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Del. Code tit. 16 ch. 10
Chapter 10
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§ 1001 “Hospital” defined [For application of this section, see 83 Del. Laws, c. 102, § 2].
(a) As used in this chapter, “hospital” means a health-care organization that has a governing body, an organized medical and professional staff, and inpatient facilities, and provides either medical diagnosis, treatment and care, nursing and related services for ill and injured patients, or rehabilitation services for the rehabilitation of ill, injured or disabled patients 24 hours per day, 7 days per week and primarily engaged in providing inpatient services.
(b) Hospitals may be further classified as:
(1) General. —
Providing diverse patient services, diagnostic and therapeutic, for a variety of medical conditions. A general hospital must provide on-site:
a. Diagnostic x-ray services with facilities and staff for a variety of procedures.
b. Clinical laboratory services with facilities and with anatomical pathology services regularly and conveniently available.
c. Operating room service with facilities and staff.
d. Emergency department with facilities and staff.
(2) Long-term care. —
Providing inpatient services for patients whose medically-complex conditions require a long hospital stay with an average length of stay of greater than 25 days.
(3) Psychiatric. —
Providing services for the diagnosis and treatment of patients with psychiatric-related illness.
(4) Rehabilitation. —
Providing intensive inpatient rehabilitative services for 1 or more conditions requiring rehabilitation.
(5) Surgical. —
Providing inpatient and outpatient surgical and related services in which the anticipated duration of the patient’s stay will not exceed 72 hours following admission. A surgical hospital must provide all of the following services on-site:
a. Diagnostic x-ray services with facilities and staff for a variety of procedures.
b. Clinical laboratory services with facilities and anatomical pathology services regularly and conveniently available.
c. Operating room service with facilities and staff.
d. Basic emergency care.
(c) Hospitals classified under paragraphs (b)(2) through (4) of this section shall not be required to comply with the provisions of paragraph (b)(1) of this section, but must, at a minimum, provide on-site basic emergency care services. 16 Del. C. 1953,
§
1021;
56 Del. Laws, c. 360 ;
70 Del. Laws, c. 149,
§
87 ;
70 Del. Laws, c. 186,
§
1 ;
80 Del. Laws, c. 404,
§
1 ;
82 Del. Laws, c. 73,
§
1 ;
83 Del. Laws, c. 102,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1002 Regulations.
(a) The Department shall develop, establish and enforce standards governing the construction, maintenance and operation of hospitals to protect and promote the public health and welfare.
(b) The Department shall further adopt regulations to ensure that hospital staff have ready access to a locked hospital bathroom in the event of an emergency. 16 Del. C. 1953,
§
1027;
56 Del. Laws, c. 360 ;
70 Del. Laws, c. 149,
§
92 ;
70 Del. Laws, c. 186,
§
1 ;
79 Del. Laws, c. 243,
§
1 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1003 License requirement.
(a) No person shall construct, establish, conduct or maintain a hospital in this State without a license being issued under this chapter.
(b) A license is not transferable from person to person or entity to entity.
(c) Separate licenses.
(1) Separate licenses are required for hospitals maintained on separate premises, even though both hospitals may be operated under the same management.
(2) Separate licenses are not required for separate buildings on the same grounds or adjoining grounds, if the buildings are operated under 1 management.
(3) All off-site ambulatory care service facilities must be licensed as free-standing facilities if identified as such in § 122(3) of this title. 16 Del. C. 1954,
§
1023;
56 Del. Laws, c. 360 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1004 Application for license.
An application for license shall be made to the Department upon forms provided by it and shall contain such information as the Department may reasonably require including affirmative evidence of ability to comply with such reasonable standards, rules and regulations as are lawfully prescribed under this chapter. 16 Del. C. 1953,
§
1024;
56 Del. Laws, c. 360 ;
70 Del. Laws, c. 149,
§
88 ;
70 Del. Laws, c. 186,
§
1 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1005 Issuance and renewal of license.
(a) The Department shall grant an initial license for a period of up to 1 year to a new hospital that completes the application process, submits the nonrefundable application fee of $1,000 plus $2.00 per licensed inpatient bed and $500 for each emergency department not located on the hospital’s main campus, and demonstrates compliance with the requirements established under this chapter.
(b) The Department shall renew annually a hospital’s license, unless suspended or revoked, upon filing by the hospital, payment of an annual licensure fee of $750 plus $2.00 per licensed inpatient bed and $500 for each emergency department not located on the hospital’s main campus, and demonstration of its continued compliance with the requirements established under this chapter.
(c) The Department may grant a provisional license to a hospital which is not in substantial compliance with the requirements established under this chapter. A hospital which has been issued a provisional license shall resubmit the initial application fee for reinspection prior to the issuance of an annual license.
(d) The licensure fees collected by the Department pursuant to this section are hereby appropriated to, and shall be retained by, the Department to defray operating expenses associated with this chapter. 16 Del. C. 1953,
§
1025;
56 Del. Laws, c. 360 ;
67 Del. Laws, c. 266,
§
5 ;
70 Del. Laws, c. 149,
§
89 ;
70 Del. Laws, c. 186,
§
1 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1006 Denial or revocation of license, hearings and appeal.
(a) The Department shall have the authority to deny, suspend, or revoke a license in any case where it finds that there has been a failure to comply with this chapter or the rules and regulations issued under this chapter or the Health-Care Associated Infections Disclosure Act [Chapter 10A of this Title] § 1731A of Title 24 or § 903 of this title.
