TITLE 16

Health and Safety

Regulatory Provisions Concerning Public Health

CHAPTER 11. NURSING FACILITIES AND SIMILAR FACILITIES

Subchapter III. Abuse, Neglect, Mistreatment or Financial Exploitation of Residents or Patients


When used in this subchapter the following words shall have the meaning herein defined. To the extent the terms are not defined herein, the words are to have their commonly-accepted meaning.

(1) Abuse shall mean:

a. Physical abuse by unnecessarily inflicting pain or injury to a patient or resident. This includes but is not limited to, hitting, kicking, punching, slapping or pulling hair. When any act constituting physical abuse has been proved, the infliction of pain is assumed.

b. Sexual abuse which includes, but is not limited to, 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 shall be no defense that the sexual contact, sexual penetration, or sexual intercourse was consensual.

c. Emotional abuse which includes, but is not limited to, ridiculing, demeaning, humiliating, or cursing at a patient or resident, or threatening a patient or resident with physical harm.

d. Medication diversion by knowingly, or intentionally, interrupting, obstructing, or altering the delivery, or administration, of a prescription drug to a patient or resident, providing that such prescription drug was:

1. Prescribed or ordered by a health-care provider for the patient or resident; and

2. The interruption, obstruction, or alteration occurred without the prescription, or order, of a health-care provider;

e. A person is justified in engaging in conduct otherwise prohibited in paragraph (1)d. of this section if the conduct was performed by:

1. A health-care provider, or licensed healthcare professional, who acted in good faith within the scope of the person's practice or employment; or

2. A person acting in good faith while rendering emergency care at the scene of an emergency, or accident.

(2) "Department" shall mean the Department of Health and Social Services or its designee.

(3) "Division" shall mean the Division of Long-Term Care Consumer Protection;

(4) "Facility" shall include:

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. The Delaware Psychiatric Center and hospitals certified by the Department of Health and Social Services pursuant to § 5001 or § 5136 of this title; and

d. Any hospital as defined in § 1001(2) of this title. "Hospital" as defined in § 1001(2) of this title is included in the definition of facility only for the purposes and application of §§ 1131 and 1136 of this title.

(5) "Financial exploitation" shall mean the illegal or improper use or abuse of a patient's or resident's resources or financial rights by another person, whether for profit or other advantage.

(6) "Health-care provider" shall mean an individual licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession. This is the same definition as in § 2501 of this title.

(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" shall mean the collection of evidence in response to a report of abuse, neglect, mistreatment or financial exploitation of a resident or patient to determine if that resident or patient has been abused, neglected, mistreated or financially exploited. The Division 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) "Mistreatment" shall include the inappropriate use of medications, isolation, or physical or chemical restraints on or of a patient or resident.

(10) "Neglect" shall mean:

a. Lack of attention to physical needs of the patient or resident including, but not limited to 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 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 willful pattern of such neglect.

(11) "Person" means a human being and where appropriate a public or private corporation, an unincorporated association, a partnership, a government or governmental instrumentality.

(12) "Protection and advocacy agency" shall mean the Community Legal Aid Society, Inc. or successor agency designated the State protection and advocacy system pursuant to the following:

a. Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C. § 10801 et seq.);

b. Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. § 15001 et seq.); or

c. Protection and advocacy for individual rights (29 U.S.C. § 794e).

(13) "Prescription drug" means a controlled substance as listed in subchapter II in Chapter 47 of this title or any other drug that can only be dispensed upon written, or verbal, authorization from a licensed health-care provider.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 222, § 3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, § 1; 71 Del. Laws, c. 487, § 1; 72 Del. Laws, c. 120, §§ 1-4; 77 Del. Laws, c. 201, § 9; 78 Del. Laws, c. 30, § 1; 79 Del. Laws, c. 193, § 1.;

(a) Any employee of a facility or anyone who provides services to a patient or resident of a facility on a regular or intermittent basis who has reasonable cause to believe that a patient or resident in a facility has been abused, mistreated, neglected or financially exploited shall immediately report such abuse, mistreatment, neglect or financial exploitation to the Department by oral communication. A written report shall be filed by the employee or service provider within 48 hours after the employee or service provider first gains knowledge of the abuse, mistreatment, neglect or financial exploitation.

(b) Any person required by subsection (a) of this section to make an oral and a written report who fails to do so shall be fined not more than $1,000 or shall be imprisoned not more than 15 days, or both.

(c) In addition to those persons subject to subsection (a) of this section any other person may make such a report, if such persons have reasonable cause to believe that a patient or resident of a facility has been abused, mistreated, neglected or financially exploited.

(d) Any individual who intentionally makes a false report under this subchapter shall be guilty of a class A misdemeanor.

