How HB 47 Amends the Delaware Code

How HB 47 Amends the Delaware Code

House Bill 47 (HB 47), sponsored by Rep. Bryon Short (Democrat, 7th RD) amends Titles 16 and 24 of the Delaware Code. See the changes made in red below.

Section 1 of HB 47

Title 16

122. Powers and duties of the Department of Health and Social Services.

The Department shall have the following general powers and duties:

(1) Supervision of all matters relating to the preservation of the life and health of the people of the State.

(2) Supreme authority in matters of quarantine; it may declare and enforce such quarantine, when necessary and where no quarantine exists, and may modify, relax or abolish it, where it has been established.

(3) Adopt, promulgate, amend, and repeal regulations consistent with law, which regulations shall not extend, modify or conflict with any law of this State or the reasonable implications thereof, and which shall be enforced by all state and local public health officials, to:

a. Prevent and control the spread of all diseases that are dangerous to the public health;

b. Prevent and control nuisances which are or may be detrimental to the public health;

c. Provide for the sanitary protection of all drinking water supplies which are furnished to and used by the public, including the establishment of primary maximum contaminant levels, operational requirements and public notice requirements. Primary maximum contaminant levels mean a maximum contaminant level which involves a biological, chemical or physical characteristic of drinking water that may adversely affect the health of the consumer.

A public water supplier means any person who owns or operates one or more public water systems. A public water system means a water supply system for the provision to the public of water for human consumption through pipes or other constructed conveyances either directly from the user's free flowing outlet or indirectly by the water being used to manufacture ice, foods and beverages or that supplies water for potable or domestic purposes to employees, tenants, members, guests or the public at large in commercial offices, industrial areas, multiple dwellings or semi-public buildings including, but without limitation, rooming and boarding houses, motels, tourist cabins, mobile home parks, restaurants, hospitals and other institutions, or offers any water for sale for potable domestic purposes. A dwelling unit means 1 or more rooms arranged for the use of 1 or more individuals as a single housekeeping unit, with cooking, living, sanitary and sleeping facilities. A person shall include corporations, companies, associations, firms, municipally owned water utilities, partnerships, societies and joint stock companies, as well as individuals. In addition, the following provisions shall apply:

1. No public water system shall operate without a duly licensed public water supply operator. The Department shall have the authority to exempt the owners of seasonal public water systems, restaurants, hotels and similar businesses from the requirement to operate with a licensed public water supply operator. The Department shall have the exclusive power to grant or deny any such license and shall adopt regulations setting the requirements, including any acceptable performance or an examination for obtaining and retaining any such license. The Department shall assess an annual licensure fee of $50 per operator.

2. The Department shall have the authority to monitor the water quality of public water systems for secondary drinking water quality standards. The Secretary shall have the authority to establish, after public hearing, minimum secondary drinking water quality standards for all public water suppliers serving more than 500 service connections within the state. In determining the total number of service connections, all public water systems operated, managed or owned wholly or in part by the public water supplier within the state shall be added together. Secondary drinking water quality standards involve a biological, chemical or physical characteristic of water that may adversely affect the taste, odor, color or appearance (aesthetics) which may affect public confidence or acceptance of the drinking water. These standards shall include but are not limited to chlorides, copper, iron, manganese, sulfate, total dissolved solids and other standards as determined by the Secretary. Such standards shall be at least as stringent as those adopted by the United States Environmental Protection Agency under the Safe Drinking Water Act [42 U.S.C. § 300f, et seq.]. A certificate of noncompliance shall be issued to any public water supplier that serves more than 500 service connections whose public water system violates secondary drinking water quality standards as adopted by the Department. Such certificate shall require the public water supplier to report within 60 days what measures have been or will be taken to bring the public water system into compliance. Should any public water supplier serving more than 500 service connections within the State fail, without good cause, to meet secondary drinking water quality standards pursuant to this section for a period of time greater than 7 consecutive days, or should the public water supplier have a history of a recurring problem, the Secretary shall file a report with the Public Service Commission detailing such failure or such a history of a recurring problem. The Public Service Commission may utilize the report as cause to review the public water supplier's ability to provide adequate service under its present certificate of public convenience and necessity and may also use such report as a factor in considering any application by the water system supplier's for any further certificate. In addition, for public water systems operated by public utilities which are subject to the jurisdiction of the Public Service Commission under § 203C of Title 26, the Commission may utilize such report as cause to review the appropriate rates to be charged by the utility in light of the quality of service being provided.

3. The Department shall ensure that all new community and nontransient noncommunity public water systems commencing operation after October 1, 1999, demonstrate technical, managerial and financial capacity to operate in compliance with state regulations Governing Public Drinking Water Systems and the federal Safe Drinking Water Act [42 U.S.C. § 300f, et seq.]. It is the purpose of this subparagraph to ensure that the Department has adequate information about the background of applicants or regulated parties for the purposes of processing permits. This includes the ability to identify applicants or regulated parties with histories of environmental violations or criminal activities and/or associations; or applicants who cannot demonstrate the required responsibility, expertise or competence which is necessary for the proper operation or activity permitted by the Department.

