16 Del. Admin. Code § 3102-5.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 3102-5.0 - Fair Hearing Practice and Procedures which pertain to grievances in either Section 3.0 or 4.0 of this regulation

5.1 Right to hearing. An impartial hearing may be requested by a resident who believes a facility has erroneously determined that he or she must be transferred or discharged.

5.1.1 The hearing request must:

5.1.1.1 Be in writing;

5.1.1.2 Be received by the facility within 30 days from the date that the discharge notice is received by the resident or the resident's legal representative; and

5.1.1.3 Be copied to the Division and the State LTC Ombudsman.

5.2 DHSS may deny or dismiss a request for a hearing if:

5.2.1 The resident withdraws the request in writing; or

5.2.2 The resident or his or her legal representative fails to appear at a scheduled hearing without good cause.

5.3 Impartial hearing must be conducted:

5.3.1 At a reasonable time, date and place;

5.3.2 After adequate written notice of the hearing;

5.3.3 By an impartial fact-finder who has not been directly involved in the initial determination of the action in question; and

5.3.4 With appropriate translation services available to parties or witnesses as needed to be provided at State expense.

5.4 If the hearing involves medical issues as the basis for the transfer or discharge and if the impartial fact finder considers it necessary to have a medical assessment other than that of the facility involved in making the transfer or discharge decision, such a medical assessment must be obtained at State expense and made part of the record.

5.5 Procedural rights. The parties must be given the opportunity to:

5.5.1 Examine at a reasonable time before the date of the hearing and during the hearing all documents and records to be used by either party at the hearing;

5.5.2 Bring witnesses;

5.5.3 Establish all pertinent facts and circumstances;

5.5.4 Present an argument without undue interference; and

5.5.5 Question or refute any testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses.

5.5.6 Exercise additional rights for residents within the scope of Section 3.0, as provided in 42 CFR § 483.10(b)(2). All residents have additional rights under 16 Del.C. § 1121(b)(21).

5.6 Hearing decisions must be based exclusively on evidence introduced at the hearing.

5.7 The record must consist only of:

5.7.1 The transcript or recording of testimony and exhibits;

5.7.2 All papers and requests filed in the proceeding; and

5.7.3 The decision of the hearing officer.

5.8 The parties must have the access to the record at a convenient place and time in order to review or to secure a transcript at the party's expense.

5.9 The impartial decision must:

5.9.1 Summarize the facts;

5.9.2 Identify the statutes or regulations pertinent to the decision;

5.9.3 Specify the reasons for the decisions; and

5.9.4 Identify the supporting evidence and apply the relevant legal principles.

5.10 The impartial fact-finder must:

5.10.1 Notify the parties of the decision, in writing.

5.10.2 Notify the parties that this is the final decision of DHSS with the right to an appeal pursuant to the Administrative Procedures Act, Title 29, Chapter 101.

16 Del. Admin. Code § 3102-5.0

16 DE Reg. 296 (09/01/12)
24 DE Reg. 275( 9/1/2020) (Final)