility. (26) Each resident must be fully informed, in plain language and in a language in which the resident is fluent, of the resident’s rights and all rules and regulations governing resident conduct and the resident’s responsibilities during the stay at the facility. This must be provided in a format that is accessible to the patient and any authorized representative. (27) Each resident has the right to choose a personal attending physician. (28) Each resident has the right to examine the results of the most recent survey of the facility conducted by federal or state surveyors and any plan of correction in effect with respect to the facility. (29) Each resident has the right to receive information from the protection and advocacy agency and agencies acting as client advocates and be afforded the opportunity to contact those agencies. (30) Each resident shall be free from verbal, physical or mental abuse, cruel and unusual punishment, involuntary seclusion, withholding of monetary allowance, withholding of food, and deprivation of sleep. (31) Each resident shall be free to make choices regarding activities, schedules, health care, and other aspects of the resident’s life that are significant to the resident, as long as such choices are consistent with the resident’s interests, assessments, and plan of care and do not compromise the health or safety of the individual or other residents within the facility. (32) Each resident has the right to participate in an ongoing program of activities designed to meet, in accordance with the resident’s individualized assessments and plan of care, the resident’s interests and physical, mental, and psychosocial well-being. (33) Each resident has the right to participate in social, religious, and community activities that do not interfere with the rights of other residents. (34) Each resident shall receive notice before the resident’s room or roommate is changed, except in emergencies. The facility shall endeavor to honor the room or roommate requests of the resident whenever possible. (35) Each resident shall be encouraged to exercise the resident’s own rights as a citizen of this State and the United States of America. (36) Each resident has the right to request and receive information regarding minimum acceptable staffing levels as it relates to the resident’s own care. (37) Each resident has the right to request and receive the names and positions of staff members providing care to the resident. (38) Each resident has the right to request and receive an organizational chart outlining the facility’s chain of command for purposes of making requests and asserting grievances. (39) Each resident has the right to compliance with the resident’s advance health-care directive, power of attorney, Delaware Medical Orders for Scope of Treatment, or similar document in accordance with and subject to Chapter 49 of Title 12, Chapter 49A of Title 12, Chapter 25 of this title, and Chapter 25A of this title. (40) [Repealed.] (41) Each resident must be provided care which recognizes cultural differences and preferences. (42) Each resident has the right to be free from discrimination on any basis protected under Chapter 45 of Title 6 in the provision of care, treatment, or services.

Del. Code tit. 16, § 1122 Devolution of rights [For application of this section, see 85 Del. Laws, c. 485, § 5].

Where consistent with the nature of each right in § 1121 of this title, particularly as they pertain to a resident adjudicated incompetent in accordance with Delaware law, if the resident is determined to need a representative under federal law, or the presumption of the resident’s capacity is rebutted under § 2504 of this title, all rights devolve to the resident’s authorized representative, as established under any of the following: (1) An advance health-care directive, as defined under § 2502 of this title. (2) [Repealed.] (3) A court-appointed guardian pursuant to Chapters 39 and 39A of Title 12, in accordance with the authority granted by the appointing court. (4) A default surrogate appointed under Chapter 25 of this title. (5) An individual who is otherwise authorized under applicable law to make the health-care decisions being made by execution of the POLST form on the patient’s behalf under Chapter 25A of this title. (6) A sponsoring agency or representative payee, except where the facility itself is the representative payee, selected under § 205(j) of the Social Security Act (42 U.S.C. § 405(j)).

Del. Code tit. 16, § 1123 Notice to resident.

(a) The Department must prepare a notice that includes § 1121 of this title in its entirety. This notice must be available in a language and format that is accessible to each resident or their authorized representative under § 1122 of this title. Within 30 days of any revisions to § 1121 of this title, the Department must prepare and make available an updated version of the notice. (b) Each long-term care facility must post the notice described in subsection (a) of this section conspicuously in a public area of the facility. (c) Each long-term care facility must furnish copies of the notice required under subsection (a) of this section to all of the following: (1) Each resident upon admittance to the facility. (2) All residents currently residing in the facility. (3) Each authorized representative under § 1122 of this title. (d) The long-term care facility must retain in its files a statement signed by each individual listed in subsection (c) of this section that the individual has received a copy of § 1121 of this title.

Del. Code tit. 16, § 1124 Staff training; issuance of regulations.

(a) Each facility shall provide appropriate staff training to implement the bill of rights under § 1121 of this title. Within 60 days of any revisions to § 1121 of this title, each facility must provide appropriate staff training that addresses the content of the revisions. (b) Rules and regulations implementing this subchapter shall be developed by the Department.

Del. Code tit. 16, § 1125 Investigation of grievances.

(a) The Department shall independently investigate any grievance concerning long-term care facilities. (b) Upon completion of an investigation, the Department shall report the findings to the complainants and to all other appropriate agencies of the State, county, or municipality as the case may be. If a grievance involves a protection and advocacy agency client, the findings shall be shared with the protection and advocacy agency.

Del. Code tit. 16, § 1126 Recording anatomical gift data.

(a) All long-term care facilities shall, if possible, ascertain from a resident upon admission whether or not the resident has donated all or part of the resident’s own body as an anatomical gift in a manner permitted by § 2713 of this title and the person, institution, or organization to which such gift has been made. (b) All long-term care facilities, as required by regulation, shall maintain as part of a resident’s permanent record the information required under this section and such other pertinent information about said anatomical gift which will facilitate the carrying out of the resident’s wishes in the event of the resident’s death. (c) Upon the death of a resident who has made an anatomical gift, long-term care facilities shall make every reasonable effort to contact without delay the person, institution, or organization to which such gift has been made.

Del. Code tit. 16, § 1127 Resident transfer or discharge.

(a) The facility must permit each resident to remain in the facility and not transfer or discharge the resident from the long-term care facility unless at least 1 of the following criteria has been met: (1) The transfer or discharge is both necessary for the resident’s welfare and the resident’s needs cannot be met in the facility with reasonable accommodations when assessed with due regard to the scope of the facility’s license. (2) The discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility. (3) The transfer or discharge is appropriate because the safety of individuals in the facility is endangered by the clinical or behavioral status of the resident. (4) The transfer or discharge is appropriate because the health of other individuals in the facility would otherwise be endangered. (5) The resident has failed, after reasonable and appropriate notice, to pay for, or to have paid by Medicare, Medicaid, or third party, a stay at the facility leading to discharge provided that: a. A resident who becomes eligible for Medicaid after admission to a facility may only be charged allowable charges under Medicaid. b. A resident who has submitted the necessary paperwork for third-party payment may not be discharged if a final decision on the claim has not been issued. (6) The facility ceases to operate. (b) Documentation. — Transfers or discharges under this section must be documented in the resident’s clinical record and must include all of the following: (1) The basis for the transfer or discharge under subsection (a) of this section. (2) In the case of a transfer or discharge under paragraph (a)(1) of this section, all of the following: a. The specific needs that cannot be met in the facility. b. The attempts made to meet those needs. c. The services available at the receiving facility to meet those needs. (3) The certification of the resident’s personal attending physician that transfer or discharge is necessary under paragraph (a)(1) or (a)(2) of this section. (4) A physician certification that transfer or discharge is necessary under paragraph (a)(3) or (a)(4) of this section. (c) Before a long-term care facility transfers or discharges a resident, the facility must issue a written notice of the transfer or discharge to the resident or resident’s authorized representative under § 1122 of this title and, if known, a family member or legal representative of the resident, whose content conforms to subsection (b) of this section. (d) Timing of the notice of transfer or discharge. — (1) Except as permitted under paragraph (d)(3) of this section, a notice of discharge must be issued by the long-term facility at least 30 days before the resident is transferred or discharged. (2) A long-term care facility may not discharge a resident during the pendency of administrative proceedings implementing a resident’s appeal of a discharge. (3) Notice must be issued as soon as practicable before transfer or discharge when 1 of the following standards is met: a. An immediate transfer or discharge is required by the resident’s urgent medical needs supported by the certification required under subsection (b) of this section. b. There is a significant and immediate threat to the health or safety of other individuals in the long-term care facility as documented under paragraph (b)(3) or (b)(4) of this section. c. The resident was admitted solely on a respite basis not to exceed 14 days or as an emergency placement by the Department not to exceed 21 days. (e) The written notice described in paragraph (d)(3) of this section must include all of the following in language comprehensible to the ordinary layperson subject to revision to meet known special language considerations of the recipient: (1) A detailed individualized explanation of each reason for the transfer or discharge. (2) The effective date of transfer or discharge. (3) The location to which the resident is transferred or discharged. (4) The time frame and procedure to appeal the action to the State. (5) The name, address, and telephone number of the State Long-Term Care Ombudsperson and Division. (6) The name, address, and telephone number of the protection and advocacy agency for facility residents with developmental disabilities or mental illness. (f) In administrative and judicial proceedings implementing a resident’s appeal of a transfer or discharge, resident rights and protections conferred by applicable federal law must be considered. (g) For any transfer or discharge authorized by subsection (a) of this section, the long-term care facility shall develop a plan with the participation of the resident and resident’s authorized representative under § 1122 of this title, if any, to assist with orientation and the safe and orderly transfer or discharge from the facility. (h) (1) If a resident is transferred out of a long-term care facility to an acute care facility or other specialized treatment facility all of the following apply: a. The long-term care facility must accept the resident back when the resident no longer needs acute or specialized care and there is space available in the facility. b. If no space is available, the resident must be accepted into the next available bed. (2) For purposes of this subsection, “specialized treatment facility” means a health-care setting including, settings licensed or certified pursuant under this chapter or Chapter 50, 51 or 56 of this title.

Del. Code tit. 16, § 1131 Definitions.

