AN ACT TO AMEND TITLES 16 AND 29 OF THE DELAWARE CODE RELATING TO BEHAVIORAL HEALTH.

Legislation Document

SPONSOR:

Sen. Pinkney & Rep. Chukwuocha

DELAWARE STATE SENATE

153rd GENERAL ASSEMBLY

SENATE SUBSTITUTE NO. 1

FOR

SENATE BILL NO. 161

AN ACT TO AMEND TITLES 16 AND 29 OF THE DELAWARE CODE RELATING TO BEHAVIORAL HEALTH.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Chapter 56, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Chapter 56. Behavioral Health

Subchapter I. General Provisions

§ 5601. Definitions.

As used in this chapter:

(1) “Behavioral health condition” means a diagnosable disorder of sufficient duration to meet the diagnostic criteria within the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, resulting in functional impairment that substantially interferes with or limits 1 or more major life activities.

(2) “Behavioral health treatment provider organization” or “provider organization” means an individual, non-profit, firm, partnership, corporation, association, joint-stock company, limited partnership, limited liability company, other legal entity, or successor seeking to or operating a program.

(3) “Behavioral health treatment program” or “program” means the treatment services delivered by a provider organization to treat a behavioral health condition.

(4) “Behavioral health treatment services” or “treatment services” means efforts to develop, maintain, or restore the functioning of an individual with a behavioral health condition to the maximum extent practicable. The term includes services provided to a client to diagnose, describe, predict, and explain the client's status; to support individual treatment planning; to conduct case review; to maintain records required for treatment; and to provide treatment supervision.

(5) “Client” means an individual with a behavioral health condition receiving treatment or other services from a provider organization.

(6) “Department” means the Department of Health and Social Services.

(7) “Director” means the Director of the Division of Substance Abuse and Mental Health.

(8) “Division” means the Division of Substance Abuse and Mental Health.

(9) “Executive” means an individual who can act alone or in concert with others to directly or indirectly influence or direct a provider organization’s administration, management, expenditure of money, or policies.

(10) “Facility” means real property, including buildings, fixtures, or other improvements owned, leased, operated, or used by a provider organization.

(11) “Federal protection and advocacy statute” includes any of the following:

a. Client Assistance Program, 29 U.S.C. § 732.

b. The Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 15041 et seq.

c. The Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq.

d. Protection and Advocacy for Individual Rights, 29 U.S.C. § 794e.

e. The Traumatic Brain Injury Act, 42 U.S.C. § 300d-53.

f. The Assistive Technology Act, 29 U.S.C. § 3001 et seq.

g. The Ticket to Work and Work Incentives Improvement Act, 42 U.S.C. § 1320b-21.

h. Protection and Advocacy for Voting Access, 52 U.S.C. § 21061.

i. Social Security Beneficiaries Act, 42 U.S.C. § 405(j)(6).

(12) “Hospital” means as defined in § 1001 of this title.

(13) “Licensed professional” means an individual

who holds a valid license issued by a licensing board or is otherwise authorized to practice in this State and practices solely within the permissible scope of the professional’s license.

(14) “Licensed behavioral health practitioner” or “licensed practitioner” means an individual who is at least one of the following:

a. A psychiatrist.

b. An advanced practice registered nurse as defined in § 1902 of Title 24 who is certified as a psychiatric-mental health nurse practitioner by the American Nurses Credentialing Center.

c. A registered nurse, as defined in § 1902 of Title 24, certified as a psychiatric-mental health registered nurse by the American Nurses Credentialing Center.

d. A licensed professional counselor or a licensed associate counselor of mental health as defined in § 3031 of Title 24.

e. A baccalaureate social worker, licensed clinical social worker, or master’s social worker as defined in § 3902 of Title 24.

f. A psychologist or psychological assistant licensed under Chapter 35 of Title 24.

g. A licensed chemical dependency professional defined in § 3041 of Title 24.

h. A licensed marriage and family therapist or a licensed associate marriage and family therapist as defined in § 3051 of Title 24.

i. A licensed professional art therapist or licensed associate art therapist as defined in § 3060 of Title 24.

(15) “Licensed professional in private practice” means a licensed professional who provides outpatient treatment services solely within the permissible scope of the professional’s license.

(16) “Licensing board” includes all of the following:

a. The Board of Medical Licensure and Discipline.

b. The Delaware Board of Nursing.

c. The Board of Mental Health and Chemical Dependency Professionals.

d. The Board of Examiners of Psychologists.

e. The Board of Social Work Examiners.

(17) “Psychiatrist” means a physician who has completed an accredited residency training program in psychiatry.

(18) "Physician" means as defined under § 1702 of Title 24, and includes an allopathic Doctor of Medicine and Surgery or a Doctor of Osteopathic Medicine and Surgery with a valid license to practice medicine working in a United States Department of Veterans Affairs medical center in the State.

(19) “Program administrator” or “administrator” means an individual employed by a provider organization to operate a program who is responsible for the program’s professional program of care and treatment, managing the program’s affairs, and serving as the program’s agent for service of process or a court’s order.

(20) “Protection and advocacy system” means the Community Legal Aid Society, Inc., or successor agency designated under

a federal protection and advocacy statute.

(21) “Recovery house” means as defined in § 2201A of this chapter.

(22) “Representative” means any of the following:

a. An individual named in a client’s advanced healthcare directive.

b. An individual granted durable medical power of attorney for a client’s healthcare decisions.

c. A client’s guardian as defined in § 2501 of this title.

d. A client’s surrogate as defined in § 2501 of this title.

e. A client’s heir as defined under § 101 of Title 12.

f. A client’s personal representative as defined under § 101 of Title 12.

(23) “Secretary” means the Secretary of the Department of Health and Social Services.