(b) Before a license issued under this chapter is denied, suspended or revoked, notice shall be given in writing to the holder of the license setting forth the particular reasons for such action. Denial, suspension or revocation of a license shall become effective 30 days after the mailing by registered mail or personal service of the notice, unless the applicant or licensee within such 30 day period shall give written notice to the Department requesting a hearing, in which case the notice shall be deemed to be suspended. If a hearing has been requested, the applicant or licensee shall be given an opportunity for a prompt and fair hearing before the Department. At any time at or prior to the hearing, the Department may rescind the notice of denial, suspension or revocation, upon being satisfied that the reasons for such action have been or will be removed. A copy of the decision of the Department setting forth the finding of facts and the particular reasons for the decision shall be sent by registered mail or served personally upon the applicant or licensee. The decision shall become final 30 days after it is so mailed or served unless the applicant or licensee within such 30-day period appeals the decision to the Superior Court. A copy of said notice of appeal must be provided simultaneously to the Department. The Department shall promptly certify and file with the Court a copy of the record and decision, including the transcript of the hearings on which the decision is based. Proceedings thereafter shall be governed by the Rules of the Superior Court of the State.
(c) The procedure governing hearings authorized by this section shall be in accordance with rules promulgated by the Department. A full and complete record shall be kept of all proceedings and all testimony. 16 Del. C. 1953,
§
1026;
56 Del. Laws, c. 360 ;
70 Del. Laws, c. 149,
§§
90, 91 ;
70 Del. Laws, c. 186,
§
1 ;
76 Del. Laws, c. 122,
§
2 ;
77 Del. Laws, c. 320,
§
7 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1007 Enforcement.
(a) Any person constructing, managing or operating any hospital without a license shall be fined not more than $5,000 for the first offense and not more than $10,000 for each subsequent offense. Each day of a continuing violation shall be considered a separate offense.
(b) The Department may impose civil money penalties for the violation of provisions of this chapter or the regulations adopted pursuant to it.
(1) A licensee or other person is liable for a civil money penalty of not more than $10,000 per violation for violations which the Department determines pose a serious threat to the health and safety of a patient. Each day a violation continues constitutes a separate violation.
(2) In determining the amount of a civil money penalty imposed pursuant to subsection (a) of this section or this subsection, the Department shall consider the following factors:
a. The seriousness of the violation, including the nature, circumstances, extent and gravity of the violation and the threat or potential threat to the health or safety of patients;
b. The history of violations committed by the person or the person’s affiliate, employee, or controlling person;
c. The efforts made by the hospital to correct the violation;
d. Any misrepresentation made to the Department; and
e. Any other matter that affects the health, safety or welfare of a patient.
(c) The Department shall have the authority to collect any civil money penalty. Any civil money penalties collected by the Department under this section are hereby appropriated to the Department to carry out the purposes of this section.
(1) Payment of any civil penalty by a facility is not an allowable cost for reimbursement under the state Medicaid program or under other state-funded programs.
(2) In the event of nonpayment of a civil money penalty the Department may add the amount of the civil penalty to the licensing fee for the hospital. If the licensee refuses to make the payment at the time of the application for renewal of its license its license may not be renewed.
(3) In the event of nonpayment of a civil money penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary in Superior Court for collection of the civil money penalty, including interest, attorney fees and costs. In a civil action to collect the civil money penalty the validity, amount and appropriateness of the civil money penalty shall not be subject to review. 16 Del. C. 1953,
§
1027;
56 Del. Laws, c. 360 ;
70 Del. Laws, c. 149,
§
92 ;
70 Del. Laws, c. 186,
§
1 ;
79 Del. Laws, c. 243,
§
1 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1008 Injunction.
Notwithstanding the existence or pursuit of any other remedy, the Department may, in the manner provided by law, maintain an action in the name of the State for injunction or other process against any person to restrain or prevent the construction, maintenance or operation of a hospital without a license. 16 Del. C. 1953,
§
1036;
56 Del. Laws, c. 360 ;
70 Del. Laws, c. 149,
§
98 ;
70 Del. Laws, c. 186,
§
1 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1009 Construction.
(a) All construction, whether new or renovation, must conform to the design and construction standards established by the Department.
(1) A “renovation” is:
a. The strengthening or upgrading of building elements, materials, equipment, or fixtures that does not result in a reconfiguration of the building spaces within; or
b. Any reconfiguration of a space that affects an exit, a corridor, or any component of a means of egress; or
c. Work that changes the current designated purpose or occupancy classification of a building space.
(2) Cosmetic changes such as repainting or changing carpeting are not considered renovations.
(b) When a hospital plans to construct or renovate any buildings or spaces within a building, 2 copies of properly-prepared plans and specifications for the entire project shall be submitted to the Department.
(c) An approval, in writing, shall be obtained from the Department before construction or renovation work is begun.
(d) Hospitals wishing to construct or renovate must apply to the Department and submit the appropriate fee for approval. The fee structure for plan review shall be as follows:
New Construction
Square footage
Fee
10,000 or less
$250
10,001-20,000
$300
20,001-30,000
$350
30,001-40,000
$400
40,001-50,000
$450
50,001-above
$500
Renovations
Square footage
Fee
5,000 or less
$100
5,001-10,000
$150
10,001-15,000
$200
15,001-20,000
$250
20,001-25,000
$300
25,001-30,000
$350
30,001-35,000
$400
35,001-40,000
$450
40,001-above
$500
(e) After the hospital has submitted all required documentation, the Department shall review the submission within a timeframe agreed upon by both parties.
