16 DE Code § 1134. (2021)
2021 Delaware Code|Title 16 - Health and Safety|Chapter 11. Long-Term Care Facilities and Services.|Subchapter III. Abuse, Neglect, Mistreatment, Financial Exploitation, or Medication Diversion of Patients or Residents|§ 1134. State response to reports of adult abuse, neglect, mistreatment, financial exploitation, or medication diversion.

§ 1134. State response to reports of adult abuse, neglect, mistreatment, financial exploitation, or medication diversion. (a) The Department shall ensure that patients or residents are afforded the same rights and protections as other individuals in the State. (b) [Repealed.] (c) The Department shall establish and maintain a 24-hour statewide toll-free telephone report line operating at all times and capable of receiving reports of alleged abuse, neglect, mistreatment, financial exploitation, and medication diversion. (d) On receipt of an allegation of abuse, neglect, mistreatment, financial exploitation, or medication diversion, the Department shall do all of the following:  (1) Receive and maintain reports in a computerized central data base. (2) Acknowledge all complaints, when authorized by the person making the report. The acknowledgement shall identify other relevant remedial agencies, including the protection and advocacy agency, Office of the Long-Term Care Ombudsperson, and victim rights resource organizations. (3) Forward complaints to the appropriate Department staff who shall determine, through the use of standard operating procedures developed by the Department, whether an investigation should be initiated to respond to the complaint. The Department shall develop the protocols for making this determination and the protocols must give priority to ensuring the well-being and safety of patients and residents. (4) Begin the investigation within 24 hours of receipt of any report or complaint that alleges any of the following:  a. A patient's or resident's health or safety is in imminent danger. b. A patient or resident has died due to alleged abuse, neglect, mistreatment, or medication diversion. c. A patient or resident has been hospitalized or received medical treatment due to alleged abuse, neglect, mistreatment, or medication diversion. d. The existence of circumstances that could result in abuse, neglect, mistreatment, or medication diversion and that could place a patient's or resident's health or safety in imminent danger. e. A patient or resident has been the victim of financial exploitation or risk thereof and exigent circumstances warrant an immediate response. (5) Except in situations outlined in paragraph (d)(4) of this section, initiate and conclude an investigation within 10 days of receiving a report or complaint unless extenuating facts warrant a longer time to complete the investigation. (6) Contact the appropriate law-enforcement agency immediately on receipt of any complaint requiring an investigation under this section and provide the police with a detailed description of the complaint received. a. The appropriate law-enforcement agency shall conduct its investigation or provide the Department within a reasonable time an explanation detailing the reasons why it is unable to conduct the investigation. b. The Department may defer its own investigation in these circumstances until it receives appropriate guidance from the Attorney General's Office and the relevant police agency with respect to how to proceed with its investigation thereby assuring a coordinated investigation. c. Notwithstanding any provision of the Delaware Code to the contrary, to the extent the law-enforcement agency with jurisdiction over the case is unable to assist, the Department may request that the Delaware State Police exercise jurisdiction over the case and, upon such request, the Delaware State Police may exercise such jurisdiction. (7) If a case is classified as an investigation under this subchapter, have the authority to secure a medical examination of a long-term care patient or resident on the consent of the patient or resident without the consent of the long-term care facility if the patient or resident has been reported to be a victim of abuse, neglect, or mistreatment, or medication diversion. (8) When a written report of abuse, neglect, mistreatment, financial exploitation, or medication diversion is made by a person required to report under § 1132(a) of this title, the Department shall contact the person who made the report within 48 hours of the receipt of the report in order to ensure that full information has been received and to obtain any additional information, including medical records, which may be pertinent. (9) Conduct an investigation involving all reports which, if true, would constitute a criminal offense, or an attempt to commit a criminal offense, under any of the following provisions of Title 11: § § 601, 602, 603, 604, 611, 612, 613, 621, 625, 626, 627, 631, 632, 633, 634, 635, 636, 645, 763, 764, 765, 767, 768, 769, 770, 771, 772, 773, 774, 775, 791, 841, 842, 843, 844, 845, 846, 848, 851, 861, 862 and 908. (10) Develop protocols to ensure that it conducts