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A Report to the Governor and the General Assembly of the State of Delaware
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Joint Sunset Committee
2006 Final Report
Division of Long Term Care
Residents’ Protection
June 2006
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Division of Long Term Care Residents’ Protection
Table of Contents
Pages
Recommendations
Laws and Policies
History 1
Powers and Duties 3
Administrative Procedures Act 3
Freedom of Information Act 5
Federal Laws 5
Judicial Decisions, Executive Orders and Interagency Agreements 5
Memoranda of Understanding 6
Performance 6
Mission 7
Goals 7
Accomplishments 9
Challenges 10
Areas for Improvement 10
Coordination of Services with other Agencies 10
Performance Measures 11
Centers for Medicare and Medicaid Services Standards 13
Licensed Long Term Care Facilities 13
Organization
Sections 15
Staff 17
Training Opportunities 19
Long Term Care Ombudsman Office 19
The Long Term Care Ombudsman’s Office and Patients’ Rights 21
Complaint/Incident and Investigation Process for Long Term Care Facilities
Reporting Requirements 22
Qualifications/Training of Investigators 23
Investigation of Complaints of Alleged Abuse, Neglect, Mistreatment and
Financial Exploitation
Reporting Requirements 24
Investigative Process 24
Qualifications of Investigators 24
Training of Investigators 25
Incident Report Data 25
Surveys/Inspections
Scope of Survey 27
Survey Process 28
Complaint/Incident Survey
Management of Complaints and Incidents 31
Intake Process 31
Complaint Survey Process 31
Complaint/Incident Data Regarding Long Term Care Facilities 33
Public Awareness 34
Disciplinary Actions Taken 34
Sanctions Imposed on Long Term Care Facilities 35
Facility Licensing & Certification
Licenses Issued by the Division 39
Criteria for Determining Qualifications for Licensure 39
Period of Licensure 40
Reasons a License Can Be Revoked 40
Facility Licensing Statistics 41
Criminal Background Checks 44
Criminal Background Check Audits 44
Mandatory Drug Testing 45
Adult Abuse Registry
History 45
Administration 46
Adult Abuse Registry Check Process 46
Placement on the Adult Abuse Registry 46
Removal from the Adult Abuse Registry 47
Federal Certified Nursing Assistant/Nurses Aide Registry 47
Service Letters 48
Certified Nursing Assistants
Examinations 48
Reciprocity 49
Certified Nursing Assistants’ Registry 49
Staffing Levels 50
Initiatives Aimed at Increasing Nursing Home Staffing Levels and Improving Nurse Retention and Quality of Care 51
Funding 52
Recommendations for the Division of Long Term Care Residents’ Protection
The Joint Sunset Committee recommends continuance of the Division of Long Term Care Residents’ Protection, but only upon its meeting certain conditions or making certain modifications as identified below.
A. The Joint Sunset Committee recommends that the Division of Long Term Care Residents’ Protection take the following action:
1. Effective immediately, the Division of Long Term Care Residents’ Protection shall maintain full compliance with CMS regulations and appendices regarding nursing home surveys as contained in 42 CFR 483.1 to 483.480 and 488.1 to 488.456.
2. No later than June 15, 2006, the Division of Long Term Care Residents’ Protection shall establish a Quality Assurance Review Team (QAR Team). The QAR Team shall consist of:
- The Director of the Division
- The Deputy Director of the Division
- The Medical Director of the Division
- The Quality Assurance Administrator of the Division
- The Health Facilities Certification Administrator of the Division
3. No later than July 1, 2006, the Division of Long Term Care Residents’ Protection shall retain the services of a licensed physician to perform the duties of medical Director, which shall include but not be limited to reviewing medical records, advising the Division on medical issues, testifying on the Division’s behalf at Informal Dispute Resolution hearings, and participating in the QAR Team.
4. No later than July 15, 2006, all nursing home survey reports, whether generated as a result of annual, complaint, and/or surprise inspections, which recommend a nursing, pharmaceutical, nutritional, and/or environmental citation at “G” level or above shall be reviewed and approved by the QAR team within 5 working days of receipt of such report containing a “G” level or above citation. The Team shall review each such citation for application of the appropriate regulations, for accuracy of data, for adequacy of supporting documentation, and for consistent adherence to CMS regulations. A written quarterly report shall be made to the Nursing Home Quality Assurance Commission regarding any upgrades to “G” level or above and downgrades to “G” level or below by the QAR Team, setting forth the number of such downgrades and upgrades at each facility and the reasons for each. The report shall not identify facilities by name. The first such report shall be submitted no later than June 15, 2006. Subsequent quarterly reports shall be submitted on the 15th of every September, December, March and June.
5. Obtain the resident’s/patient’s informed consent to allow the JSC to have access to patient/resident information that is discussed by the family/resident/guardian in a public forum.
6. With regard to future requests for information, require that the Deputy Attorney General provide guidance as to what information to redact AND review the information that has actually been redacted.
7. Clarify the process within the Division of Long Term Care Residents’ Protection as to how administratively a Survey Report is finalized, and specifically how survey reports are finalized following an Informal Dispute Resolution process.
8. Formalize in writing the process of the Informal Dispute Resolution Process, and the authority of the Division of Long Term Care Residents’ Protection to upgrade or downgrade any finding in a survey report. In that regard, make it clear that the survey is either binding (and conclusive as to the matters therein) upon issuance by the Nurse surveyor/survey team, or that it is binding (and conclusive as to the matters therein) only upon the issuance of the final survey report by the Division of Long Term Care Residents’ Protection. Further, make it clear that the Division of Long Term Care Residents’ Protection has the right to resurvey, or not to resurvey, with respect to the initial Nurse surveyor/survey team report in connection with the Informal Dispute Resolution process.
9. Consider amending the informal dispute resolution process to require that the Ombudsman be included on behalf of the resident/patient, (b) the family of the resident/patient, and/or (c) the guardian or other representative of the resident/patient.
10. Mandate that a nursing home cited for violations must provide a thorough Plan of Care (PoC) to address those violations cited in the final survey. The PoC must address each violation(s) and include specific details of how the PoC will be followed up and/or implemented by the facility and the Division.
11. Mandate that the Division of Long Term Care Residents’ Protection submit a written quarterly report to the Nursing Home Quality Assurance Commission identifying a nursing home's noncompliance with staffing ratios by shift under Eagle's Law (16 Del. C. §1162). The first quarterly report shall be submitted to the Nursing Home Quality Assurance Commission by September 20, 2006. Subsequent quarterly reports shall be submitted to the Nursing Home Quality Assurance Commission 10 days prior to the end of a quarter.
12. Recommend that the Division of Long Term Care Residents’ Protection update and amend, pursuant to the Administrative Procedures Act, all Regulations that have not been amended since the 1990's. (Skilled Nursing Facility, Adopted 7/1/56, Amended 5/15/90; Intermediate Care Facility, Adopted 7/1/56, Amended 10/13/94; Rest Family Care Homes, Adopted 7/1/56, Amended 3/4/93; Rest Residential Homes, Adopted 7/1/56, Amended 5/15/90.) Provide written quarterly report to the Nursing Home Quality Assurance Commission. The first quarterly report shall be submitted to the Nursing Home Quality Assurance Commission by September 20, 2006. Subsequent quarterly reports shall be submitted to the Nursing Home Quality Assurance Commission 10 days prior to the end of a quarter.
B. The Joint Sunset Committee recommends the following statutory changes:
13. The Patients’ Bill of Rights includes protection against involuntary resident discharges except for specified reasons and requires that residents be provided the opportunity for a discharge hearing. However, the statute contains ambiguous language which results in residents being transferred from a nursing facility to an acute care facility and then refused the right to return to a nursing facility when their condition no longer requires acute care. Amend the Patients’ Bill Of Right by remove this ambiguity to clarify that residents remain the responsibility of the nursing facility, and the facility must permit residents to return to the nursing facility at least until another appropriate placement can be located.
14. Some narrowly worded authority to allow the Division of Long Term Care Residents’ Protection to obtain the records of an individual admitted to a hospital from a facility licensed by the Division of Long Term Care Residents’ Protection. This comment was made in the March 15 hearing. It was suggested that this would help to improve the quality and hasten the completion of some of the Division’s investigations and surveys.
15. Provide the Division of Long Term Care Residents’ Protection with the authority to revoke a Delaware CNA certificate for cause. For example the certificate revocation by another state of a Delaware CNA who is also certified elsewhere or when there is evidence that a Delaware CNA certificate was obtained using falsified information.
C. The Joint Sunset Committee recommends the following action by the Joint Finance Committee:
16. Consider funding additional positions for the Division of Long Term Care Residents’ Protection and increasing annual salaries to aggressively recruit and fill vacant positions, including five nurse surveyor positions that are vacant.
17. Consider creating/funding additional quality assurance personnel positions for the Division of Long Term Care Residents’ Protection.
D. The Joint Sunset Committee recommends the following action by the Department of Health and Social Services:
18. No later than September 15, 2006, the Department of Health and Social Services shall reclassify a vacant position to a Nurse Supervisor for the Division of Long Term Care Residents’ Protection, to provide nurse supervision for the Division’s Wilmington office.
Laws and Policies
History
In 1998 Senate Bill 302 established the Division of Long Term Care Residents Protection (“Division”) within the Department of Health and Social Services. Prior to the passage of Senate Bill 302, Senator Robert Marshall held public hearings concerning issues involving long term care in Delaware.
As a result of these hearings, the Division was created to promote long term care residents' quality of life and to ensure that these residents are safe and secure, receive quality care, and are free from abuse, neglect, mistreatment and financial exploitation.[1]
Primary duties given to the Division as part of the enabling legislation include: 1) establish and implement policies and procedures, promulgate regulations, and enforce state statutes and regulations regarding long term care residents; 2) inspect and license long term care facilities; 3) receive and investigate complaints of abuse, neglect, mistreatment, financial exploitation and other concerns which may adversely affect residents; 4) provide for systematic and timely notification, coordinated investigation, and referral of abuse, neglect, mistreatment and financial exploitation complaints to law enforcement agencies and the Attorney General's office; and 5) maintain the Adult Abuse Registry.[2]
A number of amendments to the Delaware Code have had an impact on the Division's development, as well as its responsibilities. The amendments that affected the development of the Division are:
a) Minimum Staffing Levels. The 140th General Assembly passed Senate Bill 115 (as amended) that established minimum staffing standards for residential health facilities (nursing homes). This law, known as "Eagle's Law," was signed by Governor Carper in September 2000.
The Division of Long Term Care Residents Protection is responsible for licensing the facilities covered by Eagle's Law and for ensuring compliance with the law. The 141st General Assembly passed two additional pieces of legislation amending Eagle’s Law.[3] The amendments clarified some definitions, further clarified which employees can be counted toward the minimum staffing requirements, and provided some flexibility for some nursing homes that may have difficulty meeting the minimum staffing ratios.
b) Criminal Background Checks and Mandatory Drug Testing. Through legislation passed by the 140th General Assembly, and signed by Governor Carper in January 1999, the sections of the Delaware Code pertaining to the Criminal Background Checks and Mandatory Drug Testing laws for applicants for employment in nursing homes and similar facilities were rewritten.[4] As part of the revision, the Division of Long Term Care Residents Protection was given the authority to regulate and enforce these laws.
The 141st General Assembly amended the law to require applicants for work in/on behalf of home health agencies to obtain criminal background checks and drug testing. [5] The amendment also allowed for private individuals seeking to hire a self-employed healthcare worker for a private residence to request a criminal background check and drug test. Governor Minner signed the amendment in February 2001.
The 142nd General Assembly passed and Governor Minner signed Senate Bill 199 into law on March 30, 2004. This statute expanded the powers and duties of Special Investigators within the Division. With this upgrade the Division was granted electronic access to the Federal Bureau of Investigation’s National Crime Information Center. The access is used to facilitate and better verify interstate criminal history data.[6]
c) Adult Abuse Registry. In 1997, the 139th General Assembly passed House Bill 385, which added a new section (§8564) to Title 11 of the Delaware Code. This section created an Adult Abuse Registry and a process for obtaining Adult Abuse Registry checks for persons seeking employment in health care facilities, including nursing homes, and child care facilities. Under the law, Adult Abuse Registry checks were to be obtained from the Ombudsman's Office in the Division of Services for the Aging and Adults with Physical Disabilities.
In 2000 Senate Bill 302 replaced §8564 in its entirety. The new §8564 required other types of long term care facilities, not just nursing homes, to comply with the Adult Abuse Registry law. In addition, the requests for Adult Abuse Registry checks were to be made to the Division of Long Term Care Residents Protection, rather than the Ombudsman's Office.
