Harmony at Kent v. Delaware Department of Health and Social Services

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

HARMONY AT KENT, )
Appellant, )
)
v. ) C.A. No. N25A-02-001 DJB
)
DELAWARE DEPARTMENT OF )
HEALTH AND SOCIAL SERVICES, )
DIVISION OF HEALTH CARE )
QUALITY, )
Appellee. )

Date Submitted: July 21, 2025
Date Decided: October 13, 2025

MEMORANDUM OPINION

On Appellant’s Administrative Appeal from the Decision of the Delaware
Department of Health and Social Services, Division of Health Care Quality –
Affirmed.

David M. McGeady, Esquire, Burns White, LLC, Wilmington, Delaware, attorney
for Appellant

Lauren E. Maguire, Esquire, Deputy Attorney General, Wilmington, Delaware,
attorney for Appellee

BRENNAN, J.
Harmony at Kent (hereinafter “Harmony”) is an assisted living facility in

Dover, subject to the administrative oversight of the Department of Health and

Social Services, Division of Health Care Quality (hereinafter “DHCQ”). This matter

originated after DHCQ identified fifteen (15) alleged deficiencies at Harmony’s

facility.1 Harmony did not contest the deficiencies themselves but requested an

administrative hearing to contest the penalty imposed for each deficiency.

Ultimately, the hearing officer issued a written decision (hereinafter “the Decision”)

upholding imposition of the penalties for thirteen (13) of the fifteen (15)

deficiencies. 2 This appeal followed. 3 For the reasons stated below, the Decision is

affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

DHCQ is statutorily required to conduct annual and complaint-based surveys

of assisted living facilities to ensure compliance with federal and state statutes and

regulations. 4 Between July 2, 2024, and July 8, 2024, DHCQ conducted an

unannounced and complaint-based survey of Harmony’s facility in Dover,

1
Harmony at Kent v. Delaware Department of Health and Social Services, Division
of Health Care Quality, N25A-02-001 DJB, Docket Item (hereinafter “D.I.”) 1.
2
D.I. 31.
3
D.I. 1.
4
D.I. 31; 29 Del. C. §7971(d).
1
Delaware.5 As a result of those surveys DHCQ identified a total of fifteen (15)

violations of state regulatory requirements. The following deficiencies were noted:

1. Failure to provide required access to all employee and resident records.

2. Failure to provide evidence of mandatory dementia specific training.
3. Failure to provide evidence of on-site review, conducted by a registered nurse,
of the resident’s medication regime if the resident self-administers medication.

4. Failure to provide evidence of pre-hire tuberculosis testing.

5. Failure to provide evidence of vaccination against influenza and
pneumococcal pneumonia.

6. Failure to complete full assessment of the resident and execute a service
agreement prior to obtaining signed contracts.

7. Failure to complete pre-admission uniform assessment instruction within
thirty (30) days prior to admission.

8. Failure to provide evidence of a physician’s medical evaluation completed
within thirty (30) days prior to admission.

9. Failure to provide evidence that the uniform assessment instrument was
completed thirty (30) days after admission.

10. Failure to complete the service agreement in accordance with the timeframes
outlined in regulation or provide evidence that the resident or family participated
in the development of the agreement or was provided with a copy.

5
Id. Despite apparently conducting two separate inspections, the alleged
deficiencies are seemingly combined into one collective survey from both July 2024
inspections.
2
11. Failure to provide evidence that the service agreement contained the
resident’s personal attending physician’s name, address, and telephone number.