its investigation in coordination with the relevant law-enforcement agency. The primary purpose of the Department's investigation must be the protection of the patient or resident. (11) Do any of the following when investigating abuse, neglect, mistreatment, financial exploitation, or medication diversion reports:  a. Make unannounced visits to the facility, as required, to determine the nature and cause of the alleged abuse, neglect, mistreatment, financial exploitation, or medication diversion. b. Interview available witnesses identified by any source as having personal knowledge relevant to the reported abuse, neglect, mistreatment, financial exploitation, or medication diversion. c. Conduct interviews in private unless the witness expressly requests that the interview not be private. d. Write an investigation report that includes all of the following:  1. The investigator's personal observations. 2. A review of the medical and all other relevant documents and records. 3. A summary of each witness statement. 4. A statement of the factual basis for the findings for each incident or problem alleged in the complaint. (12)-(16) [Repealed.] (17) Before the completion of an investigation, file a petition for the temporary care and protection of the patient or resident if the Department determines that immediate removal is necessary to protect the patient or resident from further abuse, neglect, mistreatment, financial exploitation, or medication diversion. (18) On completing an investigation of a complaint, the Department shall take 1 or more of the following courses of action, as appropriate:  a. If representatives of the Department, the Attorney General's Office, or the appropriate law-enforcement agency are unable to substantiate a complaint that applicable laws or regulations have been violated, the Department, Attorney General's Office, or appropriate law-enforcement agency shall so advise the complainant and the facility, agency, or individual against which the complaint was made. b. If Department representatives are able to substantiate a complaint that applicable laws or regulations have been violated, the Department shall take appropriate enforcement action. 1. An enforcement action may include instituting actions by the Department for injunctive relief or other relief deemed appropriate. 2. The Attorney General's Office shall provide legal advice and assist the Department to institute an enforcement action. c. If the Department discovers a violation of federal laws or regulations or rules administered by any other government agency, the Department shall refer the matter directly to the appropriate government agency for an enforcement action. d.-f. [Repealed.] (19) Protect the privacy of the long-term care patient or resident and the patient's or resident's family. a. The Department shall establish guidelines concerning the disclosure of information relating to complaints and investigations regarding abuse, neglect, mistreatment, financial exploitation, or medication diversion involving that patient or resident. b. The Department may require persons to make written requests for access to records maintained by the Department. c. Records maintained for investigations conducted under this section are not public records under Chapter 100 of Title 29 and the Department may only release information to persons who have a legitimate public safety need for the information and the information must be used only for the purpose for which it is released under a user agreement with the Department. (e) The protection and advocacy agency may complement the Department's complaint resolution system through monitoring, investigation, and advocacy on behalf of facility patients or residents. In furtherance of this authority, protection and advocacy agency representatives may engage in all of the following functions:  (1) Solicit and receive oral and written reports and complaints of abuse, neglect, mistreatment, financial exploitation, or medication diversion of facility patients or residents. (2) Access a facility. (3) Interview patients, residents, facility staff, and agents. (4) Inspect and copy records pertaining to the patient or resident with valid consent or as otherwise authorized by federal law. (f) The Department may develop protocols with the protection and advocacy agency to facilitate coordination whenever both agencies have initiated an overlapping investigation. (g) The immunities and protections under § 1135 of this title apply to persons offering reports or testimony to initiate or support protection and advocacy agency investigation or advocacy. (h) Appointment of special investigators; powers and duties. — (1) The Secretary of the Department may appoint qualified persons to be special investigators.  a. The investigators hold office at the pleasure of the Secretary. b. Any individual appointed under this section must have all of the following qualifications:  1. A minimum of 10 years experience as a police officer, as that term is defined in § 1911(a) of Title 11. 2. Significant investigatory experience while working as a police officer. 