(e) Any correspondence or other written communication from a resident or patient to the Department, the Attorney General's office, the protection and advocacy agency and/or a law-enforcement agency shall, if delivered to or received by a facility, be promptly forwarded, unopened, by the facility or service provider to the agency to which it is written. Any correspondence or other written communication from the Department, the Attorney General's office, the protection and advocacy agency and/or a law-enforcement agency to a resident or patient shall, if delivered to or received by the facility or other service provider, be promptly forwarded, unopened, by the facility or other service provider to such resident or patient. Failure to comply with this section shall result in a civil penalty not to exceed $1,000 per violation.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 292, § 1; 71 Del. Laws, c. 487, §§ 3, 5, 6; 74 Del. Laws, c. 196, § 1; 77 Del. Laws, c. 201, § 10.;

The reports required under this subchapter shall contain the following information: The name and sex of the patient or resident; the name and address of the facility in which the patient or resident resides; the age of the patient or resident, if known; the name and address of the reporter and where the reporter can be contacted; any information relative to the nature and extent of the abuse, mistreatment or neglect, and if known to the reporter any information relative to prior abuse, mistreatment or neglect of such patient or resident; the circumstances under which the reporter became aware of the abuse, mistreatment or neglect; what action, if any, was taken to treat or otherwise assist the patient or resident; and any other information which the reporter believes to be relevant in establishing the cause of such abuse, mistreatment or neglect.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1.;

(a) The Department shall ensure that patients or residents are afforded the same rights and protections as other individuals in the State.

(b) In addition to the persons required to report abuse, neglect, mistreatment or financial exploitation pursuant to § 1132(a) of this title, any other person, including a nursing facility resident or patient, may contact the Department to report any complaint concerning the health, safety and welfare of facility residents and patients.

(c) 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 and financial exploitation.

(d) In responding to abuse, neglect, mistreatment and financial exploitation complaints, the Division shall:

(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 Ombudsman, and victim rights resource organizations. If the Division does not have jurisdiction over the complaint, its staff shall so advise the person making the complaint and shall promptly refer the complainant to the appropriate agency.

(3) Forward complaints to the appropriate Division staff who shall determine, through the use of standard operating procedures developed by the Division, whether an investigation should be initiated to respond to the complaint. The protocols for making this determination shall be developed by the Division and shall give priority to ensuring the well-being and safety of residents and patients.

(4) Begin the investigation within 24 hours of receipt of any report or complaint that alleges the following:

a. A resident's or patient's health or safety is in imminent danger; or

b. A resident or patient has died due to alleged abuse, neglect or mistreatment; or

c. A resident or patient has been hospitalized or received medical treatment due to alleged abuse, neglect or mistreatment; or

d. If the report or complaint alleges the existence of circumstances that could result in abuse, neglect or mistreatment and that could place a resident's or patient's health or safety in imminent danger; or

e. A resident or patient has been the victim of financial exploitation or risk thereof and exigent circumstances warrant an immediate response.

(5) Contact the appropriate law enforcement agency upon receipt of any complaint requiring an investigation immediately under this section and shall provide the police with a detailed description of the complaint received. The appropriate law enforcement agency shall conduct its investigation or provide the Division, within a reasonable time period, an explanation detailing the reasons why it is unable to conduct the investigation. 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. 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 Division may request that the Delaware State Police exercise jurisdiction over the case and, upon such request, the Delaware State Police may exercise such jurisdiction.

(6) Upon receipt of any report pursuant to paragraph (d)(4) 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. The Attorney General's Office or other law enforcement agency conducting the investigation shall keep the Division informed of the case status and all major decisions pursuant to Memoranda of Understanding between the Division and the Attorney General's Office and other relevant law enforcement agencies. The Memoranda of Understanding shall be executed within 180 days of the signing of this legislation and may be amended as needed. To the extent the criminal arrest and criminal prosecution, the Department of Justice shall keep the Division well informed of the case status and all major decisions, including but not limited to the disposition of criminal charges and the specifics of any sentencing order rendered.

(7) The Department shall have the authority to secure a medical examination of a nursing facility resident or patient upon the consent of the resident or patient without the consent of the service provider if the resident has been reported to be a victim of abuse, neglect or mistreatment; provided, that such case is classified as an investigation pursuant to this subchapter.

(8) When a written report of abuse, neglect, mistreatment or financial exploitation is made by a person required to report under § 1132(a) of this title, the Division shall contact the person who made such 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) The Division shall conduct an investigation involving all reports which, if true, would constitute criminal offenses pursuant to any of the following provisions of Title 11 of the Delaware Code: §§ 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 or an attempt to commit any such crime. Except for situations outlined in paragraph (d)(4) of this section requiring the initiation of an investigation within 24 hours, all other investigations under this subchapter shall be initiated within 10 days and conducted during that timeframe unless extenuating facts warrant a longer time period to complete the investigation.

