As used in this subchapter:

(1) “Abuse” means as defined in § 5631 of this title.

(2) “Critical incident” means an actual or alleged event resulting in the abuse, death, exploitation, neglect, restrictive intervention, or serious injury of a client.

(3) “Exploitation” means as defined in § 5631 of this title.

(4) “Incident” means an actual or alleged event that causes or has the potential to cause harm to a client. The term includes critical incidents and any of the following events:

a. Elopement, including whenever a client leaves a provider organization’s facility despite an imminent threat to the client’s health, safety, or well-being. An elopement does not include events or situations involving a competent adult with decision-making capacity who leaves against medical advice or voluntarily leaves before receiving treatment.

b. A health emergency in which a client receives emergency care not routinely provided by the client’s primary care practitioner, treating practitioners, provider organization, or a hospital admits the client.

c. The client is involved in a crime or contacted by a law-enforcement agency.

d. The client experiences an emergency at a facility where the client resides, including fire, flooding, severe property damage, unsafe conditions, or interruption of utilities lasting more than 8 hours.

(5) “Neglect” means as defined in § 5631 of this title.

(6) “Report” means a report required under § 5642 of this title.

(7) “Restrictive intervention” means as defined in § 5631 of this title.

(8) “Serious injury” means as defined in § 5631 of this title.

85 Del. Laws, c. 461, § 5; 

(a) Except as otherwise provided in subsection (b) of this section, whenever a staff member witnesses an incident or reasonably believes an incident has occurred, the staff member shall report the incident to the Division.

(b) A staff member who reasonably believes that another staff member has already reported an incident need not report the incident under subsection (a) of this section.

(c) A staff member shall ensure a client’s health, safety, and well-being before reporting an incident.

(d) Whenever a staff member reasonably believes that an incident involves conduct that may constitute a crime, the staff member shall contact a law-enforcement agency and report the criminal conduct as soon as possible.

(e) Except if the client refuses, whenever a staff member reasonably believes that a client was raped or sexually assaulted, the staff member shall assist the client in obtaining an examination from a qualified sexual assault nurse examiner.

(f) Except as otherwise required in subsection (d) of this section, a staff member shall immediately report an incident.

85 Del. Laws, c. 461, § 5; 

(a) Subject to this chapter, the Division may promulgate regulations related to making reports and the notification, investigation, and resolution of incidents.

(b) The Division shall develop, operate, and maintain an online system for submitting, collecting, and retaining reports.

(c) The Division shall develop and offer training resources to providers about making reports.

85 Del. Laws, c. 461, § 5; 

(a) It is unlawful for a staff member to intentionally fail to report a critical incident as required under § 5642 of this title. Violation of this subsection is a class A misdemeanor.

(b) It is unlawful for a staff member to intentionally falsify or submit a false report as required under § 5642 of this title. Violation of this subsection is a class A misdemeanor.

(c) A staff member who refuses, fails, or neglects to comply with § 5642 of this title is subject to a civil penalty of not more than $1,000 per violation. The civil penalty under this subsection does not preclude criminal liability under this section.

(d) It is unlawful for a provider organization, executive, or administrator to discharge, retaliate, or otherwise discriminate against an employee for making a report under § 5642 of this title. Violation of this subsection is a civil violation subject to a fine of up to $25,000. Whenever a provider organization, executive, or administrator violates this subsection, the provider organization, executive, or administrator is liable to the employee for treble damages, costs, and attorneys’ fees.

(e) The Attorney General shall enforce the provisions of this section.

(f) The Superior Court of this State has exclusive original jurisdiction over violations of this section.

(g) Except if the individual has engaged in the abuse, exploitation, neglect, or serious injury of a client or caused injuries or death as a result of unreasonable care, wilfully, wantonly, or by gross negligence, an individual making a report under this chapter in good faith and with reasonable care is not subject to any of the following as a result of making the report:

(1) Disciplinary or other adverse action under the professional licensing laws of this State.

(2) Criminal liability.

(3) Civil liability for damages for injuries or death.

(h) This section does not preclude a separate charge, conviction, and sentence for another crime under this Code.

85 Del. Laws, c. 461, § 5; 

(a) Except as otherwise provided in § 5646 of this title, after receiving a report, the Division shall determine, employing standard operating procedures adopted by the Division, if an incident requires investigation.

