§ 1101 Purpose and overview.
(a) It is the intent of the General Assembly that the primary purpose of the licensing and regulation of long-term care facilities is to ensure that these facilities provide a high quality of care and quality of life to their residents.
(b) This chapter and the regulations adopted to implement it establish minimum acceptable levels of care. A violation of a minimum acceptable level of care is prohibited by law.
(c) The State shall undertake measures to prevent violations. Prevention shall be promoted through education, particularly regarding any new laws and regulations adopted by the State.
(d) The State shall undertake measures to assure that violations of this chapter and the regulations promulgated under this chapter are remedied. To that end, the Department shall do all of the following:
(1) Set standards of care.
(2) Determine compliance with those standards through inspections, investigations and other compliance measures.
(3) Impose sanctions and remedies for noncompliance.
(e) (1) The Department shall be responsible for issuing licenses and certifying the compliance of facilities with state laws and regulations.
(2) Each facility licensed under this chapter shall, at a minimum, provide quality care in accordance with this chapter and the regulations promulgated thereunder. Components of quality of care and quality of life addressed by this chapter and regulations promulgated thereunder include all of the following:
a. Access to care.
b. Continuity of care.
c. Comprehensiveness of care, including activities.
d. Coordination of services.
e. Humaneness of treatment and respect for the dignity of each resident.
f. Safety of the environment.
g. Qualifications of caregivers.
(f) This chapter and its regulations are intended for use in state inspections of facilities licensed under this chapter and any investigations and enforcement actions, and are designed to be useful to consumers and providers in assessing the quality of care provided in a facility.
(g) The consumer protection goal of ensuring that residents of long-term care facilities receive quality care shall be strived for in the following ways:
(1) Monitoring the factors relating to the health, safety, welfare and dignity of each resident.
(2) Providing effective remedies and requiring their prompt imposition for noncompliance with licensing standards.
(3) Providing the public with information concerning the operation of long-term care facilities in this State.
(h) This chapter shall be construed broadly to accomplish the purposes set forth in this section.
§ 1102 Definitions.
As used in this chapter:
(1) “Controlling person” means:
a. A person who has the ability, acting alone or in concert with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of a facility or other person.
b. For purposes of this chapter, “controlling person” includes the following:
1. A management company, landlord, or other business entity that operates or contracts with others for the operation of a facility.
2. Any person who is the controlling person of a management company or other business entity that operates a facility or who contracts with another person for the operation of a facility.
3. Any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility.
c. A controlling person described by paragraph (1)b.3. of this section does not include a person, such as an employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over the operation of a facility.
d. The Department may adopt regulations to define the ownership interest and other relationships that qualify a person as a controlling person.
(2) “Department” means the Department of Health and Social Services.
(3) “Division” shall mean the Division of Health Care Quality;
(4) a. “Long-term care facility” means a residential facility that provides shelter and food to more than 1 individual who meets all of the following:
1. Because of his or her physical or mental condition, require a level of care and services suitable to his or her needs to contribute to his or her health, comfort, and welfare.
2. Is not related within the second degree of consanguinity to the facility’s controlling person.
b. “Long-term care facility” includes all of the following:
1. A nursing facility. — As used in this chapter, “nursing facility” commonly referred to as a “nursing home,” means a residential facility that provides services to residents including resident beds, continuous nursing services, and health and treatment services for individuals who do not currently require continuous hospital care and that provides care in accordance with a physician’s order and requires the supervision of a registered nurse (RN).
2. An assisted living facility. — As used in this chapter, “assisted living facility” means a special combination of housing, supportive services, supervision, personalized assistance, and health care designed to respond to the individual needs of those who need help with activities of daily living or instrumental activities of daily living. Facilities offer living arrangements to medically stable adult individuals who do not require the skilled nursing services of a nursing facility.
3. Intermediate care facility for persons with intellectual disabilities. — As used in this chapter, “intermediate care facility for persons with intellectual disabilities” means a residential facility that provides services to residents with intellectual disabilities including resident beds, continuous nursing services, and health and treatment services for individuals who do not currently require continuous hospital care and that provides care in accordance with a physician’s order and requires the supervision of a registered nurse (RN).
