CHAPTER 2

FORMERLY

SENATE BILL NO. 13

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

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

Section 1. Amend Subchapter IV, Chapter 11, Title 16, Delaware Code by deleting Sections 1141, “Criminal Background Checks”, and 1142, “Mandatory Drug Testing”, in their entirety and inserting in lieu thereof the following:

Ҥ 1141. Criminal Background Checks.

(a) Purpose.

It is the intent of the General Assembly that the primary purpose of the criminal background check and drug testing requirements of this section and § 1142 is the protection of the safety and well-being of residents of nursing homes and other facilities licensed pursuant to 16 Del. C. Ch. 11. These sections shall be construed broadly to accomplish this purpose.

(b) Definitions.

(1) ‘Nursing home’ means any facility licensed pursuant to 16 Del. C. Ch. 11, including but not limited to nursing facilities (commonly referred to as nursing homes), assisted living facilities, intermediate care facilities for persons with mental retardation, neighborhood group homes, family care homes, and rest residential facilities;

(2) ‘Applicant’ means any of the following:

i.) A person seeking employment in a nursing home;

ii.) A current employee of a nursing home who seeks a promotion in the facility;

iii.) A person referred by a temporary agency to a nursing home.

(c) No employer who operates a nursing home or a management company or other business entity that contracts to operate a nursing home 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 DHSS 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.

(d) No agency, including but not limited to temporary employment agencies, may refer an applicant to a nursing home 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 DHSS 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.

(e) The State Bureau of Identification shall be the intermediary for the purposes of this section, and DHSS shall be the screening point for the receipt of said federal criminal history records. DHSS shall promulgate regulations regarding the criteria for unsuitability for employment, including the types of criminal convictions which automatically disqualify a person from working in a nursing home, and as to other criminal convictions, the criteria for determining whether a particular individual is unsuitable for such employment. These regulations shall also address the DHSS review of the federal criminal records, and the means for notifying employers of the results of that review.

(f) Conditional Hire.

Notwithstanding the provisions of subsection (c), 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 Identification. ‘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 if there are no disqualifying convictions as defined by DHSS regulations and a report by DHSS that there are no disqualifying convictions in such person’s federal criminal record. Thus, an employer must immediately terminate a conditionally hired employee upon notification of the employee’s conviction of any disqualifying crime (as defined by DHSS regulations) – whether the information is received from the State Bureau of Identification or from the DHSS report regarding the federal criminal history.

(g) 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 he or she conditionally hires 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.

(h) Notwithstanding any requirements of 11 Del. C. Ch. 85 to the contrary, the

State Bureau of Identification shall furnish information to the employer, including but not limited to temporary agencies, pertaining to the entire Delaware criminal history record of any applicant to work in a nursing home. Such information shall be provided to the employer and to DHSS pursuant to the procedures established by the Superintendent of the State Police. The criminal history information provided to the employer, to a nursing home by the agency/employer referring an applicant to a nursing home, and to DHSS is strictly confidential. Its use is restricted to the purpose of determining suitability of an applicant for employment in a nursing home.

(i) Every application for employment with a nursing home or for referral to work in a nursing home 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. If the employer is a temporary agency referring the applicant to work in a nursing home, the applicant must also sign a full release giving the employer permission to provide any criminal history information received about the applicant to any facility to which the applicant is referred to work.

(j) 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 (c) of this section, shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

(k) Except as otherwise noted in this section, 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. The State shall pay such costs one time per individual in a 5-year period. Additionally, the State shall pay for any criminal background checks conducted regarding DHSS employees who serve in a regulatory or advocacy capacity regarding nursing homes, again one time per individual in a 5-year period.

(l) Notwithstanding any provision of this Title to the contrary, any applicant who has been fingerprinted and received 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 1142. Mandatory Drug Testing.

(a) No employer who operates a nursing home, management company, other business entity contracted to operate a nursing home, or agency that refers employees to work in a nursing home 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 by DHSS.

(c) DHSS 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 DHSS, pursuant to regulations promulgated pursuant to this section.

(d) Conditional Hire.

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 actually had the appropriate drug screening. The final 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.

(e) An agency, including but not limited to temporary agencies, must provide the drug screening results it receives regarding a person referred to work in a nursing home to that particular nursing home so that the facility is better able to make an informed decision whether to accept the referral.

(f) The employer shall provide to DHSS copies of the results of any drug screening required by this section within 10 business days of receipt of the results.

(g) 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 2. If any provisions 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. 3. The DHSS Division of Long Term Care Residents Protection shall have authority to regulate and enforce the provisions of §§1141 and 1142 of Title 16, Delaware Code.

Section 4. The criminal background check (§1141) and drug testing requirements (§1142) of this Act shall become effective on March 31, 1999. However, except for temporary agency hires, the State will pay for the State Bureau of Identification and Federal Bureau of Investigation criminal background checks conducted between January 1, 1999, (when SB 303 passed by the 139th General Assembly and first took effect) and March 31, 1999, the date to which implementation is now extended.

Approved January 28,1999