(24) “Staff member” or “staff” means an employee, practitioner, contractor, intern, subcontractor, or volunteer employed by or acting on behalf of a provider organization.

(25) “Treating practitioner” means a licensed practitioner who consults or treats a client for a behavioral health condition and uses the results of a diagnostic test to manage the client’s condition.

§ 5602. License required; exceptions.

(a) All of the following are exempt from the requirements of this section:

(1) A licensed practitioner in private practice.

(2) A provider organization or program exclusively serving children.

(3) A licensed professional providing treatment services incidental to the professional’s regular practice.

(b) Except as otherwise provided under this chapter or with a valid license, a person may not do any of the following:

(1) Provide treatment services.

(2) Operate a program.

(3) Advertise, hold out to the public, imply, or represent that the person is authorized, licensed, or permitted to provide treatment services in this State.

(4) Advertise, hold out to the public, imply, or represent that the person is authorized, licensed, or permitted to operate a program in this State.

(c) The Director may exempt any of the following from the requirements of this section if the Director reasonably believes that the exemption does not endanger clients' health, safety, or welfare:

(1) A provider organization or program otherwise licensed by the State.

(2) Programs operated by or for the State.

(3) A program operating an embedded integrated care model designated by the Division of Medicaid and Medical Assistance.

(4) A program offering support services, including recovery houses, mutual aid groups, self-help groups, peer support, and other similar organizations that do not provide clinical services.

(5) A program offering prevention or education services.

(6) Other provider organizations, programs, or treatment services designated by the Director.

§ 5603. Criminal penalties.

(a) It is unlawful to recklessly cause physical injury to another person by providing treatment services in violation of § 5602 of this title. Violation of this subsection is a class F felony.

(b) It is unlawful to recklessly create a substantial risk of physical injury to another person by providing treatment services in violation of § 5602 of this title. Violation of this subsection is a class G felony.

(c) It is unlawful to intentionally provide treatment services in violation of § 5602 of this title. Violation of this subsection is a class A misdemeanor.

(d) It is unlawful to intentionally operate or attempt to operate a program in violation of § 5602 of this title. Violation of this subsection is a class A misdemeanor.

(e) It is unlawful to intentionally advertise, hold out to the public, imply, or represent that a person is authorized, licensed, or permitted to provide treatment services in this State in violation of § 5602 of this title. Violation of this subsection is a class A misdemeanor.

(f) It is unlawful to intentionally advertise, hold out to the public, imply, or represent that a person is authorized, licensed, or permitted to operate a program in this State in violation of § 5602 of this title. Violation of this subsection is a class A misdemeanor.

§ 5604. Prohibited practices.

(a) A provider organization or the provider organization’s executive, administrator, or staff may not do any of the following:

(1) Violate federal, State, or local laws or regulations.

(2) Violate the terms of a corrective action plan.

(3) Act in a manner that endangers a client’s health, safety, or welfare.

(4) Knowingly make a false statement of material fact during an audit, investigation, or monitoring.

(5) Knowingly tamper with or aid and abet in tampering with evidence related to an investigation.

(6) Advertise or solicit in a manner that is deceptive, false, misleading, or likely to intimidate or pressure an individual into accepting services.

(7) Advertise or solicit within 500 feet of another provider organization’s facility.

§ 5605. Audits.

(a) The Division may audit a provider organization.

(b) Upon the Division’s request and without notice, a provider organization shall grant the Division access to the provider organization’s administrators, clients, executives, facilities, records, and staff.

(c) No more than 15 days after receiving written notice from the Division, a provider organization shall submit financial statements to the Division.

(d) No more than 60 days after receiving written notice from the Division, a provider organization shall submit an audited financial report to the Division.

(e) Records maintained under this section are not public records as defined in Chapter 100 of Title 29.

§ 5606. Penalties.

(a) The Division may impose a civil money penalty of no more than $10,000 per violation in addition to costs on a provider organization that refuses, fails, or neglects to comply with this chapter.

(b) The Division may impose and collect civil money penalties.

(c) A civil money penalty collected under this section is appropriated to the Division for this chapter’s purposes.

(d) If a provider organization fails to pay a civil money penalty imposed by the Division, the Division may add the penalty amount to a required license fee.

(e) Whenever a provider organization exhausts the provider organization’s appeals under this chapter and fails to pay a civil money penalty, the Division may bring a civil action in the Superior Court of the State to collect the penalty, interest on the penalty, attorney fees, and costs. The Court may not review the penalty’s validity, amount, or appropriateness as part of an action brought under this subsection.

(f) The Division may impose any of the following penalties on a provider organization that refuses, fails, or neglects to comply with this chapter:

(1) Require monitoring of a provider organization or the provider organization’s program at the provider organization’s expense. Whenever the Division requires monitoring under this paragraph, the Division shall determine the monitoring terms, conditions, and timeframe.

(2) Suspend the admission of clients to a provider organization’s program.

(3) Suspend or revoke a provider organization’s license or refuse the provider organization's licensure application.

(4) Suspend or revoke a provider organization’s program license or refuse the provider organization's program licensure application.

(g) The Department may bring an action in the Court of Chancery to enjoin a provider organization from engaging in activities that threaten the health, welfare, and safety of the provider organization’s clients. If the Court finds the provider organization’s activities create an imminent risk of substantial harm to the provider organization’s clients, the Court may grant a temporary restraining order.

(h) Whenever the Department reasonably believes that a provider organization is acting in a manner that creates an imminent risk of substantial harm to the provider organization’s clients, the Secretary may issue an emergency order temporarily transferring the management of the provider organization’s program to another qualified entity. Whenever the Secretary issues an order under this subsection, the Department shall determine the monitoring terms, conditions, and timeframe.