4. A neighborhood home. — As used in this chapter, a “neighborhood home” means a residence for no more than 5 individuals that is fully integrated in the community, not on the grounds of an institution, has shared common living areas, is where the individual chooses to live, and offers 24-hour supports to individuals with intellectual or developmental disabilities.
5. A group home for persons with mental illness. — As used in this chapter, a “group home for persons with mental illness” means a residence that provides 24-hour supports, mental health treatment, rehabilitation, housing for between 3 and 10 adults with a primary diagnosis of psychiatric disabilities, and is fully integrated in the community, not on the grounds of an institution, has shared common living areas, and is where the individual chooses to live. “Group home for persons with mental illness” does not include supervised apartments.
6. A group home for persons with AIDS. — As used in this chapter, a “group home for persons with AIDS” means a residence for 16 or less individuals with AIDS that only admits those individuals with an established diagnosis and disease progression such that the individual requires a routine and frequent combination of physician, professional nursing, and supportive services.
7. A family care home. — As used in this chapter, a “family care home” means a home, including a physical structure and the necessary equipment, that provides beds and personal care services for 2 or 3 residents who cannot live independently and who need or could benefit from a family living situation, and that provides shelter, housekeeping services, food, meals, and personal care for residents.
8. A rest residential facility. — As used in this chapter, a “rest residential facility” means a facility that provides resident beds and personal care services in a homelike environment for adult individuals who are normally able to manage their own activities of daily living.
9. An intensive behavioral support and educational residence. — As used in this chapter, an “intensive behavioral support and educational residence” means a residential facility that provides services to adult individuals with autism, developmental disabilities, or severe mental or emotional disturbances who have specialized behavioral needs.
(5) “Long-Term Care Residents’ Trust Fund” means a fund maintained by the Department to which civil monetary penalties are to be remitted consistent with the federal Centers for Medicare and Medicaid Services (“CMS”) regulations, 42 C.F.R. § 488.442(g).
(6) “Person” means an individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company, or any other legal entity, and includes a legal successor of those entities.
(7) “Protection and advocacy agency” means the Community Legal Aid Society, Inc. or successor agency designated the state protection and advocacy system under 42 U.S.C. § 10801 et seq.; 42 U.S.C. § 15001 et seq.; or 29 U.S.C. § 794e.
(8) “Resident” means an individual, whether identified as a patient, guest, or other designation, residing and receiving services in a long-term care facility.
(9) “State Civil Penalty Trust Fund” means a fund maintained by the Department to which civil money penalties imposed for violations of state statute or regulation are to be remitted. Money deposited into this Trust Fund may not be used for salaries or general operating costs of the Department but must be used for the benefit and protection of long-term care residents to further the purposes set forth in this chapter and Chapter 79 of Title 29.
71 Del. Laws, c. 488, § 2; 71 Del. Laws, c. 489, § 2; 75 Del. Laws, c. 88, § 21(5); 77 Del. Laws, c. 49, § 2; 77 Del. Laws, c. 201, § 1; 77 Del. Laws, c. 309, § 1; 78 Del. Laws, c. 179, § 163; 81 Del. Laws, c. 206, § 3; 81 Del. Laws, c. 209, § 1.;
§ 1103 License and renewal requirement.
(a) A person may not establish, conduct, or maintain any long-term care facility in this State without first obtaining a license from the Department and thereafter renewing this license on an annual basis. Failure to comply with this subsection shall result in the imposition by the Department of a civil penalty not to exceed $10,000 per violation.
(b) A nursing facility, assisted living facility, or rest residential facility must operate under the direction of an individual authorized or licensed to perform the functions of a nursing home administrator under Chapter 52 of Title 24.
§ 1104 License and renewal application.
(a) An application for a license or renewal of a license shall be submitted to the Division on forms provided by the Division and must be accompanied by the applicable license fee.