For purposes of this subchapter: (1) “Abuse” means the infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish and includes all of the following: a. Physical abuse. — “Physical abuse” means the unnecessary infliction of pain or injury to a patient or resident. “Physical abuse” includes hitting, kicking, punching, slapping, or pulling hair. If any act constituting physical abuse has been proven, the infliction of pain is presumed. b. Sexual abuse. — “Sexual abuse” includes any sexual contact, sexual penetration, or sexual intercourse, as those terms are defined in § 761 of Title 11, with a patient or resident by an employee or volunteer working at a facility. It is not a defense that the sexual contact, sexual penetration, or sexual intercourse was consensual. c. Emotional abuse. — “Emotional abuse” means the use of oral, written, or gestured language that includes disparaging and derogatory terms to patients, residents, their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability. “Emotional abuse” includes the violation of resident rights and privacy through the posting of inappropriate materials on social media. “Emotional abuse” includes all of the following: ridiculing, demeaning, humiliating, or cursing at a patient or resident; punishment or deprivation; or threatening a patient or resident with physical harm. d. [Repealed.] (2), (3) [Repealed.] (4) “Facility” means all of the following: a. Any facility required to be licensed under this chapter. b. Any facility operated by or for the State which provides long-term care residential services. c. [Repealed.] d. Any hospital as defined under Chapter 10 of this title. “Hospital” is included in the definition of facility only for the purposes and application of this section and § 1136 of this title. e. Any adult day care facility required to be licensed under Chapter 1 of this title. (5) “Financial exploitation” means the illegal or improper use of a patient’s or resident’s resources or financial rights by another person, whether for profit or other advantage. (6) [Repealed.] (7) “High managerial agent” means an officer of a facility or any other agent in a position of comparable authority with respect to the formulation of the policy of the facility or the supervision in a managerial capacity of subordinate employees. (8) “Investigation” means the collection of evidence in response to an allegation of abuse, neglect, mistreatment, financial exploitation, or medication diversion of a patient or resident to determine if that patient or resident has been abused, neglected, mistreated, or financially exploited or has been the victim of medication diversion. The Department shall develop protocols for its investigations which focus on ensuring the safety and well-being of the patient or resident and which satisfy the requirements of this chapter. (9) “Licensed independent practitioner” means a physician or an individual licensed and authorized to write medical orders under Chapter 17 or Chapter 19 of Title 24 and who is providing care for the patient or resident or is overseeing the health care provided to the resident. (10) a. “Medication diversion” means the knowing or intentional interruption, obstruction, or alteration of the delivery or administration of a prescription drug to a patient or resident, if both of the following apply: 1. The prescription drug was prescribed or ordered by a licensed independent practitioner for the patient or resident. 2. The interruption, obstruction, or alteration occurred without the prescription or order of a licensed independent practitioner. b. “Medication diversion” does not mean conduct performed by any of the following: 1. A licensed independent practitioner or licensed health-care professional who acted in good faith within the scope of the individual’s practice or employment. 2. An individual acting in good faith while rendering emergency care at the scene of an emergency or accident. (11) “Mistreatment” means the inappropriate use of medications, isolation, or physical or chemical restraints on or of a patient or resident. (12) “Neglect” means the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. Neglect includes all of the following: a. Lack of attention to physical needs of the patient or resident including toileting, bathing, meals, and safety. b. Failure to report patient or resident health problems or changes in health problems or changes in health condition to an immediate supervisor or nurse. c. Failure to carry out a prescribed treatment plan for a patient or resident. d. A knowing failure to provide adequate staffing which results in a medical emergency to any patient or resident where there has been a documented history of at least 2 prior cited instances of such inadequate staffing within the past 2 years in violation of minimum maintenance of staffing levels as required by statute or regulations promulgated by the Department, all so as to evidence a wilful pattern of such neglect. (13) “Person” means a human being and, where appropriate, a public or private corporation, an entity, an unincorporated association, a partnership, a government, or governmental instrumentality. (14) [Repealed.] (15) “Prescription drug” means a drug required by federal or state law or regulation to be dispensed only by a prescription, which means a lawful written or verbal order of a practitioner for a drug, including finished dosage forms and active ingredients, subject to § 503(b) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 353(b)).

Del. Code tit. 16, § 1132 Reporting requirements.

(a) (1) Any employee of a facility or person who provides services to a patient or resident on a regular or intermittent basis who has reasonable cause to believe that a patient or resident in a facility has been abused, neglected, mistreated, or financially exploited or has been the victim of medication diversion shall immediately report the abuse, neglect, mistreatment, financial exploitation, or medication diversion to the Department by oral communication. The employee or person providing services to a patient or resident shall file a written report within 48 hours after the employee or person providing services to a patient or resident first gains knowledge of the abuse, neglect, mistreatment, financial exploitation, or medication diversion. (2) In addition to the persons required to report abuse, neglect, mistreatment, financial exploitation, or medication diversion under paragraph (a)(1) of this section, any other person, including a patient or resident, may contact the Department to report any complaint concerning the health, safety, and welfare of patients or residents. (3) The Department shall inform a person making a report under paragraph (a)(1) or (a)(2) of this section of the person’s right to obtain information concerning the disposition of the report. The person must receive, if requested, information on the general disposition of the report at the conclusion of the investigation. (4) If the Department does not have jurisdiction over the report, the Department shall so advise the person making the report under paragraph (a)(1) or (a)(2) of this section and shall promptly refer the person to the appropriate agency. (b) Any person required by subsection (a) or (c) of this section to make an oral and a written report who fails to do so is to be fined not more than $1,000 or imprisoned not more than 15 days, or both. (c) In addition to those persons subject to subsection (a) of this section, any other person shall make a report if the person has reasonable cause to believe that a patient or resident has been abused, neglected, mistreated, or financially exploited, or has been the victim of medication diversion. A report under this subsection is confidential and the reporting person cannot be compelled to do either of the following: (1) Notify the facility, care provider, or individual implicated in the event. (2) Provide information regarding the reported abuse, neglect, mistreatment, financial exploitation, or medication diversion to the facility, care provider, or individual implicated in the event. (d) Any person who intentionally makes a false report under this subchapter is guilty of a class A misdemeanor. (e) Any correspondence or other written communication from a patient or resident to the Department, the Attorney General’s office, the protection and advocacy agency, or a law-enforcement agency must, if delivered to or received by a facility, be promptly forwarded, unopened, by the facility to the agency to which it is written. Violation of this subsection is punishable by a civil penalty not to exceed $1,000 per violation. (f) Any correspondence or other written communication from the Department, the Attorney General’s office, the protection and advocacy agency, or a law-enforcement agency to a patient or resident must, if delivered to or received by a facility, be promptly forwarded, unopened, by the facility to the patient or resident. Violation of this subsection is punishable by a civil penalty not to exceed $1,000 per violation.

Del. Code tit. 16, § 1133 Contents of reports.

The reports required under this subchapter must contain all of the following information: (1) The name and sex of the patient or resident. (2) The name and address of the facility in which the patient or resident resides. (3) The age of the patient or resident, if known. (4) The name and address of the reporter and where the reporter can be contacted. (5) Any information relative to the nature and extent of the abuse, neglect, mistreatment, financial exploitation, or medication diversion and, if known to the reporter, any information relative to prior abuse, neglect, mistreatment, financial exploitation, or medication diversion of the patient or resident. (6) The circumstances under which the reporter became aware of the abuse, neglect, mistreatment, financial exploitation, or medication diversion. (7) What action, if any, was taken to treat or otherwise assist the patient or resident. (8) Any other information which the reporter believes to be relevant in establishing the cause of the abuse, neglect, mistreatment, financial exploitation, or medication diversion.

Del. Code tit. 16, § 1134 State response to reports of adult abuse, neglect, mistreatment, financial exploitation, or medication diversion.