(f) Hospitals failing to complete the plan review process and receive approval prior to construction or renovation shall be subject to a $5,000 fine for each project.
(g) Any licensure fees or fines collected by the Department pursuant to this section are hereby appropriated to, and shall be retained by, the Department to defray operating expenses associated with this chapter. 82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1010 Inspections and investigations.
(a) The Department shall make or cause to be made such inspections and investigations of a hospital as it may deem necessary.
(b) The Department shall accept the survey report of an approved accrediting organization, as defined by regulations, in lieu of an annual licensure inspection. 16 Del. C. 1953,
§
1029;
56 Del. Laws, c. 360 ;
70 Del. Laws, c. 149,
§
94 ;
70 Del. Laws, c. 186,
§
1 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1011 Compliance.
All hospitals must comply with applicable federal, state, county and local laws and regulations. 82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1012 Reportable events.
(a) Hospitals must report all major adverse incidents involving a patient to the Department within 10 calendar days.
(1) A major adverse incident is a patient safety event (not primarily related to the natural course of the patient’s illness or underlying condition) that reaches a patient. The Department shall define “major adverse incident” and provide further clarification in regulation.
(2) Major adverse incidents must be investigated by the hospital.
(3) A summary of the hospital’s investigative findings will be forwarded to the Department within a timeframe agreeable to both parties.
(b) Hospitals must notify the Department immediately of any event occurring within the hospital that jeopardizes the health or safety of patients or employees including:
(1) An unscheduled interruption for 3 or more hours of physical plant or clinical services impacting the health or safety of patients or employees.
(2) A fire, disaster or accident which results in evacuation of patients out of the hospital.
(3) An alleged or suspected crime which endangers the life or safety of patients or employees, which is also reportable to the police department, and which results in an immediate on-site investigation by the police.
(4) An alleged incident of medication diversion, as defined under § 1131 of this title.
(c) Information submitted as a major adverse incident is considered peer review information and not subject to public disclosure except as aggregate data. 16 Del. C. 1953,
§
1033;
56 Del. Laws, c. 360 ;
70 Del. Laws, c. 149,
§
96 ;
70 Del. Laws, c. 186,
§
1 ;
82 Del. Laws, c. 73,
§
1 ;
83 Del. Laws, c. 22,
§
11 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1013 Designation of hospitals as primary stroke centers.
(a) The Secretary of Health and Social Services shall designate as a comprehensive stroke center any acute care hospital within Delaware, or an out-of-state acute care hospital upon request, which has received Advanced Certification for Comprehensive Stroke Centers issued by the Joint Commission or an equivalent certification by another nationally-recognized guidelines-based accrediting organization as determined by the Secretary.
(b) The Secretary of Health and Social Services shall designate as a primary stroke center any acute care hospital within Delaware, or an out-of-state acute care hospital upon request, which has received Advanced Certification for Primary Stroke Centers issued by the Joint Commission or an equivalent certification by another nationally-recognized guidelines-based accrediting organization as determined by the Secretary.
(c) The Secretary of Health and Social Services shall designate as an acute stroke ready center any acute health-care facility within Delaware, or an out-of-state acute health-care facility upon request, which has received Advanced Certification for Acute Stroke Ready Centers issued by the Joint Commission or an equivalent certification by another nationally-recognized guidelines-based accrediting organization as determined by the Secretary.
(d) The Secretary of Health and Social Services shall designate as a thrombectomy-capable stroke center any acute health-care facility within Delaware, or an out-of-state acute health-care facility upon request, which has received Advanced Certification for Thrombectomy-Capable Stroke Centers issued by the Joint Commission or an equivalent certification by another nationally-recognized guidelines-based accrediting organization as determined by the Secretary.
(e) The Secretary of Health and Social Services may establish other distinct categories of stroke center certification if additional categories are established by the Joint Commission or by an equivalent nationally recognized guidelines-based accrediting organization as determined by the Secretary, and may designate any acute health-care facility as such based on certification by the Joint Commission or other nationally-recognized guidelines-based accrediting organization.
(f) The Secretary of Health and Social Services shall suspend or revoke a facility’s designation as a comprehensive stroke center, primary stroke center, acute stroke ready center or other categorization if the Joint Commission or equivalent nationally-recognized guidelines-based accrediting organization as determined by the Secretary suspends or revokes a facility’s certification. 76 Del. Laws, c. 299,
§
1 ;
80 Del. Laws, c. 404,
§
2 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1014 Hospital visitation policy.
(a) Each hospital shall include in its visitation policy a provision allowing each competent adult patient to receive visits from any individual from whom a patient desires to receive visits, subject to restrictions contained in the visitation policy related to a patient’s medical condition, the number of visitors simultaneously permitted in a patient’s room, and the hospital’s visitation hours, as well as protective orders issued by a court.
(b) The duties and rights conferred by this section are in addition to, and not in derogation of, duties and rights otherwise conferred by law, including §§ 2521 and 5161 of this title.