4. Whoever refuses, fails or neglects to perform the duties required of public water suppliers under paragraph (3)c. of this section; or who violates, neglects or fails to comply with duly adopted regulations or orders of the Department of Health and Social Services regarding the duties of public water suppliers, shall be subject to a judicially imposed penalty of up to $10,000 per day, together with costs, for every day from and after the effective date of an order of the Department of Health and Social Services, specifically directing compliance until such compliance has been achieved. Observance of orders of the Department of Health and Social Services concerning public water suppliers may also be compelled by mandamus or injunction, in appropriate cases, or by an action to compel the specific performance of the orders so made, or of the duties imposed by law upon such public water supplier. The Department of Health and Social Services may investigate the financial operations of a public water supplier to the extent necessary to enter an adequate compliance order.

5. In lieu of judicially imposed penalties, the Secretary may impose administrative penalty upon any public water supplier who refuses, fails or neglects to perform the duties required of it under paragraph (3)c. of this section. The administrative penalty shall be as follows:

A. For a system serving a population of more than 10,000 people the administrative penalty shall be not less than $1,000 nor more than $10,000 per day per violation; and

B. For any other system, the administrative penalty shall be not less than $100 nor more than $10,000 per day per violation.

Assessment of an administrative penalty shall be determined by the nature, circumstances, extent and gravity of the violation, or violations, ability of the violator to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation and such other matters as justice may require.

In the event of nonpayment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary in any court of competent jurisdiction, including any Justice of the Peace Court, for collection of the administrative penalty, including interest, attorneys' fees and costs, and the validity, amount and appropriateness of such administrative penalty shall not be subject to review.

6. Drinking water contaminant notification. --

A. As used in this section, "Drinking water contaminant" means any physical chemical, biological or radiological substance or matter in drinking water, the presence of which is confirmed by 2 or more samples taken at the same location at different times, using recognized practices and procedures, which substance exceeds the minimum drinking water quality standards established in accordance with paragraph c. of this subdivision (3).

B. Public notification of drinking water contaminants shall be categorized as either an Immediate Notice (Tier 1), Notice as soon as possible (Tier 2) or 90-day Notice (Tier 3). A Tier 1 drinking water contaminant notification is required when there is an acute risk to human health arising from the presence of drinking water contaminants in drinking water provided by a public drinking water supplier. A Tier 2 drinking water contaminant notification is required when a public water system provides drinking water containing levels of a contaminant that exceed federal or state drinking water standards, but does not pose an acute risk to human health or the public drinking water supplier fails to monitor and report water quality information to the Department in accordance with regulations. A Tier 3 drinking water notification is required when a public drinking water system provides water which otherwise does not comply with federal or state drinking water standards, but the noncompliance does not pose a risk to human health.

C. In the event of a Tier 1, Tier 2 or Tier 3 drinking water contaminant incident, the public drinking water supplier shall immediately notify the Department. If the Department deems it necessary, the public drinking water supplier shall also notify its affected customers in accordance with subparagraph D. of this paragraph and Department regulations and such notice shall include, to the maximum extent practicable, the following information: I. A description of the violation or situation, including contaminant levels, if applicable; II. When the violation or situation occurred; III. Recognized potential adverse health effects using standard health effects language as approved by the Division of Public Health; IV. The affected population; V. Whether alternative drinking water supplies should be used; VI. What action consumers should take; VII. What the public drinking water provider is doing to correct the violation or situation; VIII. When the public drinking water provider expects the system to return to compliance or the situation to be resolved; IX. The name, business address and phone number of the public drinking water system owner or operator; and X. A statement encouraging distribution of the notice to others, where applicable.

D. For Tier 1 drinking water contaminant incidents, the information listed in items I. through X. above, shall be made available to affected customers by the public drinking water supplier, if the Department deems it necessary, as soon as possible but no later than 24 hours after the contamination is reported. For Tier 2 drinking water contaminant incidents, the information listed in items I. through X. above shall be made available to affected customers by the public drinking water supplier, if the Department deems it necessary, as soon as practical but within 14 calendar days after the contamination is reported. For Tier 3 drinking water contaminant incidents, the information listed in items I. through X. above shall be made available to affected customers by the public drinking water supplier, if the Department deems it necessary, as soon as practical, but within 90 calendar days after the contamination is reported.

E. In accordance with the public notification timelines established in paragraph (3)c.7.D. of this section, the public drinking water supplier shall also provide the same notification to the elected Council or Levy Court member(s) of any municipality and/or county in which the contamination occurred, the State Representative(s) and Senator(s) in whose district the contamination occurred, and any community or civic group or individual that notifies the public drinking water supplier that they desire to receive such information.