§ 5607. Required notifications.

(a) Except in a bona fide emergency, a provider organization shall notify the Division 90 days before an interruption in services or closure of a program. In a bona fide emergency, the provider organization shall notify the Division as soon as practicable.

(b) Whenever a provider organization or the provider organization’s executive, administrator, or staff is aware or reasonably believes that the provider organization is insolvent or at imminent risk of becoming insolvent, the provider organization or the provider organization’s executive, administrator, or staff shall notify the Division.

§ 5608. Fees.

(a) The Division may establish licensing fees through regulation.

(b) The fee amount established under subsection (a) of this section must approximate and reasonably reflect the costs necessary to defray the Division’s expenses.

(c) The Division may collect fees established under subsection (a) of this section.

(d) A fee collected under this chapter is appropriated to the Division to carry out this chapter’s purposes.

§ 5609. Regulations.

(a) The Division may adopt regulations to implement this chapter, including the process the Director may employ when considering exemptions for organizations and programs referenced under § 5602 of this title.

Section 2. Amend Chapter 56 of Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

Subchapter II. Licensing

§ 5611. Definitions.

As used in this subchapter:

(1) “Application” means a provider organization’s initial licensure or renewal application.

(2) “License” means a license or certification issued by the Division, including a provider organization license, a program license, and a facility certification.

§ 5612. License applications.

(a) A provider organization may apply to the Division for a license.

(b) An application must be made under oath using the Division’s form.

(c) An application must include documentation required by the Division.

(d) An application must include the applicable license fee.

§ 5613. Licensing determinations.

(a)

Except as otherwise provided in subsection (b) of this section, the Division shall approve an application made according to the requirements of this chapter and issue a license to a provider organization.

(b)

The Division may reject an application and refuse to issue a license to a provider organization whenever any of the following occurs:

(1) The provider organization fails to meet the requirements established under this chapter.

(2) The provider organization fails to meet the requirements established by the Division through regulation.

(3) The provider organization has a history of noncompliance with federal, State, or local law or regulation.

(4) The Division previously revoked the provider organization’s license.

(5) The provider organization knowingly makes a false statement of material fact in an application.

§ 5614. License terms, expiration, and transfer.

(a) Subject to this chapter, the Division shall set the license term.

(b) If a provider organization applies to renew the provider organization’s license before it expires, the license is valid until the Division decides on the application.

(c) A license is not transferable.

§ 5615. Records.

The Division shall establish, operate, and maintain an electronic system for submitting, maintaining, and storing information under this subchapter.

Section 3. Amend Chapter 56 of Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Subchapter III. Disciplinary Actions, Appeals, Hearings, and Judicial Review

§ 5621. Definitions.

As used in this subchapter:

(1) “Disciplinary action” means the Division’s imposition of a penalty under § 5606 of this title or refusal to issue a license under § 5613(b) of this title.

§ 5622. Disciplinary action effective date.

(a) Except as otherwise provided in subsection (b) of this section, a disciplinary action is effective immediately after any of the following occurs:

(1) The provider organization does not request a hearing under § 5623 of this title.

(2) A hearing officer upholds the disciplinary action under § 5625 of this title.

(b) Whenever the Director reasonably believes that the public health, safety, or welfare requires emergency action, a disciplinary action is effective immediately.

§ 5623. Notice; request for an appeal hearing; hearing notice.

(a) The Division shall notify a provider organization in writing at least 10 days before taking disciplinary action. The notice must list the violations identified by the Division.

(b) A provider organization may appeal a disciplinary action by requesting a Departmental hearing. A request under this subsection must be in writing and submitted to the Department no more than 10 days after the provider organization receives notice under subsection (a) of this section.

(c) Whenever the Department receives a request under subsection (b) of this section, the Department shall hold a hearing under § 5624 of this title. The Department shall determine the time and place of the hearing and notify the provider organization and the Division at least 20 days before the hearing.

§ 5624. Hearing officer; burden of proof; record

s.

(a) The Secretary shall appoint a hearing officer to conduct the hearing.

(b) A hearing officer may do any of the following:

(1) Issue subpoenas for witnesses and other sources of evidence.

(2) Administer oaths to witnesses.

(3) Exclude irrelevant, immaterial, insubstantial, cumulative, and privileged evidence.

(4) Limit unduly repetitive proof, rebuttal, and cross-examination.

(5) Hold prehearing conferences to do any of the following:

a. Settle or simplify issues by consent.

b. Dispose of procedural requests or disputes.

c. Regulate and expedite the course of the hearing.

(c) A provider organization has the burden of proof.

(d) The Department shall record the hearing to allow for verbatim transcription. Upon a provider organization’s request and at the provider organization’s expense, the Department shall provide a transcription of a recording made under this subsection.

(e) The Department shall maintain a record related to the hearing that includes copies of at least the following:

(1) Notices.

(2) Correspondence.

(3) Exhibits, documents, and testimony that the hearing officer admitted into evidence.

(4) Hearing decisions.

(5) Corrective action plans.

(6) Orders concerning disciplinary action.

(7) The recording of the hearing.

§ 5625. Decision; draft order; final order.

(a) After the hearing, a hearing officer shall decide based on the record. The hearing officer’s decision takes immediate effect.

(b) The hearing officer shall issue a written order no more than 30 days after the hearing. The order must be signed and dated by the hearing officer and include at least the following:

(1) A concise statement of the Division’s disciplinary action.

(2) A summary of the evidence.

(3) Findings of fact based on the evidence.

(4) Conclusions of law.

(5) The decision of the hearing officer.

§ 5626. Judicial review.

(a) A provider organization may appeal a final order under § 5625 of this title to the Superior Court by filing a petition for judicial review with the Court no more than 30 days after the date of the final order.