(c) Nothing in this chapter shall preclude a hospital from restricting visitations due to:
(1) Attempts to interfere with patient care; or
(2) The presentation of a threat to staff, patients or hospital personnel; or
(3) Actions disruptive to hospital operations; or
(4) Pandemic or infectious disease outbreak.
(d) Except as provided in subsection (c) of this section, nothing in this section shall be read to overrule any decision of the Delaware Department of Correction. 77 Del. Laws, c. 49,
§
1 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 467,
§
4 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1015 Confidentiality of proprietary information.
Information obtained by the Secretary under this chapter shall be available to the public as provided in Chapter 100 of Title 29, unless the Secretary certifies such information to be proprietary. The Secretary may make such certification where any person shows to the satisfaction of the Secretary that the information, or parts thereof, if made public, would divulge methods, processes or activities entitled to protection as trade secrets or as confidential financial or commercial information. Nothing in this section shall be construed as limiting the disclosure of information by the Secretary to any officer, employee or authorized representative of the state or federal government to effectuate the purposes of this chapter. Furthermore, nothing in this section shall prevent the Secretary from including in the remedial decision record information concerning the cost of the remedy or the manner in which it is performed. Prior to disclosure of information certified by the Secretary to be proprietary to an authorized representative who is not an officer or employee of the state or federal government, the person providing the proprietary information may require the representative to sign an agreement prohibiting disclosure of such information to anyone not authorized by this chapter or the terms of the agreement. Such agreement shall not preclude disclosure by the representative to any state or federal government officer or employee concerned with effecting this chapter. 77 Del. Laws, c. 49,
§
1 ;
82 Del. Laws, c. 73,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
§ 1016 Standards for levels of neonatal care.
(a) For the purposes of this section:
(1) “American Academy of Pediatrics” or “AAP” means the largest professional association of pediatricians in the United States.
(2) “American Academy of Pediatrics Standards for Levels of Neonatal Care” or “AAP Standards for Levels of Neonatal Care” means risk-appropriate care standards established by the American Academy for Pediatrics for newborns that ensure facilities provide the necessary personnel and resources based on the infant’s condition.
(3) “American College of Surgeons” means the scientific and educational association of surgeons whose primary goal is to improve the quality of care for surgical patients.
(4) “Children’s surgical verification” or “CSV” means the program by the American College of Surgeons that aims to improve surgical care for infants and children.
(5) “Health-care facility” or “facility” means a “health-care facility” as defined in § 1740 of Title 24.
(6) “Level IV neonatal intensive care services” or “Level IV NICU services” means surgical and nonsurgical subspecialty care provided to critically ill or medically complex neonates, who require continuous complex care beyond the scope and resources of lower level nurseries and NICUs.
(7) “Neonatal intensive care unit” or “NICU” means a specialized hospital unit dedicated to providing critical care to newborns, particularly premature infants or those with severe medical conditions.
(8) “Neonatal nursery” means a unit dedicated to specialized care for newborns.
(b) A licensed facility under this title operating a NICU or neonatal nursery must demonstrate compliance with the American Academy of Pediatrics’ standards for levels of neonatal care and subsequent revisions, including staffing, equipment, facility capabilities, and patient care protocols.
(c) Neonatal nurseries’ and NICUs’ levels of care must be designated by the Secretary of Health and Social Services or the Secretary’s designee in accordance with subsection (b) or subsections (d), and (e) of this section.
(d) A facility providing Level IV NICU services must meet the following criteria:
(1) Have a CSV from the American College of Surgeons.
(2) Be directed by a Delaware licensed, full-time, board certified or board eligible neonatologist.
(3) Have a Delaware licensed, board certified or board eligible neonatologist on-site at all times.
(e) A Level IV NICU must do all of the following:
(1) Have a Delaware licensed, board certified or board eligible pediatric anesthesiologist on-site at all times.
(2) Have the following pediatric medical subspecialties available on-site:
a. Anesthesiology.
b. Orthopedics.
c. Otolaryngology.
d. Palliative care.
e. Urology.
(3) Have the following pediatric surgical subspecialties available at all times:
a. Cardiothoracic.
b. Orthopedic.
c. General surgery.
d. Neurosurgery.
(4) Provide pediatric serices on-site, including the following:
a. Echocardiogram.
b. Electroencephalogram.
c. Extracorporeal membrane oxygenation.
d. Radiology.
(f) A facility designated under this section must submit an annual attestation of compliance with this section and any updates adopted by the Department.
(g) A facility designated under this section must provide written notice to the Secretary within 30 days of determining that it is unable to meet a provision of subsections (b) or subsections (d) through (f) of this section and must be given the opportunity to demonstrate just cause for noncompliance or evidence that the facility is actively implementing a corrective action plan.
(h) A facility may request a voluntary downgrade in designation status.
(i) A facility has the right to appeal any decision of the Department regarding the initial or subsequent designation or change in the designation status. The appeal process must be consistent with the Administrative Procedures Act, Chapter 101 of Title 29.
(j) The Department shall adopt rules to implement this section by June 30, 2027, including procedures for verification of compliance with this section, and must seek input and review from the Delaware Perinatal Quality Collaborative and existing facilities operating neonatal intensive care units. 85 Del. Laws, c. 546,
§
1 ;
84 Del. Laws, c. 476,
§
1 ;
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§ 1031 Definitions [For application of this section, see 84 Del. Laws, c. 476, § 4].