In 2005, House Bill 167 amended §8564 by broadening the definition of “abuse” and “neglect” used by the Adult Abuse Registry to include acts committed against all infirm adults regardless of whether they are residents of a licensed facility.[7]
d) Certified Nursing Assistant/Nurse Aide Training. The 140th General Assembly passed Senate Bill 20 amending Title 16 of the Delaware Code to add a new Chapter (30A) pertaining to training and qualifications for Nursing Assistants and Certified Nursing Assistants. The law created statutory training and curriculum requirements for persons seeking to become Certified Nursing Assistants (including 150 hours of training), as well as facility-specific orientation requirements for Nursing Assistants, Certified Nursing Assistants, and temporary employees. The Division of Long Term Care Residents Protection has responsibility for: coordinating the Committee established to approve the training programs, monitoring the training programs, overseeing the contract for the certified nursing assistant testing program, and maintaining the Certified Nursing Assistant/Nurse Aide Registry.[8]
Powers and Duties
The Division’s powers and duties are defined in 16 Del. C. §1101. The Division of Long Term Care Residents Protection does the following to carry out its powers and duties under §1101:[9]
• Inspects the facilities on an annual basis and conducts complaint, surprise, and follow-up inspections, to ensure compliance with state laws and licensure regulations, as well as applicable federal certification regulations;
• Issues state licenses and acts on behalf of the Centers for Medicare and Medicaid Services to inspect federally certified nursing homes which receive Medicare and/or Medicaid;
• Promulgates new licensure and related regulations and revises existing regulations to reflect new or revised state laws or federal laws/regulations;
• Takes enforcement action against non-compliant facilities;
• Provides training to the facilities on the licensing and certification laws and regulations, particularly on any changes in applicable laws and regulations and on training needs identified by the facilities or through the survey process; and
• Conducts public meetings for residents of the facilities to provide them with the results of the annual surveys.
Administrative Procedures Act (APA)
The APA standardizes the procedures that state agencies use to exercise their statutory powers and specifies the manner and extent to which some agencies may be subjected to public comment and judicial review.
Regarding regulations, the Division of Long Term Care Residents Protection follows the APA requirements in promulgating new regulations, changing regulations, or repealing regulations. As required by the APA, the Division publishes legal notices in the Delaware State News and News Journal newspapers a minimum of 20 business days prior to the date that the Division holds a public hearing on the proposed adoption, amendment, or repeal of a regulation. The notices, which contain the specifications required by law, are also published in the Register of Regulations at least 30 days before the scheduled hearing date.
Public hearings to obtain comments on proposed regulations are held in New Castle County and Kent County. A court reporter attends the hearings. Following the public hearings and the receipt of any comments, the Division determines whether the proposed regulations should be substantively altered. If so, the Division goes through the process described above for a second round of public comment. When the Division is satisfied that the regulation/change/repeal can be made final, the final regulations and Order are sent to the Registrar of Regulations for publication.
When conducting administrative hearings regarding appeals of sanctions, discharges or placement on the Adult Abuse Registry, the Division continues to follow the Administrative Procedures Act, including providing appropriate notice of the intended action and the right to a hearing, conducting the hearing and the issuance of a case decision by a hearing officer.[10]
The Division has promulgated regulations for the areas listed below.[11]
• Adult Abuse Registry, Amended 11/1/01
• Criminal History Record Checks and Drug Testing for Long Term Care Facilities, Adopted 5/19/99
• Criminal History Record Checks and Drug Testing for Home Health Agencies, Adopted July 2003
,
• Assisted Living Facility, Adopted 12/15/97, Amended 10/10/04
• Skilled Nursing Facility, Adopted 7/1/56, Amended 5/15/90
• Intermediate Care Facility, Adopted 7/1/56, Amended 10/13/94
• Group Homes for Aids, Adopted 5/12/97, Amended 11/10/01
• Group Homes for Persons With Mental Illness, Adopted 3/22/91 Amended 11/10/02
• Neighborhood Homes, Adopted 1/10/92, Amended 10/10/03
• Rest Family Care Homes, Adopted 7/1/56, Amended 3/4/93
• Rest Residential Homes, Adopted 7/1/56, Amended 5/15/90
• Certified Nursing Assistants, Adopted 5/15/90, Amended 1/10/05
• Homes for Pediatric Residents, Adopted 7/10/02
• Paid Feeding Assistants, Adopted 3/10/04
The regulations are listed by name on the Division’s website, however cannot be accessed via the internet. Rather, there is a statement that directs you to contact the Division regarding questions or to request a copy. Like most other agencies and divisions, this information should be readily accessible on the Division’s website.
Of note, in its response, the Division indicated that (and provided a copy of) the Intermediate Care Facility regulations were last amended on 5/1/90. However, staff obtained a copy of the same regulations that indicate that the regulations were amended on September 8, 1994 and again on October 13, 1994.
In the early part of 2005, the Division met with the Registrar of Regulations (Registrar) to renumber the Division’s existing regulations to conform to the APA requirements. In May 2005, the Registrar notified the Division that the “draft” copies of the renumbered regulations were available for the Division’s final approval. After receiving such approval, the Registrar will post the regulations on the Administrative Code website, thus giving the public access to the regulations via the web. The Registrar has not yet received approval or had any further contact from the Division.
Freedom of Information Act (FOIA)
FOIA mandates specific procedures for copying public records and for conducting open meetings.
The Division allows people to examine public records during regular business hours and also provides copies of public records upon request. The Division stated that the most frequently requested information includes lists of licensed long term care facilities, regulations, and survey reports. The Division provides copies of survey reports and a facility's plan of correction (if applicable) to anyone requesting them. The Division does not provide any confidential information, such as resident-identifying information, to the public.[12]
Regarding open meetings, the Division provides staff support to the Delaware Nursing Home Residents Quality Assurance Commission. Division staff posts a notice of each of the Commission's meetings seven to eight days prior to the meeting and provides mailed written notification to any interested party. The meetings are generally held in New Castle County, but have occasionally been held in Kent and Sussex Counties. Staff members take and keep minutes of each meeting (including members present and a record of any vote taken). The minutes are available to anyone requesting them.[13]
Federal Laws
The Social Security Act's Title XVIII, Health Insurance for the Aged and Disabled (Medicare) and Title XIX, Grants to States for Medical Assistance Programs, are applicable to the Division's survey and certification responsibilities. Those titles, and the applicable titles/sections of the Code of Federal Regulations, govern the requirements of states and skilled nursing facilities pertaining to the facilities' certification to receive Medicare and/or Medicaid reimbursement.[14]
The Division is designated as the State Survey Agency for surveying and certifying those facilities and must comply with the Social Security Act, the Code of Federal Regulations, as well as related policies issued by the Centers for Medicare and Medicaid Services, in carrying out its responsibilities as the state survey agency.
As a repository for personal medical history information the Division is subject to Health Insurance Portability and Accountability Act (HIPAA).[15]
Judicial Decision, Executive Orders and Interagency Agreements
In a 2003 appeal of an Adult Abuse Registry Hearing decision (Swayne v. DHSS), a Superior Court decision resulted in a limiting of the scope of the charge of Neglect.
There are no Executive Orders or Executive Policy Directives impacting the Division.[16]
Memoranda of Understanding
• Cooperative Agreement Between The Division of Services for Aging and Adult With Physical Disabilities and the Division of Long Term Care Residents Protection
This document outlines the roles and responsibilities of the respective Divisions including the legal basis for the activities of the agencies; principles governing the sharing of information and coordination between the Divisions; procedures governing the handling of complaints of abuse, neglect, mistreatment and financial exploitation and principles of confidentiality.
• Memorandum of Understanding between the Delaware Department of Justice, the Division of Long Term Care Residents Protection and Delaware Police Departments
This document is the procedural agreement and delineation of responsibilities for the investigation of abuse, neglect, mistreatment and financial exploitation of adult patients or residents of long term care facilities.
• Contract for Criminal History Reports Between Delaware Health and Social Services and the Department of Public Safety
This document lists the rights and obligations of each party regarding the furnishing, screening and dissemination of criminal history records pursuant to the Criminal Background Check statute, 16 Del. C. § 1141.
• Cooperative Agreement With The Delaware Fire Prevention Commission,
Office of the State Fire Marshal
This agreement outlines duties and responsibilities between the Division and the Fire Marshal’s Office regarding the inspection and certification of long term care facilities with respect to the CMS Life Safety Code.
Performance
The Division serves:[17]
• Residents of long term care facilities by conducting inspections and responding to complaints regarding all aspects of care in long term care facilities as well as by investigating incidents of potential abuse, neglect, mistreatment and financial exploitation.
• Families of residents of long term care facilities and the general public by providing information and referral on issues involving long term care.
• Providers of long term care through training in areas of compliance with laws and regulations and quality of care.
• Certified nursing assistants by providing testing and certification; and those employees and employers requiring processing and information related to criminal background checks, the Adult Abuse Registry, and the Certified Nursing Assistant Registry.
• As the state agency which acts on behalf of the Centers for Medicare and Medicaid Services in conducting inspections of federally certified nursing facilities.
Mission
The Division defines its mission as promoting the quality of care, safety and security of residents of long term care facilities and ensuring the compliance of long term care facilities with applicable state and federal laws and regulations as they pertain to those residents.[18]
Goals
The Division listed the following goals:[19]
Ensure that facilities are in compliance with applicable state and federal licensing/certification laws and regulations.
• The Division conducts annual unannounced and off-hour surveys (inspections) at every licensed Skilled Nursing Facility.
• Surveyors conduct on-site complaint investigations in long term care facilities.
• Inspections of smaller homes, such as Rest Family Care Homes, Neighborhood Homes and Group Homes are conducted.
• The Investigative staff routinely forwards concerns with licensing non-compliance whenever they encounter or suspect it in the course of their abuse and neglect investigations.
Ensure that residents are free from abuse, neglect, mistreatment and financial exploitation.
The Division employs a four-step approach to ensure that residents are free from abuse, neglect, mistreatment and financial exploitation:
1. Informational
• Training of Division staff, facility staff, administrators and interested members of the general public.
• Distribution of Division brochures and posters.
• Representation at senior oriented events, senior centers and The State Fair by staff.
• Referrals of residents and families through the Ombudsmen.
2. Monitoring
• Surveys
• Compliance Audits, (CBC, AAR, CNA Reg.)
• Criminal Background Check process
• Adult Abuse Registry Check process
• Certified Nurse Aide Registry check process
• Incident Referral Center
3. Investigative
• Investigative Unit Investigations
• Licensing Complaint Investigation
• Financial Reviews
4. Enforcement
• Referral to the Attorney General’s Medicaid Fraud Control Unit
• Civil Money Penalties
• Imposition of Mandatory Management Consultants
• Licensing Sanctions, such as issuance of a time-limited provisional license.
• Placement on the Adult Abuse Registry
• Flagging on the CNA Registry
• Referral to Division of Professional Regulation in the case of a health care professional
Ensure that potential employees in long term care settings have received the required state and federal criminal background checks.
• Each potential employee, through his or her potential employer, must complete a Criminal History Record Request Form prior to date of hire and submit to fingerprinting by the State Bureau of Identification (SBI). At that point the applicant can begin work as a “conditional employee.”
• The SBI conducts a state criminal history search. The fingerprints are forwarded electronically to the FBI for a national search.
• The SBI forwards state histories to the Division and the employer. The federal report goes only to the Division, which composes a summary and forwards it to the employer.
• The investigators determine if the applicant has any convictions that are disqualifying. If so, disqualifying letters are sent to the employer and the applicant.
• Disqualifying charges that have not been adjudicated cause a letter to be sent to the employer and applicant with notice of the potential disqualification. Investigators track the charge through state Criminal Justice Information System. If convicted a letter of disqualification is issued.
• If the employee is found not guilty or the charge is dismissed, a letter is sent to employer apprising them of same.
• To ensure compliance with 16 Del. C. §1141, the Division conducts reviews of facilities personnel records during annual surveys and also conducts inspections of agencies that provide employees to facilities. Additionally, during the course of abuse and neglect investigations Division investigators ensure the involved employees have been through the background check process. If violations are found, civil money penalties may be imposed.
• The Division provides training to facility human resource personnel on their responsibilities under 16 Del. C. §1141, as well as training for new facilities and agencies.
• Under 16 Del. C. §1145, the Division also regulates Home Health Agencies in the above-described fashion.
Provide training to Division staff, providers of long term care services and their employees.
The Division provides training as follows
• At staff meetings surveyors and investigators are briefed and trained on updates to CMS policy and procedures.
• In SFY05, 64 (sixty-four) training sessions were conducted. Most of these were conducted at individual facilities & covered such topics as The Identification & Investigation and Reporting of Abuse & Neglect, Compliance with Criminal Background and Adult Abuse Registry Check Law.
• Coordinate and monitor staff’s successful completion of CMS certification courses and viewing of continuing education webcasts.
• The Division also conducts 1 - 2 Director of Nursing Workshops each year as facilities hire new DONs. The new DONs are required to attend these 4-day workshops.
• The Division hosts 3-4 seminars annually covering such topics as Pressure Sores, Handling Residents w/Behavioral Issues, Mandatory CMS courses on documentation, Medication Error Reduction, Culture Change, Restraint Reduction, Identification, Investigation and Preparation for Court on abuse, neglect and mistreatment cases. Division staff attends these sessions. All facilities are likewise invited to attend.
• Presentations at seminars offered by outside organizations and agencies, such as Quality Insights of Delaware, the Medicaid Fraud Control Unit of the AG's office, and the Delaware Healthcare Facility Association.
• Staff presented statewide training on the revised Policy Memorandum 46, which addresses DHSS response to and investigation of abuse, neglect, mistreatment and financial exploitation.[20]
Accomplishments
The Division noted that its most significant accomplishments include:[21]
• The completion of all annual inspections of certified long term care facilities every year over the past four years despite the hiring freeze and nursing shortage.
• The integration of operations of the Division’s licensing and investigative staffs to maximize efficiency and internal communication.
• With assistance of the Department of Health and Social Services’ information technology staff, the creation of databases to track and access information on incidents, complaints, investigations, all categories of licensed facilities, numbers of certified and licensed beds in nursing facilities, staffing, the Adult Abuse Registry, status of surveys, and employers submitting criminal background check requests.
• Increasing the focus on training for providers in 1) compliance with identifying and reporting abuse, neglect, mistreatment and financial exploitation of residents; 2) compliance with criminal background check and drug testing requirements; and 3) addressing care issues by sponsoring programs presented by national experts in various areas of long term health care.