(a) The Department shall ensure that patients or residents are afforded the same rights and protections as other individuals in the State. (b) [Repealed.] (c) The Department shall establish and maintain a 24-hour statewide toll-free telephone report line operating at all times and capable of receiving reports of alleged abuse, neglect, mistreatment, financial exploitation, and medication diversion. (d) On receipt of an allegation of abuse, neglect, mistreatment, financial exploitation, or medication diversion, the Department shall do all of the following: (1) Receive and maintain reports in a computerized central data base. (2) Acknowledge all complaints, when authorized by the person making the report. The acknowledgement shall identify other relevant remedial agencies, including the protection and advocacy agency, Office of the Long-Term Care Ombudsperson, and victim rights resource organizations. (3) Forward complaints to the appropriate Department staff who shall determine, through the use of standard operating procedures developed by the Department, whether an investigation should be initiated to respond to the complaint. The Department shall develop the protocols for making this determination and the protocols must give priority to ensuring the well-being and safety of patients and residents. (4) Begin the investigation within 24 hours of receipt of any report or complaint that alleges any of the following: a. A patient’s or resident’s health or safety is in imminent danger. b. A patient or resident has died due to alleged abuse, neglect, mistreatment, or medication diversion. c. A patient or resident has been hospitalized or received medical treatment due to alleged abuse, neglect, mistreatment, or medication diversion. d. The existence of circumstances that could result in abuse, neglect, mistreatment, or medication diversion and that could place a patient’s or resident’s health or safety in imminent danger. e. A patient or resident has been the victim of financial exploitation or risk thereof and exigent circumstances warrant an immediate response. (5) Except in situations outlined in paragraph (d)(4) of this section, initiate and conclude an investigation within 10 days of receiving a report or complaint unless extenuating facts warrant a longer time to complete the investigation. (6) Contact the appropriate law-enforcement agency immediately on receipt of any complaint requiring an investigation under this section and provide the police with a detailed description of the complaint received. a. The appropriate law-enforcement agency shall conduct its investigation or provide the Department within a reasonable time an explanation detailing the reasons why it is unable to conduct the investigation. b. The Department may defer its own investigation in these circumstances until it receives appropriate guidance from the Attorney General’s Office and the relevant police agency with respect to how to proceed with its investigation thereby assuring a coordinated investigation. c. Notwithstanding any provision of the Delaware Code to the contrary, to the extent the law-enforcement agency with jurisdiction over the case is unable to assist, the Department may request that the Delaware State Police exercise jurisdiction over the case and, upon such request, the Delaware State Police may exercise such jurisdiction. (7) If a case is classified as an investigation under this subchapter, have the authority to secure a medical examination of a long-term care patient or resident on the consent of the patient or resident without the consent of the long-term care facility if the patient or resident has been reported to be a victim of abuse, neglect, or mistreatment, or medication diversion. (8) When a written report of abuse, neglect, mistreatment, financial exploitation, or medication diversion is made by a person required to report under § 1132(a) of this title, the Department shall contact the person who made the report within 48 hours of the receipt of the report in order to ensure that full information has been received and to obtain any additional information, including medical records, which may be pertinent. (9) Conduct an investigation involving all reports which, if true, would constitute a criminal offense, or an attempt to commit a criminal offense, under any of the following provisions of Title 11: §§ 601, 602, 603, 604, 611, 612, 613, 621, 625, 626, 627, 631, 632, 633, 634, 635, 636, 645, 763, 764, 765, 767, 768, 769, 770, 771, 772, 773, 774, 775, 791, 841, 842, 843, 844, 845, 846, 848, 851, 861, 862 and 908. (10) Develop protocols to ensure that it conducts its investigation in coordination with the relevant law-enforcement agency. The primary purpose of the Department’s investigation must be the protection of the patient or resident. (11) Do any of the following when investigating abuse, neglect, mistreatment, financial exploitation, or medication diversion reports: a. Make unannounced visits to the facility, as required, to determine the nature and cause of the alleged abuse, neglect, mistreatment, financial exploitation, or medication diversion. b. Interview available witnesses identified by any source as having personal knowledge relevant to the reported abuse, neglect, mistreatment, financial exploitation, or medication diversion. c. Conduct interviews in private unless the witness expressly requests that the interview not be private. d. Write an investigation report that includes all of the following: 1. The investigator’s personal observations. 2. A review of the medical and all other relevant documents and records. 3. A summary of each witness statement. 4. A statement of the factual basis for the findings for each incident or problem alleged in the complaint. (12)-(16) [Repealed.] (17) Before the completion of an investigation, file a petition for the temporary care and protection of the patient or resident if the Department determines that immediate removal is necessary to protect the patient or resident from further abuse, neglect, mistreatment, financial exploitation, or medication diversion. (18) On completing an investigation of a complaint, the Department shall take 1 or more of the following courses of action, as appropriate: a. If representatives of the Department, the Attorney General’s Office, or the appropriate law-enforcement agency are unable to substantiate a complaint that applicable laws or regulations have been violated, the Department, Attorney General’s Office, or appropriate law-enforcement agency shall so advise the complainant and the facility, agency, or individual against which the complaint was made. b. If Department representatives are able to substantiate a complaint that applicable laws or regulations have been violated, the Department shall take appropriate enforcement action. 1. An enforcement action may include instituting actions by the Department for injunctive relief or other relief deemed appropriate. 2. The Attorney General’s Office shall provide legal advice and assist the Department to institute an enforcement action. c. If the Department discovers a violation of federal laws or regulations or rules administered by any other government agency, the Department shall refer the matter directly to the appropriate government agency for an enforcement action. d.-f. [Repealed.] (19) Protect the privacy of the long-term care patient or resident and the patient’s or resident’s family. a. The Department shall establish guidelines concerning the disclosure of information relating to complaints and investigations regarding abuse, neglect, mistreatment, financial exploitation, or medication diversion involving that patient or resident. b. The Department may require persons to make written requests for access to records maintained by the Department. c. Records maintained for investigations conducted under this section are not public records under Chapter 100 of Title 29 and the Department may only release information to persons who have a legitimate public safety need for the information and the information must be used only for the purpose for which it is released under a user agreement with the Department. (e) The protection and advocacy agency may complement the Department’s complaint resolution system through monitoring, investigation, and advocacy on behalf of facility patients or residents. In furtherance of this authority, protection and advocacy agency representatives may engage in all of the following functions: (1) Solicit and receive oral and written reports and complaints of abuse, neglect, mistreatment, financial exploitation, or medication diversion of facility patients or residents. (2) Access a facility. (3) Interview patients, residents, facility staff, and agents. (4) Inspect and copy records pertaining to the patient or resident with valid consent or as otherwise authorized by federal law. (f) The Department may develop protocols with the protection and advocacy agency to facilitate coordination whenever both agencies have initiated an overlapping investigation. (g) The immunities and protections under § 1135 of this title apply to persons offering reports or testimony to initiate or support protection and advocacy agency investigation or advocacy. (h) Appointment of special investigators; powers and duties. — (1) The Secretary of the Department may appoint qualified persons to be special investigators. a. The investigators hold office at the pleasure of the Secretary. b. Any individual appointed under this section must have all of the following qualifications: 1. A minimum of 10 years experience as a police officer, as that term is defined in § 1911(a) of Title 11. 2. Significant investigatory experience while working as a police officer. 3. Be in good standing with the previous or present law-enforcement agency where the individual was or is employed. 4. Other qualifications deemed appropriate by the Secretary. (2) Special investigators appointed under this section may conduct investigations of abuse, neglect, mistreatment, financial exploitation, or medication diversion of patients and residents of facilities and adults who are impaired as defined in § 3902 of Title 31 anywhere in this State as directed by the Department and have the power to make arrests and serve writs anywhere in this State. a. In conducting the investigations, the special investigators have the statewide powers enumerated under § 1911 of Title 11 and other powers as conferred by law on police officers, but the powers are limited to offenses involving abuse, neglect, mistreatment, financial exploitation, or medication diversion of patients and residents of long-term care facilities and adults who are impaired anywhere in this State as directed by the Department. b. To the extent possible, special investigators under this section may consult with the police agency having jurisdiction and the Department before making an arrest and shall do so in all cases after making the arrest. (3) The Secretary of the Department shall fix the salary of special investigators within the appropriations made to the Department. (4) Special investigators shall assist in the training of other Department staff. (i) On receipt of any report under paragraph (d)(5) of this section, the law-enforcement agency having jurisdiction shall conduct a full and complete criminal investigation based on their departmental policies and shall assess probable cause and effectuate arrests when appropriate. (1) The Attorney General’s Office or other law-enforcement agency conducting the investigation shall keep the Department informed of the case status and all major decisions under memoranda of understanding between the Department and the Attorney General’s Office and other relevant law-enforcement agencies entered into under subsection (j) of this section. (2) The Attorney General’s Office shall keep the Department well informed of the case status and all major decisions, including the disposition of criminal charges and the specifics of any sentencing order rendered. (j) The Department, the Attorney General’s Office, and other law-enforcement agencies shall develop memoranda of understanding under this subchapter which provide for timely notification, co-investigation, referral of cases, including automatic referral in certain cases, and ongoing coordination in order to keep each other apprised of the status of their respective investigations. The memoranda of understanding may be amended as needed. (k) If the Department suspects or discovers information indicating the commission of violations of standards of professional conduct by facilities licensed under this chapter or by staff employed by such facilities, the Department shall immediately contact the Attorney General’s Office and the relevant professional licensing board. ( l ) The Department and the Attorney General’s Office shall cooperate with law-enforcement agencies to develop training programs to increase the effectiveness of Department personnel, Attorney General’s Office personnel, and law-enforcement officers in investigating suspected cases of abuse, neglect, mistreatment, financial exploitation, or medication diversion. (m) If a criminal prosecution for abuse, neglect, mistreatment, financial exploitation, or medication diversion is initiated by the Attorney General’s Office based on a report under this subchapter, and incarceration of the individual who is the subject of the report is ordered by the court, the Attorney General’s Office shall keep the Department informed of actions taken by the court which result in the release of the individual if the Attorney General’s Office is represented at the hearing. (n) If a criminal prosecution for abuse, neglect, mistreatment, financial exploitation, or medication diversion is initiated by the Attorney General’s Office against a person employed by or associated with a facility or organization required to be licensed or whose staff are required to be licensed under Delaware law, the Attorney General’s Office shall notify the Department within 48 hours and the Department shall then notify the individual’s employer as follows: (1) When the individual is charged with having committed at least 1 felony offense involving an allegation of abuse, neglect, mistreatment, financial exploitation, or medication diversion. (2) On an adjudication of guilt of the person for any misdemeanor or violation, when the offense involved abuse, neglect, mistreatment, financial exploitation, or medication diversion.

Del. Code tit. 16, § 1135 Immunities and other protections.

(a) A person making any oral or written report under this subchapter is not liable in any civil or criminal action by reason of the report where the report was made in good faith or under the reasonable belief that the abuse, neglect, mistreatment, financial exploitation, or medication diversion has occurred. (b) A facility may not discharge, or in any manner discriminate or retaliate against any person, by any means whatsoever, who in good faith makes or causes to be made, a report under this subchapter, or who testifies or who is about to testify in any proceeding concerning abuse, neglect, mistreatment, financial exploitation, or medication diversion of patients or residents. (c) Any facility which discharges, discriminates, or retaliates against a person because the person reports, testifies, or is about to testify concerning abuse, neglect, mistreatment, financial exploitation, or medication diversion of patients or residents is liable to the person for treble damages, costs, and attorney fees. If a facility discharges, demotes, or retaliates by any other means against a person after the person makes a report, testifies, or is subpoenaed to testify as a result of a report authorized under this subchapter, there is a rebuttable presumption that the facility discharged, demoted, or retaliated against the person as a result of the report or testimony. (d) This section does not apply to any person who has engaged in the abuse, neglect, mistreatment, financial exploitation, or medication diversion of a patient or resident.

Del. Code tit. 16, § 1136 Violations.

(a) Any person who knowingly or recklessly abuses, mistreats, or neglects a patient or resident is guilty of a class A misdemeanor. (1) If the abuse involves sexual contact such person is guilty of a class G felony. (2) If the abuse, mistreatment, or neglect results in serious physical injury, sexual penetration, or sexual intercourse, such person is guilty of a class C felony. (3) If the abuse, mistreatment, or neglect results in death, then the person is guilty of a class A felony. (b) Any person who knowingly causes medication diversion of a patient or resident,is guilty of the following: (1) A class G felony. (2) A class F felony, if committed by a health-care professional. (c) Any person who knowingly commits financial exploitation of a patient’s or resident’s resources is guilty of the following: (1) A class A misdemeanor if the value of the resources is less than $1,000. (2) A class G felony if the value of the resources is $1,000 or more. (d) Any member of the board of directors or a high managerial agent who knows that patients or residents of the facility are being abused, mistreated, neglected, or financially exploited or are the victim of medication diversion and fails to promptly take corrective action is guilty of a class A misdemeanor. (e) Nothing in this section precludes a separate charge, conviction, and sentence for any other crime under this title or this Code.

Del. Code tit. 16, § 1137 Suspension or revocation of license for violation by licensed or registered professional.

On a finding of abuse, neglect, mistreatment, or medication diversion by a licensed or registered professional, or a licensed or registered professional’s failure to report abuse, neglect, mistreatment, or medication diversion by a licensed or registered professional, the Department or the Attorney General’s Office shall notify the appropriate licensing or registration board. If, after a hearing, a licensed or registered professional is found to have abused, neglected, or mistreated, or committed medication diversion against, a patient or resident or has failed to report abuse, neglect, mistreatment, or medication diversion, the appropriate board shall suspend or revoke the licensed or registered professional’s license.

Del. Code tit. 16, § 1138 Suspension or revocation of license for violation by facility.

On a finding that abuse, neglect, mistreatment, financial exploitation, or medication diversion has occurred in a facility, if it is determined that a member of the board of directors or a high managerial agent knew that patients or residents were abused, neglected, mistreated, or financially exploited or the victim of medication diversion and failed to promptly take corrective action, the Department must suspend or revoke the facility’s license.

Del. Code tit. 16, § 1139 Treatment by spiritual means.

Nothing in this subchapter may be construed to mean that a patient or resident is abused, neglected, or mistreated, or is the victim of medication diversion, for the sole reason the patient or resident relies on, or is being furnished with, treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, nor may anything in this subchapter be construed to authorize or require any medical care or treatment over the implied or express objection of the patient or resident.

Del. Code tit. 16, § 1140 Jurisdiction.

The Superior Court shall have original and exclusive jurisdiction over violations of this subchapter.

Del. Code tit. 16, § 1141 Criminal background checks.