(10) The Division shall develop protocols to ensure that it shall conduct its investigation in coordination with the relevant law enforcement agency. The primary purpose of the Division's investigation shall be the protection of the resident(s) or patient(s).

(11) In investigating abuse, neglect, mistreatment or financial exploitation reports, the Division may:

a. Make unannounced visit(s) to the facility to determine the nature and cause of the alleged abuse, neglect, mistreatment or financial exploitation;

b. Interview available witnesses identified by any source as having personal knowledge relevant to the reported abuse, neglect, mistreatment or financial exploitation;

c. Conduct interviews in private unless the witness expressly requests that the interview not be private;

d. Write an investigation report that includes the investigator's personal observations, a review of the medical and all other relevant documents and records, a summary of each witness statement and a statement of the factual basis for the findings for each incident or problem alleged in the complaint.

(12) Appointment of special investigators; powers and duties.

a. The Secretary of the Department of Health and Social Services may appoint qualified persons to be special investigators for the Division of Long-Term Care Residents Protection. Such investigators shall hold office at the pleasure of the Secretary. Any person appointed pursuant to this section shall have a minimum of 10 years experience as a "police officer," as that term is defined in § 1911(a) of Title 11, significant investigatory experience while working as a police officer, shall be in good standing with the previous or present law-enforcement agency where such person is or was employed, and shall have such other qualifications deemed appropriate by the Secretary.

b. Special investigators appointed under this section may conduct investigations of abuse, neglect, mistreatment or financial exploitation of residents of long-term care facilities and adults who are impaired anywhere in this State as directed by the Director of the Division of Long-Term Care Residents Protection and shall have the power to make arrests and serve writs anywhere in this State. In conducting such investigations, the special investigators shall have the statewide powers enumerated under § 1911 of Title 11 and such other powers as conferred by law on police officers, but such powers shall be limited to offenses involving abuse, neglect, mistreatment or financial exploitation of residents of long-term care facilities and adults who are impaired anywhere in this State as directed by the Director of the Division of Long-Term Care Residents Protection. To the extent possible, special investigators pursuant to this section shall consult with the police agency having jurisdiction and the Director or the Director's designee prior to making an arrest and shall do so in all cases after making such arrest.

c. The salary of special investigators shall be fixed by the Secretary within the appropriations made to the Department.

d. Special investigators will assist in the training of other Division staff.

(13) The Department the Office of the Attorney General and other law enforcement agencies shall develop Memoranda of Understanding pursuant to 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. This paragraph shall become effective March 31, 1999.

(14) If the Division 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 Division shall immediately contact the Office of the Attorney General and the relevant professional licensing board.

(15) The Division and the Attorney General's Office shall cooperate with law enforcement agencies to develop training programs to increase the effectiveness of Division personnel, Attorney General's Office personnel and law enforcement officers in investigating suspected cases of abuse, neglect, mistreatment or financial exploitation.

(16) A person required to report to the Division under § 1132(a) of this title shall be informed by the Division of the person's right to obtain information concerning the disposition of the report. Such person shall receive, if requested, information on the general disposition of the report at the conclusion of the investigation.

(17) Before the completion of an investigation, the Division shall file a petition for the temporary care and protection of the resident or patient if the Division determines that immediate removal is necessary to protect the resident or patient from further abuse, neglect, mistreatment or financial exploitation.

(18) Upon completing an investigation of a complaint, the Division shall take 1 or more of the following courses of action, as appropriate:

a. If representatives of the Department, the Attorney General's Office and/or the appropriate law enforcement agency are unable to substantiate a complaint that applicable laws or regulations have been violated the Department or appropriate law enforcement agency shall so advise the complainant and the facility, agency or individual against which the complaint was made.

b. If Division representatives are able to substantiate a complaint that applicable laws or regulations have been violated, the Division shall take appropriate enforcement action.

c. Enforcement action may include instituting actions by the Division for injunctive relief or other relief deemed appropriate. The Office of the Attorney General shall provide legal advice and assist the Division to institute such proceedings.

d. If the Division discovers a deficiency in violation of federal laws or regulations or rules administered by any other government agency, the Division shall refer the matter directly to the appropriate government agency for enforcement action.

e. In the event that a criminal prosecution for abuse, neglect, mistreatment or financial exploitation is initiated by the Attorney General's Office pursuant to a report under this subchapter, and incarceration of the person who is the subject of the report is ordered by the Court, the Attorney General's Office shall keep the Division informed of actions taken by the Court which result in the release of any such individual, provided that the Attorney General's Office is represented at such a hearing.

f. In the event that a criminal prosecution for abuse, neglect, mistreatment or financial exploitation 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 shall notify the Department within 48 hours and the Department shall then notify the person's employer:

1. Upon return of an indictment charging such person with having committed at least one felony offense involving an allegation of abuse, neglect, mistreatment or financial exploitation; or

2. Upon an adjudication of guilt of such person for any misdemeanor or violation, when such offense involved abuse, neglect, mistreatment or financial exploitation.

