Legislative News

DELAWARE’S 152ND GENERAL ASSEMBLY ENDED ON JUNE 30, 2024

Summary of Action Impacting LTC as of June 30, 2024.

This report summarizes actions the legislature took in 2024 that directly or in impact the state’s long-term care providers. DHCFA worked diligently to ensure that legislators heard the industry’s collective voice, to help senators and representatives understand how their actions could help or hinder the care long-term care professionals give to the state’s most vulnerable citizens.

DHCFA would like to recognize the hard work of the DHCFA Board of Directors in this effort, as well as every provider that hosted legislator visits and every individual employee and support who reached out to their legislators. Your participation was invaluable.

If you have any questions or comments about this summary, please contact DHCFA Executive Director Cheryl Heiks at cheiks@dhcfa.org or 302-235-6895.

 

ACTS PASSED BY THE GENERAL ASSEMBLY, NOW READY FOR THE GOVERNOR’S ACTION

The following actions become law with the Governor’s signature unless otherwise noted.

BUDGET

The SB325 FY25 Operating Budget Bill was introduced and passed by the Senate and House on 6.20.24. Epilogue language contains the following LTC provisions, thanks to DHCFA and the Board’s ongoing advocacy.

WHAT THIS DOES:

Section 192 postponing the staffing ratios until Jan 1, 2025 on page 181 

                Section 192. Long-term care facilities must continue to provide 3.28 hours of direct care per resident per day. However, the staffing ratios required in 16 Del. C. § 1162 are hereby suspended until January 1, 2025. DHCQ will start collecting data on shift rations to help measure where staffing challenges exist.

Section 201 LTC funding on page 183. This epilogue adds an additional $7 million funding for nursing homes on top of the $5 million already allocated, bringing the total to $12 million.

 Section 201. Section 1 of this Act provides an appropriation to the Department of Health and Social Services, Division of Medicaid and Medical Assistance, Other Items: Medicaid (35-02-01). Of this amount, the Fiscal Year 2024 budget increased the appropriation by $5 million to support enhanced rates for private, non-pediatric skilled nursing facilities. For Fiscal Year 2025, an additional $7 millio is appropriated to further enhance these rates, beginning January 2025, based on recommendations from the Department of Health and Social Services, which shall include the 5-year actuarial impact to the Medicaid budget. Enhanced rates shall require the approval of the Director of the Office of Management and Budget and the Controller General.

SB327, the FY25 Grants-in-Aid Bill amends this language to request the federal matching funds reflecting $12 million annual support starting January 1, 2025, to ensure federal matching funds for this and annually thereafter.

Section 203 compensation report requirements, pages 183 & 184

                Section 203. All Delaware-licensed, long-term care facilities shall develop and submit a compensation report outlining base compensation levels for all direct care providers operating in their facilities for calendar years 2023 and 2024. The report shall be submitted to the Chief Clerk of the House of Representatives, the Secretary of the Senate, the Office of the Controller General, and the Office of Management and Budget no later than January 31, 2025. More information about the desired format for these reports will be forthcoming.

SB327, the FY25 Grants-in-Aid Bill was introduced and passed by the General Assembly 6.30.24.

WHAT THIS DOES: This Act provides funding for nonprofit organizations statewide. Nonprofit long-term care providers are eligible to apply. Three of our nonprofit member providers received grants. As noted, this bill also amends the Budget bill language to include federal matching funds for the $12 million Medicaid funding and mentions ongoing investment.

Grants-in-Aid Bill is the largest Grants-in-Aid bill in Delaware history at $98.5M. The majority of the increases are for senior centers, and first responders (fire companies, public service ambulances, paramedic operations). Individual nonprofit groups that applied received funding, some receiving increases. Several of Delaware’s nonprofit long-term care facilities applied and receive funds through this process every year.

Link for Grants-in-Aid application.   The dates on the website are for last year’s applications; the timing will be similar next year.

SS1SB13: The Hospital Bed Tax bill which is a logical source of funding for ongoing long term care Medicaid related needs. The sponsor, Senator Sarah McBride, supports LTC as a recipient of the funds received from this bill. Passed by General Assembly 6.30.24

HB475: The Bond and Capital Improvements bill. Passed by General Assembly 6.27.24.

