DEPARTMENT OF HEALTH AND SOCIAL SERVICES
Residents Protection
Delaware Regulations for the
Nature of the Proceedings:
The Department of Health and Social Services, Division of Long Term Care Residents Protection (DLTCRP) initiated proceedings in accordance with 29 Delaware Code Chapter 101 to adopt Regulations Governing the Adult Abuse Registry. On June 1, 2001 DLTCRP published proposed regulations in the Register of Regulations and received written and verbal comments at public hearings on July 9 and July 12.
Subsequently, the Department of Health and Social Services, Division of Long Term Care Residents Protection revised and republished proposed Regulations Governing the Adult Abuse Registry on September 1, 2001. The revised and republished proposed regulations incorporate most comments received at the July public hearings.
Additional written and verbal comments were received at public hearings held October 1 and October 5. DLTCRP reviewed and evaluated all the comments; and the evaluation of those comments received at the July public hearings but not incorporated into the proposed regulations republished on September 1, as well as those comments received at the October public hearings, are in the accompanying Summary of Evidence.
Findings of Fact:
The Department of Health and Social Services finds that the proposed regulations, as set forth in the attached copy, should be adopted as final regulations. Therefore, it is ordered that the proposed Regulations Governing the Adult Abuse Registry are adopted effective November 10, 2001.
Vincent P. Meconi, Secretary, DHSS
10.15.2001
Summary of Evidence:
The proposed regulations elicited comments which are summarized and responded to as follows:
The proposed regulations provide that a person placed on the Adult Abuse Registry shall have the right to appeal the hearing officer’s decision to Superior Court within a 30 day period after the finding. One comment suggested that the length of time for an appeal be extended to 60 days. However, since 30 days accords with the time period for appeals to Superior Court under the Administrative Procedures Act, the time period of 30 days is being retained in these regulations.
Two comments were received urging that the regulations include a listing of specific lengths of time an individual would be placed on the Adult Abuse Registry for specific offenses. DLTCRP believes it is impractical to attempt to categorize every type of incident. However, DLTCRP is concerned that similar offenses be treated similarly. Therefore, DLTCRP will take steps to ensure equitable treatment and may consider a future revision of the regulations if such a revision appears warranted.
The regulations include a provision permitting an individual to petition to have his/her name removed from the Registry by demonstrating improved behavior through work references. One comment asked how such references may be provided from outside of the health care sector. The intent of the regulation is to consider references submitted by any employers, including employers outside the health care sector, who find the individual demonstrates conduct that warrants reconsideration of placement on the Registry.
The proposed regulations provide that when an individual petitions for removal from the Adult Abuse Registry, DLTCRP will respond within 60 days. A commenter suggested that the response time be shortened to 30 days. However, inasmuch as the consideration of the petition may include interviews of appropriate parties, DLTCRP believes that the 60 day time period is more reasonable.
A comment was also received urging that DLTCRP provide a list of reasons that a petitioner would be denied when requesting removal from the Registry. Since the petitioner’s conduct resulted in his/her placement on the Registry, the burden is on the petitioner to demonstrate improved conduct. An evaluation of that conduct would be the basis for removal or denial of removal from the Registry. Therefore, a list of reasons for denial of removal from the Registry is not necessary.
Two comments suggested that facilities also be required to request an Adult Abuse Registry check on volunteers. DLTCRP lacks the statutory authority to include such a requirement in the regulations.
The regulations specify the information to be provided in the notice to an individual following the completion of an investigation which results in the entry of the person’s name on the Adult Abuse Registry. One commenter appeared to believe that the investigation referenced would be an investigation performed preliminarily by another state agency; and the investigator would not be able to provide the information. The regulation instead refers to the investigation concluded by DLTCRP and specifically makes mention of the “Division” which is defined as the Division of Long Term Care Residents Protection.
A comment called attention to the references to the word “facility” and suggested that “facility” be changed to “facility/State agency” to take into account individuals providing services in the community who are covered by the regulations. DLTCRP does not consider this change necessary because the regulations define “Nursing Facility and Similar Facility” to include facilities providing community-based services.
One comment requested that the power of the hearing officer to compel the attendance of witnesses and the production of evidence be clarified to refer solely to witnesses and evidence requested by the state or the individual requesting the hearing. DLTCRP does not believe that either the statute or the regulations envision a role for the hearing officer which would include compelling the attendance of any witness or the production of any evidence other than that requested by parties to the hearing. Therefore, this change is not included in the regulations, but will be reconsidered in the future if necessary.
