As used in this chapter:

(1) “Behavioral health condition” means a diagnosable disorder of sufficient duration to meet the diagnostic criteria within the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, resulting in functional impairment that substantially interferes with or limits 1 or more major life activities.

(2) “Behavioral health treatment provider organization” or “provider organization” means an individual, nonprofit, firm, partnership, corporation, association, joint-stock company, limited partnership, limited liability company, other legal entity, or successor seeking to or operating a program.

(3) “Behavioral health treatment program” or “program” means the treatment services delivered by a provider organization to treat a behavioral health condition.

(4) “Behavioral health treatment services” or “treatment services” means efforts to develop, maintain, or restore the functioning of an individual with a behavioral health condition to the maximum extent practicable. The term includes services provided to a client to diagnose, describe, predict, and explain the client’s status; to support individual treatment planning; to conduct case review; to maintain records required for treatment; and to provide treatment supervision.

(5) “Client” means an individual with a behavioral health condition receiving treatment or other services from a provider organization.

(6) “Department” means the Department of Health and Social Services.

(7) “Director” means the Director of the Division of Substance Abuse and Mental Health.

(8) “Division” means the Division of Substance Abuse and Mental Health.

(9) “Executive” means an individual who can act alone or in concert with others to directly or indirectly influence or direct a provider organization’s administration, management, expenditure of money, or policies.

(10) “Facility” means real property, including buildings, fixtures, or other improvements owned, leased, operated, or used by a provider organization.

(11) “Federal protection and advocacy statute” includes any of the following:

a. Client Assistance Program, 29 U.S.C. § 732.

b. The Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 15041 et seq.

c. The Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq.

d. Protection and Advocacy for Individual Rights, 29 U.S.C. § 794e.

e. The Traumatic Brain Injury Act, 42 U.S.C. § 300d-53.

f. The Assistive Technology Act, 29 U.S.C. § 3001 et seq.

g. The Ticket to Work and Work Incentives Improvement Act, 42 U.S.C. § 1320b-21.

h. Protection and Advocacy for Voting Access, 52 U.S.C. § 21061.

i. Social Security Beneficiaries Act, 42 U.S.C. § 405(j)(6).

(12) “Hospital” means as defined in § 1001 of this title.

(13) “Licensed behavioral health practitioner” or “licensed practitioner” means an individual who is at least 1 of the following:

a. A psychiatrist.

b. An “advanced practice registered nurse” as defined in § 1902 of Title 24 who is certified as a psychiatric-mental health nurse practitioner by the American Nurses Credentialing Center.

c. A “registered nurse” as defined in § 1902 of Title 24, certified as a psychiatric-mental health registered nurse by the American Nurses Credentialing Center.

d. A “licensed professional counselor of mental health” or a “licensed associate counselor of mental health” as defined in § 3031 of Title 24.

e. A “baccalaureate social worker,” “licensed clinical social worker,” or “master’s social worker” as defined in § 3902 of Title 24.

f. A psychologist or psychological assistant licensed under Chapter 35 of Title 24.

g. A “licensed chemical dependency professional” defined in § 3041 of Title 24.

h. A “licensed marriage and family therapist” or a “licensed associate marriage and family therapist” as defined in § 3051 of Title 24.

i. A “licensed professional art therapist” or “licensed associate art therapist” as defined in § 3060 of Title 24.

(14) “Licensed professional” means an individual who holds a valid license issued by a licensing board or is otherwise authorized to practice in this State and practices solely within the permissible scope of the professional’s license.

(15) “Licensed professional in private practice” means a licensed professional who provides outpatient treatment services solely within the permissible scope of the professional’s license.

(16) “Licensing board” includes all of the following:

a. The Board of Medical Licensure and Discipline.

b. The Delaware Board of Nursing.

c. The Board of Mental Health and Chemical Dependency Professionals.

d. The Board of Examiners of Psychologists.

e. The Board of Social Work Examiners.

(17) “Physician” means as defined under § 1702 of Title 24, and includes an allopathic Doctor of Medicine and Surgery or a Doctor of Osteopathic Medicine and Surgery with a valid license to practice medicine working in a United States Department of Veterans Affairs medical center in this State.