F. The public drinking water supplier is not required to report the results of tests for the presence of drinking water contaminants to the Department in cases where the Division of Public Health performs the potable water analyses.

G. In the event the public drinking water supplier is unable to provide public notification of a Tier 1, Tier 2 or Tier 3 drinking water contaminant incident, as required by this section, such public drinking water supplier shall be responsible for paying for the cost of any such advertisements and notices made on its behalf by the Department.

7. Regulatory and compliance information, public drinking water system performance and public information.

A. The Department shall develop a Safe Drinking Water Information System that will include general information about public drinking water systems under the Department's regulatory jurisdiction as defined by this title. The System shall provide the public with information that indicates when a public drinking water system has been inspected, what violations are detected, when the public drinking water system comes back into compliance, and any enforcement action that results from violations. The Department shall also publish on the Department web site all Tier 1, Tier 2 and Tier 3 drinking water contaminant public notifications as soon as possible, but within 1 business day of the release of the notification to the public.

B. Delaware public drinking water systems that are identified as a community water system by the Division of Public Health, shall prepare and issue each year, on or before July 1, an annual water quality report to customers served by their drinking water system. The water quality reports shall be provided by parcel post return receipt requested to the Department and the Division of the Public Advocate. In addition, the public drinking water supplier shall notify its customers of the availability of the annual water quality report and provide copies of the report to all individuals, health care providers or organizations requesting it. The water quality report shall include such information as may be prescribed by the Division of Public Health, including, but not limited to, any environmental violations or enforcement actions taken against the public drinking water supplier by federal, state or local regulatory authorities and the name and contact information of the public drinking water supplier representative. The reports may also include any voluntary activities undertaken by the drinking water supplier to reduce health risks from identified contaminants, including source water assessments, installation of new treatment processes, or such similar environmental improvements undertaken within the previous year or planned for the next 5 years.

C. Any records, reports or information obtained pursuant to this chapter and any permits, permit applications and related documentation shall be available to the public for inspection and copying in accordance with Chapter 100 of Title 29.

d. Provide for the sanitary control of public swimming pools except that no regulation currently existing or hereafter adopted shall require a life guard to be on duty at any pool of any motel, hotel or private campground facility;

e. Regulate plumbing in the interests of the public health;

f. Provide for the sanitary production, distribution and sale of market milk and dairy products and other foods;

g. Provide for the sanitary control of tourist camps, trailer camps and other public camps;

h. Control the practice of non-nurse midwives including the issuance of permits and protect and promote the health of all mothers and children;

i. Provide for proper sanitation, ventilation and hygiene in schools and for sanitary and health requirements for food handlers in the schools not less stringent than the requirements for food handlers in public eating places;

j. Protect and promote the public health generally in this State, and carry out all other purposes of the laws pertaining to the public health;

k. Provide the mechanism for yearly medical examination of all persons engaged in the preparation and service of food and drink for human consumption in commercial establishments or public and private educational institutions where such persons come in physical contact with the food and drink prepared or served, such examinations to include whatever tests the Director of the Division of Public Health of the State Department of Health and Social Services shall deem necessary;

l. Provide the mechanism for medical examinations of all applicants for food handling employment if such employment involves preparation of food and drink for human consumption in commercial establishments or public and private educational institutions where such persons come in physical contact with the food or drink prepared or served, such examinations to include whatever tests the Director of the Division of Public Health of the State Department of Health and Social Services shall deem necessary;

m. Establish standards for quality assurance in the operation of hospice programs and control the practice of such programs. Upon receipt of an application for license and the application fee of $100, the Department shall issue a license if the hospice meets requirements established under this chapter. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $50. A provisional license, as authorized by the Department, shall be issued when health requirements are not met and a licensure fee of $50 has been submitted. A hospice which has been issued a provisional license shall resubmit the application fee for reinspection prior to the issuance of an annual license;

n. Prevent and control the spread of vaccine-preventable diseases in children, including regulation of nonpublic elementary and secondary schools and daycare and other preschool facilities; provided, however, that nothing in this paragraph shall require medical treatment for the minor child of any person who is a member of a recognized church or religious denomination and whose religious convictions, in accordance with the tenets and practices of the person's church or religious denomination, are against medical treatment for disease;

o. Establish standards for public health quality assurance in the operation of home health agency programs and regulate the public health practice of such programs.

1. A home health agency is any business entity or subdivision thereof, whether public or private, proprietary or not-for-profit, which provides home health care services.

A. Home health care services include but are not limited to the following: (i) Licensed nursing; (ii) Physical therapy; (iii) Speech therapy; (iv) Audiology; (v) Occupational therapy; (vi) Nutrition; (vii) Social Services; or (viii) Home health aides.

B. Home health agencies shall provide: (i) Two or more home health care services, 1 of which must be either licensed nursing services or home health aide services; or (ii) Home health aide services exclusively which shall include, but not be limited to:

(I) Feeding;

(II) Bathing;

(III) Dressing;

(IV) Grooming; and

(V) Incidental household services.

