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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsMarch 2016

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16 DE Admin. Code 4469
On November 1, 2015 (Volume 19, Issue 5), DHSS published in the Delaware Register of Regulations its notice of proposed regulations, pursuant to 29 Del.C. §10115. It requested that written materials and suggestions from the public concerning the proposed regulations be delivered to DHSS by December 17, 2015, or be presented at a public hearing on December 2, 2015, after which time the DHSS would review information, factual evidence and public comment to the said proposed regulations.
In accordance with Delaware Law, public notices regarding proposed Department of Health and Social Services (DHSS) Regulations Governing Personal Assistance Service Agencies were published in the Delaware State News, the News Journal and the Delaware Register of Regulations. Written comments were received on the proposed regulations during the public comment period (November 1, 2015 through December 17, 2015).
Agency Response: The Agency appreciates and acknowledges these comments. The purpose of this revision was not meant to restrict the choice of providers, but to ensure the provision of safe and quality care. This requirement has been part of the protocol for all skilled home health agencies for many years.
“Personal Assistance Services Agency” is an agency that employs or contracts with direct care workers to provide personal assistance services to consumers of the agency primarily in his/her place of residence.
2.1.7 The agency shall only provide services in the county in which the agency is located and/or the county(ies) which are immediately adjacent.
THEREFORE, IT IS ORDERED, that the proposed State of Delaware Regulations Governing Personal Assistance Service Agencies is adopted and shall become effective March 11, 2016, after publication of the final regulation in the Delaware Register of Regulations.
Activities of Daily Living means the tasks for self-care which are performed either independently, with supervision, or with assistance. Activities of daily living include but are not limited to ambulating, transferring, grooming, bathing, dressing, eating and toileting.
Agency means a personal assistance services agency licensed by the Department of Health and Social Services.
Change of Ownership (CHOW) see "Modification of Ownership and Control (MOC)".
Companion means a person who provides social interaction for an individual primarily in her/his place of residence. A companion may provide such services as cooking, housekeeping, errands, etc.
Consumer means the individual (client, customer, or other designation used) requesting and/or receiving personal assistance services as defined in this chapter, primarily in his/her residence.
Consumer Record means a written account of all services provided to a consumer by the personal assistance services agency, as well as other pertinent information necessary to provide care.
Contractor means an individual (subcontractor, independent contractor or other designation used) that does not meet the definition of employee, who holds a valid business license and provides services for the agency.
Department means the Delaware Department of Health and Social Services.
Direct Care Worker means those individuals (aide, assistant, caregiver, technician or other designation used) employed by or under contract to a personal assistance services agency to provide personal care services, companion services, homemaker services, transportation services and those services as permitted in 24 Del.C. Section 1921(a)(19) to consumers. The direct care worker provides these services to an individual primarily in their place of residence.
Director means a job-descriptive term used to identify the individual appointed by the governing body to act on its behalf in the overall management of the personal assistance services agency. Job titles may include administrator, superintendent, director, executive director, president, vice-president, or executive vice-president.
Governing Body or Other Legal Authority means the individual, partnership, agency, group, or corporation designated to assume full legal responsibility for the policy determination, management, operation and financial liability of the personal assistance services agency.
"Healthcare Facility" means any facility licensed under 16 Del.C. Ch. 10 or 11.
Homemaker means a person who performs household chores for an individual primarily in her/his place of residence. Household chores may include but are not necessarily limited to housekeeping, meal preparation and shopping.
Home Visit is a visit to the consumer's residence by an agency director, or designee, for the purpose of initial consumer need evaluation and update and revision of the service plan.
Immediate Jeopardy means a crisis situation in which the health and safety of consumers is at risk. It is a deficient practice which indicates an inability to furnish safe care and services.
Legal Entity means a business organizational structure that is recognized as such by 6 Del.C. or 8 Del.C.
License means a license issued by the Department.
Licensee means the individual, corporation, or legal entity with whom rests the ultimate responsibility for maintaining approved standards for the personal assistance services agency.
Majority Interest means the largest percentage of ownership interest.
Minority Interest means any percentage of ownership less than the majority interest.
Modification of Ownership and Control (MOC) means the sale, purchase, transfer or re-organization of ownership rights.
Office means the physical location in which the business of the personal assistance services agency is conducted and in which the records of personnel, contractors and consumers of the agency are stored. The office shall be located in the State of Delaware.