3. Be in good standing with the previous or present law-enforcement agency where the individual was or is employed. 4. Other qualifications deemed appropriate by the Secretary. (2) Special investigators appointed under this section may conduct investigations of abuse, neglect, mistreatment, financial exploitation, or medication diversion of patients and residents of facilities and adults who are impaired as defined in § 3902 of Title 31 anywhere in this State as directed by the Department and have the power to make arrests and serve writs anywhere in this State. a. In conducting the investigations, the special investigators have the statewide powers enumerated under § 1911 of Title 11 and other powers as conferred by law on police officers, but the powers are limited to offenses involving abuse, neglect, mistreatment, financial exploitation, or medication diversion of patients and residents of long-term care facilities and adults who are impaired anywhere in this State as directed by the Department. b. To the extent possible, special investigators under this section may consult with the police agency having jurisdiction and the Department before making an arrest and shall do so in all cases after making the arrest. (3) The Secretary of the Department shall fix the salary of special investigators within the appropriations made to the Department. (4) Special investigators shall assist in the training of other Department staff. (i) On receipt of any report under paragraph (d)(5) of this section, the law-enforcement agency having jurisdiction shall conduct a full and complete criminal investigation based on their departmental policies and shall assess probable cause and effectuate arrests when appropriate. (1) The Attorney General's Office or other law-enforcement agency conducting the investigation shall keep the Department informed of the case status and all major decisions under memoranda of understanding between the Department and the Attorney General's Office and other relevant law-enforcement agencies entered into under subsection (j) of this section.  (2) The Attorney General's Office shall keep the Department well informed of the case status and all major decisions, including the disposition of criminal charges and the specifics of any sentencing order rendered. (j) The Department, the Attorney General's Office, and other law-enforcement agencies shall develop memoranda of understanding under this subchapter which provide for timely notification, co-investigation, referral of cases, including automatic referral in certain cases, and ongoing coordination in order to keep each other apprised of the status of their respective investigations. The memoranda of understanding may be amended as needed. (k) If the Department suspects or discovers information indicating the commission of violations of standards of professional conduct by facilities licensed under this chapter or by staff employed by such facilities, the Department shall immediately contact the Attorney General's Office and the relevant professional licensing board. (l) The Department and the Attorney General's Office shall cooperate with law-enforcement agencies to develop training programs to increase the effectiveness of Department personnel, Attorney General's Office personnel, and law-enforcement officers in investigating suspected cases of abuse, neglect, mistreatment, financial exploitation, or medication diversion. (m) If a criminal prosecution for abuse, neglect, mistreatment, financial exploitation, or medication diversion is initiated by the Attorney General's Office based on a report under this subchapter, and incarceration of the individual who is the subject of the report is ordered by the court, the Attorney General's Office shall keep the Department informed of actions taken by the court which result in the release of the individual if the Attorney General's Office is represented at the hearing. (n) If a criminal prosecution for abuse, neglect, mistreatment, financial exploitation, or medication diversion is initiated by the Attorney General's Office against a person employed by or associated with a facility or organization required to be licensed or whose staff are required to be licensed under Delaware law, the Attorney General's Office shall notify the Department within 48 hours and the Department shall then notify the individual's employer as follows:  (1) When the individual is charged with having committed at least 1 felony offense involving an allegation of abuse, neglect, mistreatment, financial exploitation, or medication diversion. (2) On an adjudication of guilt of the person for any misdemeanor or violation, when the offense involved abuse, neglect, mistreatment, financial exploitation, or medication diversion.65 Del. Laws, c. 442, §  1;  70 Del. Laws, c. 222, §  4;  70 Del. Laws, c. 186, §  1;  71 Del. Laws, c. 487, §  4;  72 Del. Laws, c. 3, §  4;  74 Del. Laws, c. 212, §  1;  77 Del. Laws, c. 201, §§  11-14;  77 Del. Laws, c. 318, §  6;  78 Del. Laws, c. 179, §  164;  81 Del. Laws, c. 206, § 35;  81 Del. Laws, c. 209, §§   3, 14;  83 Del. Laws, c. 22, § 5;