(b) In addition to the general information requested on the application forms, the applicant or license holder must furnish evidence to affirmatively establish the applicant’s or license holder’s ability to comply with all of the following:
(1) Minimum standards of medical care or nursing care, as applicable by type of facility.
(2) Financial capability.
(3) Any other applicable state and federal laws and regulations for that category of facility.
(c) The Department shall consider the background and qualifications of the applicant or license holder and it may also consider the background and qualifications of all of the following:
(1) Any partner, officer, director, or managing employee of the applicant or license holder.
(2) Any person who owns or controls the physical plant in which the facility operates or is to operate.
(3) Any controlling person with respect to the facility for which a license or license renewal is requested.
(d) In making the evaluation described in subsection (c) of this section, the Department shall require the applicant or license holder to file a sworn affidavit of a satisfactory compliance history and any other information required by the Department to substantiate a satisfactory compliance history relating to each state or other jurisdiction in which the applicant operated a facility any time during the 5-year period preceding the date on which the application is made. The Department by regulation shall define what constitutes a satisfactory compliance history. The Department may also require the applicant to file information relating to its financial condition during the 5-year period preceding the date on which the application is made. The Department may also request any of the above-described information about any other person described by subsection (c) of this section.
(e) The Department may monitor the financial capability and financial health of licensed long-term care facilities. The Department shall promulgate regulations regarding the financial disclosure requirements for long-term care facilities and documents provided are not public records under the Freedom of Information Act, Chapter 100 of Title 29.
(f) (1) The license shall terminate if and when there is a transfer of a long-term care facility to another person or controlling person or the business ceases legal existence or discontinues operation.
(2) No license granted by the Department shall be assigned or otherwise transferred to another person or controlling person.
(g) The Department shall grant an initial license to any newly established long-term care facility, provided that the requirements of this section are met. The term of such initial license may be no more than 365 days.
(h) A license, unless sooner suspended or revoked, may be renewed annually upon filing by the licensee and payment of an annual licensure fee. A provisional license, as authorized by the Department, may be issued when requirements are not met and the annual licensure fee has been submitted. A long-term care facility which has been issued a provisional license shall resubmit the application fee for re-inspection prior to the issuance of an annual license.
§ 1105 Denial of license or its renewal.
(a) The Department may deny a license to any applicant or refuse to renew a license to any license holder if the Department finds that the applicant or license holder or any partner, officer, director, managerial employee or controlling person of the applicant or license holder has done any of the following:
(1) Failed to meet the requirements of § 1104 of this title.
(2) Operated any long-term care facility without a license or under a revoked or suspended license in any jurisdiction.
(3) Knowingly, or with reason to know, made a false statement of a material fact in an application for license or renewal, or any data attached thereto, or in connection with any matter under investigation by the Department, or in any document submitted to the Department, including a plan for the correction of all violations of applicable laws or regulations.
(4) Refused to allow representatives or agents of the Department to inspect a portion of the premises of the facility or any resident-related documents, records, and files required to be maintained by the facility.
(5) Interfered with or attempted to impede in any way the work of any authorized representative of the State or protection and advocacy agency or the lawful enforcement of any provision of this chapter.
(6) Has a history of noncompliance with federal or state law or regulations in providing long-term care.
(b) The due process protections of notice and an opportunity to be heard must be provided to facilities prior to the denial of a license or its nonrenewal. The hearing process must be consistent with the Administrative Procedures Act, Chapter 101 of Title 29.
(c) In deciding whether to deny a license or its renewal under this section, the factors to be considered by the Department must include the severity and recurrence of the noncompliance.
§ 1106 License fees.
(a) (1) The fees for issuance and renewal of licenses pursuant to this chapter for nursing facilities, assisted living facilities, rest residential facilities, and intermediate care facilities for persons with intellectual disabilities may not exceed $150 plus the following:
a. $250 for facilities with less than 100 units of capacity or bed space for which a license is sought.
b. $400 for facilities with 100 or more units of capacity or bed space.
c. A background examination fee for initial applications in an amount set by the Department necessary to defray its expenses in administering its duties under § 1104(c) and (d) of this title, but not to exceed $500.
