Delaware General Assembly

CHAPTER 487

FORMERLY

SENATE BILL NO. 321

AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 2 AND

HOUSE AMENDMENT NO. 4

AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO ABUSE, NEGLECT, MISTREATMENT OR FINANCIAL EXPLOITATION OF PATIENTS OR RESIDENTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Subchapter III, Chapter 11, Title 16, Delaware Code by deleting the Title of Subchapter III and renaming it as follows:

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

Section 2. Amend §1131, Title 16, Delaware Code by redesignating the current §1131(4) as §1131(5), by redesignating the current §§1131(5) — (7) as §§1131(8) — (10), and by adding the following new subsections:

"(4)`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)`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."

(7)`Division' shall mean the Division of Long-Term Care Consumer Protection;"

Section 3. Amend §1132, Title 16, Delaware Code by adding the following subsection (d):

"(d) Any correspondence or other written communication from a resident or patient to the Department, the Attorney General's Office 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 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."

Section 4. Amend §1134, Title 16, Delaware Code by deleting the current Section in its entirety and substituting the following:

"Section 1134. State response to reports of adult abuse, neglect, mistreatment or financial exploitation.

(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 subchapter, 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. 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 §1134(d)(4), 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 one hundred eighty (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 subchapter, 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.

situations outlined in §1134(d)(4) requiring the initiation of an investigation within 24 hours, all other investigations under this subchapter shall be initiated within ten 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 Consumer Protection. Such investigators shall hold office at the pleasure of the Secretary. Any person appointed pursuant to this section shall have experience as a 'police officer,' as that term is defined in 11 Del.C, §1911(a), 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 have such other qualifications deemed appropriate by the Secretary.

(b) Special investigators appointed under this section may conduct investigations of adult abuse, neglect, mistreatment, financial exploitation or risk thereof anywhere in this state as directed by the Director of the Division of Long-Term Care Consumer Protection. Special Investigators shall only have the power to make arrests anywhere in the state, upon view, with probable cause and without a warrant, of any person committing or attempting to commit any crime set forth in this subchapter involving adult abuse, neglect, mistreatment, financial exploitation, or risk thereof which creates a substantial risk of death or serious injury to another person. Special Investigators may serve writs anywhere in the state.

(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

(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 subchapter 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 one 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."

Section 5. Amend §I132, Title 16, Delaware Code by deleting "or neglected" and "or neglect" each time they appear therein and by inserting in lieu thereof ", neglected or financially exploited" and ", neglect or financial exploitation" respectively.

Section 6. Amend §1132(b), Title 16, Delaware Code by deleting "a criminal fine not to exceed $1,000" and by inserting in lieu thereof "a civil penalty not to exceed $1,000 per violation."

Section 5. This Bill shall take effect 180 days after its enactment.

Approved July 23, 1998