Delaware General Assembly

AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO HEALTH AND SAFETY AND MINIMUM STAFFING LEVELS FOR RESIDENTIAL HEALTH FACILITIES.

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

WHEREAS, the General Assembly of the State of Delaware deems it to be in the best interest of the people of the State to enact legislation to establish minimum staffing levels for residential health facilities; and

WHEREAS, the General Assembly also deems it in the best interest of the people of the State to monitor the minimum staffing levels for residential health facilities in order to evaluate whether the standards should be amended from time to time.

NOW, THEREFORE:

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

Section 1. This Act shall be referred to and cited as ‘Eagle’s Law’ in memory of Ignatius Adam ‘Eagle’ Marshall, patriot, husband and father, whose long-term care experience inspired this legislation in order to assist providers to enhance all services.

Section 2. Amend Title 16, Chapter 11 of the Delaware Code, by adding a new Subchapter VI. which shall read as follows:

“Subchapter VI. Minimum Staffing Levels for Residential Health Facilities

§1161. Definitions

(a) “Advanced practice nurse” shall mean an individual whose education and certification meet the criteria outlined in Title 24, Chapter 19, Delaware Code, and who is certified in at least one of the following specialty areas:

(1) Adult nurse practitioner;

(2) Gerontological clinical nurse specialist;

(3) Gerontological nurse practitioner;

(4) Psychiatric/mental health clinical nurse specialist; or

(5) Family nurse practitioner.

(b) “The Department” shall mean the Department of Health and Social Services.

(c) “The Division” shall mean the Division of Long Term Care Residents Protection.

(d) “Residential health facility” shall mean 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 Chapter 11, Title 16, that:

(1) provide skilled nursing services to persons who require medical or nursing care; or

(2) provide 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 Chapter 11, Title 16, of facilities that provide active treatment and health and rehabilitation services to persons with mental retardation or related conditions, on which care is delivered to residents in accordance with medical plans of care. This definition does not include group homes for the mentally ill, mentally retarded 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.

(e) “Nursing services direct caregivers” shall mean advanced practice nurses, registered nurses, licensed practical nurses, certified nursing assistants, nursing supervisors, and assistant directors of nursing assigned to the direct care of nursing facility residents, but does not include such staff if assigned administrative or management responsibilities unless exigent circumstances require that administrative and management duties be discontinued in order for direct care to be provided by such staff.

(f) “Nursing supervisor” shall mean an advanced practice nurse or registered nurse or licensed practical nurse with 5 years long-term care experience assigned to supervise and evaluate nursing services direct caregivers.

§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 his or her 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:

(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 Act, 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 and the corresponding required shift ratios are 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 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:

(d) On or before January 1, 2003, 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 Act, 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 and the corresponding required shift ratios are 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:

(e) The time period for review and determining compliance with the staffing ratios required under this Act shall be one week. To the extent a residential health facility subject to the required ratios of this Act 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 act for the night shift. Any alternative shift schedule must be clearly posted along with the postings required pursuant to § 1162(a).

(g) 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 Finance Administration Quality Indicators. Evidence of a failure to meet the nursing staffing needs of residents shall be grounds for enforcement action under this chapter.

(g) All residential health facilities shall have a nursing supervisor on duty at all times.

(h) All residential health facilities shall have, in addition to the requirements in (b)-(f) above, a full-time director of nursing who is an advanced practice nurse or a registered nurse with one year’s work experience as a registered nurse. After July 1, 2001, any newly hired director of nursing who has not worked in Delaware within the previous three months as a director of nursing shall be an advanced practice nurse or a registered nurse with a B.S. degree in nursing and two years experience in long term care or a registered nurse with three years of long term care experience. After July 1, 2001, all newly hired directors of nursing must complete, within three 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.

(i) 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 (b)-(g) above: a full-time assistant director of nursing who is an advanced practice nurse (or a registered nurse) and a director of in-service education.

(j) All residential health facilities licensed for fewer than 100 beds shall employ, at a minimum, a part-time assistant director of nursing in addition to the personnel listed in (b)-(g) above, in accordance with the following formula:

Number of beds x 40 = hours per week minimum required 100 for an assistant director of nursing and a director of in-service education.

A sub-acute transitional care unit of an acute care hospital, with 30 beds or fewer, is exempt form 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 (b)-(d) above.

(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.

§1163. Activities Staffing

(a) All residential health facilities licensed for 30 beds or more shall have a full-time activity 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, an activities director certified, or an occupational therapist registered.

(b) All residential health facilities licensed for fewer than 30 beds shall have, at a minimum, part-time activities director as described in (a) above, in accordance with the following formula:

Number of beds x 40 = ____ hours per week minimum required for an activities director.

A sub-acute transitional care unit of an acute care hospital, with 30 beds or fewer, is exempt form the provisions of this subsection provided that other licensed personnel perform the duties of this function.

§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 form the provisions of this subsection provided that other licensed personnel perform the duties of this function.

§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.

§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 75^th 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 Act regardless of the payment methodology employed by Medicaid or its contractors, including managed care.

§ 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(g). 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.

§ 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 § 1162(e). 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 the meet the minimum staffing requirements under § 1162(c) and § 1162(e). Any such waiver will be time-limited and will include a plan and a timeline for compliance with this Act. 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.

§ 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.”.

Approved September 08,2000