2. For purposes of this definition, the following shall also apply:

A. Home health agency services are provided directly through employees of the agency or through contract arrangements, including those contracts with individuals considered to be independent contractors.

B. Home health agency services are provided to individuals in their home or private residence (excluding residents of hospitals and nursing facilities).

C. All home health agency services must be supervised by a registered nurse.

D. Home health agencies shall utilize written financial agreements between the agency and the consumer. These agreements shall minimally include: (i) Description of services purchased and the associated cost; (ii) Acceptable method of payment(s) for these services; and (iii) Outline of the billing procedures.

All payments by the consumer for services rendered shall be made directly to the agency or its billing representative and no payments shall be made to or in the name of individual employees/contractors/subcontractors of the agency.

3. A home health agency does not include:

A. Any visiting nurse service or home health service conducted by and for those who rely upon spiritual means through prayer alone for healing in accordance with the tenets and practices of a registered church or religious denomination.

B. An agency which solely provides services as defined in Chapter 94 of this title.

C. An agency which provides staffing exclusively to other agencies (including but not limited to nursing facilities, home health agencies, and hospitals).

4. Upon receipt of an application for licensure and the nonrefundable application fee of $500, the Department shall issue a license if the home health agency meets the requirements established under this chapter. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $300.

5. A provisional license, as authorized by the Department, shall be issued when health requirements are not met and a licensure fee of $300 has been submitted. A home health agency which has been issued a provisional license shall resubmit the application fee ($500) for reinspection prior to the issuance of an annual license.

6. The Department shall not issue a license to any applicant, nor shall it renew any previously issued license, unless, together with the proper licensure fee and filing/application, the agency/applicant has included evidence that it has obtained from the State Bureau of Identification a report of the entire criminal history record of any of its employees, contractors or contractors' employees who may enter the home or private residence of any resident of this State for the purposes of providing them with any of the services herein described.

7. The Department may request the Superior Court to impose a civil penalty of not more than $10,000 for a violation of this subsection or a regulation adopted pursuant to it. In lieu of seeking a civil penalty, the Department, in its discretion, may impose an administrative penalty of not more than $10,000 for a violation of this subsection or a regulation adopted pursuant to it. Under this subparagraph, each day a violation continues constitutes a separate violation.

8. In determining the amount of any civil or administrative penalty imposed pursuant to paragraph (3)o.7. of this section, the Court or the Department shall consider the following factors:

A. The seriousness of the violation, including the nature, circumstances, extent and gravity of the violation and the threat or potential threat to the health or safety of a consumer or consumers;

B. The history of violations committed by the person or the person's affiliate(s), employee(s), or controlling person(s);

C. The efforts made by the agency to correct the violation or violations;

D. The culpability of the person or persons who committed the violation(s);

E. Any misrepresentation made to the Department; and

F. Any other matter that affects the health, safety or welfare of a consumer or consumers.

9. The Department shall have the authority to collect administrative penalties. Any fees or civil or administrative penalties collected by the Department under this section are hereby appropriated to the Department to carry out the purposes of this section.

10. In the event of non-payment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary in Superior Court for collection of the administrative penalty, including interest, attorney fees and costs. In a civil action to collect the administrative penalty the validity, amount and appropriateness of such administrative penalty shall not be subject to review.

p. Establish standards for quality assurance in the operation of freestanding birthing centers, freestanding surgical centers and freestanding emergency centers; and to grant permits for the operation of such facilities to persons, associations or organizations meeting those standards and paying the appropriate permit fee established by the Department. Upon receipt of an application for license and the application fee of $150 for freestanding birthing centers, $250 for freestanding surgical centers and $250 for freestanding emergency centers, the Department shall issue a license if the facility meets the requirements established under this chapter. A license unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $75 for freestanding birthing centers, $150 for freestanding surgical centers and $150 for freestanding emergency centers. A provisional license as authorized by the Department shall be issued when health requirements are not met and a licensure fee of $75 for freestanding birthing centers, $150 for freestanding surgical centers and $150 for freestanding emergency centers has been submitted. For each facility which has been issued a provisional license, there shall be resubmission of the application fee for reinspection prior to the issuance of an annual license. When appropriate, the Department should use the established standards for Medicare reimbursement in setting standards; provided, however, that nothing contained in this subparagraph shall be construed to authorize the Department to expand or limit the scope of practice afforded to professionals under other chapters of this title or other provisions of Delaware law or lawful regulations of the Department. For the purpose of this chapter, the following definitions shall apply to those facilities:

1. "Freestanding birthing center" means a public or private facility, other than a hospital, which is established for the purpose of delivering babies and providing immediate postpartum care.