12. Failure to provide adequately trained and licensed staff to meet the needs of
the residents.

13. Failure to provide emergency preparedness education and written records of
attendance at fire drills.

14. Failure to report a fall which required periodic reassessment of resident’s
clinical status.

15. Failure to ensure facility residents were free from neglect while residing at
the facility. The neglect included lack of appropriate assessment of resident after
a fall resulting in a delay in medical care. 6

On August 5, 2024, DHCQ notified Harmony via letter of the deficiencies and

sent Harmony a copy of the survey.7 DHCQ’s letter allowed Harmony:

one opportunity to question cited deficiencies through an informal
dispute resolution (IDR) process. To be given such an opportunity, you
must submit a written request which identifies the specific deficiencies
being disputed and includes the specific issues relating to the cited
deficient practice with which you disagree. This written request must
be received within the same ten-calendar day period that you have to
submit your PoC…The IDR process is intended to be a continuous one
from the time of survey until ten days after you have received the
official state report. 8

6
Id. at pp. 4-5.
7
D.I. 26, Exhibit 2
8
D.I. 31, p. 3.
3
Harmony did not request the available IDR opportunity. On August 19, 2024,

DHCQ notified Harmony of the $64,500 in Civil Money Penalties (hereinafter

“CMPs”) imposed in connection with the fifteen deficiencies. 9 In response,

Harmony requested an administrative hearing to contest each CMP. On the day of

the originally scheduled hearing, an issue was raised with respect to the proper scope.

As a result, the officer requested briefing and the hearing was continued. 10 In a

written decision dated October 21, 2024, the hearing officer limited the scope of the

hearing so that Harmony was prohibited from challenging the validity of the

deficiencies identified in the survey, specified that the focus of the hearing was

whether DHCQ’s CMP assessment was consistent with the six (6) factors

enumerated in 16 Del. C. §1109(b) and otherwise appropriate, and allowed Harmony

to call the Director of DHCQ and/or the investigating surveyor who documented the

underlying deficiencies, but only to provide testimony relating to how the six (6)

factors in 16 Del. C. §1109(b) were considered in assessing each deficiency. 11 The

hearing spanned two days on November 20, 2024, and December 5, 2024, subject to

the above guidelines.12

9
D.I. 16.
10
D.I. 12.
11
D.I. 31, pp. 6-7.
12
D.I. 17, 21.
4
A. THE HEARING

At the hearing, testimony was heard from Corinna Getchell13 and Cherry

Verchick,14 on behalf of DHCQ, and Marquia Tilghman, 15 Harmony’s single

witness.16 Getchell addressed the deficiencies individually, confirmed DHCQ

considered the 16 Del. C. §1109(b) factors in its assessment, and “stood behind the

decision to assess the CMP” for each deficiency. 17 Getchell described DHCQ’s

process in assessing penalties and testified that the team will review each deficiency,

determine the scope and severity of any deficiency, the history of the facility, and

consider each factor at issue.18 On cross-examination, Getchell acknowledged that,

“if a surveyor provided inaccurate information that was not caught in the review

process, the DHCQ might assess a CMP that was excessively harsh.” 19

DHCQ’s second witness, Verchick, provided testimony related to the survey

itself. Verchick “traveled to the facility under review, and sampled files of the [staff

13
Director of DHCQ.
14
DHCQ Assisted Living Compliance Surveyor.
15
Harmony Healthcare Director.
16
D.I. 8.
17
Id. at pp. 6-11. Getchell’s testimony determined that factors (4) and (5) of 16 Del.
C. §1109(b) were inapplicable to any of the deficiencies.
18
Id. at p. 12. Getchell also confirmed that, because of the COVID-19 pandemic,
the number of annual surveys completed at senior living facilities decreased in 2020,
2021, and 2022. DHCQ did not issue any CMPs during those years. In 2023 DHCQ
resumed the annual and complaint surveys.
19
Id.
5
and] residents, and … interviewed the staff, residents, and family members regarding

the annual survey, or any complaints that had been filed, or both.” 20 Verchick

investigated a complaint related to an incident where a Harmony resident fell at the

facility. Following that investigation, Verchick incorporated her findings into a draft

survey, to be reviewed by her team members at DHCQ. While she was the one who

made all of the survey’s factual findings, was not the one who made “scope or

severity determinations.”21

Tilghman, the Healthcare Director at Harmony, was the final witness to testify

and was present during the July of 2024 survey. 22 She is the only registered nurse