(b) An appeal under this section must be on the record without a trial de novo. If the Court determines that the record is insufficient for review, the Court shall remand the case to the Department for further proceedings on the record.

(c) If factual determinations are at issue, the Court shall consider the Division’s experience and specialized competence and the purposes of the fundamental law or regulation under which the Division took disciplinary action.

(d) Except for fraud, the Court’s review is limited to determining whether the substantial evidence on the record supports the Division’s disciplinary action.

(e) Except as otherwise provided in subsection (f) of this section, the Court may not stay a final order issued under § 5625 of this title.

(f) If, after a preliminary review, the Court finds that the issues and facts presented are substantial and a stay is required to prevent irreparable harm, the Court may stay enforcement of a final order issued under § 5625 of this title.

Section 4. Amend Chapter 56 of Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Subchapter IV. Client Rights and Provider Duties

§ 5631. Definitions.

As used in this subchapter:

(1) “Abuse” means any of the following:

a. Willful use of offensive, abusive, or demeaning language causing mental anguish.

b. Knowing, reckless, or intentional acts or failures to act causing injury or death.

c. Rape or sexual assault.

d. Sexual contact, intercourse, or penetration as defined in § 761 of Title 11, regardless of consent.

e. Corporal punishment or striking.

f. Use of restrictive intervention in violation of federal or State law or regulation.

g. Isolation.

(2) “Chemical restraint” means the use of a chemical or pharmaceutical through topical application, oral administration, injection, or other means to control a client’s activity. The term does not include using a chemical or pharmaceutical in standard treatment for the client’s medical or psychiatric condition.

(3) “Exploitation” means using a client to entertain others under circumstances that cause degradation, humiliation, or mental anguish to the client. The term includes sexual and financial exploitation.

(4) “Financial exploitation” means taking or misusing a client’s property or resources through undue influence, breach of a fiduciary relationship, deception, harassment, criminal coercion, theft, or other unlawful or improper means. The term includes using a client’s services without compensation.

(5) “Isolation” means a forced separation or failure to include a client in the program or the community's social surroundings.

(6) “Mechanical restraint” means using a device that restricts the free movement of a client’s body. The term does not mean using restraints to support functional body position or proper balance.

(7) “Neglect” means any of the following:

a. A failure to provide food, shelter, clothing, health care, or services necessary to maintain a client’s health.

b. A failure to meet a statutory obligation, judicial order, administrative rule or regulation, policy, procedure, or minimally accepted standard of care.

c. A negligent act or omission that causes injury or death to a client or places the client at risk of injury or death.

d. A failure to establish or carry out a client’s treatment plan.

e. A failure to provide adequate staffing levels or appropriately trained staff.

(8) “Personal restraint” means an action that restricts the free movement of an individual’s body, including applying pressure. The term does not include physical guidance or prompting for a brief duration.

(9) “Psychiatric hospital” means as defined in § 1001 of this title.

(10) “Residential client” means a client who resides in a residential program while receiving treatment.

(11) “Residential program” means a licensed program that regularly admits clients with the expectation that the client’s stay will cross at least two midnights.

(12) “Restraint” includes chemical, mechanical, and personal restraints. The term does not include general confinement in a treatment facility.

(13) “Restrictive intervention” includes restraint and seclusion.

(14) “Seclusion” means involuntarily confining a client in an area and physically preventing the client from leaving.

(15) “Serious injury” means a bodily injury that involves or has a substantial risk of causing at least 1 of the following:

a. Death.

b. Unconsciousness.

c. Extreme physical pain.

d. Protracted and obvious disfigurement.

e. Protracted loss or impairment of the function of a bodily member or organ, or mental faculty.

(16) “Sexual exploitation” means using a client for the sexual gratification of others.

§ 5632. General provisions.

(a) The rights enumerated in this subchapter are in addition to and not a derogation of other constitutional, statutory, or regulatory rights.

(b) A client is entitled to assert the client’s rights, including through a complaint made to a provider organization, the Division, the Department, the protection and advocacy system, the Attorney General, or through another grievance process established under this chapter.

(c) Whenever a client cannot exercise a right under this subchapter, the right devolves to the client’s representative.

(d) A provider organization may not require a client to waive the client’s rights as a condition of admission or treatment.

(e) Whenever a provider organization limits a client’s right under this subchapter for clinical, safety, or legal reasons permitted under applicable law, the treating practitioner shall document the limitation and the rationale in the client’s clinical record. A limitation under this subsection must be for the shortest duration feasible.

(f) A client is entitled to the rights enumerated under this chapter regardless of the licensing status of the entity providing services to the client.

§ 5633. Client rights.

(a) A client is entitled to be free from abuse, exploitation, neglect, and serious injury.

(b) A client is entitled to treatment in a safe, skillful, and humane manner that respects the client’s dignity and personal integrity.

(c) A client is entitled to treatment appropriate to the client’s needs and consistent with generally accepted professional standards.

(d) A client may refuse treatment, withdraw consent for treatment, or request modification of treatment, except where treatment is authorized or required by law without the client’s consent.

(e) A client may refuse to participate in research or in an examination conducted primarily for educational purposes.

(f) A client is entitled to complete and current information regarding the client’s condition, diagnosis, recommended treatment, risks, side effects, likely outcome, and available alternatives.

(g) A client is entitled to know the name and professional role of individuals participating in the client’s treatment.

(h) A client is entitled to communication in the client’s preferred language and in a manner the client can reasonably be expected to understand, including the use of sign language or other appropriate communication assistance necessary due to communication or sensory need.

(i) A client is entitled to assistance in understanding, exercising, and protecting the rights enumerated in this chapter.

(j) A client is entitled to participate in planning, implementing, and revising the client’s treatment plan to the maximum extent of the client’s abilities.

