TITLE 16

Health and Safety

Regulatory Provisions Concerning Public Health

CHAPTER 11. NURSING FACILITIES AND SIMILAR FACILITIES

Subchapter V. Home Health Agencies and Private Residences — Criminal Background Checks; Drug Testing


(a) Purpose. — The purpose of the criminal background check and drug screening requirements of this section and § 1146 of this title is the protection of the safety and well-being of residents of this State who use the services of home health agencies, hospice agencies, or personal assistance services agencies licensed pursuant to this title or who employ a person to provide care in a private residence, as defined below. These sections shall be construed broadly to accomplish this purpose.

(b) Definitions.

(1) "Applicant" means any of the following:

a. A person seeking employment with an employer, as defined below;

b. A current employee who seeks a promotion from an employer, as defined below;

c. A self-employed person seeking employment in a private residence for the purpose of providing services to protect the health, safety and well-being of an individual who requires home health care service as defined in § 122(3)o of this title.

d. A current employee of an employer as defined below who DHSS has a reasonable basis to suspect has been arrested for a disqualifying crime since becoming employed.

e. A former employee who consents prior to leaving employment to periodic review of his or her criminal background for a fixed time period.

(2) "Criminal history" means a report from the Department of Health and Social Services regarding its review of the applicant's entire federal criminal history from the Federal Bureau of Investigation, pursuant to Public Law 92-544 as amended (28 U.S.C. § 534) and his or her Delaware record from the State Bureau of Identification.

(3) "Background Check Center (BCC)" means the electronic system which combines the data streams from various sources within and outside the State in order to assist an employer in determining the suitability of a person for employment in a nursing facility or similar facility, or home care agency.

(4) "Department" means the Department of Health and Social Services (DHSS).

(5) "Employer" means: a home care agency as defined in this section; a management company that contracts to provide services on behalf of a home care agency; or other business entity (including but not limited to a temporary employment agency) that contracts to provide services on behalf of a home care agency.

(6) "Grandfathered employee" means an employee of an Employer who was not fingerprinted pursuant to this statute because the employment commenced before July 1, 2001, and no requirement for fingerprinting has since applied. See paragraph (b)(1) of this section above.

(7) "Home care agency" includes all programs or agencies licensed pursuant to § 122(3)(m), or (3)(o), or (3)(x) of this title that provide services to individuals in their private residence, as defined below.

(8) "Private residence" means the domicile of the individual in need of care, either personally owned by that individual or considered the place of residence of that individual. A private residence does not include those healthcare facilities licensed by the Department of Health and Social Services under Chapter 11 of this title.

(9) "SBI" means the State Bureau of Identification.

(c) No employer is permitted to employ an applicant for work in a private residence before getting a criminal history. Upon request the criminal history must be provided to the person for whom the services are to be provided, or to the person's guardian, agent for health care decisions, or surrogate upon the applicant's commencement of work.

(d) A private individual seeking to hire or employ a self-employed individual to provide services in a private residence may secure access to the BCC from DHSS. The BCC user fee shall be set by regulation, but may not exceed that charged to an employer. The cost of the criminal background check from SBI and/or drug screening shall be borne by the person making the request.

(e) Conditional hire. — The requirements of subsection (c) of this section may be suspended for 60 days from the date of hire if the employer wishes to employ the applicant on a conditional basis. Before an employer may offer conditional employment, the employer must receive verification that the applicant has been fingerprinted by the SBI for purposes of the criminal history. No criminal history will be issued if the applicant fails to provide information to DHSS regarding the status or disposition of an arrest within 45 days from the date of notice from DHSS of an open criminal charge. DHSS may extend the time limits for good cause shown.

(f) No employer other than a private person is permitted to employ or continue to employ an individual with a conviction deemed disqualifying by DHSS regulations.

(g) Any employer other than a private person who employs an applicant and fails to secure a criminal history shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. An employer is also subject to this penalty if that employer conditionally employs an applicant before receiving verification that the applicant has been fingerprinted for purposes of the criminal history.

(h) The criminal history provided to the employer is strictly confidential. It may be used solely to determine the suitability of an applicant for employment or continued employment in a private residence.