(hereinafter “RN”) working at the facility.23 Tilghman’s testimony surrounded the

issue regarding Harmony making records available for DHCQ review. Specifically,

she testified to an issue retrieving records for Verchick, and how once a web browser

issue resolved, the records were able to be reviewed. 24 Tilghman also described

being present on the day Harmony’s Maintenance Director, who was generally

responsible for conducting and documenting fire drills, was murdered at the facility

20
Id. at p. 25.
21
Id.
22
D.I. 22, p. 67.
23
Id. at p. 72.
24
Id. at p. 69.
6
on June 4, 2024. This incident caused an issue with easily obtaining the records the

Maintenance Director kept for DHCQ. 25

B. THE DECISION

The hearing officer issued the Decision on January 6, 2025, which found

support for CMPs for thirteen (13) out of the fifteen (15) deficiencies.26 In reaching

this outcome, the officer evaluated testimonies of all three witnesses. The Decision

then outlined whether each of the fifteen (15) deficiencies reflect the factors

prescribed in 16. Del. C. §1109(b), and ultimately found the testimony demonstrated

the deficiencies, except for numbers 3 and 12, appropriately considered the requisite

factors. However, the Decision instructed the amount of each CMP be reduced by

50% in compliance with statutory limitations in place before August 1, 2024. 27 In

doing so, the Decision agreed with Harmony’s position that deficiency number three

(3) was based upon a vague statement, which strongly suggests “DHCQ had not

thoroughly considered the circumstances of the deficiency, as required by 16 Del. C.

25
Id. at pp. 79-80.
26
D.I. 8. Deficiencies three (3) and twelve (12) were dismissed.
27
This corresponds with the Decisions ruling that DHCQ inaccurately applied
enhanced penalties based upon a statute issued on August 1, 2024, whereas these
deficiencies were documented one month prior.
7
§1109(b)(1).” 28 The Decision also took issue with deficiency number twelve (12)

for similarly failing to properly consider §1109(b)(1). 29

Because Harmony raised several additional arguments at the hearing, the

Decision also reviewed the issue of duplicative CMPs, disparate treatment, and

retroactive application of enhanced penalties. The Decision disagreed with

Harmony’s first two additional arguments, because 16 Del. C. §1109 does not

“require the DHCQ to treat each deficiency in isolation,” nor does it include

language “whereby the legislature instructed the DHCQ to use a standardized system

in assessing CMPs…the highly subjective analysis employed by the DHCQ is

permissible.”30

However, the Decision agreed with Harmony’s final argument that DHCQ

retroactively applied the enhanced penalties. The Decision stated:

While Senate Bill no. 216 is clearly focused on remedies, the want of
specific authorization of retroactive application of the enhanced
penalties brings the word ‘may,’ as opposed to ‘will’ or ‘shall’ into
focus, which recommends the intent of the legislature was for the
enhanced penalties to apply to deficiencies that occurred after the
effective date of the legislation, i.e., August 1, 2024.31

This finding required all CMPs imposed on Harmony to be based upon the former,

not current, statutory amounts.

28
D.I. 8, p. 37.
29
Id.
30
Id. at pp. 35-36.
31
Id. at p. 36.
8
On February 5, 2025, Harmony filed its notice of appeal.32 The parties

stipulated to, and the Court permitted, an extension of time to compile the extensive

record in this case.33 The record was timely filed on March 12, 2025. 34 Upon receipt

of the record the Court issued a briefing schedule.35 Accordingly, on April 2, 2025,

Harmony filed its Opening Brief. 36 DHCQ filed its Answering Brief on April 22,

2025. 37 Harmony replied on May 6, 2025. 38 Oral argument was held on July 15,

2025. 39 Following argument, the Court requested additional decisional case law

from the parties.40 That was submitted on July 21, 2025. 41 This is the Court’s

decision.