(a) Purpose. — The purpose of the criminal background check and drug screening requirements of this section and § 1142 of this title is the protection of the safety and well-being of residents of long-term care facilities licensed pursuant to this chapter. These sections shall be construed broadly to accomplish this purpose. (b) Definitions. — As used in this subchapter: (1) “Applicant” means any of the following: a. A person seeking employment in a facility. b. [Repealed.] c. A self-employed person or a person employed by an agency for work in a facility. d. A current employee of a facility or a person as defined in paragraph (b)(1)c. of this section who the Department has a reasonable basis to suspect has been arrested for a disqualifying crime since becoming employed or commencing work. e. A former employee who consents prior to leaving employment to periodic review of the former employee’s criminal background for a fixed time period. (2) “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 long-term care facility. (3) “Criminal history” means a report from the Department regarding its review of the applicant’s entire federal criminal history from the Federal Bureau of Investigation, under Public Law 92-544 as amended (28 U.S.C. § 534), and the applicant’s Delaware record from the State Bureau of Identification. (4) [Repealed.] (5) “Facility” means any facility licensed under subchapter I of this chapter. (6) [Repealed.] (7) “SBI” means the State Bureau of Identification. (c) An employer may not employ an applicant for work in a facility before obtaining a criminal history. The criminal history of any person not employed directly by the facility must be provided to the facility upon the person’s commencement of work. An applicant’s criminal history report obtained through the BCC’s criminal history screening process is valid for any prospective employer for a period of 1 year from the date of the applicant’s last fingerprinting. (d) The requirements of subsection (c) of this section may be suspended for 60 days if the employer wishes to employ the applicant on a conditional basis. (1) Before an employer may offer conditional employment, the employer must receive verification that the applicant has been fingerprinted by the SBI for purposes of the criminal history. (2) The Department may not issue a criminal history if the applicant fails to provide information to the Department regarding the status or disposition of an arrest within 45 days from the date of notice from the Department of an open criminal charge. The Department may extend the time limits for good cause shown. (e) An employer may not employ or continue to employ an individual with a conviction deemed disqualifying by the Department’s regulations. (f) Any employer who employs an applicant and fails to secure a criminal history is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. An employer is also subject to this penalty if that employer conditionally employs an applicant before receiving verification that the applicant has been fingerprinted for purposes of the criminal history. (g) The criminal history provided to the employer is strictly confidential. It may be used solely to determine the suitability of an applicant for employment or continued employment in a facility. It must be stored in a manner that maintains its confidentiality. (h) An applicant may not be employed in a facility, other than conditionally under subsection (d) of this section, until the applicant’s employer has secured the applicant’s criminal history. (i) Before an applicant is permitted to be employed in a facility, the applicant must, upon request, do all of the following: (1) Provide accurate information sufficient to secure a criminal history. (2) Execute a full release to enable the employer to secure a criminal history and to update the criminal history while employed. (3) Execute a full release giving the employer permission to provide the criminal history to the facility where the work is to be performed if the employer is other than the facility. (j) An applicant who fails to comply with subsection (i) of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. (k), ( l) [Repealed.] (m) The Department shall promulgate regulations regarding all of the following: (1) The criteria it uses to determine unsuitability for employment. (2) The policies and procedures for preparing the criminal history which govern the frequency of criminal record review and updating. (3) [Repealed.] (4) The information that the Department provides in the criminal history about disqualifying and nondisqualifying criminal convictions. (5) The methods for notifying applicants and employers of the results of the Department’s review, and for providing applicants with the criminal history. (6) The administrative review process available to a person desiring to contest adverse information. (7) Other provisions required to achieve the purpose of this section.

Del. Code tit. 16, § 1142 Mandatory drug screening.

(a) An employer may not employ an applicant without first obtaining the results of that applicant’s mandatory drug screening. (b) All applicants must submit to mandatory drug screening, as specified by regulations promulgated by the Department. (c) The Department shall promulgate regulations, regarding the pre-employment testing of all applicants, for use of all of the following illegal drugs: (1) Marijuana/cannabis. (2) Cocaine. (3) Opiates. (4) Phencyclidine (“PCP”). (5) Amphetamines. (6) Any other illegal drug specified by the Department under regulations promulgated under this section. (d) An agency, including temporary agencies, must provide the drug screening results it receives regarding an applicant referred to work in a facility to that particular facility so that the facility is better able to make an informed decision whether to accept the referral. (e) The employer must provide confirmation of the drug screen in the manner prescribed by the Department’s regulations. (f) Any employer who fails to comply with the requirements of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

Del. Code tit. 16, § 1143 Standards of care for nursing homes providing care to Medicaid recipients.

(a) Any nursing facility as defined in 42 U.S.C. § 1396r(a) shall comply with all requirements regarding such facilities contained in Title XIX of the Social Security Act [42 U.S.C. § 1396 et seq.] and in any federal regulation issued pursuant thereto. (b) For any violation of subsection (a) of this section, a nursing facility shall be subject to 1 or more of the following remedies: (1) Denial of payment with respect to any recipient under the state Medicaid program admitted to the nursing facility, with notice to the public and the facility as provided for by regulations promulgated by the Department. (2) A civil fine between 2 percent to 100 percent of a facility’s current per diem rate, which shall be collected with interest at the legal rate of interest, for each day in which a facility fails to comply with a requirement constituting a separate violation. Funds collected as a result of imposition of such a penalty shall be applied to the protection of the health or property of residents of the nursing facility found to have been in violation, including payment for the costs of relocation of residents to other facilities, maintenance of operation of a facility pending correction of deficiencies or closure, and reimbursement of residents for personal funds lost. (3) The appointment, pursuant to regulations adopted by the Department, of temporary management to oversee the operation of the facility and to assure the health and safety of the facility’s residents. (4) In the case of an emergency, the closure of the facility, the transfer of residents in that facility or other facilities, or both. (c) In the case of a nursing facility which, on 3 consecutive standard surveys conducted pursuant to the rules or regulations promulgated by the Department, has been found to have provided substandard quality of care or has otherwise failed to comply with the requirement imposed pursuant to subsection (a) or (e) of this section, the Department shall (regardless of what other remedies are provided): (1) Impose the remedy described in paragraph (b)(1) of this section; and (2) Monitor the facility pursuant to regulations promulgated by the Department, until the facility has demonstrated, to the satisfaction of the Department, that the facility is in compliance with the requirements imposed pursuant to subsection (a) or (e) of this section, and that the facility will remain in compliance with such requirements. (d) If a nursing facility has failed to comply with any of the requirements pursuant to subsection (a) or (e) of this section, within 3 months after the date the facility is found to be out of compliance with such requirements, the Department shall impose the remedy described in paragraph (b)(1) of this section for all individuals who are admitted to the facility after such date. (e) The Department may establish and promulgate such rules and regulations governing the administration and operation of this section as may be deemed necessary and which are not inconsistent with the laws of this State. (f) The Secretary of the Department or the Secretary’s designee shall have jurisdiction to hear any matter arising under subsections (a) and (e) of this section and shall have the power to impose any remedy listed under subsections (b), (c), and (d) of this section. Any party who is not satisfied with a decision of the Secretary or the Secretary’s designee may appeal to the Superior Court for the county in which the facility is located. Such appeal must be filed within 30 days from the date of the Secretary’s or the Secretary’s designee’s decision and must be on the record made before the Secretary or the Secretary’s designee. (g) This section is intended to be applicable solely to nursing facilities as defined by 42 U.S.C. § 1396r(a) and shall not alter, amend, repeal, restrict or otherwise affect any existing Medicaid appeals procedures established by the Department.

Del. Code tit. 16, § 1144 Influenza immunizations.

(a) Nursing and assisted living facilities shall annually offer, beginning no later than October 1 and extending through March 1 of a calendar year, onsite vaccinations for influenza vaccine to all employees with direct contact with patients at no cost and contingent upon availability of the vaccine. (b) The facility shall keep on record a signed statement from each employee stating that the employee has been offered vaccination against influenza and has either accepted or declined such vaccination. (c) [Repealed.]

Del. Code tit. 16, § 1145 Criminal background checks.

(a) Purpose. — The purpose of the criminal background check and drug screening requirements of this section and § 1146 of this title is the protection of the safety and well-being of residents of this State who use the services of home health agencies, hospice agencies, or personal assistance services agencies licensed under this title or who employ a person to provide care in a private residence. These sections must be construed broadly to accomplish this purpose. (b) Definitions. — (1) “Applicant” means any of the following: a. A person seeking employment with an employer. b. [Repealed.] c. A self-employed person seeking employment in a private residence for the purpose of providing services to protect the health, safety, and well-being of an individual who requires home health-care service as defined in § 122(3)m, § 122(3)o., or § 122(3)x. of this title. d. A current employee of an employer who the Department has a reasonable basis to suspect has been arrested for a disqualifying crime since becoming employed. e. A former employee who consents prior to leaving employment to periodic review of the former employee’s criminal background for a fixed time period. (2) “Authorized representative” means an individual who has the highest priority to act for the patient under law, and who has the authority to make decisions with respect to the patient’s health-care preferences. The patient’s authorized representative can be 1 of the following: a. An agent designated by a patient under an “advance health-care directive,” as defined under § 2502 of this title. b. A guardian of the person appointed under Chapter 39 or 39A of Title 12, in accordance with the authority granted by the court. c. A default surrogate under Chapter 25 of this title. d. An individual who is otherwise authorized under applicable law to make health-care decisions on the patient’s behalf, if the patient lacks decision-making capacity. (3) “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 home-care agency or private residence. (4) “Criminal history” means a report from the Department regarding its review of the applicant’s entire federal criminal history from the Federal Bureau of Investigation, under Public Law 92-544 as amended (28 U.S.C. § 534) and the applicant’s Delaware record from the State Bureau of Identification. (5) “Department” means the Department of Health and Social Services. (6) “Employer” means a home-care agency; a management company that contracts to provide services on behalf of a home-care agency; or other business entity, including a temporary employment agency, that contracts to provide services on behalf of a home-care agency. (7) “Home-care agency” means all programs or agencies licensed under § 122(3)m., § 122(3)o., or § 122(3)x. of this title that provide services to individuals in their private residence. (8) “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. (9) “SBI” means the State Bureau of Identification. (c) An employer may not employ an applicant for work in a private residence before obtaining a criminal history. Upon request, the criminal history must be provided to the person for whom the services are to be provided, or to the person’s authorized representative upon the applicant’s commencement of work. An applicant’s criminal history report obtained through the BCC’s criminal history screening process is valid for any prospective employer for a period of 1 year from the date of the applicant’s last fingerprinting. (d) A private individual seeking to hire or employ a self-employed individual to provide services in a private residence may secure access to the BCC from the Department. (1) The BCC user fee shall be set by regulation, but may not exceed that charged to an employer. (2) The cost of the criminal background check from SBI or drug screening must be borne by the person making the request. (e) The requirements of subsection (c) of this section may be suspended for 60 days from the date of hire if the employer wishes to employ the applicant on a conditional basis. (1) Before an employer may offer conditional employment, the employer must receive verification that the applicant has been fingerprinted by the SBI for purposes of the criminal history. (2) The Department may not issue a criminal history if the applicant fails to provide information to the Department regarding the status or disposition of an arrest within 45 days from the date of notice from the Department of an open criminal charge. The Department may extend the time limits for good cause shown. (f) An employer, other than a private person, may not employ or continue to employ an individual with a conviction deemed disqualifying by the Department’s regulations. (g) Any employer, other than a private person, who employs an applicant and fails to secure a criminal history is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. An employer is also subject to this penalty if that employer conditionally employs an applicant before receiving verification that the applicant has been fingerprinted for purposes of the criminal history. (h) The criminal history provided to the employer is strictly confidential. It may be used solely to determine the suitability of an applicant for employment or continued employment. (i) No applicant is permitted to be employed by an employer other than conditionally under subsection (e) of this section until the applicant’s employer has secured the applicant’s criminal history. (j) Before an applicant may be employed by an employer, the applicant must, upon request, do any of the following: (1) Provide accurate information sufficient to secure a criminal history. (2) Execute a full release to enable the employer to secure a criminal history and to update the criminal history while employed. (3) Execute a full release giving the employer permission to provide the criminal history to the person for whom the services are to be provided, or to the person’s authorized representative. (k) An applicant who fails to comply with subsection (j) of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. ( l ), (m) [Repealed.] (n) The Department shall promulgate regulations regarding all of the following: (1) The criteria it uses to determine unsuitability for employment. (2) The policies and procedures for preparing the criminal history which govern the frequency of criminal record review and updating. (3) [Repealed.] (4) The information that the Department provides in the criminal history about disqualifying and nondisqualifying criminal convictions. (5) The methods for notifying applicants and employers of the results of the Department’s review, and for providing applicants with the criminal history. (6) The administrative review process available to a person desiring to contest adverse information. (7) Other provisions required to achieve the purpose of this section.