2. "Freestanding emergency center" means a facility, physically separate from a hospital, which uses in its title or in its advertising, the words "emergency", "urgent care" or parts of those words or other language indicating to the public that immediate medical treatment is available to individuals suffering from a life-threatening medical condition.

3. "Freestanding surgical center" means a place other than a hospital or the office of a physician, dentist or podiatrist or professional association thereof, which is maintained and operated for the purpose of providing surgery and surgical diagnosis and treatment by persons licensed to practice medicine and surgery, dentistry or podiatry in the State, and which shall have an attending staff.

q.1. Establish standards for quality assurance in the operation of prescribed pediatric extended care facilities, and to grant permits for the operation of such facilities to persons, associations or organizations which have been approved in accordance with Chapter 93 of this title and which pay the appropriate permit fee established by the Department. The amount to be charged for the fee imposed under this subparagraph shall approximate and reasonably reflect the costs necessary to defray the expenses of the Department.

2. Upon receipt of an application for license and the application fee of $100, the Department shall issue a license if the prescribed pediatric extended care center meets the requirement established under this chapter. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $50. A provisional license as authorized by the Department shall be issued when health requirements are not met and a licensure fee of $50 has been submitted. For each home health agency which has been issued a provisional license, there shall be resubmission of the application fee for reinspection prior to the issuance of an annual license.

r. Provide for the sanitary control, specifically addressing drinking water, human waste disposal and control of other vectors of human disease, of mobile/manufactured home parks and other housing of similar usage, which consist of more than 3 dwelling units or lots located on the same or adjacent properties served by a common water and/or sewage disposal system, and which are held out to the public for rent or lease.

s.1. Establish standards for regulation in the operation of adult day care facilities, and grant licenses for the operation of such facilities to persons, associations or organizations which have been approved in accordance with this title and which pay the appropriate permit fee established below.

2. Upon receipt of an application for a license, and the application fee of $100, the Secretary of the Department of Health and Social Services shall issue a license if the prescribed adult day care facility meets the requirements established under this title. The Secretary shall be authorized to issue restricted, provisional and other types of licenses and to revoke or suspend any license in accordance with department regulations. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $50, provided that an applicant meets requirements as outlined in the regulations.

t.1. Establish standards for regulation of lead-based paint hazard control activities, including the training and certification of workers engaged in lead-based paint activities, the establishment of work standards for lead-based paint hazard control and the accreditation of lead-based paint hazard training programs.

2. Individuals meeting the minimum qualifications established by regulation who are engaged in lead-based paint activities shall obtain a license issued by the State Department of Health and Social Services upon receipt of an application and an annual license fee of $25 for workers and $50 for supervisors, project designers, contractors, inspectors and risk assessors.

3. All courses offered in Delaware by training providers for individuals engaged in lead-based paint activities shall be approved by the State Department of Health and Social Services. The training provider shall pay an annual fee of $200 for each type of course for which training will be provided.

u.1. Promulgate and enforce standards to regulate food establishments which may include, but are not limited to, restaurants, caterers, temporary food vendors, grocery stores, food vending machines, ice manufacturers and cottage industries that prepare or handle food for human consumption whenever it is determined that said food represents a hazard to the public health.

2. To perform these functions, the Division of Public Health shall have the authority to collect reasonable fees necessary to defray costs of functions identified in paragraph (3)u.1. of this section.

3. For each facility required by regulations to hold a permit, the

following fee shall be assessed:

Food Establishment Permit

Type of Establishment Fee

Public Eating Place $100

Retail Food Store $100

Ice Manufacturers $30

Commercial Food Processors $30

Vending Machine Location $30

4. For each facility required by regulation to have a plan review, the

following fee shall be assessed:

Food Establishment Plan Review

Square Footage Fee

1000 or less $50

1001-5000 $100

5001-10000 $150

10001-15000 $200

15001-above $250

5. Churches, schools, fire companies and other nonprofit organizations are exempt from these fees.

v. Establish standards for public health assurance in the practice of cosmetology and barbering and in the operation of beauty salons, schools of cosmetology, schools of electrology, schools of nail technology and schools of barbering, and for the investigation of complaints involving unsanitary or unsafe practices or conditions in such professions or facilities. For purposes of this chapter, the terms "cosmetology," "beauty salon," "school of cosmetology," "school of electrology," "school of nail technology" and "school of barbering" shall have the same meanings as provided in § 5101 of Title 24. Nothing contained in this subparagraph shall be construed to authorize the Department to expand or limit the scope of practice afforded to professionals under other provisions of Delaware law.

w. Establish standards for the sanitary operation of tattoo parlors and body piercing establishments. For purposes of this paragraph, "tattoo parlor" means a person or business that makes permanent marks on human skin by puncturing the skin and inserting an indelible color or by producing scarring. For purposes of this paragraph, "body piercing establishment" means a person or business that perforates any human body part or human tissue and places a foreign object in the perforation for nonmedical purposes except for a person or business that perforates only ears. Upon receipt of an application for a permit and a permit fee of $100, the Department of Health and Social Services shall issue a permit to a tattoo parlor or body piercing establishment if it meets the requirements established under Department regulations. The Secretary shall be authorized to issue restricted, provisional and other types of permits and to revoke or suspend any permit in accordance with Department regulations. A permit, unless sooner suspended or revoked, shall be renewed annually upon filing by the permittee and payment of an annual permit fee of $100, provided that an applicant meets the requirements set forth in Department regulations.

x. Establish standards for regulation of the operation of personal assistance services agencies, and grant licenses for the operation of such Agencies to persons, associations or organizations that have been approved in accordance with this title and that pay the appropriate licensure fee.