As used in this subchapter:
(1) “CMS” means the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services.
(2) “Commission” means the Hospital Quality and Health Equity Assessment Commission established under § 1045 of this title.
(3) “Department” means the Department of Health and Social Services.
(4) a. “Hospital” means a facility classified under § 1001(b) of this title.
b. “Hospital” does not include any of the following:
1. An entity operated by the United States or the agencies or instrumentalities of the United States.
2. An entity operated by this State, the political subdivisions of this State, or the agencies or instrumentalities of this State.
(5) “Hospital Quality and Health Equity Fund” or “Fund” means the fund established under § 1042 of this title.
(6) “Initial enactment period” means the fiscal year of July 1, 2025, through June 30, 2026.
(7) “Net patient revenues” means the hospital’s total patient revenues determined and reported in 1 or more Medicare Cost Reports under 42 C.F.R. § 413.24 and associated with specified services, less total patient revenues not received due to any of the following:
a. Bad debt and uncollectable accounts.
b. Contractual adjustments.
c. Charity discounts.
d. Teaching allowances.
e. Policy discounts.
f. Administrative adjustments.
g. Implicit price concessions.
h. Other deductions from revenue.
(8) “Secretary” means the Secretary of the Department of Health and Social Services.
(9) a. “Specified services” means all of the following:
1. Inpatient hospital services, as that term is used in 42 U.S.C. § 1396b(w)(7)(A)(i) and 42 C.F.R. § 433.56(a)(1).
2. Outpatient hospital services, as that term is used in 42 U.S.C. § 1396b(w)(7)(A)(ii) and 42 C.F.R. § 433.56(a)(2).
b. “Specified services” does not include nursing facility services, skilled nursing facility services, or physician services.
(10) “Taxable year” means the period of time for determining the tax due under this subchapter, as follows:
a. For the initial enactment period and the first 2 fiscal years after the initial enactment period, the fiscal year beginning on July 1, 2021, through June 30, 2022.
b. For each subsequent 3-year period after the period under paragraph (10)a. of this section, the 1-year period beginning and ending 3 years after the immediately preceding period of time for determining the tax due under this subchapter, beginning with the period of time of July 1, 2024, through June 30, 2025. 84 Del. Laws, c. 476,
§
2 ;
§ 1032 Hospital quality and health equity assessment; passing on of cost of assessment prohibited [For application of this section, see 84 Del. Laws, c. 476, § 4].
(a) (1) Subject to paragraph (a)(2) of this section and § 1034 of this title, beginning with the initial enactment period, a hospital engaged in providing specified services in this State, whether on a for-profit or not-for-profit basis, shall pay to this State an assessment equal to the following percentage of the hospital’s net patient revenues during the taxable year:
a. For the initial enactment period, the percentage is 1.79%.
b. For each subsequent fiscal year after the initial enactment period, the percentage is 3.58%.
(2) Whether inpatient services associated with a patient admission were provided during the taxable year is determined consistent with the requirements of the Medicare Cost Report under 42 C.F.R. § 413.24.
(b) (1) Except as provided under paragraph (b)(3) of this section and subject to § 1034 of this title, the assessment imposed by this section must be paid in 4 equal installments, each consisting of ¼ of the assessment imposed under subsection (a) of this section.
(2) Except as provided under paragraph (b)(3) of this section and subject to § 1034 of this title, the payments under paragraph (b)(1) of this section are due on September 15, December 15, March 15, and June 15, or as otherwise allowed by the Department.
(3) During the initial enactment period, the assessment imposed under subsection (a) of this section must be paid in 2 equal installments each consisting of ½ of the assessment imposed under subsection (a) of this section.
(4) The payments under paragraphs (b)(1) through (3) of this section must be made on forms prescribed by the Department.
(c) (1) For a hospital that did not file a cost report in a taxable year, the first full year in which the hospital first files a cost report is treated as the hospital’s taxable year or, if available, partial data may be annualized.
(2) On and after the first update of the taxable year after a hospital under paragraph (c)(1) of this section has begun filing cost reports, the hospital’s taxable year is the same period as other hospitals.
(d) (1) If a hospital subject to an assessment imposed under subsection (a) of this section merges with another hospital, the combined entity’s net patient revenues equals the sum of the net patient revenues of the pre-merger component entities.
(2) a. If a hospital subject to an assessment imposed under subsection (a) of this section begins or ceases to conduct hospital operations or does not conduct hospital operations throughout a calendar or fiscal year under a valid state license, the Department shall adjust the hospital’s assessment by multiplying the assessment computed under this section by a fraction, the numerator of which is the number of days in the year during which the hospital conducts hospital business, operates a hospital, and maintains licensure, and the denominator of which is 365.
b. The hospital shall pay the required assessment, as computed under paragraph (d)(2)a. of this section, on the date and in pro rata installments as required by the Department for that portion of the state fiscal year during which the hospital operated and maintained state licensure, to the extent not previously paid.
(e) A hospital subject to the assessment imposed under subsection (a) of this section may not pass on the cost of the assessment to any patient, insurer, self-insured program, or other responsible party. 84 Del. Laws, c. 476,
§
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§ 1033 Disposition of revenues remitted; hold harmless prohibited [For application of this section, see 84 Del. Laws, c. 476, § 4].