WHAT THIS DOES: The Bond and Capital Bill approved over $1.1B in funds for FY25. Most of the investments are for state transportation initiatives, school construction, affordable housing, clean drinking water revolving fund, deferred maintenance projects for state buildings and offices, state park maintenance and improvements, and $26M for Troop 4 in Georgetown. The committee also considered $275M in one-time requests from nonprofits and municipal organizations for capital related projects and funded $40M – including several Delaware long-term care facilities.

This is the link and information on how to apply next year.

 

RESIDENT’S RIGHTS/RESIDENT CARE

SB152:  Cultural differences and preferences in Resident’s Rights. This was signed into law in Spring 2023, but enforcement began on June 27, 2024.  DHCFA send out the revised Resident’s Rights document in English, Spanish, Mandarin, and Haitian Creole to all providers on June 26. DHCQ originally sent them to providers on May 13.

WHAT THIS DOES: Requires that residents are aware of their rights in a language and format that is accessible to the resident. DHCQ supplied facilities with the revised Residents Rights notice in Spanish, Haitian Creole, Mandarin, and English, the most commonly used languages among long-term care residents, to assist with compliance. Facilities must retain signed copies of this document.

SB195: Extends DHSS’s responsibilities to promote DMOST utilization. Passed by General Assembly 6.30.24.

WHAT THIS DOES:  The DMOST form goes beyond the Advanced Health-Care Director form because it contains portable medical orders that respect the patient’s goals for CPR use and other medical interventions. Currently, DMOST is underutilized.  This act creates a DMOST program at DHSS, and gives DHSS the responsibility to promote DMOST via education for healthcare professionals, patients, and families. DHSS will continue to work with DHIN to maintain the electronic registry, and coordinate with the National POLST Collaborative.

Related:

SB309 w/SA1: Amends the Uniform Health-Care Decisions Act of 2023. Passed by General Assembly 6.30.23

WHAT THIS DOES: The bill removes some administrative barriers that made health care directive  creation difficult, adds provisions to guide an agent or surrogate making determination of incapacity, clarifies the duties of surrogates, modernizes default surrogate provisions to reflect a broader array of relationships and family structures, and provides additional options to address disagreements among surrogates who have equal authority, and clarifies the duties and powers of surrogates. This bill also modernizes the options  model form so it is easily understandable and accessible to diverse populations.

The bill modernizes the Act by providing an additional disqualification that disallows a potential surrogate from serving if the individual has a pending Protection From Abuse petition against the potential surrogate, the individual has a Protection From Abuse order against the potential surrogate, or the potential surrogate is the subject of a civil or criminal order prohibiting or limiting contact with the individual. Section 2 of this Act adds a new Chapter 25B to the Delaware Code. The bulk of the bill is a national effort; the last few pages of the bill include content from Delaware’s Behavioral Health Consortium and is specific to individuals with behavioral health and substance abuse issues.

 

HB437:  Modifies the Delaware Commission of Veterans’ Affairs employee requirements and authority. Passed by General Assembly 6.30.24.

WHAT THIS DOES:  These modifications will reduce the wait for interment in veterans’ cemeteries and provide claims support for veterans in accessing their earned benefits. The modifications will have a positive impact on veterans and veterans’ families.

 

ASSISTED LIVING/DEMENTIA AND MEMORY CARE SERVICES

SS2 for SB150: This mandatory training requirement for staff working in secured memory care units passed  the Senate and the House on 6.13.24.

This bill is significantly narrower than its original form due to years’ worth of DHCFA’s negotiations to decrease its impact. During the most recent meetings, DHCFA and DHCFA Board members continue to educate legislators on existing and implementation concerns. Though legislators initially crafted this bill without industry input, DHCFA, stakeholders, and legislators engaged in two long but cooperative meetings to attempt further compromise.

