|
SPONSOR: |
Rep. Walker & Sen. Hall-Long |
|
Reps.
Briggs King, Jaques, Q. Johnson, Keeley, Miro, Outten, B. Short; Sen. Sokola |
|
HOUSE OF REPRESENTATIVES 147th GENERAL ASSEMBLY |
|
HOUSE BILL NO. 154 |
|
AN ACT TO AMEND TITLES 16 AND 24 OF THE DELAWARE CODE RELATING TO ABUSE AND NEGLECT OF RESIDENTS OR PATIENTS IN FACILITIES. |
Section 1. Amend § 1131, Title 16 of the Delaware Code by making insertions as shown by underlining as follows:
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:
i. prescribed or ordered by a healthcare provider
for the patient or resident; and
ii.
the interruption, obstruction, or alteration occurred without the prescription,
or order, of a healthcare provider;
e.
A person is justified in engaging in conduct otherwise prohibited in subsection
(d) if the conduct was performed by:
i.
a healthcare provider, or licensed health care professional, who acted in good
faith within the scope of the person’s practice or employment; or
ii. 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; and
c. The Delaware Psychiatric Center and hospitals
certified by the Department of Health and Social Services pursuant to § 5001 or
§ 5136 of this title.
d. Any hospital as defined in § 1001(2)
of this Title. Hospital as defined in §
1001(2) is included in the definition of facility only for the purposes and
application of § 1131 and § 1136 of this subchapter.
(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) “Healthcare 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 16 § 2501.
(6)(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.
(7)(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.
(8)(9)
"Mistreatment" shall include the inappropriate use of medications,
isolation, or physical or chemical restraints on or of a patient or resident.
(9)(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.
(10)(11)
"Person" means a human being and where appropriate a public or
private corporation, an unincorporated association, a partnership, a government
or governmental instrumentality.
(11)(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
Title 16 or any other drug that can only be dispensed upon written, or verbal,
authorization from a licensed healthcare provider.
Section 2. Amend § 1136, Title 16 of the Delaware Code by making insertions as shown by underlining and deletions as shown by strike through as follows:
(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
healthcare professional.
(b) (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.
(c) (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.
(d) (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.
Section 3. Amend § 4732, Title 16 of the Delaware Code by making insertions as shown by underlining as follows:
(h) As a
condition precedent to registration or any subsequent biannual renewal of such
registration, an applicant shall demonstrate, in such a form and by such
evidence as the Secretary deems appropriate, that the applicant, if a licensed
practitioner, as defined in this chapter, or such officer or employee of the
applicant, if a corporation, partnership or other business entity, as is
required to be registered as an individual, has completed no less than two (2)
hours of continuing professional education relating to (1) the prescription,
distribution, dispensing or delivery of controlled substances, as defined in
this chapter, and/or (2) the detection or recognition of the symptoms, patterns
of behavior, or other characteristics of impairment and dependency resulting
from the abusive or illegal use of
controlled substances.
Section 4. Amend § 4787 (a), Title 16 of the Delaware Code by making insertions as shown by underlining and deletions as shown by strike through as follows:
§ 4787. Education and research.
(a) The Secretary shall carry
out educational programs designed to prevent and deter misuse and abuse of
controlled substances. In connection with these programs the Secretary may:
(1) Promote
better recognition of the problems of misuse and abuse of controlled substances
within the regulated industry and among interested groups and organizations;
(2)
Assist the regulated industry and interested groups and organizations in
contributing to the reduction of misuse and abuse of controlled substances;
(3)
Consult with interested groups and organizations to aid them in solving
administrative and organizational problems;
(4)
Evaluate procedures, projects, techniques and controls conducted or proposed as
part of educational programs on misuse and abuse of controlled substances;
(5)
Disseminate the results of research on misuse and abuse of controlled
substances to promote a better public understanding of what problems exist and
what can be done to combat them; and
(6)
Assist in the education and training of state and local law-enforcement
officials in their efforts to control misuse and abuse of controlled substances.;
and
(7)
Require such evidence of completion of courses of professional education
requirements needed for registration, or subsequent renewal of registration, as
the Secretary deems appropriate.
Section 5. Amend § 2512, Title 24 of the Delaware Code by making insertions as shown by underlining as follows:
§ 2512. Issuance and renewal of
license.
(a) The Board shall issue a license to each applicant
who meets the requirements of this chapter for licensure to practice pharmacy
and who pays the fee established under § 2511 of this title.
(b) A license to practice pharmacy must be renewed
biennially, in a manner determined by the Division. License renewal must
include the completion and submission of a renewal form provided by the
Division, payment of the appropriate fee, and proof that the licensee has met
the continuing education requirements established by the Board.
(c) The Board shall not issue any
license or any renewal thereof to any applicant unless and until the applicant
has offered proof that the applicant has completed no less than two (2) hours
of education or continuing education relating to (1) the prescription,
distribution, dispensing or delivery of controlled substances and/or (2) the
detection or recognition of the symptoms, or other characteristics of
impairment or dependency resulting from the abusive or illegal use of
controlled substances.
(c) (d) The Board,
in its rules and regulations, shall determine the period of time within which a
licensee may renew that licensee's own license, notwithstanding the fact that
the licensee failed to renew that licensee's own license on or before the
designated renewal date; provided, however, that the period of time may not
exceed 1 year beyond the designated renewal date.
(d) (e) A
licensee, upon the licensee's written request, may be placed on inactive status
for no more than 4 years. A licensee on inactive status who desires to
reactivate that licensee's own license shall complete and submit an application
form approved by the Board, submit the renewal fee set by the Division, and
submit proof of fulfillment of the continuing education requirements
established by the Board.
(e) (f) If a
licensee is on inactive status for more than 4 years, that licensee may be
relicensed, but only by following the reentry process established by the Board
in its rules and regulations.
SYNOPSIS
|
In recognition of the increasing abusive and illegal uses of controlled substances and the illegal commerce thereof, this bill creates a new offense and imposes penalties for diverting prescription drugs from a patient of a facility. It also requires those who register to prescribe, sell, dispense or distribute controlled substances demonstrate regularly to complete 2 continuing education credits in the area of awareness and knowledge of the problems posed by the abuse of controlled substances. The bill also makes corrections to drafting errors in the 2011 bill that eliminated consent as a defense to sexual abuse in a facility. |