1. A "personal assistance services agency" is any business entity or subdivision thereof, whether public or private, proprietary or not-for-profit, which refers direct care workers to provide personal assistance services to individuals primarily in their home or private residence (excluding residents of hospitals and nursing facilities).

2. "Personal assistance services" means the provision of services 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, homemaker services, companion services, and those other services as set out in § 1921(a)(19) of Title 24.

3. A personal assistance services agency does not include:

A. An agency providing skilled professional health care services.

B. An agency which provides services as defined in Chapter 94 of this title.

C. An agency which provides staffing exclusively to other agencies (including but not limited to, nursing facilities, home health agencies, and hospitals).

4. Upon receipt of an application for licensure and the nonrefundable application fee of $250, the Department shall issue a license if the personal assistance services agency meets the requirements established under this paragraph. The Department shall be authorized to revoke or suspend any license in accordance with Department regulations. A license is not transferable from person to person or entity to entity.

5. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $100, provided that an applicant meets requirements as outlined in the Department's regulations.

6. The Department shall not issue a license to any applicant, nor shall it renew any previously issued license, unless, together with the proper licensure fee, application, and evidence of compliance with Department regulations, the personal assistance services agency/applicant has included:

A. Evidence that the personal assistance services agency has obtained the following information for each of the direct care workers who may enter the home or private residence of any resident of this State for the purpose of providing them with any of the services herein provided: i. In accordance with § 1145 of this title, a criminal history report from the State Bureau of Identification. The State shall cover all costs associated with obtaining the criminal history reports. ii. Certification from the Department of Health and Social Services that the direct care worker has not been named in the Central Register as a perpetrator of adult abuse. iii. Certification from the Department of Services for Children, Youth, and Their Families that the direct care worker has not been named in the Central Register as the perpetrator of child abuse.

B. Evidence that the personal assistance services agency is complying with the State's drug testing policy as set forth in § 1146 of this title.

C. Evidence that the personal assistance services agency discloses to its consumers the personal assistance services agency's and the direct care worker's status with respect to attendant tax, workers' compensation, and liability insurance obligations.

7. The Department may request the Superior Court to impose a civil penalty not to exceed $5,000 for a violation of this subsection or a regulation adopted pursuant to it. In lieu of seeking a civil penalty, the Department, in its discretion, may impose an administrative penalty not to exceed $5,000 for a violation of this subsection or a regulation adopted pursuant to it. Under this subparagraph, each day a violation continues constitutes a separate violation.

8. In determining the amount of any civil or administrative penalty imposed pursuant to paragraph (3)x.7. of this section, the Court or the Department shall consider the following factors:

A. The seriousness of the violation, including the nature, circumstances, extent and gravity of the violation and the threat or potential threat to the health and safety of a consumer or consumers;

B. The history of violations committed by the person or person's affiliate(s), employee(s), or controlling person(s);

C. The efforts made by the Personal Assistance Services Agency to correct the violation or violations;

D. The culpability of the person or persons whom committed the violation or violations;

E. Any misrepresentation made to the Department; and

F. Any other matter that affects the health, safety, or welfare of a consumer or consumers.

9. In the event of nonpayment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary in Superior Court for collection of the administrative penalty, including interest, attorney fees and costs. In a civil action to collect the administrative penalty the validity, amount and appropriateness of such administrative penalty shall not be subject to review.

10. The Department shall have the authority to collect licensure fees and administrative penalties. Any licensure fees or civil or administrative penalties collected by the Department under this subsection are hereby appropriated to the Department to carry out the purposes of this subsection.

11. The Department shall have the power to promulgate rules and regulations necessary to implement the provisions of this subsection.

When deemed necessary by the Department, such regulations may provide for the issuance of permits to persons engaged in the occupations or businesses so regulated and the revocation for cause of the permits.

(4) Make careful inquiry as to the cause of disease, especially when contagious, infectious, epidemic or endemic, and take prompt action to control or suppress it.

(5) Make careful study of the reports of births and deaths, the sanitary condition and effects of localities, employments, the personal and business habits of the people and the relation of the diseases of animals and man; make and execute orders necessary to protect the people against diseases of the lower animals; and collect and preserve such information in respect to such matters and kindred subjects as may be useful in the discharge of its duties, and for dissemination among the people.