• The establishment of an efficient, customer-friendly CNA testing process through a contractor who provides good service.
• The significant reduction in appeals of citations by facilities through strengthening evidence collection, improving accuracy of inspection reports and using the assistance of the Attorney General’s office.
• After lengthy legislative and administrative efforts, the Division obtained electronic access to the Federal Bureau of Investigation’s National Crime Information Center to facilitate and better verify interstate criminal history data.
Challenges
The Division indicated it faces the following challenges:[22]
• Hiring nurses is a constant difficult challenge.
• High turnover of management and staff in nursing facilities can impact the quality of care because familiarity with individual residents is a factor in providing good care.
• Residents of nursing facilities who are suffering from a stage of dementia which makes them prone to violence can be difficult to place, a challenge to retain in a facility and a potential threat to the safety of themselves and others.
• Increases in federal funding are not keeping pace with increasing costs, particularly personnel costs.
Areas for Improvement
The Division noted several opportunities for improvement.[23]
• Success in hiring more nurses.
• Increased use of electronic communication to replace the huge volume of paper faxes the Division receives as incident reports.
• More coordination with prosecuting Deputy Attorneys General in Adult Abuse Registry hearings.
Coordination of Services with Other Agencies
The Division coordinates with:[24]
• The Attorney General’s Office relating to referrals for possible criminal prosecution of substantiated cases of abuse, neglect, mistreatment, financial exploitation and Medicaid fraud; prosecutions of Adult Abuse Registry appeals; and for legal representation for the Division in appeals of citations by nursing facilities.
• The Division of Developmental Disabilities Services, the Division of Substance Abuse and Mental Health and the Division of Services for Aging and Adults with Physical Disabilities, all of whom place residents and/or provide treatment and services in group homes, neighborhood homes and rest family care homes licensed by this Division.
• The Division of Medicaid and Medical Assistance and the Ombudsman’s Office by sharing Division survey reports and exchanging of reports and referrals.
• The Centers for Medicare and Medicaid Services (CMS) by forwarding all inspection reports of federally certified facilities and interacts on an ongoing basis regarding federal regulatory issues with the Philadelphia regional office of CMS.
• The Division of Professional Regulation, The Office of Narcotics and Dangerous Drugs and the Office of the State Medical Examiner in cases where there is an overlap of responsibilities.
Performance Measures
The following charts illustrate past performance and goals included in the SFY06 Budget.[25]
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This chart is an accounting of off-hours, unannounced inspections (surveys) of long-term care facilities by the Licensing and Certification staff. It shows increases in these types of inspections from five in SFY03 to a goal of seventy-two in SFY09.
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This chart illustrates the Division’s efforts in providing training for care providers in best practices in the long-term care field. The numbers of training sessions have increased from 47 courses in SFY03, to our goal of offering 72 courses in SFY09.
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This chart illustrates efforts to reduce the number of days to complete investigations of abuse, neglect, mistreatment or financial exploitation. The average number of days in SFY03 was 39. It is our goal to continue to reduce that time to 32 days in SFY09.
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This chart is an accounting of the length of time needed to complete criminal background checks. The table shows a decrease from 33 days in SFY03 to our goal of 13 days in SFY09.
Centers for Medicare and Medicaid Services Standards
The Division must also meet the following Centers for Medicare and Medicaid Services Standards (CMS) standards:[26]
• STANDARD 1- Surveys are planned, scheduled and conducted timely.
• STANDARD 2- Effectively communicates federal CMS noncompliance on the Form CMS –2567 Statement of Deficiencies. (For FY’02 and FY’03 the standard was “survey findings are supportable”)
• STANDARD 3-Certifications are fully documented and consistent with applicable law, regulations and general instructions.
• STANDARD 4- When certifying federal noncompliance and/or adverse action procedures set forth in the CMS regulations and general instructions are adhered to.
• STANDARD 5- All expenditures and charges to the federal CMS program are substantiated to CMS’s satisfaction.
• STANDARD 6- The conduct and reporting of complaint investigations are timely and accurate and comply with CMS general instructions for complaint handling and with the State’s own policies and procedures.
• STANDARD 7- Accurate and timely data is entered into the CMS online survey and certification data systems.
Each year, CMS sends staff from the regional office in Philadelphia to the Division office to conduct an annual performance review. This review involves a sample of surveys selected by CMS. CMS evaluates the state agency against the seven standards by comparing selected surveys and information in the shared database in order to ensure that the performance standards are met and the Division is adhering to CMS survey and certification activities.
Following the performance review, CMS provides the Division with a draft report. This draft report indicates CMS's findings and whether each of the standards has been met. For each standard not met, the Division is asked to submit comments to CMS. CMS then includes these comments in its Final State Performance Standard Review Report. CMS also requests that the Division implement any corrective action noted in the Final Report. Based on its findings, CMS has the option to impose sanction(s).
The Division submitted copies of the State Performance Standard Review Summaries and Reports for FY’02 – FY’04. The CMS reports are based on the federal fiscal cycle that ends on September 30. A completed report for the performance review conducted on November 4, 2005 will not be received by the Division until February 2006.
Licensed Long Term Care Facilities
The following are the major categories of long term care facilities licensed by the Division of Long Term Care Residents Protection, along with a brief description of each from the regulations:[27]
• Nursing Homes, including Skilled Nursing Facilities, Intermediate Care Facilities and Intermediate Care Facilities for Persons w/Mental Retardation
Total Number of Facilities: 47 Total Beds: 4893
A nursing home is an institution that provides inpatient beds and medical services, including continuous nursing services, to provide treatment for people who do not currently require continuous hospital services.
A skilled care facility provides care given in accordance with a physician's orders and requiring the competence of a registered nurse. Twenty-four hour nursing service must be provided under the direction of a full-time registered nurse.
An intermediate care facility provides care which is less than skilled care. The services are given in accordance with physician's orders and requiring the competence of nursing aides under the supervision of a registered nurse or licensed practical nurse. A registered nurse or licensed practical nurse shall be employed full-time and on duty during the day shift, seven days a week. There is an addendum to the regulations that gives additional requirements for intermediate care facilities for persons with mental retardation.
• Assisted Living Facilities
Total Number of Facilities: 30 Total Beds: 1778
An assisted living facility is a facility that provides a special combination of housing, supportive services, supervision, personalized assistance and health care, designed to respond to the individual needs of those who need help with activities of daily living and/or instrumental activities of daily living.
• Group Homes for Persons with AIDS
Total Number of Facilities: 1 Total Beds: 8
A group home for persons with AIDS is a facility designed for 16 or fewer persons with an established diagnosis of AIDS and disease progression such that the resident requires a routine and frequent combination of physician, professional nursing and supportive services.
• Group Homes for Persons with Mental Illness
Total Number of Facilities: 14 Total Beds: 121
A group home for persons with mental illness is a residence for 3 – 10 adults that provides mental health treatment, rehabilitation and housing, staffed substantially full-time when residents are present.
• Neighborhood Homes for Persons with Developmental Disabilities
Total Number of Facilities: 114 Total Beds: 454
This is a single-unit house providing residential and support services to five or fewer persons with developmental disabilities.
• Rest (Family Care) Homes
Total Number of Facilities: 126 Total Beds: 335
This type of facility provides resident beds and personal care services for two or three residents who can no longer live independently and/or who need a family living situation. The client should be able to do all of the activities of daily living independently.
• Rest (Residential) Homes
Total Number of Facilities: 4 Total Beds: 104
This is an institution that provides resident beds and personal care services for persons who are normally able to manage activities of daily living.
Number of Delaware Licensed Long Term Care Facilities 2000-2004
2000 2001 2002 2003 2004
Assisted Living 21 25 27 28 29
Facilities
Group Home for
Persons with AIDS 1 1 1 1 1
Group Home for
Persons with Mental Illness 9 11 14 14 14
Neighborhood Homes 75 84 92 96 105
Nursing Homes 49 49 49 47 47
Rest Residential Homes 6 4 4 4 4
Rest Family Care Homes 136 133 131 127 125
Total 297 307 318 317 325
Organization
The Division of Long Term Care Residents Protection is one of twelve divisions within the Department of Health and Social Services. The Division is administered by Director Carol Ellis and her Deputy, Tom Murray.
Sections
The Division is divided into four Sections:[28]
Operations
Fiscal management, budget preparation, accounting of expenditures and receivables and computerized information management.
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Quality Improvement
In-house and provider training are managed by this section, along with triaging of licensing complaints, tracking of survey and investigations, management of the CMS Cost Allocation Plan and website development and maintenance.
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Licensing and Certification Section
License long term care facilities, regulate compliance with federal and state standards and regulations, conduct all types of surveys of licensed and certified facilities, investigate complaints regarding care issues, certify nursing assistants and maintain the Certified Nursing Assistant Registry.
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Investigative Section
Investigate complaints and reports of abuse, neglect, mistreatment and financial exploitation, operate the Incident Referral Center (receive, triage, assign and input reports of incidents and complaints), conduct Criminal Background Checks, regulate employer compliance with CBC requirement and manage the Adult Abuse Registry.
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Staff
The Division has 61 authorized full time positions of which 49 positions are filled. 44 of these positions are Merit and 5 positions are appointed (exempt).
Additionally, the Division currently has 7 casual/seasonal positions. The Division also employed two temporary workers during FY 2005.
Currently the Division has the following twelve staff vacancies:
Licensing and Certification Section:
• 6 Registered Nurse III positions - Paygrade 15. The Division did note that one of these vacancies represents a newly created position.
• 1 Administrative Specialist II position - Paygrade 8
• 2 Environmental Health Specialist II positions - Paygrade 11
Investigative Section:
• 2 Ombudsman, Adult Long Term Care positions - Paygrade 13
• 1 Registered Nurse III position - Paygrade 15
There is also one Administrative Specialist III – Exempt- position vacant in the Director’s Office.
Key staff positions and responsibilities include:[29]
Director (Annual Salary: $86,500) and Deputy Director (Paygrade19): Responsible for overall management of the Division, including administration of budget, personnel, legislative, regulatory, investigative, licensing and certification issues.
Investigative Section Chief (Paygrade 18): Responsible for management of employees engaged in investigations of allegations of abuse, neglect, mistreatment or financial exploitation of infirm adults as well as those employees responsible for criminal background checks and the Incident Referral Center. Also responsible for management of the Adult Abuse Registry including review and approval of placements on the Registry and associated appeal hearings and interaction with the Attorney General’s Office.
Health Facilities Certification Administrator (Paygrade 18): Responsible for management of employees engaged in licensing and certification surveys and environmental inspections of licensed and/or certified facilities including nursing homes, assisted living facilities, group homes, neighborhood homes and rest family care homes, and employees engaged in certification of Certified Nursing Assistants. Also responsible for compliance with the requirements of the Centers for Medicare and Medicaid Services (CMS) and for interaction with the CMS Philadelphia regional office.
Quality Assurance Administrator (Paygrade 17): Responsible for supervision of compliance nurses and preparation and review of licensing and certification inspection reports including initial review of scope and severity of citations of facilities for failure to meet requirements of federal regulations and state law. Also responsible for interaction with facilities on issues involving nursing care and regulatory requirements.
Nurse Supervisor (Paygrade 16): Responsible for supervising licensing and certification activities conducted from the Milford office and for staff supervision in the Milford office.
The Division follows the hiring practices established by the State. As such, the Division recruits by posting the position for a certain period of time. Some postings, such as Nurses, are posted on a continuous or open basis. This continuous/open posting allows the Division to establish a register, or to fill nursing positions on a regular basis. Most positions however are posted for a two week period. Interviews are generally conducted by the supervisor for the vacant position, along with a diverse panel of colleagues.[30] However, effective July 1, 2005, the Department is also permitted to hire nurses directly instead of adhering to Human Resource Management requirements such as 15-day postings, mandatory hiring from certification lists, etc.[31]
The Division noted that it continues to suffer from major staffing issues as a result of the nursing shortage, especially in New Castle County. There are ongoing efforts within state government to increase nurse salaries.[32] Effective July 1, 2005 all nurse positions were placed on Selective Market Variation and each nurse received three salary increases in the following order:
• A minimum 5% increase or movement to the minimum of the SMV salary range.
• A general salary increase of 2% or $1,100, whichever was greater
• 3% movement through the salary range based on 3% of the SMV for the applicable pay grade. [33]
Additionally, the Division is expanding its employment advertising and informal outreach efforts. The Division has advertised in and uses the following methods as outreach efforts; The Wilmington News Journal; The Delaware State News; The Delaware Nursing Association Reporter; The Spectrum (a regional publication for nurses); a website advertisement was posted through Spectrum; and Division staff solicits applicants through social and professional networking, through schools, churches, workshops, seminars and surveys.[34]
Unfortunately, sometimes the Division may hire nurses from other state agencies, which may alleviate its staffing problem but aggravates a problem elsewhere.[35]
The Division takes measures to help ensure that the nurses’ time is used efficiently. To accomplish this, the Division has established timeframes for the various tasks in each annual inspection so that it can be assured of completing the workload as required by CMS each federal fiscal year. The investigative staff responds to incidents and complaints and collects data for further review by licensing staff and in so doing can sometimes resolve cases without an on-site visit by licensing staff.[36]
Training Opportunities
All new employees take part in a Department orientation program. Additionally, each section within the Division has its specific orientation for each particular job.
The Division has conducted training sessions such as the use of forensics to identify abuse, interview/ interrogation techniques, restraint reduction and various other topics. Staff is also encouraged to participate in training opportunities held by the Department.