(k) A client is entitled to express preferences regarding treatment options and providers to the extent reasonably available and consistent with applicable law.

(l) A client is entitled to an individualized written treatment plan that includes treatment goals, methods for evaluating progress, and discharge planning.

(m) A client is entitled to participate in discharge planning and to receive information regarding continuing care, community services, and other supports necessary following discharge.

(n) A client is entitled to receive treatment in a setting and under conditions that restrict the client’s liberty only to the extent required by the client’s treatment needs and applicable law.

(o) Except as authorized under law or necessary to treat the client's medical or psychiatric condition where less restrictive alternatives have failed or are otherwise not feasible, a client is entitled to be free from restrictive intervention imposed for purposes of discipline or convenience.

(p) A client is entitled to privacy during treatment and care.

(q) A client is entitled to assert a grievance concerning infringement of a right enumerated under this chapter or to present a complaint, petition, or recommendation for a change in policies without fear of reprisal, restraint, interference, coercion, or discrimination, to have the grievance, complaint, petition, or recommendation considered in a fair, timely, and impartial manner, and to receive a written response.

(r) In addition to the rights provided under this section, a residential client is entitled to the following:

(1) A residential client is entitled to appropriate behavioral and physical health examinations and evaluations in a timely manner.

(2) Except as necessary to protect the safety of the client or others or to prevent unreasonable interference with the treatment of other clients, a residential client is entitled to communicate freely and privately with others, including making phone calls and receiving visitors at reasonable hours.

(3) A residential client is entitled to retain reasonable personal belongings consistent with therapeutic objectives and a program’s safety requirements.

(4) Except as otherwise provided by law, a residential client is entitled to manage the client’s personal financial affairs.

(5) A residential client is entitled to participate in educational, vocational, and recreational activities consistent with the client’s treatment plan and a program’s reasonable rules.

(6) A residential client is entitled to communicate privately with the client's counsel, personal licensed practitioners, and spiritual advisor at times consistent with a program’s reasonable rules.

(7) A residential client is entitled to practice the religion of the client’s choice or to abstain from religious practice consistent with a program’s reasonable rules.

(8) A residential client who is eligible to vote is entitled to assistance in exercising the right to vote.

§ 5634. Provider duties.

(a) A provider organization shall treat a client with courtesy and respect for the client’s dignity and individuality.

(b) When providing information to a client, a provider organization shall do all of the following:

(1) Provide the information using plain language.

(2) Provide the information in the client’s preferred language.

(3) Make reasonable accommodations for a client with a communication or sensory need.

(c) At the time of admission or upon request of the client or the client’s representative, a provider organization shall give a written statement to the client or the client’s representative. The statement must include at least the following:

(1) A statement of the client’s rights under this chapter approved by the Division.

(2) Fees for services applicable to the client.

(3) The program’s rules governing client conduct.

(4) The circumstances under which the provider organization may discharge or transfer a client.

(5) The procedure for asserting grievances concerning infringement of rights under this chapter and presenting complaints, petitions, and recommendations for changes in the provider organization’s policies.

(6) The provider organization’s privacy practices.

(d) Except with the client’s consent, as permitted under applicable law, or pursuant to a judicial order, a provider organization shall ensure that case discussion, consultation, examination, and treatment are confidential and discreet and exclude individuals not directly involved in the client’s care.

(e) A provider organization shall provide a client with an individualized written treatment plan and treatment based on the plan. The plan must include treatment goals, methods for evaluating progress, and discharge planning. The provider organization shall ensure that the client’s plan is periodically reviewed and revised as necessary, consistent with the client’s treatment progress.

(f) A provider organization shall establish policies and procedures that enable a client to assert grievances concerning infringement of rights enumerated under this chapter and to present complaints, petitions, and recommendations for changes in the provider organization’s policies.

(g) A provider organization shall consider a client’s grievances, recommendations, complaints, or petitions in a fair, timely, and impartial manner and provide a written response.

(h) A provider organization shall ensure that a residential client receives appropriate behavioral and physical health examinations and evaluations in a timely manner.

(i) A provider organization shall establish policies and procedures that ensure a residential client’s right to communicate.

(j) Whenever a provider organization temporarily retains custody of a residential client’s personal property, the provider organization shall provide the client with a written itemized receipt and return the property to the client upon discharge.

(k) A provider organization shall provide assistance to enable a residential client to exercise the client's voting rights, including access to voter registration forms and applications for absentee ballots.

§ 5635. Clinical records.

(a) A provider organization shall maintain a clinical record for a client.

(b) The Division shall adopt minimum regulations for the content and maintenance of clinical records.

(c) Except as otherwise provided under subsection (d) of this section, a provider organization may not release a client’s clinical record.

(d) Subject to § 5636 of this title, upon request, a provider organization shall release a client’s clinical record to the client or the client’s representative

.

§ 5636. Denial of access to clinical records.

(a) Except as provided under subsection (b) of this section, if a client’s treating practitioner clinically determines that releasing a client’s clinical record to the client or the client’s representative would be detrimental to the client’s health or treatment progress, the provider organization may not release the record to the client or the client’s representative.

(b) Whenever a client or the client’s representative requests the client’s clinical records and is denied under subsection (a) of this section, the client or the client’s representative may request that the records be released to another licensed practitioner of the client or the client’s representative choosing. The practitioner chosen by the client or the client’s representative must have an equivalent scope of practice to the practitioner making the clinical determination under subsection (a) of this section.

(c) After receiving a valid request under subsection (b) of this section, the provider organization shall release the client’s clinical records to the licensed practitioner.