Owner means an individual or legal entity with ownership rights of the agency.
Ownership means the state or fact of exclusive possession and control of the agency.
Ownership Interest means the percentage of ownership an individual or legal entity possesses.
Personal Assistance Services means the provision of services for compensation that do not require the judgment and skills of a licensed nurse or other professional. The services are limited to individual assistance with/or supervision of activities of daily living, companion services, transportation services, homemaker services, reporting changes in consumer's condition and completing reports. These services do not require physician's orders.
Personal Assistance Services Agency is an agency that employs or contracts with direct care workers to provide personal assistance services to consumers of the agency primarily in his/her place of residence. [The personal assistance services agency shall only provide services in the county in which the agency is located and/or the county(ies) which are immediately adjacent.]
Plan of Correction means a personal assistance services agency's written response to findings of regulatory non-compliance. Plans must adhere to the format specified by the licensing agency, must include acceptable timeframes in which deficiencies will be corrected and must be approved by the licensing agency.
Representative means a person acting on behalf of the consumer, as permitted by Delaware law.
Residence means the domicile of the consumer either personally owned by that consumer or considered the place of residence of that consumer and that is not licensed, operated for profit, or operating as a healthcare facility.
Safety Supervision means the services provided by a direct care worker to help prevent wandering and other occurrences sometimes associated with dementia or diminished capacity.
Service Plan means a written plan that specifies scope, frequency and duration of services.
2.3.3.4 A license may not be issued to a personal assistance services agency; that is not in substantial compliance with these regulations or whose deficient practices present an immediate threat to the health and safety of its consumers.
2.4.3.1.2 The disciplinary action shall become final twenty (20) calendar days after the mailing of the notice unless the licensee, within such twenty (20) calendar-day period, shall give written notice of the Agency's desire for a hearing.
2.9.5 An agency which solely provides services as defined in 16 Del.C. Ch. 94, the Community Based Attendant Services Act.
4.4 Personnel and Direct Care Worker Records
4.4.1 Records of all personnel, including each direct care worker shall be kept current and available upon request by authorized representatives of the Department.
4.4.2 For all personnel, including direct care workers, the agency shall maintain individual records which shall contain at least:
4.4.2.6.5 All new direct care workers shall be required to have a pre-employment/referral physical examination, a copy of which shall be maintained in individual files. All new personnel, including direct care workers shall be required to have a physical examination prior to providing care:
4.5.3 All newly hired/contracted direct care workers must pass a competency test prior to providing care to consumers and annually thereafter.
4.5.3.1 The competency test must include questions addressing the competencies listed in subsection 4.5.2.
4.5.44.5.3.2.1 A Personal Assistance Services Agency that provides direct healthcare services to persons diagnosed as having Alzheimer’s disease or other forms of dementia shall provide dementia specific training to those healthcare providers who must participate in continuing education programs all direct care workers. The mandatory training must include: communicating with persons diagnosed as having Alzheimer’s disease or other forms of dementia; the psychological, social, and physical needs of those persons; and safety measures which need to be taken with those persons. This paragraph shall not apply to persons certified to practice medicine under the Medical Practice Act, Chapter 17 of Title 24 of the Delaware Code.
5.4.1 Competent consumers who do not reside in a medical facility or a facility regulated pursuant to 16 Del.C. Ch. 11 may delegate personal care services to direct care workers provided:
5.4.1.1 The nature of the service/task is not excluded by Del.C. law or other state or federal regulation.
5.4.2.2 Fingernail Nail Care
5.5.1.9 Signed disclosure form required by Regulation subsection 5.1.3; and
5.5.3 Activity logs shall be signed and dated by the direct care worker on the day that the service is rendered.
5.5.6 All agency records shall be available at all times for review by authorized representatives of the Department and to legally authorized persons; otherwise consumer records shall be held confidential. The consent of the consumer or his representative if the consumer is incapable of making decisions shall be obtained before any personal information is released from his records as authorized by these regulations or Delaware law.
5.5.12.1 The personal assistance services agency must report all major adverse incidents occurring in the presence of a direct care worker involving a consumer to the Department within forty-eight (48) hours in addition to other reporting requirements required by law.
8.1 In the event any particular clause or section of these regulations should be declared invalid or unconstitutional by any court of competent jurisdiction, the remaining portions shall remain in full force and effect.
Last Updated: December 31 1969 19:00:00.
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