Del. Code tit. 16, § 1146 Mandatory drug screening.

(a) [Repealed.] (b) An employer may not employ any applicant without first obtaining the results of that applicant’s mandatory drug screening. (c) All applicants, with the exception of a self-employed individual seeking employment from a private person to provide services in a private residence, must submit to mandatory drug screening, as specified by regulations promulgated by the Department. The requirement for drug screening for self-employed persons seeking employment in a private residence is left to the discretion of the individual in need of care in the private residence. (d) The Department shall promulgate regulations regarding the pre-employment screening of all applicants for use of the following illegal drugs: (1) Marijuana/cannabis. (2) Cocaine. (3) Opiates. (4) Phencyclidine (“PCP”). (5) Amphetamines. (6) Any other illegal drug specified by the Department under regulations promulgated under this section. (e) An employer may not employ an applicant for work in a private residence before getting the results of that applicant’s drug screening. Upon request, the results of the drug screen must be provided upon the applicant’s commencement of work to the person for whom the services are to be provided, or to the person’s authorized representative. (f) The employer must provide confirmation of the drug screen in the manner prescribed by the Department’s regulations. (g) Any employer who fails to comply with the requirements of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

Del. Code tit. 16, § 1150 Creation of Office.

There is hereby established within the Department of Health and Social Services, Division of Administration, the Office of the Long-Term Care Ombudsperson as provided by the Older Americans Act Amendments of 1987 (P.L. 100-175).

Del. Code tit. 16, § 1151 Definitions.

As used in this subchapter: (1) “Agency” means any private or public agency operating in the State, one of whose purposes is the funding, provision or regulation of health care services. (2) “Long-term care facility” means any facility as defined in § 1102 of this title. (3) “Long-Term Care Ombudsperson” or “Ombudsperson” means the person designated under the Older Americans Act, as amended (42 U.S.C. § 3001 et. seq.) to perform the mandated functions of the Office of the Long-Term Care Ombudsperson in the State, or the Ombudsperson’s designee. (4) “Record” means any medical, social, or financial information pertaining to a resident of a long-term care facility which is maintained by any agency regulated under this chapter or Chapter 10 of this title; provided, however, that “record” does not include criminal investigative files.

Del. Code tit. 16, § 1152 Purpose and duties.

The purpose of the Ombudsperson is to provide a program to advocate for and promote the adequacy of care received and the quality of life experienced by residents of long-term care facilities in Delaware. The Ombudsperson shall have the power to: (1) Investigate and seek to resolve complaints and concerns made by or on behalf of residents of long-term care facilities in the State relating to the actions or inactions of any long-term care facility or agencies which may adversely affect the health, safety, welfare or rights of such residents; (2) Promote the well-being and quality of life of residents of long-term care facilities; (3) Enter into written agreements of understanding, cooperation and collaboration with other government agencies that provide funding, oversight, inspection or operation of long-term care facilities; (4) Establish and carry out program policies and procedures for eliciting, receiving, investigating, verifying, referring and resolving residents’ complaints; (5) Receive and investigate complaints of abuse, mistreatment or neglect in accordance with subchapter III of this chapter; (6) Promulgate rules and regulations and adopt policies to implement this subchapter; and (7) Perform other duties as mandated by the Older Americans Act, as amended (42 U.S.C. § 3001 et seq.).

Del. Code tit. 16, § 1153 Access to facilities and patient records.

(a) The Ombudsperson shall have access to any facility or record which is relevant to the performance of the Ombudsperson’s responsibilities under this subchapter, including any record otherwise rendered confidential under Delaware law; provided, however, that the Ombudsperson shall obtain the consent of any resident who is able to consent or any resident’s legal agent or guardian for access to such resident’s records. (b) The Ombudsperson may initiate an investigation of any long-term care facility independent of the receipt of a specific complaint. (c) Any state agency to which the Ombudsperson refers a complaint shall periodically advise the Ombudsperson of the status of the investigation of the complaint and notify the Ombudsperson in a timely manner of the disposition of the complaint. (d) The Ombudsperson shall protect the confidentiality of residents’ records and shall permit access to such records only in accordance with regulations of the Office of the Long-Term Care Ombudsperson. (e) The Ombudsperson shall protect the confidentiality of files maintained by the Ombudsperson and shall permit access to such files only under conditions as the Ombudsperson, in the Ombudsperson’s own sole discretion, deems appropriate. (f) Notwithstanding any other provision of this subchapter, the Ombudsperson shall not disclose the identity of any complainant or resident unless a court orders such disclosure or the complainant or resident consents in writing to the disclosure of the complainant’s or resident’s identity.

Del. Code tit. 16, § 1154 Good faith immunity.

(a) Persons and agencies participating in an investigation under this subchapter shall be immune from civil liability arising from their good faith participation in the investigation. (b) No long-term care facility, other entity or person shall engage in retaliation or reprisals against any person or agency due to such person or agency’s participation in an investigation under this subchapter.

Del. Code tit. 16, § 1155 Sanctions for interference with Ombudsperson.

(a) No person, agency or long-term care facility shall wilfully interfere with the performance of the duties and exercise of the powers of the Ombudsperson provided in this subchapter. (b) Whoever violates this subchapter shall be fined not more than $100 for the first offense and not less than $100 nor more than $1,000 for each subsequent offense. Each violation shall be considered a separate offense.

Del. Code tit. 16, § 1156 Jurisdiction.

(a) Justices of the Peace shall have jurisdiction over violations of this subchapter. (b) The Superior Court shall have jurisdiction over appeals of the decisions entered pursuant to subsection (a) of this section. Such appeals shall be on the record.

Del. Code tit. 16, § 1161 Definitions.

For purposes of this subchapter: (1) “Advanced practice nurse” means an individual whose education and certification meet the criteria outlined in Chapter 19 of Title 24, and who is certified in at least 1 of the following specialty areas: a. Adult nurse practitioner. b. Gerontological clinical nurse specialist. c. Gerontological nurse practitioner. d. Psychiatric/mental health clinical nurse specialist. e. Family nurse practitioner. (2) “Department” means the Department of Health and Social Services. (3) “Direct care” means an activity performed by a nursing services direct caregiver that is specific to a resident. Direct care activities are as follows: a. “Hands-on” treatment or care, including assistance with activities of daily living (e.g., bathing, dressing, eating, range of motion, toileting, transferring, ambulation); medical treatments; and medication administration. b. Physical and psychosocial assessments. c. Documentation, if conducted for treatment or care purposes. d. Care planning. e. Communication with a family member or a health-care professional or entity, regarding a specific resident. (4) “Division” means the Division of Health Care Quality. (5) “Nursing services direct caregivers” means certified nursing assistants, licensed practical nurses, registered nurses, advanced practice nurses, and nursing supervisors when and only when providing direct care of residential health facility residents. The director of nursing (“DON”), assistant director of nursing (“ADON”), or registered nurse assessment coordinator (“RNAC”) may be designated as a nursing services direct caregiver and counted in the direct care hours and minimum staffing ratios when exigent circumstances require that they discontinue their administrative and managerial duties in order to provide direct care. Within 24 hours of the exigent circumstance that requires the DON, adon, or RNAC provide direct care, the facility shall notify the Division in writing of this emergency situation and provide documentation of the amount of direct care time that was provided by the DON, adon, or rnac. (6) “Nursing supervisor” means an advanced practice nurse or registered nurse who is assigned to supervise and evaluate nursing services direct caregivers no less than 25% of the nursing supervisor’s time per shift. Up to 75% of the nursing supervisor’s time per shift may be spent providing direct care. Registered nurses (“RN”) holding the following positions may provide the supervision required of a nursing supervisor, and the supervision may be counted towards the minimum 25% supervision required per shift: a. Director of nursing (“DON”). b. Assistant director of nursing (“ADON”). c. Registered nurse assessment coordinator (“RNAC”). d. Director of in-service education (RN). e. Quality improvement coordinator nurse (if an RN). f. Nursing home administrator (if an RN). An individual serving as a nursing supervisor must be an employee of the facility, thus excluding temporary employment agency personnel from serving in this capacity unless exigent circumstances exist. The term “exigent circumstances” means a short-term emergency or other unavoidable situation, and all reasonable alternatives to the use of a temporary employee as a nursing supervisor have been exhausted. Within 24 hours of the exigent circumstances that require the use of temporary employment agency staffing to fill a nursing supervisor position in a residential health facility, the facility shall notify the Division in writing of the exigent circumstances and the expected duration. For any shift that exceeds the minimum RN/LPN shift ratio mandated by § 1162 of this title, the amount of RN time that exceeds the minimum ratio may be counted towards the minimum 25% supervision required for that shift; provided, however, that said RN time was dedicated to supervisory functions. For those facilities that are not required by state or federal regulations to have a registered nurse on duty on each shift, a licensed practical nurse with 3 years long-term care experience may serve as a nursing supervisor, provided that no registered nurse is on duty. There shall be a nursing supervisor on duty and on-site at all times. By June 1, 2002, the Nursing Home Residents Quality Assurance Commission shall issue to the Governor and to the General Assembly a report evaluating the requirement that nursing supervisors spend a minimum of 25% of their time on supervisory functions. The purpose of the report is to determine if the required minimum amount of supervision time is appropriate and necessary, and whether it should be adjusted. (7) “Residential health facility” means any facility that provides long-term health-related care and nursing services to individuals who do not require the degree of care and treatment that a hospital is designed to provide. These are those facilities, licensed pursuant to this chapter, that provide any of the following: a. Skilled nursing services to persons who require medical or nursing care. b. Nursing services above the level of room and board to those who, because of a mental or physical condition, routinely require these services. Also included are units, licensed pursuant to this chapter, of facilities that provide active treatment and health and rehabilitation services to persons with developmental disabilities or related conditions, in which care is delivered to residents in accordance with medical plans of care. This definition does not include group homes for persons with developmental disabilities, persons with mental illness, or persons with AIDS, rest family care homes, neighborhood homes, rest/residential health facilities, assisted living facilities and intermediate care facilities that, as of March 1, 1999, were solely private pay, provided they remain exclusively intermediate care facilities.

Del. Code tit. 16, § 1162 Nursing staffing.