(18) “Program administrator” or “administrator” means an individual employed by a provider organization to operate a program who is responsible for the program’s professional program of care and treatment, managing the program’s affairs, and serving as the program’s agent for service of process or a court’s order.

(19) “Protection and advocacy system” means the Community Legal Aid Society, Inc., or successor agency designated under a federal protection and advocacy statute.

(20) “Psychiatrist” means a physician who has completed an accredited residency training program in psychiatry.

(21) “Recovery house” means as defined in § 2201A of this title.

(22) “Representative” means any of the following:

a. An individual named in a client’s advanced healthcare directive.

b. An individual granted durable medical power of attorney for a client’s healthcare decisions.

c. A client’s “guardian” as defined in § 2502 of this title.

d. A client’s “surrogate” as defined in § 2502 of this title.

e. A client’s “heir” as defined under § 101 of Title 12.

f. A client’s “personal representative” as defined under § 101 of Title 12.

(23) “Secretary” means the Secretary of the Department of Health and Social Services.

(24) “Staff member” or “staff” means an employee, practitioner, contractor, intern, subcontractor, or volunteer employed by or acting on behalf of a provider organization.

(25) “Treating practitioner” means a licensed practitioner who consults or treats a client for a behavioral health condition and uses the results of a diagnostic test to manage the client’s condition.

85 Del. Laws, c. 461, § 1; 

(a) All of the following are exempt from the requirements of this section:

(1) A licensed practitioner in private practice.

(2) A provider organization or program exclusively serving children.

(3) A licensed professional providing treatment services incidental to the professional’s regular practice.

(b) Except as otherwise provided under this chapter or with a valid license, a person may not do any of the following:

(1) Provide treatment services.

(2) Operate a program.

(3) Advertise, hold out to the public, imply, or represent that the person is authorized, licensed, or permitted to provide treatment services in this State.

(4) Advertise, hold out to the public, imply, or represent that the person is authorized, licensed, or permitted to operate a program in this State.

(c) The Director may exempt any of the following from the requirements of this section if the Director reasonably believes that the exemption does not endanger clients’ health, safety, or welfare:

(1) A provider organization or program otherwise licensed by this State.

(2) Programs operated by or for this State.

(3) A program operating an embedded integrated care model designated by the Division of Medicaid and Medical Assistance.

(4) A program offering support services, including recovery houses, mutual aid groups, self-help groups, peer support, and other similar organizations that do not provide clinical services.

(5) A program offering prevention or education services.

(6) Other provider organizations, programs, or treatment services designated by the Director.

85 Del. Laws, c. 461, § 1; 

(a) It is unlawful to recklessly cause physical injury to another person by providing treatment services in violation of § 5602 of this title. Violation of this subsection is a class F felony.

(b) It is unlawful to recklessly create a substantial risk of physical injury to another person by providing treatment services in violation of § 5602 of this title. Violation of this subsection is a class G felony.

(c) It is unlawful to intentionally provide treatment services in violation of § 5602 of this title. Violation of this subsection is a class A misdemeanor.

(d) It is unlawful to intentionally operate or attempt to operate a program in violation of § 5602 of this title. Violation of this subsection is a class A misdemeanor.

(e) It is unlawful to intentionally advertise, hold out to the public, imply, or represent that a person is authorized, licensed, or permitted to provide treatment services in this State in violation of § 5602 of this title. Violation of this subsection is a class A misdemeanor.

(f) It is unlawful to intentionally advertise, hold out to the public, imply, or represent that a person is authorized, licensed, or permitted to operate a program in this State in violation of § 5602 of this title. Violation of this subsection is a class A misdemeanor.

85 Del. Laws, c. 461, § 1; 

A provider organization or the provider organization’s executive, administrator, or staff may not do any of the following:

(1) Violate federal, State, or local laws or regulations.

(2) Violate the terms of a corrective action plan.

(3) Act in a manner that endangers a client’s health, safety, or welfare.

