(a)Definitions. —As used in this section:
(1) “Adult abuse” means:
a. Physical abuse by unnecessarily inflicting pain or injury to an adult who is impaired. This includes, but is not limited to, hitting, kicking, pinching, slapping, pulling hair or any sexual molestation. When any act constituting physical abuse has been proven, the infliction of pain shall be assumed.
b. Emotional abuse which includes, but is not limited to, ridiculing or demeaning an adult who is impaired, making derogatory remarks to an adult who is impaired or cursing directed towards an adult who is impaired, or threatening to inflict physical or emotional harm on an adult who is impaired.
(2) “Adult who is impaired” means any person 18 years of age or older who, because of physical or mental disability, is substantially impaired in the ability to provide adequately for the person’s own care and custody or any person who is a patient or resident of a nursing facility and similar facility.
(3) “Child care facility” means any child care facility that is required to be licensed by the Department of Education, Office of Child Care Licensing.
(4) “Direct access” means the opportunity to have personal contact with persons receiving care during the course of one’s assigned duties.
(5) “Financial exploitation” means the illegal or improper use or abuse by another person, whether for profit or other advantage, of the resources or financial rights of an adult who is impaired.
(6) “Health-care service provider” means any person or entity that provides services in a custodial or residential setting where health, nutritional or personal care is provided for persons receiving care, including, but not limited to, hospitals, home health-care agencies, adult care facilities, temporary employment agencies and contractors that place employees or otherwise provide services in custodial or residential settings for persons receiving care, and hospice agencies. “Health-care services provider” does not include any private individual who is seeking to hire a self-employed health caregiver in a private home.
(7) “Long-term care facility” means any facility required to be licensed under Chapter 11 of Title 16; the Delaware Psychiatric Center; and hospitals certified by the Department of Health and Social Services under § 5001 of Title 16.
(8) “Mistreatment” includes the inappropriate use of medications, isolation, or physical or chemical restraints on or of an adult who is impaired.
(9) “Neglect” means:
a. Lack of attention to physical needs of the adult who is impaired including, but not limited to, toileting, bathing, meals and safety;
b. Failure to report the health problems or changes in health problems or changes in health condition of an adult who is impaired to an immediate supervisor or nurse;
c. Failure to carry out a prescribed treatment plan for an adult who is impaired; or
d. A knowing failure to provide adequate staffing which results in a medical emergency to any adult who is impaired where there has been documented history of at least 2 prior cited instances of such inadequate staffing levels in violation of staffing levels required by statute or regulations promulgated by the Department of Health and Social Services, all so as to evidence a wilful pattern of such neglect.
(10) “Person receiving care” means a person who, because of that person’s physical or mental condition, requires a level of care and services suitable to that person’s needs to contribute to that person’s health, comfort and welfare.
(11) “Person seeking employment” means any person applying for employment with or in a health-care service provider, nursing facility or similar facility or child care facility where the employment may afford direct access, or a person applying for licensure to operate a child care facility. It shall also include a self-employed health caregiver who has direct access in any private home.
(b) The name of any person found, after investigation by the Department of Health and Social Services, to have committed adult abuse, neglect, mistreatment or financial exploitation shall be entered on the Adult Abuse Registry; provided, however, that such person may request an administrative hearing pursuant to Department of Health and Social Services regulations before such entry becomes final. The hearing officer for the administrative hearing shall have the power to compel the attendance of witnesses and the production of evidence. The finding by the hearing officer shall constitute the final decision of the Department of Health and Social Services and shall be appealable, on the record, by either party to Superior Court.
(c) No health-care service provider, nursing home or similar facility, or child care facility shall hire any person seeking employment without first checking the Adult Abuse Registry. For purposes of this subsection, the Adult Abuse Registry shall be the central registry of information maintained pursuant to Chapter 79 of Title 29 relating to the individuals against whom a charge of patient abuse, neglect, mistreatment or financial exploitation has been substantiated.
(d) Notwithstanding the provisions of this section, when exigent circumstances exist which require an employer subject to this section to fill a position in order to maintain the required or desired level of service, the employer may hire a person seeking employment on a conditional basis after the employer has requested an Adult Abuse Registry check. Any person hired pursuant to this subsection shall be informed in writing, and shall acknowledge in writing, that the person’s employment is conditional and contingent upon receipt of the Adult Abuse Registry check.
(e) Records relating to the Adult Abuse Registry are not public records and are not subject to disclosure under Chapter 100 of Title 29. Regulations promulgated by the Department of Health and Social Services may authorize online access to the names of those actively listed on the Adult Abuse Registry and whether the listing is due to a substantiated finding of abuse, neglect, mistreatment or financial exploitation.
(f) The Delaware Department of Health and Social Services shall promulgate regulations to implement this section. Such regulations may include regulations for Adult Abuse Registry checks of contractors providing services in a custodial or residential setting for persons receiving care, regulations for the disclosure of Adult Abuse Registry records, regulations to establish hearing procedures and length of time on the Adult Abuse Registry, and regulations for the removal of a person from the Adult Abuse Registry before the expiration of the person’s registration period where the Delaware Department of Health and Social Services deems that the person no longer poses a threat to any person receiving care.
(g) Costs associated with providing an Adult Abuse Registry check shall be borne by the State.
(h) Any employer who is required to request and receive an Adult Abuse Registry check and fails to do so shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. The Justice of the Peace Courts shall have jurisdiction over this offense.