(b) If the Division determines that an investigation is required, the Division shall conduct an investigation or otherwise arrange for another State agency to conduct an investigation.

(c) After an investigation, the Division shall determine whether or not a report is substantiated. The Division shall notify the provider organization in writing of the determination no more than 10 days after making the determination.

(d) If the Division determines that a report is substantiated, the Division may do any of the following:

(1) Take disciplinary action under § 5606 of this title.

(2) Enter into a corrective action plan.

(3) Decline to take further action.

85 Del. Laws, c. 461, § 5; 

(a) Whenever the Division receives a credible report involving conduct that a reasonable person would suspect is a crime, the Division shall immediately notify a law-enforcement agency with the appropriate jurisdiction and the Attorney General.

(b) After receiving a notification under subsection (a) of this section, a law-enforcement agency shall do 1 of the following:

(1) Investigate.

(2) Decline to investigate, notify the Division, and provide the reasons for the declination.

(3) Decline to investigate, refer the notification to the Delaware State Police, and notify the Division.

(c) After receiving a notification under subsection (a) or subsection (b) of this section, the Delaware State Police shall do 1 of the following:

(1) Investigate.

(2) Decline to investigate, notify the Division, and provide the reasons for the declination.

(d) After concluding an investigation under this section, the law-enforcement agency or State Police shall provide the Division and the Attorney General with a written report summarizing the investigation.

(e) If the Attorney General initiates a criminal prosecution based on a report made under this subchapter or as a result of an investigation under this section, the Attorney General shall keep the Division informed of the major decisions related to the prosecution and the status of the case.

(f) The Division may defer deciding under § 5645 of this title until after the Division receives appropriate guidance from the Attorney General.

85 Del. Laws, c. 461, § 5; 

(a) Whenever the Division determines that an individual holding a license or certification under Title 24 has abused, exploited, neglected, or seriously injured a client, the Division shall notify the Division of Professional Regulation. After receiving notification under this subsection, the Division of Professional Regulation shall notify the appropriate board under Title 24 for disciplinary proceedings.

(b) Subject to § 8564 of Title 11, whenever the Division substantiates that an individual has abused, exploited, neglected, or seriously injured a client, the Division shall refer the individual to the Department for entry on the Adult Abuse Registry.

85 Del. Laws, c. 461, § 5; 

(a) The purpose of the protection and advocacy system is to complement the Division’s role in promoting the health, safety, and well-being of clients through advocacy, investigation, and monitoring.

(b) The protection and advocacy system may access clients, facilities, and records as authorized by federal or State law and related regulations.

(c) The Division shall notify the protection and advocacy system no more than 72 hours after receiving a report under § 5642 of this title that a client has died. The notification must include the client’s name, age, the provider organization involved, and the apparent cause of death to the extent that the Division possesses such information and applicable State and federal confidentiality laws permit its disclosure.

(d) A staff member of a provider organization or the Division may report suspected abuse or neglect of a client by provider organization staff to the protection and advocacy system. A staff member who makes a report under this subsection must still report the incident to the Division under § 5642 of this title.

(e) It is unlawful for a provider organization, executive, or administrator to discharge, retaliate, or otherwise discriminate against an employee for making a report to the protection and advocacy system under subsection (d) of this section or for otherwise cooperating with an investigation by the protection and advocacy system. Violation of this subsection is a civil violation subject to a fine of up to $25,000. Whenever a provider organization, executive, or administrator violates this subsection, the provider organization, executive, or administrator is liable to the employee for treble damages, costs, and attorneys’ fees.

85 Del. Laws, c. 461, § 5; 

(a) Records created or maintained under this subchapter relating to incident reports, investigations, or referrals are not “public records” as defined in Chapter 100 of Title 29 and shall be protected consistent with applicable State and federal confidentiality laws.

(b) The Division may publish aggregate, de-identified information regarding incident reports received under this subchapter, including trends or patterns identified by the Division, provided that such publication does not disclose information that identifies an individual and is consistent with applicable State and federal confidentiality laws.

(c) The publication of aggregate information under subsection (b) of this section does not waive the confidentiality of records protected under this section.

85 Del. Laws, c. 461, § 5;