(6) When requested by public authorities, or when it deems best, advise officers of the state, county or local governments in regard to drainage, and the location, drainage, ventilation and sanitary provisions of any public institution, building or public place.

(7) Promulgation and enforcement of reasonable rules and regulations relating to safety, sanitation and adequate shelter as affecting the welfare and health of railroad trainworkers, engineworkers, yardworkers, maintenance of way employees, highway crossing watches, clerical, platform, freight house and express employees. No rules and regulations shall be issued by the Department under this subdivision unless the Department has held hearings with regard thereto and both the employers and the employees affected have been given a full opportunity to present evidence as to the necessity and reasonableness of the proposed rules and regulations.

(8) Collection of fees to support the Conrad State 30/J-1 Visa Waiver Program. -- Pursuant to the Department of Health and Social Services authority under this title to assess fees for services, the Bureau of Health Planning and Resources Management, Delaware Division of Public Health, Department of Health and Social Services, shall charge, collect and retain site application and physician application fees to support the Bureau of Health Planning and Resources Management in administering the Conrad State 30/J-1 Visa Waiver Program.

The Bureau of Health Planning and Resources Management within the Delaware Division of Public Health shall charge a nonrefundable processing fee of $200 to each sponsoring site submitting a site application at the time the application is submitted. A nonrefundable processing fee of $250 shall be charged to each pre-approved site to process the waiver request application for each J-1 physician that the site plans to employ.

(9) The powers and duties of the Department are subject to the powers and duties granted other entities in Title 20. Provisions of Title 20 which conflict with provisions of this section shall take precedence over this section.

“(y) Establish standards with respect to safety and sanitary conditions of any facility defined in subparagraph 3.C. and investigate and inspect any such facility for unsafe or unsanitary conditions upon receipt of a complaint by a patient in accordance with this paragraph, or upon the occurrence of any adverse event in connection with any such facility. The Department may share information hereunder with the Department of State, Division of Professional Regulation in accordance with applicable law.

1. The Department may make and enforce such orders as it deems necessary to protect the health and safety of the public hereunder. Without limitation of the foregoing, if the Department determines during the course of any investigation or inspection that any facility hereunder poses a substantial risk to the health or safety of any person, the Department may order that such facility be closed until such time as it no longer poses a substantial risk.

2. No later than December 31, 2011, the Department shall adopt regulations to strengthen the oversight of facilities hereunder. Such regulations may include procedures for the independent or outside accreditation of such facilities.

3. For purposes of this paragraph:

A. ‘Adverse event’ means (i) the death or serious injury of any patient at a facility; (ii) a reasonable determination by the Department that death or serious injury may result from any unsafe or unsanitary condition at a facility; or (iii) the initiation of any criminal investigation arising out of or relating to any diagnosis, treatment or other medical care at a facility.

B. ‘Complaint’ means a complaint filed by a patient in writing, in such format as the Department shall require, within 60 days of diagnosis, treatment or other medical care at any facility hereunder.

C. ‘Facility’ means a location at which any invasive medical procedure is performed, but shall not include any hospital, as defined in 16 Del.C. §1001(2), or any freestanding birthing center, freestanding surgical center or freestanding emergency center, as such terms are defined in paragraph (p) hereunder.

D. ‘Invasive medical procedure’ means any medical procedure in which anesthesia or sedation is or should be used. Without limitation of the foregoing, the term ‘medical procedure’ shall include dental, podiatric, chiropractic and similar procedures.

E. ‘Patient’ means a person who has received diagnosis, treatment or other medical care at a facility hereunder, as well as any parent, legal guardian or legal custodian of such person who is under eighteen years of age or any legal guardian or legal custodian of such person who is an adult.”.

Sections 2,3,4,5 of HB 47

Title 24

§ 1731. Unprofessional conduct and inability to practice medicine [Effective until July 1, 2011]

(a) A person to whom a certificate to practice medicine in this State has been issued may be disciplined by the Board for unprofessional conduct, as defined in subsection (b) of this section, by means of levying a fine, or by the restriction, suspension, or revocation, either permanent or temporary, of that person's certificate to practice medicine, or by other appropriate action, which may include a requirement that a person who is disciplined must complete specified continuing education courses. The Board shall permanently revoke the certificate to practice medicine in this State of a person who is convicted of a felony sexual offense.