Long Term Care Ombudsman Office[37]
The Long Term Care Ombudsman Program (LTCOP) originated in Delaware within the Division of Aging, now the Division of Services for Aging and Adults with Physical Disabilities (DSAAPD), in 1976. In 1981, the program was contracted out to a private agency called Supportive Care. The LTCOP returned to the Division of Aging under the Delaware Department of Health & Social Services in August 1985.
Program responsibilities, in accordance with Section 307 (12) of the Older Americans Act[38], are to investigate and resolve complaints made by or on behalf of the residents of long term care facilities; monitor the development and implementation of Federal, State and local laws, regulations, and policies with respect to long term care in the state; provide information to public agencies regarding the problems of older people residing in long term care facilities; train volunteers and others to participate in the Ombudsman program; promote the development of citizens organizations to advocate for quality long term care services within either the community and within the state; analyze assess and compile data relating to complaints and conditions in long term facilities and to identify and work to resolve significant problems affecting large numbers of older people in long term facilities in the state.
The Long Term Care Ombudsman’s Office has four full time positions in the New Castle County Office. These positions include the State Long Term Care Ombudsman and three local Ombudsman positions. Since the recent resignation of the State Ombudsman, the position of Acting State Ombudsman is being filled by one of the local Ombudsman. The Milford Office houses a full time local Ombudsman and a full time Volunteer Services Coordinator.
A Memorandum of Agreement (MOA) was signed by the DSAAPD, Office of the State Ombudsman (OSO), and the Division in 2000. The purpose of the MOA was to outline the roles and responsibilities of both Divisions and establish basic principles for coordination and information sharing. A process for complaint reporting, referral and investigation was also shared in the MOA. Interaction between DSAAPD/OSO and the Division occurs in the sharing of information about problems in facilities as well as in the facilitation of communication between facilities, residents and family members when it is necessary for the two Divisions to work together in order to investigate and resolve a complaint.
Any complaint alleging physical or emotional abuse, neglect, mistreatment or financial exploitation is referred with the permission and consent of the complainant to the Division as they are the lead agency in investigating those types of complaints. The complainant is informed of the role of the Division in these matters and is encouraged to call them in order to provide additional information to aid in the investigation of their complaint. Referrals are also made to the Division if the complaint involves unexplained or unexpected death, reports of inadequate staffing that result in harm to the resident, or theft of property.
Surveyors from the Division contact DSAAPD/ OSO prior to a survey of a long term care facility so that information can be shared about any concerns expressed to the Ombudsman by residents or their family members about the facility. Ombudsman are also notified and invited to attend resident group meetings, as well as the exit conference given by the Surveyors after the survey is completed. Contact is maintained between the Surveyors and Ombudsman regarding Licensing complaint investigations, as well as follow up surveys. Information is also shared regarding any major activity that can affect the quality of care of the residents such as a flu outbreak or a filing for bankruptcy.
The Division and DSAAPD also provide one another with periodic or annual reports. DSAAPD/OSO shares with the Division, copies of its National Ombudsman Reporting System report on an annual basis. A copy of the Survey Summary, the Statement of Deficiencies and Plan of Correction are provided by the Division to the Ombudsman. Reports of adverse actions imposed upon a facility, along with the results of any appeal made by the facility, are shared between the Divisions.
The meetings of DSAAPD/OSO and the Division in regard to regular and routine face to face meetings, as well as the provision of appropriate Joint training activities happen on a less frequent basis.
The Long Term Care Ombudsman’s Office and Patients’ Rights[39]
The Long Term Care Ombudsman’s Office is responsible for monitoring the long term care facilities to ensure that resident rights are being honored and promoted. It is the ultimate responsibility of the facility in which the resident resides to ensure that each resident right is being met. Ombudsmen are often called to mediate and help resolve concerns which involve resident rights issues because the advocacy of these rights is at the heart of what Ombudsman do.
When a resident is admitted to a facility, a copy of the Residents’ Bill of Rights must be included in their admission paper work. The resident or their representative must sign that they have received a copy of these rights and the receipt for the copy must be maintained in the facility’s files. The facility must also ensure that the Bill of Rights is posted in a conspicuous public place so as to be seen by residents, their families, and facility staff. DSAAPD/OSO in addition to providing the Bill of Rights Posters performs spot checks to see that these Posters are displayed appropriately in the facility.
The receiving long term care facility is responsible for ascertaining if a resident has designated an anatomical gift donation upon the admission of that resident to their facility. If a resident has done so, it is the responsibility of the facility to maintain as part of the residents’ permanent record, all pertinent information required to facilitate the carrying out of the resident’s wishes in the event of their death.
Delaware is one of eight states that require a representative from the Office of the Ombudsman to be present as a witness when a resident executes an Advance Health Directive in a long term care setting. The resident has the option of making an anatomical gift declaration as part of their Advance Directive. The original copy of the Advance Health Care Directive is placed by the facility the resident’s chart. The donation declaration and the necessary contact information needed to facilitate the Humanities Gift Registry donation is also placed in the resident’s chart. A form notifying the Humanities Gift Registry of the donation is placed in the mail by the facility, or the Ombudsman, at the resident’s request. Copies of the Advance Health Directive are also made by the facility in order for them to be given to the resident and/or their designated Power of Attorney for Health Care. DSAAP/OSO does not keep a copy of the executed Advance Heath Care Directive, but does record information regarding the names of residents completing Advanced Health Care Directives witnessed by the Ombudsman each year.
DSAAPD/OSO provides posters and pamphlets in both English and Spanish, which list each of the 33 resident rights in the Residents’ Bill of Rights. These informational resident rights materials are provided to every long term care facility in Delaware. We are in the process of updating these materials and expect to have them back from the printer in the near future so that they can be redistributed to the facilities.
The Ombudsman conduct resident rights in-services for facility staff and resident and family councils when asked to do so. We are also working toward providing a web based interactive program on resident rights. We hope to have this program up and running in the coming year as we see the program as a valuable tool in the promotion as well as in the understanding of what these rights involve.
DSAAPD/OSO has also ordered an additional 3,000 copies of our Nursing Home Guide for distribution to the public. A DVD which is included within the Guide contains a segment which was produced locally using Ombudsman staff, as well as residents and facility staff from three New Castle County Nursing Homes to talk about resident rights.
On October 6, 2005, a Resident Rights Rally was held at the Sheraton in Dover to highlight Resident Rights Week. DSAAPD/OSO has helped sponsor this event for four years so that residents from facilities throughout Delaware can come together to express their enthusiasm for the promotion of the Residents’ Bill of Rights.
Complaint/Incident and Investigation Process for
Long Term Care Facilities
Reporting Requirements
A reportable incident is an occurrence or event which must be reported at once to the Division and for which there is reasonable cause to believe that a resident has been abused, neglected, mistreated or subjected to financial exploitation. The Division receives reports of a variety of incidents, not all of which may be indicative of abuse or neglect. Incidents reported range from missing resident property up through serious injuries indicative of neglect.
Facilities are required to report all reportable incidents to the Division immediately. Incidents are submitted by fax on the Division’s “Incident Form”. The Division also receives incident reports via State e-mail from State facilities. The results of all internal investigations conducted by the facilities are to be faxed to the Division within five working days of the incident. If the alleged violation is verified, appropriate corrective action must be taken. If the internal investigation is still in progress, the Division is to be notified of the status of the investigation on the fifth day. Upon completion of the internal investigation, the Division is to be notified.
The Division also receives complaints from individuals via telephone calls, voice mail messages, written letters, etc. These may be anonymous. The supervisor (Investigative Administrator) or the supervisor’s designate reviews each complaint and completes the Incident Form.
The Division maintains a toll-free hot line to receive complaints during those times when the Division’s offices are closed. Callers may leave a message on the hot line’s answering machine. This results in notification to the on-call investigator, who can review the message and determine if an immediate response is needed.
The supervisor in the Incident Referral Center, or in the supervisor’s absence, his or her designee reviews the incident form to determine if the incident will be investigated or recorded without further investigation. Minor incidents that do not involve any indication of abuse, neglect, mistreatment, etc., and that have been resolved by the facility, are recorded in the Division’s computerized data base system, but may not be assigned to an investigator. Incidents requiring investigation are assigned to one of the investigators for follow-up.
For investigative cases, the supervisor must also determine if the case requires immediate follow-up or whether the follow-up can be conducted routinely. In cases where the resident’s health or safety is in imminent danger, or where a resident has died due to abuse or neglect, for example, the investigation should be initiated within 24 hours. For cases that do not meet the criteria for immediate investigation, the investigation is to be initiated within ten (10) days.
The supervisor must determine if the incident warrants immediate notification to a law enforcement agency. If police notification is required and has not been made, the supervisor is to see that this occurs. The supervisor also sees that the Medicaid Fraud Control Unit of the Attorney General’s Office is notified of any incidents involving a suspicious death, serious physical injury, sexual assault, or substantive law enforcement involvement.
The reviewing supervisor also determines whether the incident should be referred to the licensing section of the Division for review of potential facility deficient practices. Any incident that involves possible regulatory issues, any complaint from a party other than the facility management, or any incident that suggests a systems problem will be referred to the licensing unit. The incident may be assigned simultaneously to both the investigative and licensing units for follow-up, depending on the issues involved.
Qualifications/Training of Investigators
Investigators must successfully complete the CMS-approved training and pass the Surveyor Minimum Qualifications Test. All investigators have at least a bachelor’s degree in their professional discipline. Additionally, CMS provides training programs throughout the year for the investigators. Investigators also participate with the providers in the training programs sponsored by the Division.
In line with the minimum qualifications for each position, the Division hires investigators who are already experienced in the basic investigative functions. New investigators are assigned to work with a senior partner, and are assigned a light workload that gradually increases in volume and complexity, until they can function independently.
Investigators are provided with both formal and informal in-service training. Informal in-service training is provided through written communications from the supervisory staff, and in the course of the regular investigative unit meetings. Formal training is available through seminars provided by the Division and various training opportunities offered by the Department of Health and Social Services and other State agencies. [40]
Investigation of Complaints of Alleged Abuse, Neglect, Mistreatment and Financial Exploitation[41]
Reporting Requirements
These reporting requirements are the same as those described above under the heading Complaint/Incident and Investigation Process for Long Term Care Facilities – Reporting Requirements.
Investigative Process
The investigators will prioritize their investigations according to the severity of the incident, availability of witnesses, etc. Investigations may involve: interviews of victims, witnesses, staff, and suspects; review of documents; consultation with other investigative organizations (such as the Office of Narcotics and Dangerous Drugs, the Medical Examiner’s office, Division of Public Health, etc.); or joint investigations with the Licensing Section. Investigations might take as little as a day or so to complete, or several weeks. Following the completion of the investigation, the Investigative Administrator (supervisor) or Investigative Section Chief will review the results, determine if further actions or referrals are necessary, and will then close the case. The results are then entered into the Division’s computerized data base. The complainant will be notified of the results by letter.
Qualifications of Investigators
When the Division was formed, some of its investigative positions were established by statute, and some were moved from other divisions. As a result, the Division now has three classes of investigators conducting investigations:[42]
Special Investigators
The Division is authorized 2 Special Investigator positions. These are exempt employees and are compensated at the equivalency of merit system pay grade 12. They are both retired police officers. One is assigned to the Wilmington office while the other works from the Milford office. They are considered “lead” investigators, possess arrest powers and are assigned cases with a high probability of criminal justice system involvement. Special Investigators are required to have a minimum of 10 years experience as a police officer and significant investigatory experience while working as a police officer.
Ombudsmen
The Division acquired the Ombudsmen positions when it was created. These are merit employees, paygrade 13. Their job description calls for background in long term care, elder issues and some investigative experience. They are assigned abuse, neglect, mistreatment and financial exploitation cases, as well as criminal background cases.
Internal Affairs Investigators
The Division has 4 Internal Affairs Investigators. Originally, these positions were intended to handle just criminal background investigations. They are merit employees, paygrade 10. However, when the Division initiated the Incident Referral Center and assumed responsibility as the reporting agency for the thousands of incidents that are reported each year, the Internal Affairs Investigator’s roles were broadened and they assumed caseloads of abuse, neglect, mistreatment and financial exploitation. The job description for this position requires criminal investigative experience. Currently, 3 of these persons are retired police officers, and one has extensive investigative experience from the KIDS Department.
The Division also has one Registered Nurse III assigned to the Investigative Section in the Milford office.
Training of Investigators
In line with the minimum qualifications for each position, the Division hires investigators who are already experienced in the basic investigative functions. New investigators are assigned to work with a senior partner, and are assigned a light workload that gradually increases in volume and complexity, until they can function independently.
Investigators are provided with both formal and informal in-service training. Informal in-service training is provided through written communications from the supervisory staff, and in the course of the regular investigative unit meetings. Formal training is available through seminars provided by the Division and various training opportunities offered by the Department of Health and Social Services and other State agencies.