II. STANDARD OF REVIEW

In an appeal from a decision from an administrative agency, the Court

determines whether the hearing officer’s decision is supported by substantial

32
D.I. 1.
33
D.I. 6 and 7.
34
D.I. 8-27, 29.
35
D.I. 28.
36
D.I. 30.
37
D.I. 31.
38
D.I. 32. This appeal was officially assigned to the presiding judge on May 7, 2025.
39
D.I. 34.
40
D.I. 36.
41
D.I. 37.
9
evidence and free of legal error. 42 Substantial evidence is “relevant evidence a

reasonable mind might accept to support the conclusion.”43

If the Superior Court reviewed the agency decision and received no
evidence other than that presented to the administrative agency, we do
not ‘review the decision of the intermediate court,’ rather, we directly
examine the agency’s decision.”44

When the issue on appeal is whether the proper legal principles have been applied,

the Court’s review is de novo.45 Further, “this Court repeatedly has emphasized the

limited extent of its appellate review of administrative determinations.”46 Review

“is confined to ensuring that the hearing officer made no errors of law.” 47 The Court

reviews de novo the hearing officer’s decision to determine whether the hearing

officer “erred in formulating or applying legal precepts.” 48

“This Court’s role is to correct errors of law and to review the factual findings

of the [agency] below to determine if such findings are sufficiently supported by the

42
Lawson ex rel. Lawson v. Dept. of Health and Soc. Servs., 2004 WL 440405, at *2
(Del. Super. Feb. 25, 2004).
43
Delaware Dept. of Health and Soc. Servs. v. Jain, 29, A.3d 207, 211 (Del. 2011)
(citing Tony Ashburn & Son, Inc. v. Kent County Reg’l Planning Comm’n, 962 A.2d
235, 239 (Del. 2008)).
44
Jain, 29, A.3d at 211 (quoting Stoltz Mgmt. Co. v. Consumer Affairs Bd., 616 A.2d
1205, 1208 (Del. 1992).
45
Prunckun v. Delaware Dept. of Health and Soc. Servs., 201 A.3d 525, 540 (Del.
2019).
46
Pioneer House Carelink v. Div. of Long Term Care Resident’s Prot., 2007 WL
4181670, at *5 (Del. Super. Nov. 5, 2007) (internal citations omitted).
47
Id.
48
Id.
10
record and are the product of an orderly and logical deductive process.”49 “Because

the Court does not weigh evidence, determine questions of credibility, or make its

own factual findings, it must uphold the decision of the [agency] unless the [agency]

‘acts arbitrarily or capriciously,’” 50 or otherwise abuses its discretion. An

administrative board abuses its discretion “where it ‘exceed[s] the bounds of reason

in view of the circumstances’ or ‘ignore[s] recognized rules of law or practice [] so

as to produce injustice.’” 51

III. ANALYSIS

Harmony’s appeal first disputes the DHCQ officer’s instruction limiting the

scope of the hearing addressing the CMP challenges. According to Harmony, this

instruction “improperly precluded [Harmony] from being fully heard regarding its

challenge of the CMPs generally…The limitations imposed on Harmony’s right to

be heard constituted error and violated Title 16 of the Delaware Code, due process,

and prior DHCQ administrative precedent.” 52

49
Bowers v. Delaware Real Estate Comm’n, 2025 WL 275418, at *3 (Del. Super.
Jan. 23, 2025) (citing Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972)).
50
Id; see also DeMarie v. Delaware Dept. of Transp., 2002 WL 1042088 (Del. Super.
May 24, 2002).
51
Bowers, 2025 WL 275418, at *3 (quoting Cooper v. Del. Bd. of Nursing, 2021 WL
754306, at *2 (Del. Super. Feb. 26, 2021)
52
D.I. 30, p. 12.
11
In addition to challenging the hearing’s scope, Harmony challenges some of

the penalties imposed. Harmony alleges imposing the maximum penalty for

deficiencies thirteen (13) and fifteen (15) were not supported by substantial

evidence,53 and asserts the penalties imposed for several deficiencies 54 were

arbitrary, excessively harsh, and constitute disparate treatment of Harmony. 55 Each

issue is addressed in turn below.