(19) Protect the privacy of the nursing facility resident or patient and his or her family, and the Division shall establish guidelines concerning the disclosure of information relating to complaints and investigations regarding abuse, neglect, mistreatment or financial exploitation involving that resident or patient. The Division may require persons to make written requests for access to records maintained by the Division. Notwithstanding Chapter 100 of Title 29, the Division may only release information to persons who have a legitimate public safety need for such information and such information shall be used only for the purpose for which it is released pursuant to a user agreement with the Division.

(e) The protection and advocacy agency is authorized to 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 the following functions:

(1) Solicit and receive oral and written reports and complaints of abuse, neglect, mistreatment or financial exploitation of facility patients or residents; and

(2) Access a facility; interview patients, residents, facility staff and agents; and 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 compiled in § 1135 of this title shall apply to persons offering reports or testimony to initiate or support protection and advocacy agency investigation or advocacy.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 222, § 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 487, § 4; 72 Del. Laws, c. 3, § 4; 74 Del. Laws, c. 212, § 1; 77 Del. Laws, c. 201, §§ 11-14; 77 Del. Laws, c. 318, § 6; 78 Del. Laws, c. 179, § 164.;

(a) No person making any oral or written report pursuant to this subchapter shall be liable in any civil or criminal action by reason of such report where such report was made in good faith or under the reasonable belief that such abuse, financial exploitation, mistreatment or neglect has taken place.

(b) No facility shall 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, financial exploitation, mistreatment or neglect of patients or residents in said facility.

(c) Any facility which discharges, discriminates or retaliates against a person because the person has reported, testified or is about to testify concerning abuse, financial exploitation, mistreatment or neglect of patients or residents shall be liable to such person for treble damages, costs and attorney fees. Where a facility discharges, demotes or retaliates by any other means, against a person after the person made a report, testified, or was subpoenaed to testify as a result of a report authorized under this subchapter, there shall be a rebuttable presumption that such facility discharged, demoted or retaliated against such person as a result of such report or testimony.

(d) This section shall not apply to any person who has engaged in the abuse, financial exploitation, mistreatment or neglect of a patient or resident.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 201, §§ 15, 16.;

(a) Any person, who knowingly or recklessly abuses, mistreats or neglects a patient or resident of a facility shall be guilty of a class A misdemeanor. Where abuse results in sexual contact such person shall be guilty of a class G felony. Where the abuse, mistreatment or neglect results in serious physical injury, sexual penetration or sexual intercourse, such person shall be guilty of a class C felony. Where the abuse, mistreatment or neglect results in death, then the person shall be guilty of a class A felony.

(b) Any person who knowingly causes medication diversion of a patient, or resident, shall be guilty of a class G felony and guilty of a class F felony, if committed by a health-care professional.

(c) Any person who knowingly exploits a patient's or resident's resources shall be guilty of a class A misdemeanor where the value of the resources is less than $1,000 and shall be guilty of a class G felony where 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 or neglected and fails to promptly take corrective action shall be guilty of a class A misdemeanor.

(e) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code.

65 Del. Laws, c. 442, § 1; 72 Del. Laws, c. 120, §§ 5, 6; 78 Del. Laws, c. 30, §§ 2, 3; 79 Del. Laws, c. 193, § 2.;

Upon a finding of abuse, mistreatment or neglect, or failure to report such instances by a licensed or registered professional, the Department or the Attorney General shall notify the appropriate licensing or registration board. If, after a hearing, a licensed or registered professional is found to have abused, mistreated or neglected a patient or resident or has failed to report such instance, the appropriate board shall suspend or revoke such person's license.

65 Del. Laws, c. 442, § 1.;

Upon a finding that abuse, mistreatment or neglect has occurred in a facility, the Department or the Attorney General shall notify the appropriate licensing board and, if such facility receives public funding, the appropriate state or federal agency. If, after a hearing, it is determined that a member of the board of directors or a high managerial agent knew that patients or residents were abused, mistreated or neglected and failed to promptly take corrective action, the appropriate board shall suspend or revoke such facility's license.

65 Del. Laws, c. 442, § 1.;

Nothing in this subchapter shall be construed to mean that a patient or resident is abused, mistreated or neglected for the sole reason the patient or resident relies upon, 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 shall anything in this subchapter be construed to authorize or require any medical care or treatment over the implied or express objection of said patient or resident.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1.;

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

65 Del. Laws, c. 442, § 1.;