(d) If, after receiving and reviewing a client’s clinical records under subsection (c) of this section, a licensed practitioner’s reasonable medical opinion is that releasing the records to the client or the client’s representative would not be detrimental to the client’s health or treatment progress, the practitioner may provide or otherwise disclose all or part of the client’s clinical record to the client or the client’s representative.

§ 5637. Enforcement of rights; jurisdiction.

(a) A client, the client’s authorized representative, the Attorney General, or the protection and advocacy system may enforce the rights established under this subchapter.

(b) Notwithstanding § 342 of Title 10, the Court of Chancery has jurisdiction to hear and determine actions to enforce or resolve disputes concerning rights arising under this subchapter, including actions seeking declaratory or injunctive relief.

(c) Provider organizations subject to this chapter may also be licensed or regulated as long-term care facilities under Chapter 11 of this title and its implementing regulations. Nothing in this chapter abrogates requirements or rights under Chapter 11 of this title.

Section 5. Amend Chapter 56 of Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

Subchapter V. Incidents; Reports; Investigations

§ 5641. Definitions.

As used in this subchapter:

(1) “Abuse” means as defined in § 5631 of this title.

(2) “Critical incident” means an actual or alleged event resulting in the abuse, death, exploitation, neglect, restrictive intervention, or serious injury of a client.

(3) “Exploitation” means as defined in § 5631 of this title.

(4) “Incident” means an actual or alleged event that causes or has the potential to cause harm to a client. The term includes critical incidents and any of the following events:

a. Elopement, including whenever a client leaves a provider organization’s facility despite an imminent threat to the client’s health, safety, or well-being. An elopement does not include events or situations involving a competent adult with decision-making capacity who leaves against medical advice or voluntarily leaves before receiving treatment.

b. A health emergency in which a client receives emergency care not routinely provided by the client’s primary care practitioner, treating practitioners, provider organization, or a hospital admits the client.

c. The client is involved in a crime or contacted by a law enforcement agency.

d. The client experiences an emergency at a facility where the client resides, including fire, flooding, severe property damage, unsafe conditions, or interruption of utilities lasting more than 8 hours.

(5) “Neglect” means as defined in § 5631 of this title.

(6) “Restrictive intervention” means as defined in § 5631 of this title.

(7) “Serious injury” means as defined in § 5631 of this title.

(8) “Report” means a report required under § 5642 of this title.

§ 5642. Duty to report; reporting.

(a) Except as otherwise provided in subsection (b) of this section, whenever a staff member witnesses an incident or reasonably believes an incident has occurred, the staff member shall report the incident to the Division.

(b) A staff member who reasonably believes that another staff member has already reported an incident need not report the incident under subsection (a) of this section.

(c) A staff member shall ensure a client’s health, safety, and well-being before reporting an incident.

(d) Whenever a staff member reasonably believes that an incident involves conduct that may constitute a crime, the staff member shall contact a law-enforcement agency and report the criminal conduct as soon as possible.

(e) Except if the client refuses, whenever a staff member reasonably believes that a client was raped or sexually assaulted, the staff member shall assist the client in obtaining an examination from a qualified sexual assault nurse examiner.

(f) Except as otherwise required in subsection (d) of this section, a staff member shall immediately report an incident.

§ 5643. Incident reporting.

(a) Subject to this chapter, the Division may promulgate regulations related to making reports and the notification, investigation, and resolution of incidents.

(b) The Division shall develop, operate, and maintain an online system for submitting, collecting, and retaining reports.

(c) The Division shall develop and offer training resources to providers about making reports.

§ 5644. Violations; jurisdiction; immunity.

(a) It is unlawful for a staff member to intentionally fail to report a critical incident as required under § 5642 of this title. Violation of this subsection is a class A misdemeanor.

(b) It is unlawful for a staff member to intentionally falsify or submit a false report as required under § 5642 of this title. Violation of this subsection is a class A misdemeanor.

(c) A staff member who refuses, fails, or neglects to comply with § 5642 of this title is subject to a civil penalty of not more than $1,000 per violation. The civil penalty under this subsection does not preclude criminal liability under this section.

(d) It is unlawful for a provider organization, executive, or administrator to discharge, retaliate, or otherwise discriminate against an employee for making a report under § 5642 of this title. Violation of this subsection is a civil violation subject to a fine of up to $25,000. Whenever a provider organization, executive, or administrator violates this subsection, the provider organization, executive, or administrator is liable to the employee for treble damages, costs, and attorney fees.

(e) The Attorney General shall enforce the provisions of this section.

(f) The Superior Court of this State has exclusive original jurisdiction over violations of this section.

(g) Except if the individual has engaged in the abuse, exploitation, neglect, or serious injury of a client or caused injuries or death as a result of unreasonable care, willfully, wantonly, or by gross negligence, an individual making a report under this chapter in good faith and with reasonable care is not subject to any of the following as a result of making the report:

(1) Disciplinary or other adverse action under the professional licensing laws of this State.

(2) Criminal liability.

(3) Civil liability for damages for injuries or death.

(h) This section does not preclude a separate charge, conviction, and sentence for another crime under this Code.

§ 5645. Investigations; determination.

(a) Except as otherwise provided in § 5646 of this title, after receiving a report, the Division shall determine, employing standard operating procedures adopted by the Division, if an incident requires investigation.

(b) If the Division determines that an investigation is required, the Division shall conduct an investigation or otherwise arrange for another State agency to conduct an investigation.

(c) After an investigation, the Division shall determine whether or not a report is substantiated. The Division shall notify the provider organization in writing of the determination no more than 10 days after making the determination.

(d) If the Division determines that a report is substantiated, the Division may do any of the following:

(1) Take disciplinary action under § 5606 of this title.

(2) Enter into a corrective action plan.

(3) Decline to take further action.

§ 5646. Notifications and investigations of reports involving alleged criminal conduct.