(a) Revenues remitted to the State in payment of the assessment imposed under § 1032 of this title must, not later than the last day of the month in which the assessment is collected, be transferred by the Department to the Hospital Quality and Health Equity Fund.
(b) (1) A hospital subject to the assessment imposed under § 1032 of this title may not be guaranteed any repayment or otherwise held harmless of the hospital’s assessment imposed under § 1032 of this title in derogation of 42 C.F.R. § 433.68(f) (related to permissible health care-related taxes).
(2) An expenditure of funds from the Hospital Quality and Health Equity Fund may not be authorized if the expenditure creates an indirect guarantee to hold harmless under 42 C.F.R. § 433.68(f)(3)(i). 84 Del. Laws, c. 476,
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§ 1034 Implementation; authorized modifications; suspension of assessment in certain circumstances [For application of this section, see 84 Del. Laws, c. 476, § 4].
(a) The Department shall seek a waiver, state plan amendment, preprint approval, or any other authorization from CMS to the extent necessary to implement this subchapter.
(b) Notwithstanding any other law to the contrary, the Department shall administer this subchapter in a manner which meets any and all eligibility requirements necessary for federal financial participation under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.
(c) The assessment imposed under § 1032 of this title is suspended, and a hospital does not have an obligation to pay the assessment, when the Commission certifies in a notice to the Registrar of Regulations that any of the following apply:
(1) A federal law or rule change by CMS prohibits the type of assessment imposed under § 1032 of this title or otherwise declares the type of assessment under § 1032 of this title impermissible under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.
(2) CMS does not permit the State to use the assessment imposed under § 1032 of this title for the State’s share of Medicaid program expenditures without a loss of federal matching funds.
(d) The assessment imposed under § 1032 of this title shall resume, after a suspension initiated under subsection (c) of this section, on the earlier occurrence of 1 of the following:
(1) The Commission certifies in a notice to the Registrar of Regulations of the enactment of an act of the General Assembly modifying this subchapter or subchapter III of this chapter that resolves the condition precipitating the suspension.
(2) The Commission certifies in a notice to the Registrar of Regulations that the condition precipitating the suspension has been resolved.
(e) The Registrar of Regulations shall publish in the next issue of the Register of Regulations a certification under subsection (c) or (d) of this section provided to the Registrar of Regulations. 84 Del. Laws, c. 476,
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85 Del. Laws, c. 68,
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§ 1035 Penalties [For application of this section, see 84 Del. Laws, c. 476, § 4].
In addition to the penalties authorized under Chapter 5 of Title 30, if a hospital fails to pay the assessment imposed under § 1032 of this title when due, or a hospital fails to timely prepare and submit the form required under § 1032(b) of this title, the Department may do any of the following:
(1) Withhold any Medicaid payments to the hospital, including any payments due to the hospital for Medicaid patients from a managed care company under contract to the Division of Medicaid and Medical Assistance, until the quality assessment amount is paid in full.
(2) Suspend or revoke the hospital’s license.
(3) Develop a plan that requires the hospital to pay any delinquent quality assessment and penalty amounts in installments.
(4) Take any other action authorized by the Department by regulation. 84 Del. Laws, c. 476,
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§ 1036 Regulatory authority [For application of this section, see 84 Del. Laws, c. 476, § 4].
The Department may adopt regulations to implement, administer, and enforce this subchapter. 84 Del. Laws, c. 476,
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84 Del. Laws, c. 476,
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§ 1041 Definitions [For application of this section, see 84 Del. Laws, c. 476, § 4].
As used in this subchapter:
(1) “CMS” means the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services.
(2) “Commission” means the Hospital Quality and Health Equity Assessment Commission established under § 1045 of this title.
(3) “Department” means the Department of Health and Social Services.
(4) “Disproportionate share hospital payment adjustment” means adjustments in payment for inpatient hospital services furnished by disproportionate share hospitals, as disproportionate share hospitals are described in § 1923 of the Social Security Act, 42 U.S.C. § 1396r-4.
(5) “Initial enactment period” means the period of July 1, 2025, through June 30, 2026.
(6) “Uniform payment increase” means a payment of an equal dollar amount per unit of service delivered.
(7) “Unit of service” means each day or visit. 84 Del. Laws, c. 476,
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§ 1042 Hospital Quality and Health Equity Fund establishment and funding [For application of this section, see 84 Del. Laws, c. 476, § 4].
(a) There is established in the State Treasury and in the accounting system of this State a special fund to be known as the “Hospital Quality and Health Equity Fund” (“Fund”).
(b) All of the following must be deposited into the Fund:
(1) The assessments collected under subchapter II of this chapter.
(2) Interest credited to the Fund under subsection (c) of this section.
(c) The State Treasurer shall invest the Fund consistent with the investment policies established by the Cash Management Policy Board and credit interest to the Fund monthly consistent with the rate established by the Cash Management Policy Board. 84 Del. Laws, c. 476,
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§ 1043 Use of Fund; payments [For application of this section, see 84 Del. Laws, c. 476, § 4].
(a) Except as otherwise provided under this section, moneys deposited into the Fund must be used by the Department exclusively to secure federal matching funds available through this State’s Medicaid Plan and any applicable waivers and, together with the federal matching funds, must be used exclusively by the Department, including any managed care companies under contract to the Division of Medicaid and Medical Assistance, as follows:
(1) Sixty-six percent of the funds must be used to increase payments to hospitals as provided under subsection (b) of this section relating to payments to hospitals.