(2) The total fee for all other facilities with 16 or fewer units of capacity or bed space is $50.
(b) The license fee required under subsection (a) of this section must be paid with each application for initial license, a renewal license, or an initial license.
(c) The State is not required to pay the license fee for any facilities it operates or owns which require licensure under this chapter.
(d) All license fees collected by the Department must be remitted to the General Fund.
(e) A new application and a fee of $50 must be submitted for changes to a license which occur during the licensure year, including any of the following changes:
(1) An approved increase in bed space.
(2) An approved decrease in bed space.
(3) A facility change of name.
§ 1107 Inspections and monitoring.
(a) The Department shall inspect each long-term care facility on a regular basis to ensure compliance with this chapter and the regulations adopted pursuant to it.
(b) The Department shall have the authority to assess additional fees to recover the actual costs and expenses of the Department for any monitoring or inspections needed beyond the standard inspection in those cases in which substantiated violations are found.
(c) Any duly authorized employee or agent of the Department may enter and inspect any facility licensed under this chapter without notice at any time. All licensees are required to provide immediate access to Department personnel to conduct inspections. Such inspections may include any of the following:
(1) Interviewing residents.
(2) Interviewing family members or staff.
(3) Reviewing and photocopying any records and documents maintained by the licensee.
(4) Inspecting any portion of the physical plant of the facility.
(5) Enforcing any provision of this chapter and the regulations pursuant to it, as well as applicable federal law and regulations.
(d) Advance notice may not be given to any facility of any inspection conducted under this chapter unless specifically authorized by the Secretary of the Department or the Secretary’s designee or as otherwise required by federal law or regulation. Failure to comply with this subsection results in the imposition by the Department of a civil penalty not to exceed $5,000 per violation.
(e) At the conclusion of each inspection, the Department shall promptly notify the facility of any violations of this chapter and its regulations as well as of federal law and regulations. It shall provide a comprehensive exit interview at the conclusion of each inspection whereby the facility is made aware of any problems found, including violations of applicable law or regulations. Representatives from the Long-Term Care Ombudsperson’s Office shall be invited to attend each exit interview.
(g) Any person who is a former employee of a long-term care facility is disqualified from participating for 2 years in any manner in any inspection of that facility.
(h) Any person who has a relative residing or working in a long-term care facility is disqualified from participating in any manner in any inspection of that facility.
§ 1108 Posting of inspection summary and other information and public meetings.
(a) Each facility shall prominently and conspicuously post for display in a public area of the facility that is readily available to residents, employees, and visitors the following:
(1) The license issued under this subchapter.
(2) A sign prescribed by the Department that specifies complaint procedures and provides the “1-800” hotline number to receive complaints 24 hours a day, 7 days a week.
(3) The most recent state survey report prepared by the Department of the most recent inspection report for the facility.
(4) A notice, as required by regulation, in the form prescribed by the Department stating that informational materials relating to the compliance history of the facility are available for inspection at a location in the facility specified by the sign and online at a web site specified by the sign. The notice shall also provide the telephone number to reach the Department to obtain the same information concerning the facility.
(5) A notice, as required by regulation, that the Division of Professional Regulation can provide information about the facility administrator along with the Division of Professional Regulation telephone number to call for this information.
(c) The compliance history information required to be maintained for public review must be maintained in a well-lighted accessible location. The compliance history material must include all inspection reports produced for that facility during the preceding 3-year period. The information must be updated as each new inspection or other Department report is received by the facility.
(d) Following completion of the annual inspection report, the Department shall schedule a meeting, as required under regulations, to take place at the facility to present the findings of the annual report.
(1) The Department shall require the facility to notify residents and their families of the meetings required under this subsection.
(2) The Department shall provide staff for these meetings and the staff shall be prepared to present the findings of the surveys and to answer questions regarding the surveys and plans of action.