Incident Report Data
TOTAL NUMBER OF INCIDENT REPORTS RECEIVED
|Primary Incident Type |2004 |2003 |2002 |
|Abuse |856 |816 |719 |
|Neglect |581 |467 |318 |
|Mistreatment |167 |175 |194 |
|Financial Exploitation (includes fraud and |682 |504 |548 |
|theft/missing items) | | | |
|Other |19485 |16815 |14958 |
|Total |21771 |18777 |16737 |
TOTAL NUMBER OF INCIDENTS/COMPLAINTS INVESTIGATED
|Primary Incident Type |2004 |2003 |2002 |
|Abuse |809 |786 |671 |
|Neglect |435 |385 |226 |
|Mistreatment |134 |145 |164 |
|Financial Exploitation (includes fraud and |323 |254 |259 |
|theft/missing items) | | | |
|Other |289 |683 |684 |
|Total |1990 |2253 |2004 |
TOTAL NUMBER OF INCIDENTS/COMPLAINTS FOUND TO BE VALID (SUBSTANTIATED)
|Primary Incident Type |2004 |2003 |2002 |
|Abuse |459 |477 |387 |
|Neglect |164 |167 |81 |
|Mistreatment |55 |81 |81 |
|Financial Exploitation (includes fraud and |128 |89 |93 |
|theft/missing items) | | | |
|Other |88 |153 |199 |
|Total |894 |967 |841 |
TOTAL NUMBER OF INCIDENTS/COMPLAINTS RESULTING IN DISCIPLINARY ACTION – REFERRAL TO ADULT ABUSE REGISTRY
|Primary Incident Type |2004 |2003 |2002 |
|Abuse |35 |27 |29 |
|Neglect |43 |52 |33 |
|Mistreatment |5 |13 |26 |
|Financial Exploitation (includes fraud and |15 |12 |25 |
|theft/missing items) | | | |
|Other |10 |6 |2 |
|Total |108 |110 |115 |
TOTAL NUMBER OF INCIDENTS/COMPLAINTS REFERRED TO THE ATTORNEY GENERAL’S OFFICE
|Primary Incident Type |2004 |2003 |2002 |
|Abuse |10 |17 |17 |
|Neglect |12 |41 |18 |
|Mistreatment |1 |12 |24 |
|Financial Exploitation (includes fraud and |23 |25 |36 |
|theft/missing items) | | | |
|Other |6 |3 |3 |
|Total |52 |98 |98 |
All complaints referred to the Office of the Attorney General have not been resolved. The Division refers cases to that office on an on-going basis. Their staff evaluates each case to determine if the Attorney General will investigate and prosecute. At any given time, there can be several cases in the AG’s Office either pending review, or in some stage of the investigation or prosecution process.
Surveys/Inspections[43]
Scope of Survey
Overall, the entire survey process is intended to assure quality care in long term care facilities. The identification of deficient practices within facilities, the issuance of citations and the correction of those deficient practices is a primary function of the Division.
The standard or annual survey is among the most comprehensive review conducted in the facility. Other types of surveys that are conducted under Centers for Medicaid/Medicare Services (CMS) protocols are complaint surveys and follow-up surveys. Both complaint and follow-up surveys are focused surveys. The purpose of the follow-up survey is to re-evaluate the specific care and services that were cited as non-compliance during the original standard survey. For a complaint survey, the quality of care areas and quality of life areas are reviewed, pertaining to the specific complaint allegations. Although CMS has no specific surprise survey protocol, all surveys are unannounced (without prior notice) to the facility. Federally certified facilities are required to be surveyed every 9-15 months.
The survey process follows a systematic methodology established by CMS for federally certified facilities. Federally certified facilities are those who have chosen to accept Medicare and/or Medicaid reimbursement. A similar survey methodology is utilized for state licensed facilities which do not accept Medicaid/Medicare reimbursement. The Division performs both State and federal surveys.
The Standard Survey is a resident-centered, outcome-oriented inspection. These surveys rely on a case-mix sample of residents to gather information about the facility’s compliance with federal requirements, as well as state licensure requirements. Surveyors evaluate both actual and potential harm, as well as failure of a facility to help residents achieve their highest practicable level of well-being.
Based on the specific procedures detailed in the State Operations Manual produced by the federal government, a standard survey assesses:
• Compliance with residents’ rights and quality of life requirements;
• The accuracy of residents’ comprehensive assessments and the adequacy of care plans based on these assessments;
• The quality of care and services furnished, as measured by indicators of medical, nursing, rehabilitative care and drug therapy, dietary and nutrition services, activities and social participation, sanitation and infection control; and
• The effectiveness of the physical environment to empower residents, accommodate resident needs, and maintain resident safety.
Survey Process
A. General Objectives
The objectives of offsite survey preparation are to analyze various sources of information available about the facility in order to:
• Identify and pre-select concerns to be reviewed during the survey, based on the Facility Quality Indicator Profile (see QI Reports below).
• Pre-select potential residents to be reviewed during the survey based on the Resident Level Summary. Note concerns based on other sources of information listed below and note other potential residents who could be selected for the sample.
B. Information Sources for Offsite Survey Preparation
The following sources of information are used during the offsite team meeting to focus the survey.
1. Quality Indicator (QI) Reports from the Standard Analytic Reporting System of the CMS National Resident Assessment Data Base
All federally certified facilities are required to assess residents using the Resident Assessment Instrument at least quarterly. The Resident Assessment Instrument which includes the Minimum Data Set helps facility staff to gather definitive information on a resident’s strengths and needs which must be addressed in an individualized care plan. Additionally, this information from the Minimum Data Set forms the basis for the Quality Indicator (QI) system. This national QI system classifies residents to monitor the quality of both the process and outcomes of care. Some of the broad areas covered in the QI reports are accidents, behaviors, nutrition, pressure sores, incontinence, hydration loss, infection control, physical functioning and psychotropic drug use.
2. Results of Previous Surveys
3. Analysis of Complaints
Review information about complaints reported since the previous survey.
4. Information from the State Ombudsman’s Office
Note any potential areas of concern reported by the Ombudsman’s office.
5. Medicaid Reports
Note any potential areas of concern reported by the Division of Medicaid and Medical Assistance during nursing assessments to determine levels of care.
6. Pharmacy Reports
Note any potential areas of concern reported by the Office of Narcotics and Dangerous Drugs.
7. Other Pertinent Information
At times, the survey agency may be aware of special potential areas of concern that should be investigated onsite, such as an outbreak of influenza.
C. Sample Selection
Sample selection and the number of resident records reviewed is based on a percentage of the facility population and is predetermined by CMS. The types of residents and resident concerns reviewed are determined by the previously mentioned Quality Indicators and include specific predetermined CMS focus areas such as weight loss, pressure sores and hydration.
D. Access
16 Del.C. §1107(c) authorizes any agent of the Department of Health and Social Services to enter and inspect any facility licensed under this chapter without notice at any time.
E. Qualifications/Training of Surveyors
Surveys are conducted by a multidisciplinary team of professionals including nurses, nutritionists and environmentalists. Surveyors must successfully complete the CMS-approved training and pass the Surveyor Minimum Qualifications Test. All surveyors have at least a bachelor’s degree in their professional discipline. Additionally, CMS provides training programs throughout the year for the surveyors. Surveyors also participate with the providers in the training programs sponsored by the Division.
F. Survey Summary/Notification of Survey Results
At the conclusion of each survey, a report is written which includes a statement of deficiencies in terms specific enough to allow a reasonably knowledgeable person to understand the aspect(s) of the requirement(s) that is (are) not met. The regulatory citation is indicated, followed by a summary of the evidence and supporting observations. The facility must submit a plan of correction addressing these deficiencies. After this plan of correction is reviewed by the Division, the facility is required to display this document containing the deficiencies and the plan of correction in a public area in accordance with 16 Del.C. §1108. Once the facility has submitted a plan of correction, the community liaison representative in the Division writes an inspection summary in non-technical terms that will be used when these findings are presented to the residents and the families in the facilities.
G. Exit Conference and Public Access/Notification of Survey Results
The general objective of the exit conference is to inform the facility of the survey team’s observations and preliminary findings. The exit conference is conducted with facility personnel, the ombudsman assigned to the facility and at least one resident. During the exit conference, the facility is provided with an opportunity to discuss and/or supply additional information that they believe is pertinent to the identified findings.
At the conclusion of each survey, a copy of the completed survey report is posted in the facility in a public place. Additionally, copies are available and provided at no cost to any member of the public requesting same. Lastly, the survey results are available on-line through the CMS website.
H. Fees
The fees for issuance and renewal of licenses are specified in 16 Del. C. §1106 and are as follows:[44]
Base annual licensure fee: $150
Facilities with 100 or less units of capacity are assessed an additional $250 fee, for a total annual licensure fee of $400.
Facilities with more than 100 units of capacity are assessed an additional $400 fee, for a total annual licensure fee of $550.
Facilities with 10 or fewer units of capacity are exempt from the initial $150 base fee. The annual licensure fee for these smaller homes is $50.
I. Involvement of Law Enforcement
Referrals are made to the Attorney General’s Office and law enforcement agencies as necessary. The State Fire Marshal’s office conducts life safety code inspections in conjunction with the annual survey.
J. Enforcement
The nursing home enforcement protocol/procedures are based on the premise that all requirements must be met. Requirements take on greater or lesser significance depending on the specific circumstances and resident outcomes in each facility. A nursing facility may be subject to one or more enforcement remedies for violations as determined by statute and regulation. Each facility that has deficiencies must submit an acceptable plan of correction. While most citations do not involve actual resident harm, a nursing facility may be subject to a range of enforcement remedies based on the scope and severity of the violation.
K. Listing of Remedies
• Termination of participation in the Medicare/Medicaid Programs;
• Temporary management;
• Denial of payment for all Medicare and/or Medicaid residents by CMS;
• Denial of payment for all new Medicare and/or Medicaid admissions;
• Civil monetary penalties;
• State monitoring;
• Transfer of residents;
• Transfer of residents with closure of facility;
• Directed plan of correction;
• Directed in-service training;
• Suspension of admissions;
• Suspension or revocation of license;
• Issuance of a provisional license;
• Alternative or additional State remedies approved by CMS.
Complaint/Incident Survey
Management of Complaints and Incidents
The Division utilizes internally developed policies and procedures as well as those developed by CMS to provide direction and guidance in the management of complaints and reported incidents from nursing homes. These complaints and reported incidents are supported by the national ASPEN Complaints/Incidents Tracking System (ACTS) and the computerized Division of Long Term Care Residents Protection Information system.
Intake Process
An allegation is an assertion of improper care or treatment against a facility or a provider. All complaints and self reported incidents are received in the Division’s Incident Referral System. If the reviewing supervisor in the investigative section refers the complaint/self reported incident to the licensing section the complaint/self reported incident is triaged following the guidelines established by CMS.[45]
Complaint Survey Process
This process is conducted according to the guidelines for federal facilities established by CMS in Chapter 5 of the State Operations Manual.
The following procedures describe the processing of a complaint from receipt to closeout.
A. Collection – Complaints come to the DLTCRP from individuals receiving services or their representatives, staff, facility administration or the general public. They may also be referred from other State, Federal, or private organizations.
The Division obtains the following information for every allegation:
• Complainant’s name, address, and phone number (anonymous complaints are also honored);
• Facility’s name and address; and
• Description of problem, including names, places, dates.
B. Control – Upon receipt, the Division establishes a data base file for the complaint. This database file is used to track the complaint.
C. Acknowledgement (If Complainant Is Known) – The Division acknowledges receipt of the complaint from all sources, other than facility-reported incidents, in writing.
D. Evaluation.
1. Referral – The Division evaluates the complaint to determine whether it should be assigned for further action or forwarded to another appropriate authority.
2. Prioritizing - The complaints/incidents are reviewed by the Division and assigned a priority. The priority designations and due dates for action as established by CMS are:
• Immediate and Serious/Immediate Jeopardy (2 working day priority)
• Actual Harm (10 working day priority)
• No Actual Harm with Potential for More Than Minimal Harm (45 calendar day priority)
• No Actual Harm with Potential for Minimal Harm (60 calendar day priority) and
• Routine (reviewed during next onsite visit).
• If a complaint/incident is determined to be serious, i.e., one with a designation of Immediate and Serious/Immediate Jeopardy (2 working days priority) or Actual Harm (10 working days priority), a copy of the Licensing Complaint System packet is given to the Licensing and Certification Chief for immediate scheduling.
E. Complaint Survey
• Complaint surveys are never announced.
• The Division assigns the complaint survey to an individual(s) with expertise in the specific areas of the complaint whenever possible.
• The Division conducts a survey focusing on the specific regulatory requirements related to the complaint.
• The Division reviews appropriate samples of residents, rooms, records, or services, as necessary, to assess compliance with applicable requirements. If during an initial assessment or other observations, significant problems are identified, the Division expands the scope of review as necessary to determine compliance or noncompliance.
• When reviewing allegations of substandard patient care, the Division evaluates not only the care furnished to individuals directly involved in the allegation, but also the institution’s patterns of related care.
• The Division reviews a sample of individual records in relation to care plans and the consolidated resident records that are used by the nursing staff for evaluating care needs. In performing this review, the Division looks for consistency of data on the physician’s order sheet or progress notes, care plans, and resident records.
• The Division examines the facility’s staffing charts and may use payroll and resident records to confirm compliance with staffing requirements.
• The Division evaluates the sufficiency of physician supervision of patient care, including whether staff properly documents oral interim orders and that the physician countersigns them.
• Depending on the nature of the complaint, the Division interviews nursing personnel about the availability of needed supplies and equipment, the procedures for scheduling patients for diagnostic procedures or treatment, and procedures for ordering and securing special diets.
• Interviews are also conducted with any other party who may have knowledge of the incident.
F. Inspection Summary/Notification of Survey results
• At the conclusion, a report is written containing a statement of deficiencies in terms that allow a reasonably knowledgeable person to understand the aspect(s) of the requirement(s) that is (are) not met. The regulatory citation is indicated, followed by a summary of the evidence and supporting observations.