(b) "Unprofessional conduct" includes but is not limited to any of the following acts or omissions:

(1) The use of any false, fraudulent, or forged statement or document or the use of any fraudulent, deceitful, dishonest, or unethical practice in connection with a certification, registration, or licensing requirement of this chapter, or in connection with the practice of medicine or other profession or occupation regulated under this chapter;

(2) Conduct that would constitute a crime substantially related to the practice of medicine;

(3) Any dishonorable, unethical, or other conduct likely to deceive, defraud, or harm the public;

(4) The practice of medicine or other profession or occupation regulated under this chapter under a false or assumed name;

(5) The practice of medicine or other profession or occupation regulated under this chapter without a certificate or other authorizing document or renewal of such document, unless otherwise authorized by this chapter;

(6) The use, distribution, or issuance of a prescription for a dangerous or narcotic drug, other than for therapeutic or diagnostic purposes;

(7) Advertising of the practice of medicine or other profession or occupation regulated under this chapter in an unethical or unprofessional manner;

(8) Solicitation or acceptance of a fee from a patient or other person by fraudulent representation that a manifestly incurable condition, as determined with reasonable medical certainty, can be permanently cured;

(9) Knowing or intentional performance of an act which, unless authorized by this chapter, assists an unauthorized person to practice medicine or other profession or occupation regulated under this chapter;

(10) The failure to provide adequate supervision to an individual working under the supervision of a person who is certified and registered to practice medicine;

(11) Misconduct, including but not limited to sexual misconduct, incompetence, or gross negligence or pattern of negligence in the practice of medicine or other profession or occupation regulated under this chapter;

(12) Wilful violation of the confidential relationship with or confidential communications of a patient;

(13) Wilful failure to report to the Board as required by § 1730(a) of this title;

(14) Wilful failure to report to the Board as required by § 1730(b) of this title;

(15) Wilful failure to report to the Board as required by § 1730(c) of this title;

(16) Unjustified failure upon request to divulge information relevant to the authorization or competence of a person to practice medicine or other profession or occupation regulated under this chapter to the Board, to any committee thereof, to the Executive Director, or to anyone designated by the Executive Director to request such information;

(17) The violation of a provision of this chapter or the violation of an order or regulation of the Board related to medical procedures or to the procedures of other professions or occupations regulated under this chapter, the violation of which more probably than not will harm or injure the public or an individual;

(18) Charging a grossly exorbitant fee for professional or occupational services rendered;

(19) Suspension or revocation of a certificate to practice medicine or of the authorizing document to practice another profession or occupation regulated under this chapter, or other disciplinary action taken by the regulatory authority in another state or territory. In making its determination, the Board may rely upon decisions made by the appropriate authorities in other states and may not permit a collateral attack on those decisions;

(20) Signing the death certificate of a person prior to the actual time of death of the person;

(21) A violation of § 1764A of this title;

(22) Wilful failure to report to the Board when required by § 1731A of this title; and

“(23) Maintaining a facility in which any invasive medical procedure is performed in an unsanitary or unsafe condition. For purposes of this chapter, ‘invasive medical procedure’ means any medical procedure in which anesthesia or sedation is or should be used. As used herein, ‘facility’ shall have the same meaning as defined in §122(3)(y)3.C. of Title 16.”.

(c) A certificate to practice medicine or an authorizing document to practice another profession or occupation regulated under this chapter is subject to restriction, suspension, or revocation, either temporarily or permanently, in case of the inability of the holder to practice medicine or other profession or occupation with reasonable skill or safety to patients by reason of 1 or more of the following:

(1) Mental illness or mental incompetence;

(2) Physical illness, including, but not limited to, deterioration through the aging process or loss of motor skill;

(3) Excessive use or abuse of drugs, including alcohol.

(d) The Board may establish, by class and not by individual, requirements for continuing education and/or reexamination as a condition for renewal of registration and for recertification to practice medicine or other profession or occupation regulated under this chapter, or as a condition to continue to practice medicine or other profession or occupation regulated under this chapter after disciplinary sanctions are imposed or after inability to practice with reasonable skill or safety to patients has been determined.

(e) A person who files a complaint with the Board or any of its members, the Executive Director, or the Division, or who provides information to the Board or any of its members, the Executive Director, or the Division regarding a complaint, or who testifies as a witness at a hearing before the Board or any of its hearing panels or committees concerning unprofessional conduct by a person certified to practice medicine or other profession or occupation regulated under this chapter in this State or concerning the inability of a person certified to practice medicine or other profession or occupation regulated under this chapter for the reasons set forth in subsection (c) of this section, may not be held liable in any cause of action arising out of the filing of the complaint, the providing of information, or the giving of testimony, provided that the person does so in good faith and without gross or wanton negligence.

(f) The provisions of this section apply to any person to whom a certificate, license, or other authorizing document to practice a profession or occupation has been issued pursuant to this chapter.

60 Del. Laws, c. 462, § 1; 62 Del. Laws, c. 90, s. 3; 63 Del. Laws, c. 252, § 1; 64 Del. Laws, c. 477, § 4; 67 Del. Laws, c. 226, §§ 10, 11; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, §§ 12-14; 74 Del. Laws, c. 213, § 1; 74 Del. Laws, c. 262, § 30; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 161, § 3; 77 Del. Laws, c. 325, §§ 3-6.;

§ 1731. Unprofessional conduct and inability to practice medicine [Effective July 1, 2011]