§ 1109 Civil penalties.
(a) (1) The Department may impose civil money penalties for the violation of provisions of this chapter or the regulations adopted pursuant to it.
(2) A licensee or other person is liable for a civil penalty of not less than $1,000 nor more than $10,000 per violation for violations which the Department determines pose a serious threat to the health and safety of a resident.
(b) In determining the amount of the penalty to be assessed under subsection (a) of this section, the Department must consider all of the following:
(1) The seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard or potential hazard created by the violation to the health or safety of a resident or residents.
(2) The history of violations committed by the person or the person’s affiliate, employee, or controlling person.
(3) The efforts made by the facility to correct the violation.
(4) The culpability of the person who committed the violation.
(5) A misrepresentation made to the Department or to another person regarding any of the following:
a. The quality of services provided by the facility.
b. The compliance history of the facility.
c. The identity of an owner or controlling person of the facility.
(6) Any other matter that affects the health, safety, or welfare of a resident.
(c) For all other violations that do not constitute a serious threat to the health and safety of a resident, but do violate this chapter or the regulations adopted pursuant to it, the maximum civil penalty is $5,000 per violation. Violations in this category include any of the following:
(1) Making a false statement that the person knows or should know is false, about 1 of the following:
a. A material fact on an application for issuance or renewal of a license or any document attached to an application.
b. A material fact with respect to a matter under investigation by the Department.
(2) Refusing to allow a representative of the Department to inspect without notice at any time either of the following:
a. Any portion of the premises of a facility.
b. Any documents, records, or files required to be maintained by a facility.
(3) Wilfully interfering with the work of a representative of the Department or with the enforcement of this chapter.
(4) Wilfully interfering with the preservation of evidence of a violation of this chapter or regulation pursuant to it.
(d) In determining the amount of the penalty to be assessed under subsection (c) of this section, the Department shall consider the factors in subsection (b) of this section.
(e) Each day of a continuing violation constitutes a separate violation. However, a penalty for a health and safety violation may not exceed $2,500 per day beyond the initial day. A penalty for a nonhealth and safety violation may not exceed $1,250 per day beyond the initial day.
§ 1110 Waiver of penalty if first time violation(s) corrected [Repealed].
§ 1111 Overlap of state licensing and federal certification penalties.
(a) The Department may not collect a civil monetary penalty for the same deficient practice for which the federal government has levied a civil monetary penalty.
(b) In the event that a civil monetary penalty has been collected by the State and the federal government subsequently collects a penalty for the same conditions, the State shall refund the previously collected penalty.
§ 1112 Collection of civil penalties.
(a) All civil penalties collected under this chapter must be remitted to the Long-Term Care Residents’ Trust Fund if based on a federal regulation, or to the State Civil Penalty Trust Fund, if based on a state statute or regulation.
(b) Payment of any civil penalty by a facility is not an allowable cost for reimbursement under the state Medicaid program or under other state-funded programs.
(c) If a long-term care facility, after notice and opportunity for hearing, does not pay a properly assessed penalty in accordance with this subchapter, the Department shall deduct the amount of the civil penalty from amounts otherwise due from the State to the long-term care facility and remit that amount to the State Civil Penalty Trust Fund.
(d) Alternatively, the Department may add the amount of the civil penalty to the licensing fee for the long-term care facility. If the licensee refuses to make the payment at the time of the application for renewal of its license, its license may not be renewed.
(e) The Department may also proceed for the collection of the civil money penalty in an action brought in the name of the Department in any court of competent jurisdiction.
(f) In the event of financial hardship, as determined by the Department, the Department may redirect the payment of penalties by the facility to take remedial action to correct the violation or violations.
§ 1113 Other remedies for noncompliance.
In addition to civil money penalties, the Department may impose any or all of the following remedies for noncompliance with this chapter and the regulations promulgated pursuant to it or for noncompliance with § 1731A of Title 24 or § 903 of this title:
(1) Require monitoring at facility expense, according to the terms and conditions, including timeframes, determined necessary by the Department.