• If deficiencies are cited, the facility must submit a plan of correction as required by CMS addressing these deficiencies. The Division reviews this plan of correction and accepts it or requires revision until satisfactory and uses the plan of correction as a reference for future surveys.
• The facility is required to display this document containing the deficiencies and the plan of correction in a public area in accordance with 16 Del. C. §1108.
2. Notification
The complainant and other appropriate parties are notified of the findings and disposition of the complaint by letter. As with all surveys, copies of the final report are posted in a public area of the facility and copies are available to the public upon request.
Complaint/Incident Data Regarding Long Term Care Facilities
| |Calendar Year |Calendar Year |Calendar Year |
| |2004 |2003 |2002 |
|Total Number of Complaints |552 |417 |453 |
|Received by the Division Regarding | | | |
|Long Term Care Facilities | | | |
|Total Number of Complaints |518 |417 |436 |
|Investigated | | | |
|Total Number of Citations Issued |528 |378 |321 |
|Total Number of Complaints |475 |376 |276 |
|Forwarded to the Centers | | | |
|for Medicaid and Medicare Services | | | |
|Total Number of Complaints |21 |14 |26 |
|Resulting in Disciplinary | | | |
|Action, Civil Money Penalties, | | | |
|Provisional Licenses, Denials | | | |
|of Payment, Ban on | | | |
|Admissions, Mandatory Consultant | | | |
All referrals to the Attorney General’s Office are routed through the Investigative Section.
With regard to referrals made to the State Medicaid Office and/or the Federal Centers for Medicare and Medicaid Services concerning over billing, fraud, or recouping moneys paid in error, the Division responded that under 16 Del. C. §1104(e) it is authorized to collect financial data on facilities in the form of annual financial statements and similar information to ensure their solvency, and accordingly, the resources to provide for the needs of residents. The Division does not collect information on individual patient accounts. Other state and federal agencies responsible for payments to facilities would have knowledge of issues involving over billing or recouping money paid in error.
The Division has become aware, while investigating a complaint related to physician services for nursing home residents, of suspected Medicare and/or Medicaid fraud involving physician billing for services not performed. That investigation has been referred to both the federal Department of Health and Human Services Office of the Inspector General and the Delaware Attorney General’s Office.
Of note is the fact that from calendar year 2003 to 2004, the number of complaints received by the Division regarding long term care facilities increased by nearly one third.
Public Awareness
At the conclusion of the investigation of a complaint survey, a letter is sent to the complainant summarizing the complaint findings.
Disciplinary Actions Taken
Below is a list of specific disciplinary actions that were taken by the Division as a result of the investigation of complaint surveys (i.e., license revocation, license suspension, formal reprimand, penalty, etc.).
| |Calendar |Calendar |Calendar |
| |Year 2004 |Year 2003 |Year 2002 |
|Total Number of Facilities receiving CMS notification of | 10 | 8 | 9 |
|denial of payment for new Medicare/Medicaid resident admissions| | | |
|Total Number of Facilities where temporary management was | 2 | 0 | 1 |
|imposed | | | |
|Total Number of Facilities where Civil Money Penalties have | 6 | 5 | 10 |
|been imposed | | | |
|Total Number Facilities where Provisional Licenses were issued | 1 | 1 | 6 |
|Total Number Facilities where Licenses were revoked | 2 | 0 | 0 |
From calendar year 2003 to 2004 the above chart indicates that there was a significant increase in the number of facilities receiving notification from CMS regarding denial of payments for new Medicare/Medicaid resident admission, the number of facilities where temporary management was imposed, the number of facilities where civil monetary penalties were imposed and the number of facilities that had their licenses revoked.
Sanctions Imposed on Long Term Care Facilities[46]
Below is a list of specific sanctions imposed on long term care facilities as a result of the survey findings. When CMS is listed under the heading “Type of Sanction”, then the sanction is imposed by CMS. If CMS is not listed under this heading, then the sanction is imposed by the Division. CMS sanctions are determined by CMS and State sanctions are determined by the Division.
2002 Sanctions
|Date |Facility |Reason for Sanction |Type of Sanction |
|1/10/02 |Ingleside |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|1/15/02 |Lifecare at |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
| |Lofland | | |
|2/7/02 |Pioneer House |Violation of Asstd. Living Reg. 63.0 |Provisional License |
|2/11/02 |Emily P. Bissell |Noncompliance w/Safe Environment Regs. |CMS $4,900 CMP |
|2/14/02 |Windsor Place |Violation of Asstd. Living Reg. 63.0 |$12,000CMP |
|3/11/02 |Somerford Place |Violation of Asstd. Living Reg. 63.703 |$2,000 CMP |
|4/5/02 |Hillside Center |Noncompliance w/Quality of Care Standards |CMS $13,650 CMP |
|4/5/02 |Milford Center |Noncompliance w/Quality of Care Standards |CMS $8,694 CMP |
|4/9/02 |Ingleside |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|4/26/02 |Ingleside |Noncompliance w/Quality of Care Standards |Monitoring Imposed |
|5/16/02 |Methodist Manor |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|5/19/02 |Windsor Place |Violation of Asstd. Living Reg. 63.0 |Provisional License |
|5/23/02 |St. Francis - Wilmington |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|6/6/02 |Peach Tree |Violation of Asstd. Living Reg. 63.1504 |Provisional License |
|6/26/02 |Mary Campbell Ctr. |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|8/24/02 |Foulk Manor South |Violation of ICF Reg. 58.801A |Provisional License |
|9/17/02 |Harrison House of |Noncompliance w/Quality of Care Standards |CMS $6,336 CMP |
| |Georgetown | | |
|10/3/02 |Silver Lake |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|10/8/02 |Arbors of New Castle |Noncompliance w/Quality of Care Standards |CMS $48,600 CMP |
|10/16/02 |Lewes Convalescent Center |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|11/8/02 |Arbors |Violation of SNF Reg. 57.702 |Provisional License |
|11/8/02 |Chancellor |Violation of SNF Reg. 57.702 |Provisional License |
|11/8/02 |Arbors |Violation of SNF Reg. 57.702 |$2,000 CMP |
|11/18/02 |Foulk Manor South |Violation of SNF Reg. 58.801A |$6,300 CMP |
|12/6/02 |Kentmere |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|12/10/02 |Chancellor Care Center |Violation of SNF Reg. 57.702 |$2,000 CMP |
2003 Sanctions
|Date |Facility |Reason for Sanction |Type of Sanction |
|1/10/03 |Lewes Convalescent Center |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|1/27/03 |Del. Pscyh. Center |Noncompliance w/Quality of Care Standards |CMS $18,000 CMP |
|2/12/03 |Kentmere |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|3/2/03 |Accord at Brandywine |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|3/3/03 |Harbor House |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|5/5/03 |Lewes Convalescent Center |Noncompliance w/Quality of Care Standards |CMS $5,339 CMP |
|6/13/03 |Tilton Terrace |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|7/7/03 |Forwood Manor |Violation of 16 Del. C. §1162 |$1,600 CMP |
|8/29/03 |Shipley |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|9/10/03 |Green Valley Terrace |Violation of 16 Del. C. §1162 |$1,497 CMP |
|9/10/03 |Lewes Convalescent Center |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|9/17/03 |St. Francis – Wilmington |Noncompliance w/Quality of Care Standards |CMS $5,395 CMP |
|10/2/03 |Seaford Center |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|12/16/03 |Betty Fletcher Rest Family|Violation of 16 Del. C. §1131, (9) |Provisional License |
| |Care Home | | |
2004 Sanctions
|Date |Facility |Reason for Sanction |Type of Sanction |
|2/13/04 |Hockessin Hills |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|2/26/04 |Manor Care – Foulk |Violation of 16 Del. C. §1162 |$1,497 CMP |
|2/26/04 |Milford Center |Violation of 16 Del. C. §1162 |$1,565 CMP |
|2/26/04 |Parkview |Violation of 16 Del. C. §1162 |$16,819 CMPP |
|3/18/04 |Accord at Brandywine |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|4/30/04 |Tilton Terrace |Noncompliance w/Quality of Care Standards |CMS $2,040 CMP |
|5/27/04 |Green Valley Pavilion |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|6/3/04 |Green Valley Pavilion |Noncompliance w/Quality of Care Standards |Provisional License |
|6/16/04 |Kentmere |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|7/28/04 |Forwood Manor |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|8/11/04 |Gordon Rest Family Care |Violation of Rest Family Care Reg. 60.0 |License Revocation |
|8/25/04 |Chancellor Care Center |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|9/22/04 |Kentmere |Noncompliance w/Quality of Care Standards |CMS $1,950 CMP |
|10/19/04 |Gilpin Hall |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|11/3/04 |Courtland Manor |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|11/5/04 |Virginia Ming Rest Family |Violation of 16 Del. C. §1131, (9) |License Revocation |
| |Care | | |
|11/22/04 |Milford Center |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|11/30/04 |St. Francis Hospital SNF |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
2005 Sanctions
|Date |Facility |Reason for Sanction |Type of Sanction |
|1/21/05 |Hillside Center |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|2/23/05 |Manor Care Foulk |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|3/25/05 |Felton Group Home |Violation of Reg. For Group Homes for MI, 61.0 |Provisional License |
|3/29/05 |Accord at Brandywine |Violation of 16 Del.C. §1141, (c). |$9,000 CMP |
|3/30/05 |Millcroft |Violation of 16 Del. C. §1121, (18). |$5,000 CMP |
|4/1/05 |Green Valley Terrace |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|4/12/05 |Westminster Village |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|4/12/05 |Green Valley Terrace |Violation of 16 Del. C. §1121, (18). |$5,000 CMP |
|4/27/05 |Accord at Brandywine |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|5/18/05 |Chancellor Care Center |Noncompliance w/Quality of Care Standards |CMS $23,000 CMP |
|6/3/05 |Kentmere |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|7/1/05 |Forwood Manor |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|7/21/05 |Sunrise Asst. Living |Violation of 16 Del.C. §1141, (c). |$11,000 CMP |
|8/30/05 |Shipley Manor |Noncompliance w/Quality of Care Standards |CMS $11,154 CMP |
|9/26/05 |Accord at Brandywine |Noncompliance w/Quality of Care Standards |CMS $842 CMP |
|10/3/05 |St. Francis Brakenville |Noncompliance w/Quality of Care Standards |CMS $14,620 CMP |
|10/7/05 |Gardens of White Chapel |Violation of 16 Del.C. §1141, (c). |$5,000 CMP |
|10/20/05 |Park Place Neighborhood |Violation of Regs. For Neighborhood Homes, 55.0 |Provisional License |
| |Home | | |
|10/21/05 |Seaford Center |Violation of 16 Del. C. §1121, (18). |$85,000 CMP |
|11/3/05 |Hockessin Hills |Noncompliance w/Quality of Care Standards |CMS Payment Denial |
|11/16/05 |Hockessin Hills |Violation of Skilled Reg. 58.801, (a). |Monitoring Imposed |
Facility Licensing and Certification[47]
Licenses Issued by the Division
• Assisted Living Facilities
• Group Home for Persons with AIDS
• Group Home for Persons with Mental Illness
• Neighborhood Homes
• Nursing Homes
• Rest Residential Home
• Rest Family Care Homes
Criteria for Determining Qualifications for Licensure[48]
In accordance with 16 Del. C. §1103 through 1106, an application for a license or renewal of a license is submitted to the Division on forms provided by the Division and is accompanied by the applicable license fee.
In addition to the general information requested on the application forms, the applicant or license holder must furnish evidence to affirmatively establish the applicant’s or license holder’s ability to comply with:
1) Minimum standards of medical care, and/or nursing care, as applicable by type of facility;
2) Financial capability; and
3) Any other applicable state and federal laws and regulations for that category of facility.
The Division also considers the background and qualifications of the applicant or license holder and it also considers the background and qualifications of the following:
4) Any partner, officer, director or managing employee of the applicant or license holder;
5) Any person who owns or controls the physical plant in which the facility operates or is to operate; and
6) Any controlling person with respect to the facility for which a license or license renewal is requested.
In making the evaluation, the Division requires the applicant or license holder to file a sworn affidavit of a satisfactory compliance history and any other information required by the Division to substantiate a satisfactory compliance history relating to each state or other jurisdiction in which the applicant operated a facility any time during the five (5) year period preceding the date on which the application is made. The Division also requires the applicant to file information relating to its financial condition during the five (5) year period preceding the date on which the application is made.
As part of the license and annual renewal application, or when the Division determines that conditions exist which threaten the health or safety of a resident or residents, each licensed facility discloses the following financial information:
1) Audited annual financial statements;
2) Annual financial reports;
3) Other financial reports regularly filed with state or federal agencies; and
4) Any other information relative to the financial health of the facility.
The final part of the licensure process is an initial survey of the facility to ensure compliance with 16 Del. C. Chap. 11 and the regulations adopted pursuant to it. The survey includes; interviewing residents, family members and/or staff, reviewing records and documents maintained by the licensee and an inspection the physical plant.
The Division recently licensed a new facility and the process was as follows:
• The Division received the application along with the application fee.
• The Division reviewed prior history of the applicant for any discrepancies.
• The Division reviewed financial statements and reports on the applicant to ensure fiscal viability.
• A complete physical environmental inspection was conducted by the Division.
• The State Fire Marshal’s Office conducted a full inspection of the facility.
• A thorough review of facility policy & procedures was conducted, as well as contracts for goods and services, staffing, transfer agreements and agreements with local hospitals and other health care providers.
• A determination was made that the licensee was able to provide quality care to its residents.