A. THE HEARING’S SCOPE WAS PROPERLY LIMITED.

Under 16 Del. C. §1114, Harmony is entitled to “due process protections of

notice and opportunity to be heard…to appeal…the imposition of remedies for

noncompliance.”56 Harmony asserts the DHCQ’s ruling that limited the evidentiary

hearing’s scope prohibited Harmony “from challenging the validity of the

deficiencies identified in the survey,” which violated its due process rights.

Harmony argues the surveyor “submitted incorrect factual information regarding the

nature, circumstances, extent, and gravity of the neglect deficiency,” and argues error

in the fact that it was “completely precluded from examination” of this fact, given

the limited scope of the hearing. Further, Harmony argues it was “largely precluded

53
Id. at p. 28.
54
For deficiencies 4, 5, 6, 7, 8, 10, 11, and 15.
55
D.I. 30, p. 32.
56
16 Del. C. §1114.
12
from questioning Director Getchell regarding her review and interpretation of the

neglect deficiency.” 57

Harmony was, however, permitted to elicit testimony about whether DHCQ’s

deficiencies considered the mandatory factors enumerated in 16 Del. C. §1109(b).

Before imposing a CMP, 16 Del. C. §1109(b) mandates DHCQ to evaluate the

following:

(1) the seriousness of the violation, including the nature, circumstances,
extent, and gravity of the violation and the hazard or potential hazard,
created by the violation to the health or safety of a resident or residents;
(2) the history of the violations committed by the person or person’s
affiliate, employee, or controlling person; (3) the efforts made by the
facility to correct the violation; (4) the culpability of the person who
committed the violation; (5) a misrepresentation made to the
Department or to another person regarding any of the following: (a)
the quality of services provided by the facility; (b) the compliance
history of the facility; and (c) the identity of an owner or controlling
person in the facility; and (6) any other matter that affects the health,
safety, or welfare of a resident.58

Harmony alleges limiting the hearing to review of the §1109(b) factors prevented it

from eliciting testimony about an alleged factual and interpretive error in the

deficiency citation for neglect and limiting testimony.59

57
D.I. 30.
58
16 Del. C. §1109(b)(1)-(6).
59
D.I. 30, p. 14.
13
Importantly, Harmony, admittedly, did not elect to challenge the findings of

deficiencies. Harmony was given notice of the deficiency allegations and a time

period in which to dispute them through the IDR process. This was not exhausted.

With respect to Harmony’s dispute regarding the ruling that limited the scope of the

hearing, this Court’s review is limited; nothing in the record demonstrates an abuse

of discretion.

The DHCQ officer considered briefing on this issue prior to limiting the scope

of the hearing.60 While, the Decision acknowledged that past CMP hearings have

“not precluded testimony by one or more of the surveyors who undertook the review

of a given facility,”61 Harmony was not completely precluded for exploring the

underlying facts of the deficiencies. The ruling allowed Harmony to “call the

Director of the DHCQ and/or the investigating surveyor who identified and

documented the underlying deficiencies cited in the Survey.” 62 Consistent with 16

Del. C. §1109(1), the ruling also instructed Harmony to explore the “nature,

circumstances, extent, and gravity” of the deficiencies. After careful review of the

60
Id.
61
Id. Harmony references Brookdale Dover v. DHCQ, DHCQ Appeal No. _ _ (June
12, 2019) and Paramount Senior Living v. DHCQ, DHCQ Appeal No. _ _ (October
25, 2023). These are attached to D.I. 27 as part of Exhibit 18, Part 2. They are also
discussed in the briefing on the scope of the hearing issue.
62
D.I. 12.
14
transcripts, any sustained objections to Harmony’s questioning was when it ventured

into addressing the validity of the deficiencies, as opposed to the gravity of them.