(2) Thirty-four percent of the funds must be used to make or increase payments for other approved uses of the funds under subsection (c) of this section.
(3) To reimburse any funds advanced from the Department’s Medicaid budget appropriations that were used to make the payments under paragraphs (a)(1) and (2) of this section.
(b) All of the following apply to funds required to be used to increase payments to hospitals under paragraph (a)(1) of this section:
(1) Funds required to be used to increase payments to hospitals under paragraph (a)(1) of this section must be divided into an inpatient and outpatient payment pool of funds in the same proportion that the inpatient services and outpatient services represent in the total amount assessed each fiscal year under the assessment imposed under § 1032 of this title.
(2) The funds annually allocated to the inpatient pool of funds must be used as follows:
a. Ninety percent of the inpatient payment pool of funds must be used to fund a uniform payment increase for each acute care inpatient day provided to an individual enrolled in Medicaid managed care.
b. Six percent of the inpatient payment pool of funds must be used to fund a uniform payment increase for each inpatient rehabilitation day provided by a hospital distinct part unit or freestanding rehabilitation hospital to an individual enrolled in Medicaid managed care.
c. Four percent of the inpatient payment pool of funds must be used to fund a uniform payment increase for each behavioral health day provided by a hospital distinct part unit or freestanding behavioral health hospital to an individual enrolled in Medicaid managed care.
(3) The funds annually allocated to the outpatient pool of funds must be used as follows:
a. Ninety-nine and one-half percent of the outpatient payment pool of funds must be used to fund a uniform payment increase for each outpatient hospital visit provided to an individual enrolled in Medicaid managed care.
b. One half of 1% of the outpatient payment pool of funds must be used to fund a uniform payment increase for each partial hospitalization program service provided to an individual enrolled in Medicaid managed care.
(c) The approved uses of the funds under paragraph (a)(2) of this section are as follows:
(1) To reimburse the Department for administrative expenses associated with implementing and administering the assessment imposed under § 1032 of this title, including the costs of any staff or consultants engaged by the Department.
(2) To reimburse Medicaid managed care plans for additional administrative expenses incurred that are associated with the implementation of this section and § 1032 of this title, to the extent and in such amounts authorized by the Department.
(3) To develop or enhance funding for Medicaid initiatives, as determined by the Department. Funds may not be used to supplant or replace appropriations for programs in existence on October 1, 2024, except that funds not to exceed 25% may be used to support the general operations of the Medicaid program.
(4) Notwithstanding the requirement that funds be used exclusively to secure federal matching funds, to reimburse the expenses of the Commission.
(d) If the assessment imposed by § 1032 of this title and the payments under paragraphs (a)(1) and (2) of this section are suspended under § 1034 of this title, any moneys remaining in the Fund must be distributed as follows:
(1) If the total of all moneys remaining in the Fund is equal to or less than the Delaware state share of the payments advanced from the Department’s Medicaid budget appropriation to make the payments referred to under paragraphs (a)(1) and (2) of this section and not already reimbursed from the Fund, the Department shall receive the entirety of the moneys remaining in the Fund as reimbursement for the Delaware state share of the payments.
(2) If the total of all moneys remaining in the Fund are greater than the Delaware state share of the payments referred to under paragraphs (a)(1) and (2) of this section and not already reimbursed from the Fund, the remaining moneys must be distributed back to the applicable hospitals generally and proportionately on the same basis as the assessments were collected in the last calendar quarter before the suspension of the assessment imposed by § 1032 of this title and the payments under paragraphs (a)(1) and (2) of this section.
(e) Before receiving payment under this section, a hospital shall attest in writing to the Department that an oral or written, formal or informal agreement or arrangement does not exist to share, redirect, or redistribute Medicaid payments which would result in violation of federal or state law. 84 Del. Laws, c. 476,
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§ 1044 Additional requirements for use of the Fund [For application of this section, see 84 Del. Laws, c. 476, § 4].
(a) For each fiscal year beginning with the initial enactment period, the Department shall make an additional payment, either as a direct disbursement from the Fund or through additional or increased Medicaid reimbursements, to the acute care hospital in an amount equal to the average disproportionate share hospital payment adjustment the hospital received for the 3 years before October 1, 2024, less any disproportionate share hospital payment adjustment the hospital remains eligible to receive, if an acute care hospital meets all of the following:
(1) The acute care hospital received a disproportionate share hospital payment adjustment for the year before October 1, 2024.
(2) The acute care hospital continues to meet the requirements to qualify as a disproportionate share hospital under § 1923(d) of the Social Security Act, 42 U.S.C. § 1396r-4(d).
(3) The acute care hospital is determined to be ineligible to receive disproportionate share hospital payment adjustment in an amount equal to the average disproportionate share hospital payment adjustment received by the hospital for the 3 years before October 1, 2024, due to the limit on the amount of payment to a hospital under § 1923(g) of the Social Security Act, 42 U.S.C. § 1396r-4(g).
(b) Before making payments from the Fund under § 1043(a)(1) of this title, the Department shall engage with hospitals to ensure that valid data is used to develop the uniform payment increase under § 1043 of this title. At a minimum, the Department shall do all of the following, as available:
(1) Provide hospitals receiving payments with a thorough written description of the methodology used to identify days and discharges.