(a) Every residential health facility must at all times provide a staffing level adequate to meet the care needs of each resident, including those residents who have special needs due to dementia or a medical condition, illness or injury. Every residential health facility shall post, for each shift, the names and titles of the nursing services direct caregivers assigned to each floor, unit or wing and the nursing supervisor on duty. This information shall be conspicuously displayed in common areas of the facility, in no fewer number than the number of nursing stations. Every residential health facility employee shall wear a nametag prominently displaying that employee’s full name and title. Personnel hired through temporary agencies shall be required to wear photo identification listing their names and titles. (b) By March 1, 2001, the minimum staffing level for nursing services direct caregivers shall not be less than the staffing level required to provide 3.0 hours of direct care per resident per day, provided that funds have been appropriated for 3.0 hours of direct care per resident for Medicaid eligible reimbursement. Nursing staff, rounded to the nearest whole person, must be distributed in order to meet the following minimum shift ratios: RN/LPN CNA (or RN/LPN or NAIT serving as a CNA) Day 1:20 1:9 Evening 1:25 1:10 Night 1:40 1:22 (c) On or before December 1, 2001, a comprehensive report assessing and reviewing the quality of nursing facility care in Delaware shall be completed by the Delaware Nursing Home Residents Quality Assurance Commission and submitted to the Governor and the General Assembly. The purpose of the report is to determine the efficacy of the minimum staffing levels required under this chapter, including, but not limited to, the availability of qualified personnel in the job market to meet the requirement, the cost and availability of nursing home care, and patient outcomes based on scheduled facility surveys, surprise inspections and other reviews conducted by the Division. Based on this information, the Commission will determine if increasing the minimum nurse staffing levels to 3.28 hours of direct care with the corresponding increased required shift ratios is appropriate and necessary. By January 1, 2002, the minimum staffing level for nursing services direct caregivers shall not be less than the staffing level required to provide 3.28 hours of direct care per resident per day, subject to Commission recommendation and provided that funds have been appropriated for 3.28 hours of direct care per resident for Medicaid eligible reimbursement. Nursing staff must be distributed in order to meet the following minimum shift ratios: RN/LPN CNA (or RN/LPN or NAIT serving as a CNA) Day 1:15 1:8 Evening 1:23 1:10 Night 1:40 1:20 To the extent a nursing facility meets the minimum nurse staff levels of 3.28 hours of direct care and compliance with the above referenced shift ratios provided in this subsection requires more than 3.28 hours of direct care, the Division may permit a nursing facility to alter the shift ratios above; provided, however, the alternative shift ratios as determined by the Division shall not, on any shift or at any time, fall below the following alternative minimum shift ratios: RN/LPN CNA (or other direct care-givers) Day 1:20 1:9 Evening 1:25 1:10 Night 1:40 1:22 If a nursing facility cannot meet the above referenced shift ratios due to building configuration or any other special circumstances, they may apply for a special waiver through the Division, subject to final approval by the Delaware Nursing Home Residents Quality Assurance Commission. All nursing facilities shall conspicuously display the minimum shift ratios governing the nursing facility, along with posting requirements pursuant to subsection (a) of this section. Notwithstanding subsection (g) of this section, the time period for review and compliance with any alternative minimum shift ratios or ratios pursuant to a special waiver under this subsection shall be 1 day. (d) Within 6 months of an appropriation by the General Assembly funding the staffing requirements of subsection (e) of this section, a comprehensive report assessing and reviewing the quality of nursing facility care in Delaware shall be completed by the Delaware Nursing Home Residents Quality Assurance Commission and submitted to the Governor and the General Assembly. The purpose of the report is to determine the efficacy of the minimum staffing levels required under this chapter, including, but not limited to, the availability of qualified personnel in job market to meet the requirement, the cost and availability of nursing home care, and patient outcomes based on scheduled facility surveys, surprise inspections and other reviews conducted by the Division. Based on this information, the Commission will determine if increasing the minimum nurse staffing levels to 3.67 hours of direct care with the corresponding increased required shift ratios is appropriate and necessary. (e) By May 1, 2003, the minimum staffing level for nursing services direct caregivers shall not be less than the staffing level required to provide 3.67 hours of direct care per resident per day, subject to Commission recommendation and provided that funds have been appropriated for 3.67 hours of direct care per resident for Medicaid eligible reimbursement. Nursing staff, rounded to the nearest whole person, must be distributed in order to meet the following minimum shift ratios: RN/LPN CNA (or RN/LPN or NAIT serving as a CNA) Day 1:15 1:7 Evening 1:20 1:10 Night 1:30 1:15 (f) An individual in a facility-sponsored training program who has completed all but the final 37.5 hours of requisite classroom and clinical training to become a CNA may be counted in the direct care hours and minimum staffing shift ratios under the CNA staffing requirements given in subsections (b), (c) and (e) of this section. The individual shall be referred to as a nursing assistant in training (NAIT). The Division shall conduct a study of the certified nursing assistant training programs in Delaware, both those sponsored by facilities and those sponsored by educational institutions. It shall report its findings to the Nursing Home Quality Residents Assurance Commission (Commission). The factors to be studied include, but are not limited to, the percentage of each training program’s graduates who passed the certified nursing assistant certification test and the number of attempts it took each graduate to become certified, along with the total number of hours, divided by classroom and clinical time, spent in the overall certified nursing assistant training program. The study shall encompass a period of 6 months commencing with the promulgation of the certified nursing assistant regulations. The report shall be issued no later than 2 months after the completion of the study period. Based on the results of its study, the Division shall recommend to the Commission whether a nursing assistant, while in training and prior to certification, should be counted as a CNA in the minimum staffing ratios, and, if so, at what point in the training program. (g) The time period for review and determining compliance with the staffing ratios required under this chapter shall be 1 week. To the extent a residential health facility subject to the required ratios of this chapter desires an alternative shift schedule, they shall notify the Division of such alternative shift schedule prior to implementation; the proposed shift schedule and corresponding staff ratios must meet the minimum hour requirements and must not exceed the patient to staff ratios provided under this chapter for the night shift. Any alternative shift schedule must be clearly posted along with the postings required pursuant to subsection (a) of this section. (h) Notwithstanding the minimum staffing requirements established in this subchapter, to the extent additional staffing is necessary to meet the needs of residents, nursing facilities must provide sufficient nursing staffing. If the Division finds unsatisfactory outcomes in a facility, the Department may impose protocols for staffing adequacy, including but not limited to staffing levels above the minimum required under this subchapter. Outcomes examined shall include those outcomes as enumerated by the United States Health Care Financing Administration Quality Indicators. Evidence of a failure to meet the nursing staffing needs of residents shall be grounds for enforcement action under this chapter. (i) All residential health facilities shall have, in addition to the requirements in subsections (b) through (h) of this section, a full-time director of nursing who is an advanced practice nurse or a registered nurse with 1 year’s work experience as a registered nurse. After July 1, 2001, any newly hired director of nursing shall be an advanced practice nurse or a registered nurse with a B.S. degree in nursing and 2 years’ experience in long-term care or a registered nurse with 3 years of long-term care experience. After July 1, 2001, all newly hired directors of nursing must complete, within 3 months of hire (or as soon as a course is available), a long-term care director of nursing workshop in accordance with regulations promulgated by the Department in consultation with the Commission. (j) All residential health facilities licensed for 100 beds or more shall have, at a minimum, the following supervisory and administrative nursing staff, in addition to the personnel listed in subsections (b) through (i) of this section: a full-time assistant director of nursing who is an advanced practice nurse or a registered nurse and a full-time equivalent director of in-service education who is an advanced practice nurse or a registered nurse. (k) All residential health facilities licensed for fewer than 100 beds shall employ, at a minimum, in addition to the personnel listed in subsections (b) through (i) of this section, a part-time assistant director of nursing who is an advanced practice nurse or a registered nurse and a part-time director of in-service education who is an advanced practice nurse or a registered nurse, in accordance with the following formula: Number of beds ÷ 100 x 40 = hours per week minimum required for an assistant director of nursing and a director of in-service education. A subacute transitional care unit of an acute care hospital with 30 beds or fewer is exempt from the provisions of this subsection provided that other licensed personnel perform the duties of this function. ( l) For residential health facilities with 15 beds or fewer, the director of nursing, assistant director of nursing, and/or nursing supervisor, while on duty, may also serve as nursing services direct caregivers as described in subsections (b) through (e) of this section. (m) The educational requirements described above shall be met provided that if an insufficient pool of applicants exists, other qualifications may be deemed acceptable in accordance with regulations promulgated by the Department.

Del. Code tit. 16, § 1163 Activities staffing.

(a) All residential health facilities licensed for 30 beds or more shall have a full-time activities director. Any activities director hired after July 1, 2001, shall be a certified therapeutic recreation specialist, a certified occupational therapy assistant, a certified music therapist, a certified art therapist, a certified drama therapist, a certified dance/movement therapist, a certified activities director, or a registered occupational therapist. (b) All residential health facilities licensed for fewer than 30 beds shall have, at a minimum, a part-time activities director as described in subsection (a) of this section, in accordance with the following formula: Number of beds ÷ 30 x 40 = hours per week minimum required for an activities director. A subacute transitional care unit of an acute care hospital with 30 beds or fewer is exempt from the provisions of this subsection provided that other licensed personnel perform the duties of this function.

Del. Code tit. 16, § 1164 Nutrition and dietetics staffing.

Every residential health facility must at all times provide nutrition and dietetics staffing adequate to meet the care needs of each resident. The staffing level must, at a minimum, include a full-time food service manager. Any food service manager hired after July 1, 2001, must be a registered dietitian or a certified dietitian/nutritionist, a registered dietetic technician, a certified dietary manager, or must have a Bachelor of Science or associate degree in food service management or related field. The educational requirements shall be met provided that if an insufficient pool of applicants exists, other qualifications may be deemed acceptable in accordance with regulations promulgated by the Department. A sub-acute transitional care unit of an acute care hospital with 30 beds or fewer is exempt from the provisions of this subsection provided that other licensed personnel perform the duties of this function. Any full-time food service manager with a minimum of 3 years’ experience as a full-time food service manager as of July 1, 2001, shall be exempt from the requirements of this subsection.

Del. Code tit. 16, § 1165 Social services staffing.

All residential health facilities shall employ a full-time social worker, except that facilities licensed for fewer than 100 beds may designate other personnel to assume the duties associated with that position in accordance with the rules and regulation promulgated and adopted pursuant to this subchapter.

Del. Code tit. 16, § 1166 Medicaid reimbursement.

(a) The Medicaid reimbursement program shall be adjusted to reflect costs associated with the increased staffing levels described herein. Reimbursement rates for nursing wages will be adjusted to the seventy-fifth percentile under the current wage determination methodology for primary care under the state Medicaid program. (b) The Department shall ensure that 100% of Medicaid funds paid for primary care are expended by the residential health facility for primary care purposes. If, during any annual cost reporting period, a facility expends less than 100% of the primary care reimbursement it receives from Medicaid for primary care, the sum under-spent must be repaid to the Medicaid program. The repayment will be made through a cost settlement process when the provider files its annual cost report. The Department will revise its regulations and Medicaid cost report forms to require a cost settlement for the primary care reimbursement classification. (c) Medicaid reimbursement of providers shall be consistent with the provisions of this chapter regardless of the payment methodology employed by Medicaid or its contractors, including managed care.

Del. Code tit. 16, § 1167 Outcomes monitoring.