Harmony continuously attempted to elicit testimony regarding the accuracy

of the information reported in the survey, and therefore the validity of the deficiency,

throughout the hearing. Despite the prior limiting instruction, the DHCQ officer

permitted testimony regarding the accuracy of information contained in the survey,63

and allowed, from two separate witnesses, testimony regarding the survey’s

accuracy. The officer was lenient in allowing such testimony given that it already

decided “the violations were deemed to be correct when the facility didn’t challenge

it”64 when declining the IDR process. Harmony’s waiver of IDR waives challenges

to the deficiencies themselves.65

Harmony argues 16 Del. C. §1114 does not, on its face, indicate that the

imposition of remedies may be limited in any way, and that the plain language of

§1114 treats an “appeal of survey deficiencies” and the appeal of “imposition of

remedies” as separate rights.66 Assuming, arguendo, that Harmony’s assertion is

true, that does not negate the fact that Harmony failed to pursue its desired appeal of

the deficiencies’ validity. DHCQ provided Harmony with information regarding the

63
D.I. 22, p. 62.
64
D.I. 17, p. 81.
65
Christiana Town Ctr., LLC v. New Castle Cnty., 865 A.2d 521 (Table) (Del. 2004)
(ruling that due process rights can be knowingly, voluntarily, and intelligently made)
66
16 Del. C. §1114.
15
IDR policy and appeal process. 67 The hearing officer correctly deemed this a waiver

of the right to appeal the validity of each deficiency.68

Given that Harmony still appealed the CMPs, which allowed Harmony the

opportunity to explore the “nature, circumstances, extent, and gravity” of the

deficiencies, the Court will not reverse the DHCQ’s instruction limiting the hearing’s

scope. Not only does challenging the CMPs in part address the underlying

deficiencies, but the DHCQ officer even permitted testimony outside the scope of

16 Del. C. §1109(b)(1) when Getchell and Verchick testified to the survey’s

accuracy, and during Harmony’s broad challenges to every CMP during the two-day

hearing. The officer indicated the survey’s accuracy would be considered in the

written decision. 69 Sufficient evidence permitted this consideration and the finding

that the record failed to demonstrate that the DHCQ acted arbitrarily, capriciously,

or abused its discretion such that this Court should overturn the limiting decision.

As a result, there was no due process violation and decision limiting the scope of the

hearing.

67
D.I. 31, p. 3.
68
D.I. 17, p. 81.
69
D.I. 21. At the November 20, 2024 hearing it was decided that a second session
was necessary. The additional hearing occurred on December 5, 2024.
16
B. THE MAXIMUM PENALTY IMPOSED FOR DEFICIENCY THIRTEEN WAS BASED
UPON SUBSTANTIAL EVIDENCE.

Harmony argues the maximum penalty imposed for deficiency thirteen (13)

was not based on substantial evidence. Deficiency thirteen (13) relates Harmony’s

fire drill and emergency procedures. 16 Del. Admin. C. §3225-18.2 requires

“[r]egular fire drills shall be held at least quarterly on each shift. Written records

shall be kept of attendance at such drills.”70 Getchell testified there was “[n]o written

evidence of who attended [disaster drills,]” which violates §3225-18.2. Not only is

the lack of documentation itself a violation, but without that evidence, Getchell

testified they could not determine that the facility was routinely compliant in

administering drills despite the two documented fire drills in spring of 2024. 71

The testimony also shows Harmony violated 16. Del. Admin. C. §3225-18.4,

which provides “[t]he staff on all shifts shall be trained on emergency and evacuation

plans. Evacuation routes shall be posted in a conspicuous place at each nursing

station.”72 Getchell testified that four of six employee records lacked documentation

of mandated training. 73 Further, Getchell stated compliance with 18.4 requires more

than just having the drills, education is also required to comply with 18.4 “there has