• A 90-day provisional license was issued.
• A full survey will be conducted during the 90-day period to determine compliance with statutes and regulations.
Period of Licensure
The period for which a license is valid is one year. The Division does not have a standard date of renewal of licenses. A 90-day provisional license is granted to any newly established or newly transferred facility. After a second inspection is conducted, if all requirements are met, the facility will be entitled to an annual license.
Reasons That a License Can Be Revoked
Reasons that a license can be revoked are outlined in 16 Del C. §§1105 and 1113 and are as follows:[49]
The Department may deny a license to any applicant or refuse to renew a license to any license holder if the Department finds that the applicant or license holder or any partner, officer, director, managerial employee or controlling person of the applicant or license holder:
• Fails to meet the requirements of 16 Del C. §1104.
o Cannot furnish evidence to affirmatively establish that the license holder has the ability to comply with minimum standards of medical care and/or nursing care and financial capability.
• Operated any nursing facility or related facility without a license or under a revoked or suspended license in any jurisdiction.
• Knowingly, or with reason to know, made false statement of a material fact in an application for license or renewal.
• Refused to allow representatives or agents of the Department to inspect a portion of the premises of the facility or any patient related documents, records and files required to be maintained by the facility.
• Interfered with or attempted to impede in any way the work of any authorized representative of the State or the lawful enforcement provision of 16 Del C. Chapter 11.
• Has a history of noncompliance with federal or state law or regulations in providing long-term care.
• Violations of 16 Del C. Chapter 11 or any of its regulations, which poses a serious threat to health, and safety of a resident or residents.
Facility Licensing Statistics
Below are charts showing licensing information:
ASSISTED LIVING FACILITIES
| |# of Initial License |# of Licenses |# of License |# of Licenses |# of Licenses |
| |Applications |Issued |Applications |Suspended |Revoked |
| |& Renewals Received | |Rejected | | |
|Calendar | 28 | 28 | 0 | 0 | 0 |
|Year 2003 | | | | | |
|Calendar | 27 | 27 | 0 | 0 | 0 |
|Year 2002 | | | | | |
GROUP HOMES for PERSONS with AIDS
| |# of Initial License|# of |# of License |# of Licenses |# of Licenses Revoked |
| |Applications |Licenses |Applications Rejected |Suspended | |
| |& Renewals Received |Issued | | | |
|Calendar | 1 | 1 | 0 | 0 | 0 |
|Year 2003 | | | | | |
|Calendar | 1 | 1 | 0 | 0 | 0 |
|Year 2002 | | | | | |
GROUP HOMES for PERSONS with MENTAL ILLNESS
| |# of Initial License |# of Licenses |# of License |# of Licenses |# of Licenses Revoked|
| |Applications |Issued |Applications |Suspended | |
| |& Renewals Received | |Rejected | | |
|Calendar Year | 14 | 14 | 0 | 0 | 0 |
|2003 | | | | | |
|Calendar Year | 14 | 14 | 0 | 0 | 0 |
|2002 | | | | | |
NEIGHBORHOOD HOMES
| |# of Initial License |# of Licenses |# of License |# of Licenses |# of Licenses |
| |Applications |Issued |Applications Rejected |Suspended |Revoked |
| |& Renewals Received | | | | |
|Calendar | 96 | 96 | 0 | 0 | 0 |
|Year 2003 | | | | | |
|Calendar | 92 | 92 | 0 | 0 | 0 |
|Year 2002 | | | | | |
SKILLED & INTERMEDIATE CARE NURSING HOMES
| |# of Initial |# of Licenses |# of License Applications |# of Licenses |# of Licenses |
| |License |Issued |Rejected |Suspended |Revoked |
| |Applications | | | | |
| |& Renewals | | | | |
| |Received | | | | |
|Calendar | 47 | 47 | 0 | 0 | 0 |
|Year 2003 | | | | | |
|Calendar | 49 | 49 | 0 | 0 | 0 |
|Year 2002 | | | | | |
REST RESIDENTIAL HOMES
| |# of Initial License|# of Licenses |# of License |# of Licenses |# of Licenses |
| |Applications |Issued |Applications Rejected |Suspended |Revoked |
| |& Renewals Received | | | | |
|Calendar Year 2003 | 4 | 4 | 0 | 0 | 0 |
|Calendar Year 2002 | 4 | 4 | 0 | 0 | 0 |
REST FAMILY CARE HOMES
| |# of Initial License |# of Licenses |# of License Applications|# of Licenses |# of Licenses |
| |Applications |Issued | |Suspended |Revoked |
| |& Renewals Received | |Rejected | | |
|Calendar Year 2003| 127 | 127 | 0 | 0 | 1 |
|Calendar Year 2002| 131 | 131 | 0 | 0 | 0 |
Criminal Background Checks[50]
The criminal background check process is mandated by the 16 Del.C. §§1141 & 1145. Statute requires that all applicants hired after March 31, 1999 and all current employees who seek promotion in facilities and temporary agencies providing services in long-term care facilities, must undergo a criminal history background check before they may be hired. Such applicants may be employed on a conditional basis once the state and federal criminal histories have been requested, but before they have been received.
The criminal history background check requires that the applicant be fingerprinted by the Delaware State Police, who then forwards the prints to the Federal Bureau of Investigation. (The Division of Long Term Care Residents Protection bears the cost of fingerprinting for facilities. Temporary agencies must bear the cost themselves.) In the case of an applicant who has been the subject of a qualifying background check, under regulations established within the past five years, they need not be fingerprinted again. Division investigators then review any criminal history to date. An employer may require a new fingerprint-based background check more frequently, but this would be at the employer’s expense.
CRIMINAL BACKGROUND CHECKS 2002-2004
|Year |New Applicants |2nd Employer Requests |Total |
|2002 |4,978 |5,862 |10,840 |
|2003 |4,444 |5,654 |10.098 |
|2004 |4,070 |6,084 |10,154 |
Criminal Background Check Audits
During annual unannounced Licensing surveys, the environmentalist randomly selects employee files. These are then checked against the criminal background check database by the Investigative Administrator to determine compliance with the criminal background check statute. Occasionally, facilities are asked to provide a compete list of employees & these are also checked.
Investigators routinely check for compliance on employees they encounter during the course of their investigations.
The Division also audits facilities if it receives information from other sources such as incident reports that indicates the facility is not in compliance with criminal background check requirements.[51]
In calendar year 2004, the Division performed 40 criminal background check audits of 639 files; in calendar year the 2003 the Division performed 23 audits of 273 files, and in calendar year 2002 the Division performed 59 audits of 718 files.[52]
Mandatory Drug Testing[53]
The requirement for mandatory drug testing of applicants is set by 16 Del. C. §§1142 and 1146. While it is a separate process from the criminal background check, in practice it proceeds in tandem with it. That is, when an applicant is required to undergo the criminal background check, that person will also be required to undergo the mandatory drug testing.
The drug testing process is carried out by the employer, usually by contracting with a private laboratory. Payment for drug testing is the responsibility of the employer or applicant. As required by the criminal background check statute, the applicant must give written permission for the testing. After giving permission, the applicant is tested for illegal drugs. Again, as required by the criminal background check statute, employers are required to conduct the drug testing prior to hire. When exigent circumstances exist, the employer may conditionally hire an applicant who has undergone drug testing, but for whom the results have not yet been received. The employer must ensure that no applicant remains employed in conditional status for more than two months without receiving the results of the mandatory drug testing. If the results have not been received by that time, the applicant must be terminated from employment (or in the case of a promotion, either returned to the previous position or terminated).
The failure of an employer to comply with the criminal background check requirements or pre-employment drug testing results in a civil penalty of not less than $1,000 or more than $5,000 for each violation.
Adult Abuse Registry[54]
History
The Adult Abuse Registry (AAR) is a listing of the names and demographic information of persons whom the Division has found to have committed abuse, neglect, financial misappropriation, etc. against a victim as defined by the statute. The first entry made by the Division was July 9, 1999. In the past, this meant residents of long-term care facilities, neighborhood group homes, and similar facilities. Recent legislation provides for placement onto the AAR of the names of persons who have committed abuse, neglect, etc. against infirm adults living in the community as well as residents of long term care facilities.
The AAR was established by 11 Del. C. §8564. It provides for entering onto the registry the name of any person found by DHSS to have committed adult abuse, neglect, mistreatment or financial exploitation. It also requires a pre-employment check of the AAR for any person having direct access to persons receiving care. According to the law, no health care service provider, nursing facility, or similar facility or child care facility shall hire anyone who will have direct access to persons receiving care without requesting and receiving an AAR check from the Division. Private individuals hiring a self-employed health caregiver may also request an AAR check. In either case, the applicant must authorize the check. The cost of the check is born by the State. Failure to request an AAR check can result in a civil penalty of not less than $1,000 or more than $5,000 for each violation. In exigent circumstances, employers may hire an applicant after requesting but before receiving the results of the check.
AAR records are not public records and are not subject to disclosure under FOIA, 29 Del. C. Ch. 100.
Administration
The AAR check provides notice to the employer that the applicant has been placed on the registry for a substantiated act of abuse or neglect. It is not a ban on employment however. There is no requirement that facilities terminate employees placed on the AAR. Employers may also choose to hire persons whose names are listed on the AAR. The AAR works to guarantee that employers have adequate notice of the applicant’s history before they make a hiring decision. Most employers will not hire an applicant currently listed on the AAR. For incumbent employees, the facility has usually already made a personnel decision on accused employees based on their in-house investigation before the Division decides on AAR placement.
Adult Abuse Registry Check Process
Employers who wish to conduct an AAR check contact the Division, usually via fax. The Division requires the name and social security number of the person being checked, as well as a copy of the signed authorization form for the release of AAR information. The Division then informs the employer if the applicant is or is not listed on the registry. If there is a listing, the Division provides the employer with a summary statement of the incident for which placement was made as well as the dates of the initial placement and its expiration. When a new placement is made, however, the Division will notify any employer who has requested an AAR check on that individual within the previous twelve months.
AAR SUMMARY OF INQUIRIES
|2004 |2003 |2002 |
|20,631 |19,814 |21,354 |
Placement on the Adult Abuse Registry
At the completion of the Division’s investigation, if abuse, neglect, mistreatment, etc. is substantiated, the investigator can recommend the person be placed onto the AAR. The investigative supervisor who reviews the case for closure also reviews the AAR recommendation. The Investigative Section Chief then reviews the recommendation. If approved, the Investigative Section Chief then determines the duration of the term on the AAR, considering the severity of the offense, and the work or offense history of the accused. AAR placements range from one year to a lifetime. The Division sends written notice of the AAR placement to the accused by certified and regular mail. Copies of the letter are also sent to the employer of the accused as well as to the facility where the incident occurred. At this time, the charge will be carried on the AAR as Substantiated Pending Appeal.
The accused has 30 days in which to appeal the AAR placement by requesting a fair hearing. If no hearing is requested within 30 days, the AAR finding will be Substantiated. If the accused requests a hearing, the status of the charge remains Substantiated Pending Appeal until the hearing decision is rendered.
The hearing is held before a hearing officer – an attorney who the State employs as an independent contractor. A Deputy Attorney General, who fills the role of the prosecutor, represents the Division. The accused may or may not be represented by an attorney. Each side may subpoena documents and witnesses to support their case. The Division facilitates this process for both sides. The hearing officer may uphold, deny, or modify (e.g. reduce the term) the placement by the Division. Appellants who prevail in their appeal are removed from the AAR. Accused persons who do not prevail in their appeal may appeal the finding to Superior Court.
Removal From the Adult Abuse Registry
Persons who have completed their terms on the AAR are removed from the AAR. In addition, persons who have been placed on the AAR may petition for early removal. They must demonstrate that a minimum of twelve months have passed since their placement, and that they have taken affirmative steps to correct the behavior that led to their placement, such as anger management counseling, sensitivity training, etc. They must also demonstrate improved behavior through positive work references. The Division evaluates the information presented and responds in writing within 60 days. Persons to whom the Division denies early removal may request an appeal hearing. Persons denied may also reapply after six months, or when they can produce proof of the affirmative steps required.
Removal from the AAR for any reason results in written notification to that person of the removal.
AAR Entries as of August 17, 2005
|Persons on the AAR |240 |
|AAR Entries (charges) |278 |
|Substantiated Pending Appeal | 28 |
|Substantiated |250 |
Federal Certified Nursing Assistant/Nurses Aide Registry
The Division is also responsible for entering flags onto the federal Certified Nursing Assistant/Nurse Aide Registry against the names of those CNA's who have been found by the Division to have committed abuse, neglect, mistreatment, etc. as defined by federal regulations. In such cases, the affected CNA will be charged under both the State statute, for the Adult Abuse Registry, and under the federal regulation. Should the CNA request a fair hearing, that hearing will then determine the substantiations for both placements.
In comparison, in 2001, the Child Abuse Substantiation Work Group was established. In 2001, through the efforts of the Child Abuse Substantiation Work Group, the Child Abuse Registry was renamed the “Child Protection Registry” to better reflect the Registry’s purpose.[55] Perhaps the Adult Abuse Registry could be renamed “The Adult Protection Registry”.
Service Letters
Service letters are a method of examining an applicant’s work history and evaluating suitability for employment in a long-term care setting. 19 Del. C. §708 requires a potential employer to obtain a service letter from the applicant’s current or most recent employer. The information to be supplied includes dates of employ; whether the employee provided care or services to client/patients/residents/children, reason for separation and information on the employee’s performance. This information is to be used by the potential employer to evaluate suitability for employ in their establishment.