Finally, one commenter objected to the inclusion of “psychiatric units of acute care hospitals” in the definition of “Nursing Facility and Similar Facility.” Accordingly, the final regulations have removed the phrase “psychiatric units of acute care” from the regulations and replaced it with the language directly from the statute. Since that change is made to conform with the statute, DLTCRP does not believe that such a change requires a further public hearing.
Section l: Definitions
(A) "Adult Abuse" means:
(1) Physical abuse including the intentional and unnecessary infliction of pain or injury to an infirm adult or the threat thereof. This includes, but is not limited to, hitting, kicking, pinching, slapping, pulling hair, or any sexual contact, or the threat of any of the above acts.
(2) Emotional abuse including, but not limited to:
(a) Ridiculing or demeaning an infirm adult.
(b) Making derogatory remarks to an infirm adult.
(c) Cursing directed towards an infirm adult.
(d) Threatening retaliation, directly or indirectly
(3) Mistreatment including the inappropriate use of medications, isolation or physical or chemical restraints on or of an infirm adult.
(4) Neglect including:
(a) Intentional lack of attention to physical needs of the infirm adult including, but not limited to, toileting, bathing, meals and safety.
(b) Intentional failure to report health problems or changes in health problems or changes in health condition of an infirm adult to an immediate supervisor, doctor or nurse.
(c) Intentional failure to carry out a prescribed treatment plan for an infirm adult.
(5) Misappropriation of property including the theft of money or property from the infirm adult, use of money or property without permission of the infirm adult or guardian, and mishandling of money or property belonging to the infirm adult.
(B) "Substantiated Abuse" means that, weighing the facts and circumstances, a reasonable person has concluded that more likely than not the identified individual has committed adult abuse.
(C) "Person Seeking Employment" means any person applying for employment in a health care facility or child care facility that affords direct access to persons receiving care at such a facility, or a person applying for licensure to operate a child care facility.
(D) "Health Care Facility" means any custodial or residential facility where health, nutritional or personal care is provided for infirm adults, including nursing homes, hospitals, home health care agencies, and adult day care facilities.
(E) "Child Care Facility" means any child care facility which is required to be licensed by the Department of Services for Children, Youth and Their Families.
(F) "direct access" means the opportunity to have personal contact with persons receiving care during the course of one's assigned duties.
(G) "Infirm adult" means any person 18 years of age or over who is physically or mentally impaired, either permanently or temporarily.
(H) "proposed concern" refers to a temporary classification used until the final determination is made.
(I) "Department" means the Department of Health and Social Services.
Section 2: Use of Registry
(A) No employer who operates a health care facility or child care facility shall hire any person seeking employment without requesting and receiving an Adult Abuse Registry check for such person.
(1) Any employer who is required to request an Adult Abuse Registry check shall obtain a statement signed by the person seeking employment wherein the person authorizes a full release for the employer to obtain the information provided pursuant to such a check.
(2) The employer shall call the Adult Abuse Registry, provide the name and social security number of the person seeking employment, and will be informed of any information contained in the registry.
(B) When exigent circumstances exist which require an employer to fill a position in order to maintain the required or desired level of service, the employer may hire a person seeking employment on a conditional basis after the employer has requested an Adult Abuse Registry check.
(1) The employment of the person shall be conditional and contingent upon receipt of the Adult Abuse Registry check by the employer.
(2) The person shall be informed in writing, and shall acknowledge in writing, that his or her employment is conditional, and contingent upon receipt of the Adult Abuse Registry check.
Section 3: Investigation of Adult Abuse.
(A) The Department shall investigate any individual against whom an allegation of adult abuse has been made.
(B) If the investigator determines preliminarily that the facts and circumstances conclude that more likely than not the individual has committed abuse or neglect, the individual's name shall be placed on the Adult Abuse Registry with a finding of "Proposed Concern".
Section 4: Administrative Hearings
(A) Individuals against whom an allegation is preliminarily substantiated shall be notified in writing of the intent to place their name on the Adult Abuse Registry with a finding of "Substantiated Abuse" and shall be offered a right to an administrative hearing. Information contained in the finding of substantiated abuse shall consist o₤
(1) The date of the incident
(2) The type of facility where the incident occurred
(3) A brief description of the incident
(4) Length of time the finding remains on the Abuse Registry
(B) Individuals must request in writing an administrative hearing within 30 days of the date of the notice that a finding of abuse has been preliminarily substantiated.
(C) Individuals who fail to request an administrative hearing within 30 days shall have their name and information regarding the incident changed from a finding of "Proposed Concern" to a finding of "Substantiated Abuse" on the Adult Abuse Registry 30 days after the date of the notice.