(2) Suspend the admission or readmission of residents to the long-term care facility under the terms and conditions, including timeframes, determined by the Department.
(3) Transfer residents whose care needs are not being met by the licensee.
(4) Suspend, revoke, or refuse to renew a license.
(5) In cases where the physical health or safety of residents is in imminent risk, issue an emergency order temporarily transferring the management of the facility to another qualified entity under the terms and conditions, including timeframes, determined by the Department.
(6) Issue a provisional license for a long-term care facility that is in substantial but not full compliance with applicable laws and regulations.
§ 1114 Right to hearing on deficiencies and remedies for noncompliance.
The due process protections of notice and opportunity to be heard shall be provided to facilities to appeal survey deficiencies, as well as the imposition of remedies for noncompliance imposed under §§ 1112 and 1113 of this title. The hearing process shall be consistent with the Administrative Procedures Act, Chapter 101 of Title 29.
§ 1115 Injunctive relief.
In addition to any other remedy provided by law, the Department may bring an action in Chancery Court to enjoin a long-term care facility from engaging in activities that pose a threat to the health or safety of a resident of the long-term care facility. A temporary restraining order may be granted by the court if continued activity by the long-term care facility would create an imminent risk to a resident at the facility.
§ 1116 Coordination of enforcement actions with the attorney general’s office.
(a) The Department and the Attorney General shall work in close cooperation throughout any legal proceeding initiated by the Department to enforce this chapter and the regulations promulgated under it.
(b) The Secretary of the Department or the Secretary’s designee must be fully consulted before concluding any settlement agreement to a lawsuit brought under this chapter or any other law relating to the health and safety of residents in long-term care facilities.
§ 1117 Retaliation or discrimination against complainant.
(a) A licensee or other person may not discriminate or retaliate in any manner against a resident or employee in its facility on the basis that such resident or employee or any other person on behalf of the resident or employee has initiated or participated in any proceeding pursuant to this chapter, including providing information in connection with an inspection or facilitating a protection and advocacy agency investigation. The Department shall impose a civil penalty of not more than $10,000 per violation upon any licensee or other person who violates this subsection.
(b) Any attempt to expel a resident of the long-term care facility or any other type of retaliatory or discriminatory treatment of a resident or employee or any other person by whom, or upon whose behalf, a complaint has been submitted to the Department or protection and advocacy agency or who has participated in any proceeding instituted under this chapter within 1 year of the filing of the complaint or the institution of such action, shall raise a rebuttable presumption that such action was taken by the licensee or other person in retaliation for the filing of the complaint or the cooperation with the proceeding.
§ 1118 Third-Party reimbursement.
Consistent with federal law, 42 U.S.C. § 1395i-3 (c)(5), with respect to admissions policy and practices, a long-term care facility must not require a third-party guarantee or payment to the facility as a condition of admission or expedited admission to, or continued stay in the facility.
§ 1119 Priority placement of publicly assisted persons [Repealed].
§ 1119A Confidentiality of resident records.
To protect the privacy of residents of a long-term care facility, the Department shall establish guidelines to protect the confidentiality of any records, documents, or files pertaining to such residents.
§ 1119B Pediatric nursing services.
A facility that provides services to a resident younger than 18 years of age shall ensure all of the following:
(1) Nursing services for a resident younger than 18 years of age are provided by staff who have received training and demonstrated competence in the care of children.
(2) Consultative pediatric nursing services are available to the staff.
§ 1119C Regulations.
(a) The Department has the authority to adopt, amend, repeal, or issue regulations to implement this chapter. In addition to regulations by category of facility to be licensed, the Department shall also develop pediatric regulations regarding the care of children in long-term care facilities.
(b) The Department shall include in its regulations for all facilities licensed under this chapter a requirement of full cooperation with the protection and advocacy agency in fulfilling functions authorized by this chapter. Without limiting the protection and advocacy’s agency’s pursuit of other legal remedies, the Department shall enforce violations of such regulations consistent with §§ 1109 and 1113 of this title.