WHAT THIS DOES:  With this Act, all staff who provide direct to residents in an assisted living secured memory care unit must complete training in dementia care covering specific topics. These include:

    • Communication and interaction
    • Psychological, social and physical needs
    • Benefits of non-pharmacological approaches to treatment

Non-direct care staff training must include

    • Communication and interaction
    • Safety measures, including preventing and responding to elopement from the secure unit or the facility

Direct care staff must complete 4 hours of initial and 4 hours of annual training; non-direct care staff must complete 2 hours of initial and 2 hours of annual training, provided by the assisted living facility. Temporary staff must complete the same level of training that the temporary staffing agency must provide. Facilities must obtain proof of training from the temporary agency before the temporary staff can provide direct or non-direct care in a secured memory care unit.

The Act requires the Department of Health and Social Services to approve the dementia care training provided to staff, and has the discretion allow other dementia care training services to satisfy the requirements. Assisted living facilities must maintain records of each individual staff’s training for three years.

Within 180 days of the Act’s implementation, assisted living providers with secured memory care units must provide the initial required training to staff.  From there, new staff providing care in the secured memory unit must receive training within 60 days of hiring. Implementation begins when DHCQ provides details on the process of applying for training approval.

The Act allows for training transferability between assisted living providers and temporary staffing agencies. It does not, however, allow for transferability between skilled nursing facilities and assisted living providers.

Related:

SB319: Doctors who directly care for adults ages 25+ must complete continuing education in dementia care.  DHCFA supported this bill. Passed by General Assembly 6.25.24.

WHAT THIS DOES:  This bill required doctors in Delaware who have direct patient interactions with adults over age 25 to have 2 hours of dementia care training to renew licenses in 2027 and after.

HB223 w/HA2, HA3: Continuing education for nursing professional. Passed the General Assembly 6.30.24

WHAT THIS DOES:  Removes the requirement for nurses who work in adult gerontology to complete continuing education on diagnosis, treatment, and care of Alzheimer’s and other dementia patients. Other requirements around abuse and neglect are further defined. This is effective 1.1.25.

Related Concurrent Resolution:

HCR 69: Resolution Requests DHSS to submit a request for information on conducting a statewide needs assessment related to Alzheimer’s or other related dementias. Passed by General Assembly 6.29.23.

SS1 SB151:  The Dementia Care Disclosure bill, “Truth in Advertising” for dementia care services. Passed by General Assembly 6.13.24.

WHAT THIS DOES: Defines direct care, defines memory care services, defines secured memory care unit, defines service agreement and includes a mandatory disclosure of information related to dementia care services for assisted living facilities. Facilities cannot make any provisions that waive the resident’s right to sue or limit liability. DHSS has the authority to enforce the rules laid out in the Act and investigate non-compliance. If the DHSS investigation shows a pattern of noncompliance, the Department can turn this over to the Department of Justice.

The disclosure must contain along with a sample service agreement and complete fee schedule:

    • An extensive description of the facility’s philosophy and mission reflecting the needs of residents with dementias and how the mission is reflected in recruitment of direct care staff
    • The facility’s policy on the use of psychotropic medication
    • The facility’s memory care accreditation or certification and/or a list of other memory care services accreditations or certification, approved by DHSS, if applicable. These must include the date and the expiration dates and the name of the accrediting organization.
    • Pre-admission and admission process including intended population, levels of care provided, and the symptoms of dementias the facility can manage
    • Dementia care services and/or secured memory unit criteria for placement, admission, transfer, and discharge.
    • The process for determining types and frequency of direct care a dementia care resident receives as well as how the facility assesses different levels of care.
    • Frequency and type of nutrition and hydration for residents receiving dementia care services
    • A staffing plan, a description of staff dementia care training.
    • Information about the facility in terms of securing and monitoring residents in a secured memory care unit along with elopement response procedures.
    • A description of activities, the qualifications of the staff delivering activities, and the frequency of activities
    • How the facility addresses mental health, behavioral assessment, social functioning needs, and changes in condition for the resident receiving dementia care services.
    • The complaint response procedure as well as the process for establishing and updating service agreements.

Facilities must provide a copy of this disclosure to residents or their authorized representative within 90 days of this Act’s implementation, and within seven days of any change to the disclosure. The facility must receive and maintain a signed copy of the disclosure for 3 years after the resident no longer resides at the facility. DHSS must also receive this disclosure within the same time period indicated for the resident.

Related:

SCR205: Directs the Department of Public Health to develop statewide outreach campaign related to Alzheimer’s Disease or related dementia. Passed by General Assembly 6.27.34.