(D) Individuals who have entered a plea or who have been convicted by a court of law of adult abuse, shall not have the right to an administrative hearing. Their name and information regarding the incident shall be entered directly to the Adult Abuse Registry.
(E) The Department shall make a scheduling decision within 10 days of receipt of a request for an administrative hearing by an individual who has received notice of a preliminary finding of substantiated abuse.
(1) An individual requesting an administrative hearing shall be entitled to a statement describing the incident, the date and location of the incident, and the name of the victim.
(2) The individual shall be afforded an opportunity to appear with or without an attorney, submit documentary evidence, present witnesses, and question any witness the Department presents.
(3) If, at the conclusion of the hearing, the hearing officer concludes that, weighing the facts and circumstances, more likely than not, the identified individual has committed adult abuse, a notice of "substantiation" shall be placed on the registry.
(4) The hearing officer shall render a written decision and will notify the individual and the Office of the Ombudsman of the decision. The notice will specify the reasons for the decision and, if the finding is substantiated, the length of time the finding of substantiated abuse shall remain on the registry.
(5) The decision of the hearing officer is final.
Section 5: Length of time on the Abuse Registry
The length of time on the Abuse Registry shall be no less than five years and may be permanent. The length of time shall be based on the actual injury or risk of injury to the infirm adult and whether there exists a pattern of adult abuse. Not withstanding the above, the length of time on the registry may be less than five years if there is evidence of mitigating circumstances indicating that adult abuse by the individual was a singular event and not likely to reoccur.
Section 6: Registry of Nurse Aides
The names of registrants with findings of abuse, neglect, or misappropriation entered on the Registry of Nurse Aides created pursuant to 42 CFR § 483 shall be entered into the Adult Abuse Registry with a finding of substantiated abuse. The finding shall remain on the Adult Abuse Registry for so long as the finding remains on the Registry of Nurse Aides. There shall be no right of appeal for findings entered on the Adult Abuse Registry under this section.
Section l: Definitions
"Abuse" shall have the same meaning as contained in 16 Del. C., § 1131, and shall include mistreatment, neglect and financial exploitation as defined therein.
"Child Care Facility" means any child care facility which is required to be licensed by the Department of Services for Children, Youth and Their Families.
"Contractor" means an entity under contract to provide services for more than 20 hours per week (aggregate) and for more than six weeks in a twelve month period for a health care service provider, and whose employees have the opportunity for direct access to persons receiving care. For purposes of these regulations, contractor does not include construction contractors.
"Department" means the Department of Health and Social Services.
"Direct Access" means the opportunity to have personal contact with persons receiving care during the course of one's assigned duties.
"Division" means the Division of Long Term Care Residents Protection.
"Health Care Service Provider" means any person or entity that provides services in a custodial or residential setting where health, nutritional or personal care is provided for persons receiving care, including but not limited to, hospitals, home health care agencies, adult care facilities, temporary employment agencies and contractors that place employees or otherwise provide services in custodial or residential settings for persons receiving care, and hospice agencies. Health Care Service Provider does not include any private individual who is seeking to hire a self-employed health caregiver in a private home.
"Nursing Facility and Similar Facility" means any facility required to be licensed under 16 Del. C., Ch. 11. This includes, but is not limited to, facilities commonly called nursing homes, assisted living facilities, intermediate care facilities for persons with mental retardation, neighborhood group homes, family care homes and rest residential care facilities. Also included are the Stockley Center, the Delaware Psychiatric Center and [psychiatric units of acute care] hospitals certified by the Department of Health and Social Services pursuant to 16 Del. C., § 5001 or 5136.
“Person Receiving Care" means any person who, because of his/her physical or mental condition, requires a level of care and services suitable to his/her needs to contribute to his/her health, comfort and welfare.
"Person Seeking Employment" means any person applying for employment with or in a health care service provider, nursing facility or similar facility that may afford direct access to persons receiving care at such facility, or a person applying for licensure to operate a child care facility. It shall also include a self-employed health caregiver who has direct access in any private home.
"Substantiated Pending Appeal" refers to a placement on the Registry based on an investigative finding prior to the subject exercising his/her right to appeal.
"Substantiated Abuse" means that, weighing the facts and circumstances, a reasonable person has concluded by a preponderance of evidence that the identified individual has committed adult abuse for the purpose of placement on the Adult Abuse Registry.
Section 2 Use of Registry
(A) No health care service provider, to include nursing and similar facilities, or child care facility shall hire any person seeking employment or retain any contractors without requesting and receiving an Adult Abuse Registry check for such person.