Per statute, the service letter program is managed by the Department of Labor (DOL). [56] If an employer fails to adhere to the requirement, then the DOL could refer the case to the Attorney General’s office and the penalties could be fines of $1,000.00 - $5,000.00.[57] DOL received 68 complaints of employers who failed to comply with the service letter statute. Warning letters were issued to these employers.[58]
The DOL indicated that it does not maintain any records regarding the number of service letters that are mailed out of its office, nor is there any type of program on the DOL’s website that records when an individual downloads the service letter.
Certified Nursing Assistants
Examinations
The only examination administered by the Division is for the certification of Certified Nursing Assistants (CNAs).[59] The examination is usually given in written form. However, applicants may request an oral form of the test if they have difficulty reading English. There is also a manual skills portion of the exam where the applicants must demonstrate 5 randomly selected nurse aide skills.
Several national testing services have developed and will administer examinations. The Division contracts with a national testing service, D & S Diversified Technologies. Delaware’s testing service administers the examination in all three counties at both fixed and flexible test sites as often as needed.
The testing service scores the examination and the usual time lapse between administration of the examination and date scored is 4 days. The same day the examination is scored it is entered into the CNA registry and mailed to the applicant. If an applicant takes a computerized version of the test, the test is scored on the same day it is taken and results are entered into the data base immediately.
Any applicant can review or contest a written question or a portion of their skills exam.
In 2003, 786 applicants took the examination and 662 passed. In 2004, 785 applicants took the examination and 680 passed.
Reciprocity
Below are the reciprocity requirements for applicants initially licensed in a state other than Delaware.[60]
• The CNA must have a current certificate from the jurisdiction where he or she currently practices, except that candidates from the state of Maryland must hold a current Geriatric Nursing Assistant Certificate.
• The CNA must have 3 months full-time experience as a CNA performing nursing related services for pay under the supervision of a licensed nurse or physician, or have completed a training and competency evaluation program with the number of hours as least equal to that required by the State of Delaware.
• The CNA must be in good standing in the jurisdiction where he/she is currently certified.
Delaware does not have any written reciprocal agreements with any other states. An applicant from any state is eligible for reciprocity if he/she meets the criteria described above.
Certified Nursing Assistants’ Registry[61]
The purpose of the Certified Nursing Assistants’ (CNA) Registry is to ensure that CNAs have the education, practical knowledge and skills needed to care for residents of facilities participating in the Medicare and Medicaid programs.
The Omnibus Budget Reconciliation Act of 1987 (OBRA ’87) made substantive changes to the Social Security Act relating to nursing assistants training and competency evaluation programs. Prior to the enactment of OBRA ’87, there were no federal requirements regarding training and competency evaluation of nursing assistants.
CNAs listed on the CNA Registry (“Registry”) have satisfactorily completed an approved competency evaluation program which content includes both theory and performance of personal care skills. CNAs may be employed by Medicare and Medicaid certified facilities as well as other health care settings because they have met minimum competency requirements.
Delaware’s Registry is available via the internet 24 hours a day, seven days a week. The Registry also contains findings of abuse, neglect, or misappropriation of property by an individual nurse aide in violation of federal regulations.
The Registry contains at least the following information on each individual who has successfully completed a nurses aide training and competency evaluation program:
a. The individual’s full name;
b. Information necessary to identify the individual;
c. The date the individual became eligible for placement in the registry through successful completion of the competency evaluation:
d. The following information on any finding by the state survey agency of abuse, neglect or misappropriation of property by the individual:
Documentation of the State’s investigation, including the nature of the allegation and the evidence that led the State to conclude that the allegation was valid;
a. The date of the hearing, if the individual chose to have one, and its outcome; and
b. A statement by the individual disputing the allegation, if he or she chooses to make one; and,
c. The registry is flagged within 10 working days of the finding and remains permanently, unless the finding was made in error, the individual was found not guilty in a court of law, or the State is notified of the individual’s death.
To remain on the Registry a CNA must have a work history within the past 24 months. If the individual’s Registry entry includes documented findings of abuse, neglect, or misappropriation of property, the flagged entry remains regardless of work history.
In cases of a finding of neglect, the Code of Federal Regulation provides that nursing assistants may petition the state to have the flag removed from his/her name on the Registry upon a determination by the State that:
a. The employment and personal history of the certified nursing assistant does not reflect a pattern of abusive behavior or neglect; and
b. The neglect involved in the original finding was a singular occurrence.
In these cases the petitioner must wait at least one year after the date on which the name of the petitioner was flagged on the Registry.
Staffing Levels[62]
While the federal regulations list specific positions that must be filled, they do not mandate specific staff/resident ratios. Therefore, the Division determines compliance using standards established in 16 Del. C. §§1161 & 1162. Those standards prescribe that the minimum staffing level for nursing services direct caregivers is 3.28 hours of direct care per resident per day. Additionally, those standards include staffing by shift as set out in the tables below:
PHASE I
The time period for review and determining compliance with the below staffing ratios is one (1) week.
|Shift | RN/LPN | CNA |
|Day |1:15 |1:8 |
|Evening |1:23 |1:10 |
|Night |1:40 |1:20 |
To the extent a nursing facility meets the minimum nurse staff levels of 3.28 hours of direct care and compliance with the above referenced shift ratios and requires more than 3.28 hours of direct care, the Division may permit a nursing facility to alter the shift ratios above, provided, however, that the alternative shift ratios as determined by the Division shall not, on any shift or at any time, fall below the following alternative shift ratios:
PHASE II
The time period for review and determining compliance with the below staffing ratios is one (1) day.
|Shift | RN/LPN | CNA |
|Day |1:20 |1:9 |
|Evening |1:25 |1:10 |
|Night |1:40 |1:22 |
Initiatives Aimed at Increasing Nursing Home Staffing Levels and Improving Nurse Retention and Quality of Care
The Division participates in the Department’s Nursing Recruitment and Retention Task Force. However, the continuing nursing shortage remains a significant challenge for this Division, for other divisions within the Department that hire nurses, and for all long term care providers.
Numerous successful training programs for certified nursing assistants have greatly eased earlier problems in staffing with sufficient CNAs to provide care in long term care facilities. The Division contracts with a testing company that provides efficient, customer-friendly professional services, in moving CNAs through the testing process as soon as they complete their training.
The Division works on an ongoing basis with Quality Insights of Delaware - the quality improvement organization for Delaware that works under contract to the Centers for Medicare and Medicaid Services. Quality Insights focuses on specific projects such as pressure ulcer reduction and culture change. The Division participates in and, in some cases, sponsors programs with Quality Insights. The Division has also worked with a group of providers who are focusing on how best to ensure accurate communication and appropriate documentation of residents’ needs and risks, both within facilities, and upon transfers between hospitals and skilled nursing homes.
The Division sponsors four-day training sessions for new directors of nursing on a continuing basis as promotions and turnover in facilities warrant such training. The Division also tracked as a performance measure improvement in incidences of unplanned weight loss among residents of nursing homes.
Funding[63]
The Division considers the following factors when determining budgetary needs: analysis of previous years’ categorized expenditures, cost allocation plan to split expenditures between General Fund (GF) and federal funds, anticipated new program responsibilities, possible cost increase/decrease, prioritized work load for federal surveys/certification and guidelines from CMS.
Appropriated Funds by source, FY 2004 – 2006
|Fiscal Year |Sources of Funds |Amount |
|2006 Budgeted |GF |$3,058.8 |
| |Federal Funds |* |
| |Total for 06 |$3,058.8 |
| | | |
|2005 Actual |GF |$2,434.6 |
| |Federal Funds |$1,011.2 |
| |Total for 05 |$3,445.8 |
| | | |
|2004 Actual |GF |$2,182.5 |
| |Federal Funds |$994.0 |
| |Total for 04 |$3,176.5 |
| | | |
* Federal funds for FY 06 are not budgeted yet
FY 06 Expenditures by Line Item (Budgeted)
|Line Item |Source(s) |Amount of Expenditure |
|Salary |GF |$2,443.1 |
| |Federal Funds |* |
|Travel |GF |$12.3 |
| |Federal Funds |* |
|Contractual |GF |$559.4 |
| |Federal Funds |* |
|Energy |GF |$7.9 |
| |Federal Funds |* |
|Supply |GF |$15.8 |
| |Federal Funds |* |
|Capital |GF |$20.3 |
| |Federal Funds |* |
| | |Total $3,058.8 |
* Federal funds for FY 06 are not budgeted yet
FY 05 Expenditures by Line Item (Actual)
|Line Item |Source(s) |Amount of Expenditure |
|Salary |GF |$2,053.6 |
| |Federal Funds |$745.6 |
|Travel |GF |$1.4 |
| |Federal Funds |$6.8 |
|Contractual |GF |$347.2 |
| |Federal Funds |$245.8 |
|Energy |GF |$6.9 |
| |Federal Funds |$4.3 |
|Supply |GF |$13.8 |
| |Federal Funds |$6.4 |
|Capital |GF |$11.7 |
| |Federal Funds |$2.3 |
| | |Total $3,445.8 |
FY 04 Expenditures by Line Item (Actual)
|Line Item |Source(s) |Amount of Expenditure |
|Salary |GF |$1,866.9 |
| |Federal Funds |$718.0 |
|Travel |GF |$1.3 |
| |Federal Funds |$6.2 |
|Contractual |GF |$296.3 |
| |Federal Funds |$260.6 |
|Energy |GF |$6.1 |
| |Federal Funds |$4.1 |
|Supply |GF |$11.9 |
| |Federal Funds |$5.1 |
|Capital |GF | |
| |Federal Funds | |
| | |Total $3176.5 |
With regard to the federal funding process, the Division receives Medicare and Medicaid budget from CMS for federal survey and certification work in accordance with the CMS approval and allocation policy. The Division also receives Medicaid funding for a portion of eligible expenditures pertaining to the investigative and executive management sections.
-----------------------
[1] Joint Sunset Review Questionnaire (JSR Questionnaire), pg. 6
[2] JSR Questionnaire, pg. 6
[3] Senate Bill 135 w/SA 5 and Senate Bill 368
[4] Senate Bill 13
[5] Senate Bill 5
[6] JSR Questionnaire, pg. 7
[7] JSR Questionnaire, pg. 7
[8] JSR Questionnaire, pg. 7
[9] JSR Questionnaire, pg. 8
[10] JSR Questionnaire, pgs. 8-9
[11] JSR Questionnaire, pg. 4
[12] JSR Questionnaire, pg. 9
[13] JSR Questionnaire, pg. 9
[14] JSR Questionnaire, pg. 9
[15] JSR Questionnaire, pg. 9
[16] JSR Questionnaire, pgs. 9 -10
[17] JSR Questionnaire, pg. 13
[18] JSR Questionnaire, pg. 13
[19] JSR Questionnaire, pgs. 13-14
[20] JSR More Questions, 12-8-05, pgs. 4-7
[21] JSR Questionnaire, pg. 12
[22] JSR Questionnaire, pg. 13
[23] JSR Questionnaire, pg. 12
[24] JSR Questionnaire, pg. 14
[25] JSR Follow-Up Questionnaire, Sept. 12, 2005, pg. 4
[26] JSR Follow-Up Questionnaire, Sept. 12, 2005, pg. 4
[27] JSR Questionnaire, pg. 16 & 17
[28] JSR Follow-Up Questionnaire, pgs. 2 & 3
[29] JSR Questionnaire, pg. 10
[30] JSR Questionnaire, pg. 11
[31] JSR More Questions 12-8-05, pg. 4
[32] JSR Questionnaire, pg. 11
[33] JSR More Questions 12-8-05, pg. 4
[34] JSR More Questions 12-8-05, pg. 4
[35] JSR Questionnaire, pg. 11
[36] JSR Questionnaire, pg. 12
[37] JSR Supplemental Questionnaire, Long Term Care Ombudsman’s Office in the Division of Services for Aging and Adults with Physical Disabilities (Supplemental Questionnaire) pgs. 5 & 6
[38] Older Americans Act Amendments of 1975 (PL 94 – 135)
[39] JSR Supplemental Questionnaire, pgs. 2- 6
[40] JSR Questions #2, pgs. 1-2
[41] JSR Questionnaire, pgs. 20-23
[42] 12/13/05 email – Description of Investigator Positions, Tom Murray
[43] JSR Questionnaire, pgs. 34-37
[44] JSR Follow Up Questionnaire, Sept. 12, 2005, pg. 6
[45] Chapter 5, State Operations Manual
[46] JSR Follow-Up Questionnaire, Sept. 7, 2005, pgs. 2-3
[47] JSR Questionnaire, pgs. 28-31
[48] JSR More Questions, 12-8-05, pgs. 2-3
[49] JSR Follow Up Questionnaire, Sept. 12, 2005, pg. 5
[50] JSR Questionnaire, pg. 24
[51] 12/16/05 email – CBC checks, Tom Murray
[52] JSR Questionnaire, pg. 24
[53] JSR Questionnaire, pg. 25
[54] JSR Questionnaire, pg. 25-28
[55] 73 Del. Laws, c. 412
[56] JSR Follow Up Questions, Jan. 3, 2006, pg. 5
[57] 1/10/06 Email response from Patricia Shufelt, Department of Labor
[58] 1/18/06 Email response from Patricia Shufelt, Department of Labor
[59] JSR Questionnaire, pgs. 31 & 32
[60] JSR Questionnaire, pg. 32
[61] JSR Questionnaire, pg. 32 & 33
[62] JSR Questionnaire, pgs. 38-40
[63] JSR Questionnaire, pgs. 40-42
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