WHAT THIS DOES: Requires DPH to create a strategic plan for an outreach campaign that will include a trends assessment, potential messaging, costs, and delivery to educate the public. DPH must include various stakeholders including LTC, and must pursue a strategy for federal funding.

 

ASSISTED LIVING/GENERAL

HS2 for HB300: Accreditation for Assisted Living Facilities and Certification for Memory Care Services. DCHFA’s negotiations with sponsor made this voluntary.  Passed by General Assembly 6.27.24.

WHAT THIS DOES: The substitute bill makes assisted living accreditation voluntary, and that DHSS maintain a list of assisted living facilities that have attained accreditation. Voluntary proactive participation to accredit an organization shows positive investment in its quality improvement program.

HB439-HA1, HA2:  Adds “housing status” as a protected characteristic in housing and property transactions.
HA 2 Amendment defines “housing status” as an individual, family, or youth’s current overnight residence regardless of permanence or habitability. Passed by General Assembly 6.30.24.

WHAT THIS DOES: Those who sell, rent, or exchange property to individuals can no longer take current housing status into consideration. This may or may not impact assisted living facilities.

Relates to HB 440, prohibiting discrimination based on “housing status” as a basis for employment. Passed by General Assembly 6.30.24.

 

SURVEYS

SB216 w/SA1:  Doubling DMP Fines. Passed by General Assembly 6.25.24.

WHAT THIS DOES: This bill doubles CMP fines from $1,000 to $2,000 per violation and the maximum penalty from $10,000 to $20,000 for violations that pose a serious threat to residents. Each day of continuing violation constitutes a separate violation. CMP fines for violations that are not deemed serious threats to health and safety will be increased from $5,000 to $10,000 per violation.

SB 215 with SA1/SA2: This bill requires the state to perform inspections annually or as annually defined by federal regulations (within 15 months). Passed by General Assembly 6.30.24

 

END-OF-LIFE

HB140: The End-of-Life Options, or Death with Dignity, bill passed the House on 4.18.24. First the Seante defeated the bill, then passed it on a second vote 6.25.24.

WHAT THIS DOES: If this Act becomes law, adult terminally ill patients will be allowed to request and self-administer medication to end their life in a humane and dignified manner. The patient must have both the attending physician or attending advanced practice registered nurse (APRN) and a consulting physician or consulting APRN agree on the patient’s diagnosis and prognosis of less than six months to live and believe the individual has decision-making capacity, is making an informed decision, and is acting voluntarily. This act includes a series of procedural safeguards to ensure that the patient is making an informed decision and is of sound mind, that the patient alone may request the medication, and must pass two waiting periods before the medication may be prescribed.  The physician or APRN must present all end-of-life options including comfort care, palliative care, and pain control, and must offer the patient the opportunity to rescind the decision. If the physician or APRN are concerned about the patient’s ability to make an informed decision, the patient must have a psychiatric or psychological evaluation to determine that ability. Health care institutions and provider do have the right to refuse to prescribe or dispense the necessary medications, however, a provider or insurer may not alter health care benefits available or require a request or coerce a request for medication to end like as a condition of receiving care. The Act provides immunity from charges of elder abuse, suicide, assisted-suicide, homicide, or euthanasia to anyone acting in good faith and the accepted health care standards under this Act. Anyone acting outside these standards does not have immunity.

The Act also provides a series of requirements for the Department of Health and Human Services to develop rules and regulations to collect data regarding compliance, view samples of records, and complete an annual statistical report.

 

ABUSE/NEGLECT/LIABILITY

HB393: Makes modifications to Adult Protective Services statutes. Passed by General Assembly 6.27.24.

WHAT THIS DOES:  Specifically establishes that health-care professionals have a duty to file a report with DHSS when the professional has reasonable cause to believe that an adult who is impaired or incapacitated needs protective services; clarifies that privilege does not relieve an individual from the duty to report.

HB298 w/HA1: Creates the Vulnerable Adult Populations Commission to improve the response to and reduce the incidents of vulnerable adult abuse, neglect or exploitation. Passed by General Assembly 6.30.94

WHAT THIS DOES: Among the Commission’s responsibilities is recommending standards to state agencies and departments regarding programs and services that serve perpetrators or victims of vulnerable adult abuse, neglect, or exploitation. This could impact long-term care providers’ response to abuse or suspected abuse via DHSS/DHCQ guidance.