(a) Whenever the Division receives a credible report involving conduct that a reasonable person would suspect is a crime, the Division shall immediately notify a law enforcement agency with the appropriate jurisdiction and the Attorney General.

(b) After receiving a notification under subsection (a) of this section, a law enforcement agency shall do one of the following:

(1) Investigate.

(2) Decline to investigate, notify the Division, and provide the reasons for the declination.

(3) Decline to investigate, refer the notification to the Delaware State Police, and notify the Division.

(c) After receiving a notification under subsection (a) or subsection (b) of this section, the Delaware State Police shall do one of the following:

(1) Investigate.

(2) Decline to investigate, notify the Division, and provide the reasons for the declination.

(d) After concluding an investigation under this section, the law enforcement agency or State Police shall provide the Division and the Attorney General with a written report summarizing the investigation.

(e) If the Attorney General initiates a criminal prosecution based on a report made under this subchapter or as a result of an investigation under this section, the Attorney General shall keep the Division informed of the major decisions related to the prosecution and the status of the case.

(f) The Division may defer deciding under § 5645 of this title until after the Division receives appropriate guidance from the Attorney General.

§ 5647. Required notifications to the Division of Professional Regulation; referrals to the Adult Abuse Registry.

(a) Whenever the Division determines that an individual holding a license or certification under Title 24 has abused, exploited, neglected, or seriously injured a client, the Division shall notify the Division of Professional Regulation. After receiving notification under this subsection, the Division of Professional Regulation shall notify the appropriate board under Title 24 for disciplinary proceedings.

(b) Subject to § 8564 of Title 11, whenever the Division substantiates that an individual has abused, exploited, neglected, or seriously injured a client, the Division shall refer the individual to the Department for entry on the Adult Abuse Registry.

§ 5648. The protection and advocacy system.

(a) The purpose of the protection and advocacy system is to complement the Division's role in promoting the health, safety, and well-being of clients through advocacy, investigation, and monitoring.

(b) The protection and advocacy system may access clients, facilities, and records as authorized by federal or State law and related regulations.

(c) The Division shall notify the protection and advocacy system no more than 72 hours after receiving a report under § 5642 of this title that a client has died. The notification must include the client's name, age, the provider organization involved, and the apparent cause of death to the extent that the Division possesses such information and applicable State and federal confidentiality laws permit its disclosure.

(d) A staff member of a provider organization or the Division may report suspected abuse or neglect of a client by provider organization staff to the protection and advocacy system. A staff member who makes a report under this subsection must still report the incident to the Division under § 5642 of this title.

(e) It is unlawful for a provider organization, executive, or administrator to discharge, retaliate, or otherwise discriminate against an employee for making a report to the protection and advocacy system under subsection (d) of this section or for otherwise cooperating with an investigation by the protection and advocacy system. Violation of this subsection is a civil violation subject to a fine of up to $25,000. Whenever a provider organization, executive, or administrator violates this subsection, the provider organization, executive, or administrator is liable to the employee for treble damages, costs, and attorney fees.

§ 5649. Confidentiality; public reporting; aggregate information.

(a) Records created or maintained under this subchapter relating to incident reports, investigations, or referrals are not public records as defined in Chapter 100 of Title 29 and shall be protected consistent with applicable State and federal confidentiality laws.

(b) The Division may publish aggregate, de-identified information regarding incident reports received under this subchapter, including trends or patterns identified by the Division, provided that such publication does not disclose information that identifies an individual and is consistent with applicable State and federal confidentiality laws.

(c) The publication of aggregate information under subsection (b) of this section does not waive the confidentiality of records protected under this section.

Section 6. Amend § 7908 of Title 29 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

§ 7908. Division of Substance Abuse and Mental Health.

(a) There is hereby established the Division of Substance Abuse and Mental Health under the direction and control of the Secretary of the Department of Health and Social Services.

(b) The Division of Substance Abuse and Mental Health shall be responsible for providing and overseeing public mental health and substance use treatment services serving individuals who are 18 years old and older.

(c) The Division of Substance Abuse and Mental Health shall have the following powers and duties:

(1) To plan for, establish, implement, amend and revise standards for mental health programs serving individuals who are 18 years old and older.

(2) The authority to create, implement, and oversee licensing requirements for all mental health treatment programs serving individuals who are 18 years old and older.

(3) To provide, facilitate, and create educational and training programs related to mental health and substance use.

(4) To make contracts necessary or incidental to the performance of its duties and execution of its powers.

(5) To operate the Delaware Psychiatric Center, including maintaining a forensic unit as required by Chapter 51 of Title 16.

(6) To acquire, hold or dispose of real property or any interest therein, and construct, lease or otherwise provide treatment facilities for individuals in need of treatment.

(7) To carry out all powers and duties set forth in Chapters 22, 50, 51, 59, and 61 of Title 16.

(8) To coordinate with other divisions within the Department of Health and Social Services, as well as with the Department of Services for Children Youth and Their Families, as necessary to provide appropriate individualized treatment services and address systemic public health needs.

(9) To solicit and accept for use any money, real property or personal property made by will or otherwise and any grant of money, services or property from the federal government, the State or any political subdivision thereof or any private source, and take all actions necessary to cooperate with the federal government or any of its agencies in making an application for any grants.

(10) To administer or supervise the administration of the provisions relating to individuals in need of mental health or substance use treatment of any state plan submitted for federal funding pursuant to federal health, welfare or treatment legislation.

(11) To take all other actions necessary to execute the authority expressly granted to the Division of Substance Abuse and Mental Health.

(d) The Division of Substance Abuse and Mental Health shall be authorized to promulgate rules and regulations to implement this section.

(a) As used in this section:

(1) “Behavioral health condition” means as defined in § 5601 of Title 16.