In addition to compliance monitoring, the Division shall use data collected by residential health facilities to monitor quality of care and patient outcomes pursuant to § 1162(h) of this title. The Division shall analyze this data in order to help target licensing surveys and inspections. The Department shall promulgate and adopt regulations that define the outcomes monitoring process.

Del. Code tit. 16, § 1168 Waiver.

A residential health facility may seek from the Delaware Nursing Home Residents Quality Assurance Commission a time-limited waiver of the minimum staffing requirements required under § 1162(c) and (e) of this title. Such waiver will only be granted upon a showing of exigent circumstances, including but not limited to documented evidence of the facility’s best efforts to meet the minimum staffing requirements under § 1162(c) and (e) of this title. Any such waiver will be time-limited and will include a plan and a timeline for compliance with this chapter. The Commission may seek input from the Department of Labor in terms of issues of labor availability in connection with any waiver request under this section.

Del. Code tit. 16, § 1169 Regulations.

The Department shall promulgate and adopt rules and regulations to fully and effectively implement the provisions of this subchapter. The regulations will become effective 60 days after adopted by the Department.

Del. Code tit. 16, § 1180 Definitions.

As used in this subchapter: (1) [Repealed.] (2) “CMS” means as defined in § 6501 of Title 30. (3) “Managed care company under contract to the Medicaid agency” means an entity as defined in § 6501 of Title 30. (4) “Medicaid” means as defined in § 6501 of Title 30. (5) “Medicaid-enrolled nursing facility” means a nursing facility enrolled in the Medicaid program or enrolled with a managed care company under contract to the Medicaid agency for the purpose of providing nursing facility services to Medicaid eligible residents, but excludes the Delaware Veterans Home and any state, federal, or other public government-owned facilities and any facilities that exclusively serve children. (6) “Medicaid resident day” means as defined in § 6501 of Title 30. (7) “Medicaid share of the quality assessment” means for each nursing facility, the assessment cost applicable to Medicaid residents. (8) “Nursing facility” means as defined in § 6501 of Title 30. (9) “Nursing facility services” means as defined in § 6501 of Title 30.

Del. Code tit. 16, § 1181 Nursing Facility Quality Assessment Fund — Establishment; funding.

(a) There shall be established in the State Treasury and in the accounting system of the State a special fund to be known as the Nursing Facility Quality Assessment Fund (the “Fund”). (b) All of the following revenue must be deposited into the Fund: (1) As specified in § 6502(e)(1) of Title 30, 90% of the quality assessment collected. (2) On the last day of each month, the State Treasurer shall credit the Fund with interest on the average balance in the Fund for the preceding month. The interest to be paid to the Fund must be that proportionate share, during such preceding month, of interest to the State as the Fund’s and the State’s average balance is to the total State’s average balance.

Del. Code tit. 16, § 1182 Use of Nursing Facility Quality Assessment Fund; payments.

(a) Funds deposited into the Nursing Facility Quality Assessment Fund must be used by the Department exclusively to secure federal matching funds available through the state Medicaid plan and any applicable waivers, and together with the Federal funds must be used exclusively by the Department including any managed care companies under contract to the Medicaid agency to do all of the following: (1) Provide for per diem rate adjustments in accordance with § 1183 of this title to Medicaid enrolled nursing facilities. (2) Reimburse the Medicaid share of the quality assessment in accordance with § 1183 of this title. (3) Reimburse any funds advanced from the Department Medicaid budget appropriation that were used to make the payments referred to under paragraphs (a)(1) and (2) of this section. (b) If the quality assessment imposed by § 6502 of Title 30 and the payments referred to by paragraphs (a)(1) and (2) of this section are repealed, any funds remaining in the Nursing Facility Quality Assessment Fund must: (1) First reimburse the Department if the total of all quality assessment payments received from nursing facilities are equal to or less than the state share of all of the payments referred to by paragraphs (a)(1) and (2) of this section made by the Department including managed care companies under contract to the Medicaid agency to nursing facilities. (2) If the total of all quality assessments received is greater than the state share of the payments issued referred to by paragraphs (a)(1) and (2) of this section, the remaining funds must be distributed back to the nursing facilities generally and proportionately on the same basis as the assessments were collected in the last calendar quarter.

Del. Code tit. 16, § 1183 Nursing facility rate adjustments.

(a) Medicaid enrolled nursing facilities that are not subject to penalties under § 6503 of Title 30 shall be eligible for per diem rate adjustments referred to by § 1182(a)(1) and (2) of this title. Nursing facilities subject to penalties under § 6503 of Title 30 shall be eligible for per diem rate adjustments only after all penalties and past due quality assessments are paid in full. (b) Effective April 1, 2012, nursing facilities are paid for services rendered to Medicaid patients directly by DHSS as well as by managed care companies under contract to the Medicaid agency. The per diem rate adjustments referred to by § 1182(a)(1) and (2) of this title will be incorporated into the DHSS nursing facility level of reimbursement rate schedules. Unless a facility is subject to penalties as described in subsection (a) of this section, DHSS and the managed care companies will pay no lower than the adjusted per diem rates in these schedules. (c) The rate adjustments referred to by § 1182(a)(1) and (2) of this title shall be a rate paid on a per Medicaid resident day basis. The rate paid will be the same per diem amount for each facility other than the per diem to reimburse the Medicaid share of the assessment. (d) The rate adjustments referred to by § 1182(a)(1) and (2) of this title will be retroactive for dates of service on or after June 1, 2012. Upon CMS notification to DHSS of waiver approval and, if required, state plan amendment approval, the per diem rates in effect as of June 1, 2012, will be increased by the rate adjustments referred to by § 1182(a)(1) and (2) of this title. The retroactive rate adjustments for Medicaid paid claims for service dates between June 1, 2012, and the date of CMS notification of waiver and, if required, plan amendment approval, must be paid within 30 days of CMS approval.

Del. Code tit. 16, § 1190 Criminal background checks.

(a) The purpose of the criminal background check and drug screening requirements of this section and § 1191 of this title is the protection of the safety and well-being of residents of this State who use the services of prescribed pediatric extended care centers licensed under this title or who employ a person to provide care in the facility. These sections must be construed broadly to accomplish this purpose. (b) Definitions. — As used in this subchapter: (1) “Applicant” means any of the following: a. An individual seeking employment with an employer. b. A current employee who seeks a promotion from an employer. c. A self-employed individual or contractor seeking employment in a prescribed pediatric extended care center. d. A current employee of an employer who the Department has a reasonable basis to suspect has been arrested for a disqualifying crime since becoming employed. e. A former employee who consents prior to leaving employment to periodic review of the former employee’s criminal background for a fixed time period. (2) “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 an individual for employment in a prescribed pediatric extended care center. (3) “Criminal history” means a report from the Department of Health and Social Services regarding its review of the applicant’s entire federal criminal history from the Federal Bureau of Investigation, under Public Law 92-544 as amended (28 U.S.C. § 534) and the applicant’s Delaware record from the State Bureau of Identification. (4) “Employer” means a prescribed pediatric extended care center. (5) “Prescribed pediatric extended care center” means a facility licensed under § 122(3)q. of Title 16. (6) “SBI” means the State Bureau of Identification. (c) An employer may not employ an applicant for work in a prescribed pediatric extended care center before obtaining a criminal history. The criminal history of any individual not employed directly by the facility must be provided to the facility upon the individual’s commencement of work. (d) The requirements of subsection (c) of this section may be suspended for 60 days from the date of hire if the employer wishes to employ the applicant on a conditional basis. (1) Before an employer may offer conditional employment, the employer must receive verification that the applicant has been fingerprinted by the SBI for purposes of the criminal history. (2) The Department may not issue a criminal history if the applicant fails to provide information to the Department regarding the status or disposition of an arrest within 45 days from the date of notice from the Department of an open criminal charge. The Department may extend the time limits for good cause shown. (e) An employer may not employ or continue to employ an individual with a conviction deemed disqualifying by Department regulations. (f) Any employer who employs an applicant and fails to secure a criminal history is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. An employer is also subject to this penalty if that employer conditionally employs an applicant before receiving verification that the applicant has been fingerprinted for purposes of the criminal history. (g) The criminal history provided to the employer is strictly confidential. It may be used solely to determine the suitability of an applicant for employment or continued employment. It must be stored in a manner that maintains its confidentiality. (h) An applicant may not be employed by an employer other than conditionally pursuant to subsection (d) of this section until the applicant’s employer has secured the applicant’s criminal history. (i) Before an applicant is permitted to be employed in a prescribed pediatric extended care center, the applicant must, upon request, do any of the following: (1) Provide accurate information sufficient to secure a criminal history. (2) Execute a full release to enable the employer to secure a criminal history and to update the criminal history while employed. (3) Execute a full release giving the employer permission to provide the criminal history to the facility where the work is to be performed if the employer is other than the facility. (j) An applicant who fails to comply with subsection (i) of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. (k) The Department shall promulgate regulations regarding all of the following: (1) The criteria it uses to determine unsuitability for employment. (2) The policies and procedures for preparing the criminal history which govern the frequency of criminal record review and updating. (3) The frequency with which fingerprints must be obtained. (4) The information that the Department provides in the criminal history about disqualifying and nondisqualifying criminal convictions. (5) The methods for notifying applicants and employers of the results of the Department’s review, and for providing applicants with the criminal history. (6) The administrative review process available to a person desiring to contest adverse information. (7) Other provisions required to achieve the purpose of this section.

Del. Code tit. 16, § 1191 Mandatory drug screening.

(a) An employer may not employ any applicant without first obtaining the results of that applicant’s mandatory drug screening. (b) All applicants must submit to mandatory drug screening, as specified by regulations promulgated by the Department. (c) The Department shall promulgate regulations regarding the pre-employment screening of all applicants for use of all of the following illegal drugs: (1) Marijuana/cannabis. (2) Cocaine. (3) Opiates. (4) Phencyclidine (“PCP”). (5) Amphetamines. (6) Any other illegal drug specified by the Department, under regulations promulgated under this section. (d) The employer must provide confirmation of the drug screen in the manner prescribed by the Department’s regulations. (e) Any employer who fails to comply with the requirements of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

Del. Code tit. 16, § 1192 Definitions [For application of this section, see 84 Del. Laws, c. 327, § 2].