(1) Any employer who is required to request an Adult Abuse Registry check shall obtain a statement signed by the person seeking employment wherein the person authorizes a full release for the employer to obtain the information provided pursuant to such a check. Said authorization shall include the following language: "I hereby release the indicated employer to obtain from the Division of Long Term Care Residents Protection any information concerning me which may be on the Adult Abuse Registry pursuant to 11 Del. C., § 8564."
(2) When exigent circumstances exist which require an employer to fill a position in order to maintain the required or desired level of service, the employer may hire a person seeking employment on a conditional basis after the employer has requested an Adult Abuse Registry check.
(3) The person shall be informed in writing, and shall acknowledge in writing, that his or her employment is conditional, and contingent upon receipt of the Adult Abuse Registry check.
(B) Private individuals seeking to hire an individual to provide healthcare services in a private residence may request the Division to determine if the potential employee is listed on the Adult Abuse Registry. A short letter of request along with a release form signed by the prospective employee may be mailed or faxed to the Division of Long Term Care Residents Protection (DLTCRP) # 3 Mill Road, Suite 308, Wilmington, DE 19806, fax number (302) 577-6673.
Section 3: Investigation of Adult Abuse
(A) The Division shall investigate any individual against whom an allegation of adult abuse has been made in accordance with the timeframes delineated in 16 Del. C., § 1134(d).
(B) If the investigation substantiates pending appeal that the alleged abuse occurred, the Division's Investigations Unit Chief shall enter on the Adult Abuse Registry, with a finding of "Substantiated Pending Appeal," the individual's name, date/time of the incident, a description of same and the length of time the finding shall remain on the Registry.
(C) The Division may accept preliminary investigations by a state agency or an entity contracted by a state agency. The Division will review and may revise the findings upon further investigation.
(D) Upon placement of a person on the Adult Abuse Registry, the Division will notify the facility from which the complaint originated as well as the current employer, if different, and the victim that the person is on the Registry as "Substantiated Pending Appeal."
Section 4: Administrative Hearings
(A) An individual against whom an allegation is substantiated pending appeal shall be notified by certified mail at his/her home address, to be followed by written notice in care of his/her current employer at the discretion of the Division, that his/her name has been entered on the Adult Abuse Registry and shall be offered a right to an administrative hearing. The burden of proof in such hearing shall be on the Division. Individuals shall be informed upon completion of the investigation of the following:
(1) The date and time of the incident.
(2) The name and type of facility where the incident occurred.
(3) A brief description of the incident.
(4) Length of time the finding remains on the Adult Abuse Registry.
(B) All requests for an administrative hearing must be received in writing, postmarked within 30 days of the date of the notice that a finding of abuse has been substantiated pending appeal. The Director or his/her designee shall dismiss untimely requests for hearing except when the individual submits evidence of good cause.
(C) An individual who fails to request an administrative hearing as described above shall have his/her name and information regarding the incident changed from a finding of "Substantiated Pending Appeal" to a finding of "Substantiated Abuse" on the Adult Abuse Registry. At that time the Division shall notify the individual, the facility from which the complaint originated as well as the current employer, if different, and the victim that the individual is on the Registry with a finding of "Substantiated Abuse."
(D) An individual who has entered a plea or who has been convicted by a court of law of adult abuse shall have the right to an administrative hearing solely to challenge the proposed length of time of registration on the Adult Abuse Registry.
(E) The hearing officer shall have the power to compel the attendance of witnesses and the production of evidence. Under no circumstance shall the hearing officer order the release of the investigative report and documents attached thereto, provided however, the hearing officer may order the release of statements of witnesses.
(F) The hearing officer should receive requests for witnesses and/or the production of evidence no less than ten business days prior to the hearing date.
(G) The individual shall be afforded an opportunity to appear with or without an attorney, submit documentary evidence, present witnesses, and question any witness the Division presents. Limited continuances shall be granted for good cause.
(H) If, at the conclusion of the hearing, the hearing officer concludes by a preponderance of evidence, that the identified individual has committed adult abuse, for the purpose of placement on the Adult Abuse Registry, a notice of "Substantiated Abuse" shall be placed on the Adult Abuse Registry. If, at the conclusion of the hearing, the hearing officer concludes that the individual has not committed adult abuse, the finding of "Substantiated Pending Appeal" shall be removed from the Adult Abuse Registry.
(I) The hearing officer shall render a written decision within thirty working days of the hearing and will notify the individual, the Division, the facility and the victim of the decision. The notice will specify the reasons for the decision and, if the finding is substantiated, the length of time the finding of substantiated abuse shall remain on the Adult Abuse Registry.
(J) Any person placed on the Adult Abuse Registry shall have the right to appeal the decision within thirty days of the finding. The decision of the hearing officer may be appealed on the record to Superior Court.