 

WORKFORCE/HUMAN RESOURCES

HB204 w/HA1+SA1: Adopts regulations related to the operations of Temporary Staffing Agencies. Passed by the General Assembly 6.26.24.

WHAT THIS DOES: This Act requires temporary staffing agencies that service long-term care facilities to register annual with DHCQ, validate qualifications of the staff provided, maintain records of the staff’s credentials, job records, and required immunizations, provide those records, on request, to the DHSS and the facility where the staff is placed.

HB432 w/HA1: Creates partnerships with out-of-state medical schools as an alternative to creating a state-sponsored medical school. Passed by General Assembly 6.30.24.

Related:

HCR160: This resolution urges the establishment of a medical school in Delaware. Passed by General Assembly 6.30.24

WHAT THIS DOES: This resolution aims to address the state’s physician shortage, specifically highlighting the growing aging population. Educating physicians in the state would help keep them practicing in the state. It establishes a steering group comprised of stakeholders, government officials, and representatives from higher education to guide and plan the medical school.

HB 433: Amends unemployment assessment rates by revising the experience rating methodology. Passed by General Assembly 6.30.24.              

WHAT THIS DOES:  This bill makes the wage assessment ratio more responsive to the changes in the economy over time, combining a benefit ratio assessment, an employer size add-on, and an employer-industry add on. This bill also reduces new employer unemployment assessment rates and phases in a permanent taxable wage base over three years- $12,500 for calendar year 2025, $14,500 for calendar year 2026, and $16,500 for calendar year 2027 and thereafter. The new methodology would be in effect beginning calendar year 2027. Until the effective date of that new tax rate structure, this Act would also provide temporary relief to employers who pay unemployment tax assessments in calendar year 2025 and 2026 by reducing new employer tax rates, simplifying tax rate schedules, reducing or holding constant overall employer tax rates, and reducing the maximum earned rate. 

 

OPERATIONS

SB51 with HA 1, HA2, HA4: Restricts use of single-serve polystyrene food containers and single-serve plastic coffee stirrers, cocktail picks, and sandwich picks. Passed and signed into law 8.23.23.  Long-term care facilities are not restricted from using the single-serve polystyrene foam food containers. This becomes effective July 1, 2025.

 

LOOKING AHEAD TO THE 153RD GENERAL ASSEMBLY

OPENING JANUARY 1, 2025

Summary of Bills for Further Advocacy

The following 152nd GA did not move forward to completion during the 2024 session. DHCFA will continue to advocate on these bills during the fall leading to, and during, the 2025 Legislative Session beginning in January.

 

ASSISTED LIVING/GENERAL

HB394: Any new assisted living facility projects will now be subject to the Delaware Health Resources Board requirements, including obtaining a certificate of need and go through a biennial study of utilization. Currently in the House Appropriations Committee.

WHAT THIS DOES: Any company or organization planning to build or create an assisted living facility will have to submit the project for DHRB approval. This includes an extensive project report to obtain the certificate of need and complete the biennial study.

 

ABUSE/NEGLECT/LIABILITY

SB127: Criminal liability for owners, directors who fail to take corrective action to protect patients from criminal activity. Adds different levels of criminal liability based on the specifics of a case for directors or managers of facilities who fail to take corrective action to protect patients or residents from criminal activity. At this time, this bill is not moving. DHCFA will continue to talk with the bill’s sponsor.

WHAT THIS DOES: This bill holds facility directors and officers criminally liable for failing to take corrective action to protect patients or residents from criminal activity, including abuse, neglect, financial exploitation, or medication diversion. This would apply to executive directors, administrators, paid and unpaid board members, and directors of nursing as it is written.

 

WORKFORCE/HUMAN RESOURCES

SB324: Relating to administrative procedures and wage/hour enforcement; includes closing a loophole in which employers who retaliated against employees by terminating an employee avoided penalty because the individual was no longer employed because of the retaliation and thus not an employee. In Senate Labor Committee 6.11.24.