CHAPTER 466

FORMERLY

SENATE BILL NO. 303

AS AMENDED BY SENATE AMENDMENT NO. 3, AND

HOUSE AMENDMENT NO. 2

AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO QUALITY IN HIRING OF EMPLOYEES OF NURSING HOMES AND SIMILAR FACILITIES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 16 of the Delaware Code by redesignating the current "§1141" as "§1145."

Section 2. Amend Title 16 of the Delaware Code by adding a new §1141 in Subchapter III, Chapter II, Title 16, to read as follows:

"§1141. Criminal Background Checks.

(a) Definitions:

(1) 'Applicant' means any person applying for a position in a nursing home or other entity licensed pursuant to 16 Del. C. Ch. 11, that affords direct access to patients or individuals receiving care at such a facility, or a person applying for a license to operate such a facility or business.

(2) 'Direct Access' means the opportunity to approach children and/or adults without the presence of other adults during the course of one's assigned duties.

(b) No employer who operates a nursing home or other entity licensed pursuant to 16 Del. C. Ch.11 may hire any applicant without obtaining a report of the person's entire criminal history record from the State Bureau of Identification and a report from the Department of Health and Social Services regarding its review of a report of the person's entire Federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544.

No temporary agency may refer an applicant to a nursing home or other entity licensed pursuant to 16 Del. C., Chapter 11, without obtaining, at said agency's expense, a report of the person's entire criminal history record from The State Bureau of Identification and a written report from the Department of Health and Social Services regarding its review of the person's entire Federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544. The State Bureau of Identification shall be the intermediary for the purposes of this section and the Department of Health and Social Services shall be the screening point for the receipt of said Federal criminal history records. The Department of Health and Social Services shall promulgate regulations regarding its review of the Federal criminal records, the criteria which constitute disqualifiying factors for employment in a nursing home or other facility licensed pursuant to 16 Del. C. Ch. 11, and a means for notifying employers of the results of the assessment.

(c) Notwithstanding the provisions of subsection (b), the employer may hire an applicant on a conditional basis when the employer receives evidence that the applicant has requested his or her State and federal criminal history record, and has been fingerprinted by the State Bureau of Investigation. 'Evidence' for purposes of this subsection shall be a verification from the State Bureau of Identification that the person has been fingerprinted and both the State and Federal criminal history records have been requested. The final employment of an applicant pursuant to this Subsection shall be contingent upon the employer's receipt of the State Bureau of Identification criminal history record, and a report by the Department of Health and Social Services that there are no disqualifying factors for employment in such person's Federal Criminal Record. Under no circumstances shall an applicant hired on a conditional basis pursuant to this subsection be employed on a conditional basis for more than 2 months

(d) Any employer who hires an applicant for employment and fails to request and/or fails to obtain a report of the person's entire criminal history record from the State Bureau of Identification and/or a written report regarding the suitability of the applicant based on his or her Federal criminal history shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

Any such employer shall also be subject to this penalty if they conditionally hire an applicant before receiving verification from the State Bureau of Identification that the applicant has been fingerprinted and that the State and Federal criminal background checks have been requested.

(e) Notwithstanding any requirements of 11 Del. C Ch. 85 to the contrary, the State Bureau of Identification shall furnish information pertaining to the entire Delaware criminal history record of any person seeking employment with any employer who operates a nursing home or other entity licensed pursuant to 16 Del. C Ch. 11. Such information shall be provided to the employer and to the Department of Health and Social Services pursuant to the procedures established by the Superintendent of the State Police.

(f) Every application for employment with a nursing home or other entity licensed pursuant to 16 Del. C Ch. 11 shall require the applicant to provide any and all information necessary to obtain a report of the person's entire criminal history record from the State Bureau of Identification and a report of the person's entire Federal Criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544. In addition, every application for employment shall contain a signed statement from the applicant that the applicant grants full release for the employer to request and obtain any such records or information contained on a criminal history record.

() Any individual who either fails to make a full and complete disclosure on an application or a full and complete disclosure of any information required to obtain a criminal history record as required by subsection (b) of this section, shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

(a) The costs for the State Bureau of Identification and Federal Bureau of Investigation background checks made pursuant to this Section shall be borne by the State except where otherwise noted in this Section.

() Notwithstanding any provision of this Title to the contrary, any applicant who has been the subject of a qualifying state and federal background check, pursuant to the terms of this section within the previous 5 years, shall be exempt from the provisions of this section. However, employers, at their own discretion and expense, shall have the right to require more frequent background checks."

Section 2. Amend Title 16 of the Delaware Code by adding a new section §1142 in Subchapter III, Chapter 11, Title 16, to read as follows:

"§ 1142. Mandatory Drug Testing.

(a) No employer who operates a nursing home or other entity licensed pursuant to 16 Del. C, Ch. 11 may hire any applicant, as defined in §1141 of this Title, without first obtaining the results of such applicant's mandatory drug screening.

(b) All applicants, as defined in §1141 of this Title, shall submit to mandatory drug testing, as specified by regulations promulgated pursuant to subsection (d) of this section.

(c) The Department of Health and Social Services shall promulgate regulations, regarding the pre-employment testing 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 the Department of Health and Social Services, pursuant to regulations promulgated pursuant to this Section.

(d) Notwithstanding the provisions of Subsection (b), when exigent
circumstances exist, and an employer must fill a position in order to maintain the required level of service, the employer may hire an applicant on a conditional basis when the employer receives evidence that the applicant has requested the appropriate drug screening. The employment of an applicant pursuant to this subsection shall be contingent upon receipt of the results of the drug screening. In addition, all persons hired pursuant to §1141 of this Title shall be informed in writing and shall acknowledge in writing, that his/her results have been requested. Under no circumstances shall an applicant hired on a conditional basis pursuant to this subsection be employed on a conditional basis for more than 2 months.

() Any applicant or 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."

Section 3. Amend Subchapter IV., Chapter 11, Title 16 of the Delaware Code, by striking the descriptive heading of Subchapter IV as it appears therein and by substituting in lieu thereof the following new descriptive heading.

"Subchapter IV. Criminal Background Checks; Mandatory Drug Testing; Nursing Home Compliance with Title XIX of the Social Security Act."

Section 4. If any provision of this Act or the application thereof to any person, thing, or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act which can be given effect without the invalid provision or application. To that end, the provisions of this Act are declared to be severable.

Section 5. The requirements of the Act shall become effective on January 1, 1999.

Approved July 17, 1998