Section 5: Length of Time on the Adult Abuse Registry
(A) The length of time on the Adult Abuse Registry shall be based on the seriousness of the incident and whether there exists a pattern of adult abuse. Evidence of mitigating circumstances may be considered.
(B) The names of registrants with findings of abuse, neglect or misappropriation entered on the Registry of Nurse Aides created pursuant to 42 CFR § 483 shall be entered on the Adult Abuse Registry with a finding of substantiated abuse. There shall be a right of appeal for findings entered on the Adult Abuse Registry under this section solely to challenge the proposed length of time of registration on the Adult Abuse Registry.
(C) Upon final disposition of the allegation, the Division shall notify, in writing, the victim, the facility where the incident occurred as well as the current employer of the individual, if different, of the final disposition.
Section 6: Removal of a Person from the Adult Abuse Registry
(A) The Department shall be authorized to remove a person from the Adult Abuse Registry before the expiration of his/her registration period when the Department deems that the person no longer poses a threat to any person receiving care in accordance with 11 Del. C., § 8564(g).
(B) A person whose name has been placed on the Adult Abuse Registry shall have the right to petition the Division, in writing, for the removal of his/her name from the Registry. Said petitioner must demonstrate:
(1) A minimum of twelve months has passed since his/her placement on the Registry.
(2) Affirmative steps have been taken to correct behavior that led to placement on the Registry, i.e. anger management counseling, drug/alcohol treatment, sensitivity training, etc.
(3) Demonstrated improved behavior through work references.
(C) The Division will evaluate the information provided by the petitioner and respond in writing within 60 days of receipt of all information provided by the petitioner. The Division is authorized to grant or deny the removal based on the review of the information presented. If the Division denies the request, the petitioner may request a hearing to appeal the denial, or reapply for the removal after 6 months or when the petitioner can produce evidence of performance of the affirmative steps listed above.
Section 7: Disclosure of Adult Abuse Registry Records
Except as otherwise provided in these regulations, the dissemination of information contained in the Adult Abuse Registry shall be limited as follows:
(A) Hearing Officer Opinions shall be released upon request to the following:
(1) The subject of the hearing.
(2) A victim identified by name in the record or his/her legal representative.
(3) Law enforcement officials pursuant to an official investigation.
(4) The Long Term Care Ombudsman pursuant to a complaint from a victim identified in the record.
(5) The Medicaid Fraud Control Unit of the Department of Justice.
(6) The Division of Professional Regulation if a finding of substantiated abuse pertains to a licensed professional.
(B) Investigative files shall be released upon request to:
(1) Law enforcement officials pursuant to an official investigation.
(2) The Medicaid Fraud Control Unit of the Department of Justice.
(3) Rights protection agencies otherwise entitled under applicable federal or state law.
ADDENDUM
REPORTING TO NURSE AIDE REGISTRY
In accordance with 42 CFR § 483, the Division of Long Term Care Residents Protection will report findings of abuse to the Nurse Aide Registry under the following procedure:
1. When the Division has substantiated pending appeal a finding of abuse, neglect, mistreatment or financial exploitation against a certified nurse assistant, a determination will be made whether the substantiated findings meet the criteria required in the federal regulations or the criteria in state statute and regulations.
2. If the findings support the criteria for abuse, mistreatment or misappropriation of property in the federal regulations, the certified nurse assistant will be notified that his/her name is both reported to the Nurse Aide Registry and placed on the Adult Abuse Registry, and that he/she has a right to a hearing. The CNA will also be notified that, with regard to the Nurse Aide Registry, a substantiated finding will result in a lifetime prohibition against employment in a federally certified facility.
3. If the findings support the criteria for neglect in the federal regulations, the certified nurse assistant will be notified that his/her name is both reported to the Nurse Aide Registry and placed on the Adult Abuse Registry, and that he/she has a right to a hearing. The CNA will also be notified that, with regard to the Nurse Aide Registry, a substantiated finding of neglect will result in a lifetime prohibition against employment in a federally certified facility. However, the CNA will be further informed of his/her right to petition the Division to have the report removed from the Nurse Aide Registry in accordance with §1819(g)(1)(D) of the Social Security Act.
4. The notice to the certified nurse assistant will include an explanation that the hearing described in the Adult Abuse Registry regulations will also consider the placement of the CNA on the Nurse Aide Registry. The CNA will be informed that if the evidence presented at a hearing does not warrant a finding of abuse, neglect, mistreatment or misappropriation of property under the federal regulations, the evidence will be considered to determine whether it meets the criteria for abuse, neglect, mistreatment or financial exploitation under the state Adult Abuse statute.