(4) Knowingly make a false statement of material fact during an audit, investigation, or monitoring.

(5) Knowingly tamper with or aid and abet in tampering with evidence related to an investigation.

(6) Advertise or solicit in a manner that is deceptive, false, misleading, or likely to intimidate or pressure an individual into accepting services.

(7) Advertise or solicit within 500 feet of another provider organization’s facility.

85 Del. Laws, c. 461, § 1; 

(a) The Division may audit a provider organization.

(b) Upon the Division’s request and without notice, a provider organization shall grant the Division access to the provider organization’s administrators, clients, executives, facilities, records, and staff.

(c) No more than 15 days after receiving written notice from the Division, a provider organization shall submit financial statements to the Division.

(d) No more than 60 days after receiving written notice from the Division, a provider organization shall submit an audited financial report to the Division.

(e) Records maintained under this section are not “public records” as defined in Chapter 100 of Title 29.

85 Del. Laws, c. 461, § 1; 

(a) The Division may impose a civil money penalty of no more than $10,000 per violation in addition to costs on a provider organization that refuses, fails, or neglects to comply with this chapter.

(b) The Division may impose and collect civil money penalties.

(c) A civil money penalty collected under this section is appropriated to the Division for this chapter’s purposes.

(d) If a provider organization fails to pay a civil money penalty imposed by the Division, the Division may add the penalty amount to a required license fee.

(e) Whenever a provider organization exhausts the provider organization’s appeals under this chapter and fails to pay a civil money penalty, the Division may bring a civil action in the Superior Court of this State to collect the penalty, interest on the penalty, attorneys’ fees, and costs. The Court may not review the penalty’s validity, amount, or appropriateness as part of an action brought under this subsection.

(f) The Division may impose any of the following penalties on a provider organization that refuses, fails, or neglects to comply with this chapter:

(1) Require monitoring of a provider organization or the provider organization’s program at the provider organization’s expense. Whenever the Division requires monitoring under this paragraph (f)(1), the Division shall determine the monitoring terms, conditions, and timeframe.

(2) Suspend the admission of clients to a provider organization’s program.

(3) Suspend or revoke a provider organization’s license or refuse the provider organization’s licensure application.

(4) Suspend or revoke a provider organization’s program license or refuse the provider organization’s program licensure application.

(g) The Department may bring an action in the Court of Chancery to enjoin a provider organization from engaging in activities that threaten the health, welfare, and safety of the provider organization’s clients. If the Court finds the provider organization’s activities create an imminent risk of substantial harm to the provider organization’s clients, the Court may grant a temporary restraining order.

(h) Whenever the Department reasonably believes that a provider organization is acting in a manner that creates an imminent risk of substantial harm to the provider organization’s clients, the Secretary may issue an emergency order temporarily transferring the management of the provider organization’s program to another qualified entity. Whenever the Secretary issues an order under this subsection, the Department shall determine the monitoring terms, conditions, and timeframe.

85 Del. Laws, c. 461, § 1; 

(a) Except in a bona fide emergency, a provider organization shall notify the Division 90 days before an interruption in services or closure of a program. In a bona fide emergency, the provider organization shall notify the Division as soon as practicable.

(b) Whenever a provider organization or the provider organization’s executive, administrator, or staff is aware or reasonably believes that the provider organization is insolvent or at imminent risk of becoming insolvent, the provider organization or the provider organization’s executive, administrator, or staff shall notify the Division.

85 Del. Laws, c. 461, § 1; 

(a) The Division may establish licensing fees through regulation.

(b) The fee amount established under subsection (a) of this section must approximate and reasonably reflect the costs necessary to defray the Division’s expenses.

(c) The Division may collect fees established under subsection (a) of this section.

(d) A fee collected under this chapter is appropriated to the Division to carry out this chapter’s purposes.

85 Del. Laws, c. 461, § 1; 

The Division may adopt regulations to implement this chapter, including the process the Director may employ when considering exemptions for organizations and programs referenced under § 5602 of this title.

85 Del. Laws, c. 461, § 1;