70
16 Del. Admin. C. §3225.
71
D.I. 17, p. 38.
72
16. Del. Admin. C. §3225.
73
D.I. 17, p. 39.
17
to be…the initial education about what to do, the drill is then just practicing what to

do.”74 Further, Getchell explained, “the rules and regulations do require emergency

preparedness education. Without that documentation, there’s no way to confirm that

that occurred,” so Harmony was found in violation for failing to provide proper

emergency preparedness education. 75

On appeal Harmony, as it did below, argued excusal for noncompliance

because the employee responsible for conducting and documenting disaster drills

was tragically murdered at Harmony’s facility. The DHCQ considered these

circumstances in its decision:

[w]hile the DHCQ acknowledged the murder of the Director of
Maintenance, who, it was presumed, was responsible for maintaining
the attendance records of the fire drills, the DHCQ convincingly
argued, notwithstanding his death, the Facility had the duty to provide
the missing records. Moreover, the DHCQ argued the Facility was out-
of-compliance long before the fire drills that were held in the spring of
2024, but acknowledged the regulations did not specify the necessity of
maintaining attendance records. The DHCQ confirmed this was not a
repeat deficiency, and stated, when considering imposition of a CMP in
this matter, the DHCQ considered the factors of 16 Del. C. §1109(b),
and the DHCQ stood behind the decision to assess the CMP. 76

Undoubtedly a tragedy occurred. However, it is outside the scope of this Court’s

review to weigh the evidence. 77 Instead, the Court is limited to review whether the

74
D.I. 17, p.171.
75
D.I. 17, p. 170.
76
D.I. 8, p. 34. (I think the murder evidences a need for more emergency training…)
77
Bowers, 2025 WL 275418, at *3 (Del. Super. Jan. 23, 2025); see also DeMarie,
2002 WL 1042088 (“[i]f there is substantial evidence and no mistake in law, the
18
DHCQ’s decision was based upon substantial evidence. 78 It was. Getchell’s

testimony constitutes “relevant evidence a reasonable mind might accept to support

the conclusion” that Harmony failed to administer or document regular fire drills

and the associated education. 79 Getchell described how each of the §1109(b) factors

were considered in calculating each CMP, including number thirteen (13).80

Therefore, the DHCQ had substantial evidence to justify imposing the maximum

penalty and the decision regarding deficiency thirteen (13) is upheld.

C. THE CMPS IMPOSED FOR DEFICIENCIES 4, 5, 6, 7, 8, 10, 11, AND 15 WERE
SUPPORTED BY SUBSTANTIAL EVIDENCE, NOT ARBITRARY AND DO NOT
CONSTITUTE DISPARATE TREATMENT

The DHCQ must consider six factors enumerated in 16 Del. C. §1109(b)

before imposing a monetary penalty for a violation. “The statute gives the [DHCQ]

substantial discretion in assessing penalties upon a finding of violation and in

determining the amount of such penalties. The statute simply requires that the

[DCHQ] ‘consider’ the six factors enumerated therein…The statute prescribes no

further analysis.”81 In the Decision, the hearing officer individually addressed each

deficiency and described how the §1109(b) factors played a role in the associated

Board’s findings will be affirmed. This Court may not weigh the evidence,
determine credibility, or make its own factual findings”).
78
Id.
79
Jain, 29, A.3d at 211 (citing Tony Ashburn, 962 A.2d at 239).
80
D.I. 17, pp. 61-64.
81
Pioneer House Carelink, 2007 WL 4181670, at *6.
19
CMP. 82 Getchell’s testimony described the consideration of the §1109(b) factors

when imposing each CMP. 83 Given that no analysis beyond considering the factors

is required, the Court “will not disturb the legal grounds upon which the hearing

officer based his decision.” 84

Nor will the Court disrupt the hearing officer’s decision related to Harmony’s

alleged disparate treatment. The Decision noted that the statutory analysis is

individualized, and “highly nuanced” for each case. These are fact specific

determinations, and that “the Code does not require the DHCQ to employ [any

standardized point system], the highly subjective analysis employed by the DHCQ

is permissible, and the Facility’s argument is therefore found to be unconvincing. 85