(i) No applicant is permitted to be employed by an employer other than conditionally pursuant to subsection (e) of this section above, until the applicant's employer has secured the applicant's criminal history.

(j) Before an applicant is permitted to be employed by an employer, the applicant must, upon request:

(1) Provide accurate information sufficient to secure a criminal history;

(2) Execute a full release to enable the employer to secure a criminal history and to update the criminal history while employed;

(3) Execute a full release giving the employer permission to provide the criminal history to the person for whom the services are to be provided, or to the person's guardian, agent for health care decisions, or surrogate.

(k) An applicant who fails to comply with subsection (j) of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

(l) All grandfathered employees must be fingerprinted by SBI and be registered in the BCC within 120 days from the date of BCC implementation. SBI:

(1) Shall use the fingerprints to establish the grandfathered employee's identity and to assign an SBI identification number for the sole purpose of enabling the person's criminal record to be monitored for new arrests while employed in a private residence.

(2) Shall not secure a state or federal criminal history on the grandfathered employee, unless the grandfathered employee is also an applicant as defined in subsection (b) of this section above;

(3) Shall comply with § 1911 of Title 11.

(m) No employer is permitted to continue to employ a grandfathered employee who has not been fingerprinted and assigned an SBI number within 120 days from the date of BCC implementation.

(n) DHSS shall promulgate regulations regarding:

(1) The criteria it uses to determine unsuitability for employment;

(2) The policies and procedures for preparing the criminal history which govern the frequency of criminal record review and updating;

(3) The frequency with which fingerprints must be obtained;

(4) The information that DHSS provides in the criminal history about disqualifying and nondisqualifying criminal convictions;

(5) The methods for notifying applicants and employers of the results of DHSS's review, and for providing applicants with the criminal history;

(6) The administrative review process available to a person desiring to contest adverse information;

(7) Other provisions required to achieve the purpose of this section.

73 Del. Laws, c. 10, § 2; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 195, §§ 7-13; 77 Del. Laws, c. 84, § 206; 78 Del. Laws, c. 303, § 3.;

(a) Definitions.

(1) "Applicant" is defined in § 1145 of this title.

(2) "Department" means the Department of Health and Social Services (DHSS).

(3) "Employer" means: a home care agency as defined in this section; a management company that contracts to provide services on behalf of a home care agency; or other business entity (including but not limited to a temporary employment agency) that contracts to provide services on behalf of a home care agency.

(4) "Home care agency" includes all programs or agencies licensed pursuant to § 122(3)(m), or (3)(o), or (3)(x) of this title that provide services to individuals in their private residence, as defined below.

(5) "Private residence" means the domicile of the individual in need of care, either personally owned by that individual or considered the place of residence of that individual. A private residence does not include those healthcare facilities licensed by the Department of Health and Social Services under Chapter 11 of this title.

(b) No employer is permitted to employ any applicant without first obtaining the results of that applicant's mandatory drug screening.

(c) All applicants, with the exception of self-employed individual seeking employment from a private person to provide services in a private residence, must submit to mandatory drug screening, as specified by regulations promulgated by DHSS. The requirement for drug screening for persons seeking employment in a private residence is left to the discretion of the employer.

(d) DHSS shall promulgate regulations regarding the pre-employment screening of all applicants for use of the following illegal drugs:

(1) Marijuana/cannabis;

(2) Cocaine;

(3) Opiates;

(4) Phencyclidine ("PCP");

(5) Amphetamines;

(6) Any other illegal drug specified by DHSS, pursuant to regulations promulgated pursuant to this section.

(e) No employer may employ an applicant for work in a private residence before getting the results of that applicant's drug screening. Upon request, the results of the drug screen must be provided upon the applicant's commencement of work to the person for whom the services are to be provided, or to the person's guardian, agent for health care decisions, or surrogate.

(f) The employer must provide confirmation of the drug screen in the manner prescribed by DHSS's regulations.

(g) Any employer who fails to comply with the requirements of this section shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

73 Del. Laws, c. 10, § 2; 78 Del. Laws, c. 303, § 3.;