(2) “Behavioral health treatment program” or “program” means as defined in § 5601 of Title 16.

(3) “Department” means the Department of Health and Social Services.

(4) “Director” means the Director of the Division.

(5) “Division” means the Division of Substance Abuse and Mental Health.

(6) “Behavioral health treatment provider organization” or “provider organization”

means as defined in § 5601 of Title 16.

(b) The Division is established within the Department under the direction and control of the Secretary of the Department. The Director shall have the power to perform and shall be responsible for the performance of all the powers, duties, and functions as delegated to the Director by the Secretary.

(c) The Division shall provide for and oversee the prevention of behavioral health conditions and the care, treatment, and recovery of adults with behavioral health conditions.

(d) The Division shall do all of the following:

(1) Plan for, adopt or establish, implement, revise, and enforce program standards.

(2) License provider organizations to operate programs.

(3) Inspect, investigate, and monitor provider organizations to ensure compliance and quality.

(4) Receive and investigate complaints, grievances, and incident reports related to provider organizations and programs.

(5) Provide and facilitate education, research, and training related to behavioral health conditions.

(6) Establish, operate, and maintain the Delaware Psychiatric Center and a forensic psychiatric unit within the Center.

(7) Administer or supervise the administration of provisions in a federal grant related to individuals with behavioral health conditions.

(e) The Division may do any of the following:

(1) Make contracts necessary or incidental to the Division’s duties or the exercise of the Division’s powers.

(2) Solicit, accept, and use money, property, or services, regardless of the source.

(3) Acquire, hold, or dispose of real property, and construct, lease, or otherwise provide real property necessary or incidental to the Division’s duties or the exercise of the Division’s powers.

(4) Coordinate with other divisions within the Department of Health and Social Services and with the courts, the Department of Correction, the Department of Justice, the Department of Safety and Homeland Security, and the Department of Services for Children, Youth and Their Families to address systemic public behavioral health needs.

(5) Take action to execute the authority expressly granted to the Division.

(6) Promulgate rules and regulations to implement this section.

Section 7. Amend § 1212 of Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:

(d)

Disclosure without informed consent. —

Protected health information may be disclosed without the informed consent of the individual who is the subject of the information where any of the following disclosures are made:

() To the Division of Substance Abuse and Mental Health in cases where the Division is engaged in an audit, investigation, or survey involving the care or treatment of a client in a behavioral health treatment program licensed by the Division. Under § 7908 of Title 29, the Division protects the health and safety of clients. The Division is a “public health authority” and “health oversight agency,” related to the Division’s functions as a peer review organization, auditor, or evaluator for licensed behavioral health provider organizations and treatment programs.

Section 8. Chapter 22 of Title 16 of the Delaware Code is repealed in its entirety.

Section 9. §§ 5181 through 5186 of Title 16 of the Delaware Code are repealed in their entirety.

Section 10. This Act is known as the “Rick Urey Behavioral Health Treatment Act.”

Section 11. Sections 6, 7, and 10 through 12 of this Act are effective immediately.

Section 12. Sections 1 through 5, 8, and 9 of this Act are effective immediately and are to be implemented the earlier of the following:

(a) Two years from the date of the Act’s enactment.

(b) Notice by the Director of the Division of Substance Abuse and Mental Health published in the Register of Regulations that final regulations to implement this Act have been adopted.

SYNOPSIS

This Act revises Delaware law governing behavioral health treatment provider organizations by establishing a comprehensive statutory framework governing licensing, oversight, enforcement, client rights, provider duties, incident reporting, and investigations relating to behavioral health treatment services. The Act consolidates and modernizes statutory provisions governing behavioral health treatment oversight and clarifies the Division of Substance Abuse and Mental Health's authority to license programs, investigate incidents, and enforce compliance with this chapter.

This Act is a substitute for and differs from Senate Bill No. 161 by doing all of the following:

(1) Expands the definition of the protection and advocacy system to reference all applicable federal protection and advocacy statutes.

(2) Revises the client rights provisions by reorganizing and clarifying the rights framework, adding rights related to discharge planning and continuing care, clarifying the standard for permissible limitations on client rights, including a requirement that any limitation be for the shortest duration feasible, and revising the standard governing the use of restrictive intervention to align with existing Delaware law.

(3) Expands standing to enforce client rights to include clients and their authorized representatives in addition to the Attorney General and the protection and advocacy system.

(4) Adds a savings clause clarifying that nothing in this Act abrogates the rights and requirements applicable to long-term care facilities under Chapter 11 of Title 16.

(5) Adds elopement to the definition of incident for purposes of the incident reporting requirements.

(6) Modifies the provisions relating to the protection and advocacy system by expanding the system's access authority to reference all applicable federal and State law, adding a requirement that the Division notify the protection and advocacy system no more than 72 hours after receiving a report of a client death, authorizing staff to make discretionary reports to the protection and advocacy system, and extending anti-retaliation protections to staff who report to or cooperate with the protection and advocacy system.

(7) Adds a framework for the confidentiality of incident reports and investigation records while authorizing the Division to publish aggregate, de-identified information regarding incidents and trends across the behavioral health system.

(8) Adds an injunctive relief pathway allowing the Department to seek a temporary restraining order in the Court of Chancery when a provider organization's activities create an imminent risk of substantial harm to clients.

(9) Updates language throughout to reflect current person-centered terminology consistent with the preferences of the disability community.

(10) Makes technical and conforming changes for clarity and consistency.

This Act requires a greater than majority vote for passage because § 28 of Article IV of the Delaware Constitution requires the affirmative vote of two-thirds of the members elected to each house of the General Assembly to create a new crime within the jurisdiction of any inferior court of this State.

Author: Senator Pinkney