The Delaware Supreme Court has addressed a need for consistency in

penalties, however, and stated:

[f]or notice to be adequate, it must give reasonable persons clarity as to
what conduct is proscribed. To that end, consistency is the key. Basing
violations of Regulations on expert testimony and an ad hoc basis
would result in a patchwork of definitions of the required standard of
care, with variations because of differing sets of facts and experts’
idiosyncrasies.86

82
See D.I. 8.
83
See D.I. 17.
84
Pioneer House Carelink, 2007 WL 4181670, at *6.
85
D.I. 8, p. 36.
86
Delaware Bd. of Med. Licensure & Discipline v. Grossinger, 224 A.3d 939, 587
(Del. 2020).
20
The Superior Court had occasion to analyze the interplay between Supreme Court

precedent emphasizing consistency with the fact that:

it is axiomatic that agency case decisions must consider the individual
circumstances of each case. Thus, there is a need in administrative law
to balance (1) the requirement for consistency in penalties, with (2) the
need that an agency consider the individual circumstances of each case.
Here, the General Assembly entrusted that balance to DREC. 87

There is nothing in the record that supports that any ad hoc determinations

were made in this case. The General Assembly similarly entrusted the DHCQ to

balance the need for consistency in penalties with the individuality of each case when

considering the necessary §1109(b) factors. The DHCQ is not required to use a

standardized system in assessing CMPs, and all the CMPs in this matter fell within

the appropriate ranges laid out in §§1109(a) and (c). Thus, the DHCQ did not abuse

its discretion, nor did Harmony suffer disparate treating, when the DHCQ did not

place a controlling weight on consistency “as long as it considers the individual

circumstances of each case and bases its decision on substantial evidence.”88

The record indicates the §1109(b) factors were considered when issuing a

CMP for each deficiency.89 The Decision delineates how the §1109(b) factors relate

87
In re Delaware Real Estate Comm’n, 2024 WL 4888922, at *14 (Del. Super. Nov.
25, 2024).
88
Id. (“[a]n agency does not abuse its discretion if it chooses to place controlling
weight on consistency as long as it considers the individual circumstances of each
case and basis its decision on substantial evidence”).
89
See D.I. 17.
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to each deficiency and specifies “[t]he defense elicited from the DHCQ a detailed

review of each of the fifteen (15) deficiencies…and also asked the DHCQ to explain

how the factors of 16. Del. C. §1109(b) were considered when assessing the

deficiencies for a potential CMP.”90 The hearing officer weighed that extensive

testimony in issuing the Decision. Nothing in the record supports the contention of

disproportionate treatment or any disparity. The Decision was based upon

substantial evidence, and it is inappropriate for the Court to engage in any further

analysis.91

IV. CONCLUSION

The Decision of the DHCQ is based upon substantial evidence showing the

§1109(b) factors were considered when assessing the challenged CMPs. Further, the

limitation on the scope of the hearing did not deprive Harmony of due process, as

they waived any challenge to the deficiencies themselves and were afforded great

leniency in challenging the CMPs. All of which were taken into consideration by

the hearing officer and evidenced by the fact that not all requested CMPs were

imposed.

90
D.I. 8, p. 30.
91
Bowers, 2025 WL 275418, at *3; see also DeMarie, 2002 WL 1042088 (“[i]f there
is substantial evidence and no mistake in law, the Board’s findings will be affirmed.
This Court may not weigh the evidence, determine credibility, or make its own
factual findings”).
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The Decision of the DHCQ is AFFIRMED.

IT IS SO ORDERED.

___________________________
Danielle J. Brennan, Judge

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