(2) Provide hospitals receiving payments with a thorough written description of the methodology used to attribute days and discharges to the hospitals.
(3) Provide hospitals receiving payments with day and discharge counts for the hospitals.
(4) Work with hospitals receiving payments, or designated representatives of the hospitals receiving payments, to attempt to identify the source of any discrepancies between data provided under paragraph (b)(3) of this section and internal hospital data. 84 Del. Laws, c. 476,
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§ 1045 Hospital Quality and Health Equity Assessment Commission [For application of this section, see 84 Del. Laws, c. 476, § 4].
(a) Establishment; composition. —
The Hospital Quality and Health Equity Assessment Commission is established, consisting of the following members, or a designee of a member serving by virtue of position:
(1) The Secretary of the Department of Health and Social Services.
(2) The Director of the Division of Medicaid and Medical Assistance.
(3) The Director of the Office of Management and Budget.
(4) The Chair of the Senate’s Health and Social Services Committee.
(5) The Chair of the House of Representatives’ Health and Human Development Committee.
(6) One member of the House of Representatives Minority Caucus, appointed by the Speaker of the House of Representatives.
(7) One member of the Senate Minority Caucus, appointed by President Pro Tempore of the Senate.
(8) The Chief Executive Officer of the Delaware Healthcare Association.
(9) The Chair of the Delaware Healthcare Association’s Board of Directors.
(10) Two members of facilities subject to payment of the assessment, 1 of whom must be a member qualified to represent the interests of behavioral or rehabilitation hospitals, appointed by the Governor from a list recommended by the Delaware Healthcare Association.
(b) Term of appointment; compensation; administrative support. — (1) Members of the Commission appointed to the Commission and not serving by virtue of their position serve for a term of 2 years, or until a successor is appointed, and may be reappointed for subsequent terms.
(2) Members of the Commission serve without compensation.
(3) The Department shall provide administrative support for the Commission, and all expenses of the Commission, including fees for consultants, if determined necessary, may be paid from the Fund as authorized in § 1043(c)(4) of this title.
(c) Chair; quorum. — (1) The Secretary of the Department of Health and Social Services shall serve as Chair of the Commission.
(2) A majority of the members, whether present in person or virtually, constitute a quorum for the transaction of business.
(d) Duties and authority of the Commission. — (1) The Commission shall meet as follows:
a. At least once before the date the first remittance of the assessment imposed under § 1032 of this title is due and, thereafter, at least once a year.
b. At the call of the Chair for the purpose of reviewing implementation of the assessment and taking actions necessary in furtherance of this subchapter and subchapter II of this chapter.
(2) At each Commission meeting under paragraph (d)(1)a. of this section, the Division of Medicaid and Medical Assistance shall report to the Commission as to the following:
a. A description of the assessment and its implementation for the ensuing fiscal year.
b. Projections of the Federal Medical Assistance Percentage (FMAP).
c. Projections of each hospital’s estimated assessment.
d. A summary of the Fund balance and expenditures made or budgeted during the current fiscal year and the projected Fund balance and expenditures planned in the ensuing fiscal year.
e. Any draft or submitted preprints, Medicaid Plan amendments, or other submissions made or prepared by the State to CMS to establish or implement the assessment.
f. The status of any discussions or negotiations with CMS related to the assessment and any modifications necessary to assure continued eligibility under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.
g. Any matters communicated by CMS relating to potential changes to federal rules or eligibility criteria that may affect implementation of the assessment or the expenditure of moneys from the Fund.
h. The status of updates to tax data to account for new facilities, closed facilities, merged facilities, and triennial base-year updates.
i. The mechanism and process for hospitals to verify any data submitted by the State to CMS.
(e) Modifications. — (1) The Commission shall, in collaboration with the Division of Medicaid and Medical Assistance and the Delaware Health Care Commission, develop and recommend to the General Assembly modifications of subchapter II of this chapter and this subchapter necessary to assure the assessment imposed under § 1032 of this title meets eligibility requirements for federal financial participation under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.
(2) The Commission shall meet to develop and approve recommendations to the General Assembly with regard to modifications of subchapter II of this chapter and this subchapter.
(3) The Commission shall submit a report to the General Assembly detailing any recommended modifications of Subchapter II of this chapter or this subchapter approved by the Commission. The report shall include a redline showing any recommended changes. The Commission shall submit the report to all of the following:
a. The President Pro Tempore and Secretary of the Senate, for distribution to all Senators.
b. The Speaker and Chief Clerk of the House of Representatives, for distribution to all Representatives.
c. The Controller General.
d. The Director and Librarian of the Division of Legislative Services.
(f) Proceedings before Commission. — (1) The Commission is a public body, subject to the open meetings requirement of § 10004 of Title 29; provided, however, that the Commission may schedule and conduct private meetings with hospitals when the content of the discussion will include information that is commercial or financial information of a privileged or confidential nature.
(2) Any patient information and financial, utilization, or other data is confidential and not subject to disclosure under Chapter 100 of Title 29. 84 Del. Laws, c. 476,
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84 Del. Laws, c. 255,
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85 Del. Laws, c. 68,
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§ 1046 Regulatory authority [For application of this section, see 84 Del. Laws, c. 476, § 4].
The Department may adopt regulations to implement, administer, and enforce this subchapter. 84 Del. Laws, c. 476,
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84 Del. Laws, c. 476,
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