For the purposes of this subchapter: (1) “Assisted living facility” means as defined in § 1102 of this title. (2) “Dementia care services” means ongoing specialized care for residents who have been diagnosed with Alzheimer’s disease or other dementias. Such care is designed to manage the behavioral and psychological symptoms of Alzheimer’s disease or other dementias. Such care includes planned group and individual programming and person-centered care practices to support activities of daily living for residents living with Alzheimer’s disease or other dementias. Dementia care services may be provided in a facility that is not or does not include a secured memory care unit. Dementia care services are a type of memory care services. (3) “Department” means the Department of Health and Social Services. (4) “Direct care” means the provision of medical care services or personal care services to a resident, including: a. Administering medications or medical treatments. b. Conducting physical or psychosocial assessments. c. Planning the treatment of, or care for, a resident. d. Supporting activities of daily living, including bathing, dressing, transferring, toileting, and eating. e. Coordinating resident-focused activities. f. Supervising residents. (5) “Memory care services” means ongoing specialized care for residents who demonstrate symptoms of memory-impacting conditions, including traumatic brain injuries, Alzheimer’s disease, or other dementias, to an extent that such symptoms interfere with activities of daily living. Such care is designed to manage the behavioral and psychological symptoms of memory-impacting conditions, including traumatic brain injuries, Alzheimer’s disease, or other dementias. Such care includes planned group and individual programming and person-centered care practices to support activities of daily living for residents living with memory-impacting conditions, including traumatic brain injuries, Alzheimer’s disease, or other dementias. Memory care services may be provided in a facility that is not or does not include a secured memory care unit. Memory care services includes dementia care services. (6) “Resident” means as defined in § 1102 of Title 16. (7) “Secured memory care unit” means a designated area or setting designed for individuals who demonstrate symptoms of memory-impacting conditions, including traumatic brain injury, Alzheimer’s disease, or other dementias, that is secured for the purpose of preventing a resident from exiting, or for the purpose of limiting a resident’s ability to exit, the secured area or setting. A secured memory care unit is not solely an individual resident’s personal living area. A secured memory care unit does not include all facilities that provide memory care services. (8) “Service agreement” means a written document developed with each resident or their authorized representative that describes what services will be provided, who will provide the services, when the services will be provided, how the services will be provided, and the expected outcome from the services. (9) “Temporary staffing agency” means a business entity or subdivision that provides temporary staff to a long-term care facility within this State.

Del. Code tit. 16, § 1193 Dementia care staffing in secured memory care units in assisted living facilities [For application of this section, see 84 Del. Laws, c. 327, § 2].

(a) An assisted living facility that provides dementia care services in a secured memory care unit must develop a staffing plan for determining its staffing level that does all of the following: (1) Meets the scheduled needs of each resident in the secured memory care unit as required by the resident’s most recent assessment and service agreement on a 24-hour per day basis. (2) Meets the reasonably foreseeable unscheduled needs of each resident in the secured memory care unit as dictated by the resident’s most recent assessment and service agreement on a 24-hour per day basis. (3) Meets the evolving needs of each resident in the secured memory care unit on a 24-hour per day basis. (4) Details the facility’s staffing for activity services in its secured memory care unit. (5) Ensures that the facility is prepared to respond promptly and effectively to individual resident emergencies and to emergency, life safety, and disaster situations affecting staff or residents in the facility. (b) The Department shall review the facility’s staffing plan during each annual inspection and during any other inspection in which the Department determines that a review of the staffing plan is relevant. The Department shall review the facility’s staffing plan to ensure all of the following: (1) The facility has a staffing plan that meets the requirements detailed in this section. (2) The facility has sufficient staff to meet the requirements specified in its staffing plan.

Del. Code tit. 16, § 1194 Dementia care services training for staff employed by assisted living facilities [For application of section, see 84 Del. Laws, c. 327, § 2].

(a) Within 180 days of the implementation of 84 Del. Laws, c. 327, an individual directly employed by an assisted living facility who provides direct care to residents receiving dementia care services in a secured memory care unit must complete a minimum of 4 hours of dementia care services training. Training must be provided by the facility, approved by the Department, and include all of the following topics: (1) Communicating and interacting with individuals with Alzheimer’s disease or other dementias. (2) The psychological, social, and physical needs of individuals with Alzheimer’s disease or other dementias. (3) The benefits of nonpharmacological approaches to treatment. (4) Safety measures necessary for individuals with Alzheimer’s disease or other dementias, including preventing and responding to a resident’s unauthorized exit from either the secured memory care unit or the facility. (b) Within 180 days of the implementation of 84 Del. Laws, c. 327, an individual directly employed by an assisted living facility who provides nondirect care to residents receiving dementia care services in a secured memory care unit must complete a minimum of 2 hours of dementia care services training. Training must be provided by the facility, be approved by the Department, and include all of the following topics: (1) Communicating and interacting with individuals with Alzheimer’s disease or other dementias. (2) Safety measures necessary for individuals with Alzheimer’s disease or other dementias, including preventing and responding to a resident’s unauthorized exit from either the secured memory care unit or the facility. (c) Within 60 days of hiring, an individual directly employed by an assisted living facility who provides direct care to residents receiving dementia care services in a secured memory care unit must complete a minimum of 4 hours of dementia care services training. Training must be provided by the facility, approved by the Department, and include all of the following topics: (1) Communicating and interacting with individuals with Alzheimer’s disease or other dementias. (2) The psychological, social, and physical needs of individuals with Alzheimer’s disease or other dementias. (3) The benefits of nonpharmacological approaches to treatment. (4) Safety measures necessary for individuals with Alzheimer’s disease or other dementias, including preventing and responding to a resident’s unauthorized exit from either the secured memory care unit or the facility. (d) Within 60 days of hiring, an individual directly employed by an assisted living facility who provides nondirect care to residents receiving dementia care services in a secured memory care unit must complete a minimum of 2 hours of dementia care services training. Training must be provided by the facility, be approved by the Department, and include all of the following topics: (1) Communicating and interacting with individuals with Alzheimer’s disease or other dementias. (2) Safety measures necessary for individuals with Alzheimer’s disease or other dementias, including preventing and responding to a resident’s unauthorized exit from either the secured memory care unit or the facility. (e) In addition to the initial dementia care services training required by this section, an individual directly employed by an assisted living facility that provides direct care for residents receiving dementia care services in a secured memory care unit must complete annually a minimum of 4 hours of dementia care services training. Training must be provided by the facility, be approved by the Department, and include all of the following topics: (1) Communicating and interacting with individuals with Alzheimer’s disease or other dementias. (2) The psychological, social, and physical needs of individuals with Alzheimer’s disease or other dementias. (3) The benefits of nonpharmacological approaches to treatment. (4) Safety measures necessary for individuals with Alzheimer’s disease or other dementias, including preventing and responding to a resident’s unauthorized exit from either the secured memory care unit or the facility. (f) In addition to initial dementia care services training required by this section, an individual directly employed by an assisted living facility that provides nondirect care for residents receiving dementia care services in a secured memory care unit must complete annually a minimum of 2 hours of dementia care services training. Training must be provided by the facility, be approved by the Department, and include all of the following topics: (1) Communicating and interacting with individuals with Alzheimer’s disease or other dementias. (2) Safety measures necessary for individuals with Alzheimer’s disease or other dementias, including preventing and responding to a resident’s unauthorized exit from either the secured memory care unit or the facility. (g) The Department, in its sole discretion, may allow other required dementia care services training to satisfy the training requirements in this section. (h) Upon an individual’s completion of a training defined in this section, an assisted living facility must provide the individual proof of completion of the training within 10 business days of the individual’s completion of the training. (i) An assisted living facility must maintain a record of each individual’s completion of training required by this section for a minimum of 3 years after the individual has completed the training.

Del. Code tit. 16, § 1195 Dementia care services training for staff employed by a temporary staffing agency [For application of this section, see 84 Del. Laws, c. 327, § 2].

(a) If an individual employed by a temporary staffing agency is contracted by an assisted living facility to provide either direct or nondirect care to residents receiving dementia care services in a secured memory care unit, the assisted living facility must, prior to the individual providing either direct or nondirect care to residents receiving dementia care services in a secured memory care unit, obtain proof from the temporary staffing agency that the individual has completed the training required in this section. (b) Prior to providing direct care to residents receiving dementia care services in a secured memory care unit, an individual employed by a temporary staffing agency and providing direct care to residents receiving dementia care services in a secured memory care unit must complete a minimum 4 hours of dementia care services training. Training must be provided by the temporary staffing agency, be approved by the Department, and include all of the following topics: (1) Communicating and interacting with individuals with Alzheimer’s disease or other dementias. (2) The psychological, social, and physical needs of individuals with Alzheimer’s disease or other dementias. (3) The benefits of nonpharmacological approaches to treatment. (4) Safety measures necessary for individuals with Alzheimer’s disease or other dementias, including preventing and responding to a resident’s unauthorized exit from either the secured memory care unit or the facility. (c) Prior to providing nondirect care to residents receiving dementia care services in a secured memory care unit, an individual employed by a temporary staffing agency and providing nondirect care to residents receiving dementia care services in a secured memory care unit must complete a minimum of 2 hours of dementia care services training. Training must be provided by the temporary staffing agency, be approved by the Department, and include all of the following topics: (1) Communicating and interacting with individuals with Alzheimer’s disease or other dementias. (2) Safety measures necessary for individuals with Alzheimer’s disease or other dementias, including preventing and responding to a resident’s unauthorized exit from either the secured memory care unit or the facility. (d) In addition to initial dementia care services training, an individual employed by a temporary staffing agency that provides direct care for residents receiving dementia care services in a secured memory care unit must complete a minimum of 4 hours of annual dementia care services training. Training must be provided by the temporary staffing agency, be approved by the Department, and include all of the following topics: (1) Communicating and interacting with individuals with Alzheimer’s disease or other dementias. (2) The psychological, social, and physical needs of individuals with Alzheimer’s disease or other dementias. (3) The benefits of nonpharmacological approaches to treatment. (4) Safety measures necessary for individuals with Alzheimer’s disease or other dementias, including preventing and responding to a resident’s unauthorized exit from either the secured memory care unit or the facility. (e) In addition to initial dementia care services training, an individual employed a temporary staffing agency that provides nondirect care for residents receiving dementia care services in a secured memory care unit must complete a minimum of 2 hours of annual dementia care services training. Training must be provided by the temporary staffing agency, be approved by the Department, and include all of the following topics: (1) Communicating and interacting with individuals with Alzheimer’s disease or other dementias. (2) Safety measures necessary for individuals with Alzheimer’s disease or other dementias, including preventing and responding to a resident’s unauthorized exit from either the secured memory care unit or the facility. (f) The Department, in its sole discretion, may allow other required dementia care services training to satisfy the training requirements in this section. (g) Upon an individual’s completion of a training defined in this section, a temporary staffing agency must provide the individual proof of completion of the training within 10 business days of the individual’s completion of the training. (h) A temporary staffing agency must maintain a record of each individual’s completion of training required by this section for a minimum of 3 years after the individual has completed the training.

Del. Code tit. 16, § 1196 Transferability of training [For application of this section, see 84 Del. Laws, c. 327, § 2].

If an individual was previously employed by another assisted living facility or a temporary staffing agency and has previously satisfied a training requirement defined in this subchapter, the individual may present proof of completion of the training to an assisted living facility or a temporary staffing agency to satisfy the corresponding training required by this subchapter.

Del. Code tit. 16, § 1197 Enforcement [For application of this section, see 84 Del. Laws, c. 327, § 2].

(a) A failure to meet the requirements defined in this subchapter are grounds for enforcement action under this chapter. (b) The Department may impose additional staffing requirements on any assisted living facility due to unsatisfactory outcomes for residents receiving dementia care services in a secured memory care unit. Such determination is made at the sole discretion of the Department.

Del. Code tit. 16, § 1198 Authority to develop rules and regulations [For application of this section, see 84 Del. Laws, c. 327, § 2].

The Department shall promulgate and adopt rules and regulations to fully and effectively implement the provisions of this subchapter.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title16/c011/sc01/index.htmlFetched: 10/4/2026

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