TITLE 11

Crimes and Criminal Procedure

Law-Enforcement Administration

CHAPTER 85. STATE BUREAU OF IDENTIFICATION

Subchapter V. Criminal Background Check for Child Care Providers


The following words, terms and phrases, when used in this subchapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) "Child care provider'' means any child care facility which by law is required to be licensed or any facility registered and eligible for Federal Child Care Development Block Grant funds;

(2) "Children'' means persons who are less than 18 years old;

(3) "Child sex abuser information'' shall have the meaning prescribed by § 8550(3) of this title;

(4) "Person seeking employment with a child care provider'' means any person seeking employment for compensation with a child care provider or any person who for any reason has regular direct access to children at any facility referred to in paragraph (2) of this section.

68 Del. Laws, c. 441, § 1; 69 Del. Laws, c. 144, §§ 1, 2; 70 Del. Laws, c. 577, §§ 5, 6.;

(a) Anything contained in subchapter I of this chapter to the contrary notwithstanding, the State Bureau of Identification, hereinafter referred to as the "Bureau'' shall furnish information pertaining to the identification and criminal history record of any person seeking employment with a child care provider, provided that the person seeking employment with a child care provider submits to a reasonable procedure established by standards set forth by the Superintendent of State Police to identify the person whose record is sought. Such procedure shall include the fingerprinting of the person seeking employment with a child care provider, and the provision of such other information as may be 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.

(b) Subsection (a) of this section shall apply to the dissemination of the identification and the entire criminal history record to:

(1) Any person seeking employment with a child care provider; and/or

(2) Child care providers for the purpose of obtaining such background information relating to the employment requirements for the person whose record is sought; and/or

(3) The Department of Services for Children, Youth and Their Families for the purpose of determining the suitability for child care facility licensing.

(c) Any person seeking employment with a child care provider shall as a condition of employment provide to such child care provider prior to employment, the person's identification and criminal history record, if any, as the same appears on file with the State Bureau of Identification.

(d) Notwithstanding any provision to the contrary, the information to be furnished by the Bureau shall include child sex abuser information. The Division of State Police shall be the intermediary for purposes of this section.

(e) Costs associated with obtaining said information and child sex abuser information shall be borne by the State.

(f) No person seeking employment with a child care provider shall be hired by the child care provider if such person seeking employment has been convicted of having committed a crime of child sex abuse as defined in § 8550(2) of this title.

(1) Child care providers which are subject to this subchapter may provisionally hire a person seeking employment, pending the furnishing by the Bureau of the information required by this subchapter.

(2) A person who is employed in a health care facility or child care facility or public school has an affirmative duty to inform, and shall inform, that person's own employer of any criminal conviction or of any entry on the Child Protection Registry established pursuant to Chapter 9 of Title 16.

(g) Any person or organization whose primary concern is that of child welfare and care, including any nonpublic school, and which is not otherwise required to do so under the provisions of this subchapter may voluntarily submit to the provisions of this subchapter at such person's or organization's expense pursuant to procedures established by the Superintendent of State Police. The provisions of § 8562 of this title shall not apply to such persons or organizations.

(h) No person who has been convicted of having committed a crime of child sexual abuse as defined in § 8550(2) of this title shall have direct access to a child care facility.

68 Del. Laws, c. 441, § 1; 69 Del. Laws, c. 144, § 3; 69 Del. Laws, c. 316, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 577, §§ 1-4; 73 Del. Laws, c. 45, § 2; 73 Del. Laws, c. 412, §§ 8, 9.;

(a) Any child care provider or designated agent for a child care provider who fails to obtain the information required by § 8561 of this title from a person seeking employment with such child care provider or otherwise violates the provisions of § 8561 of this title, shall be guilty of a class A misdemeanor and shall be punished according to Chapter 42 of this title.

(b) Any person seeking employment with a child care provider who knowingly provides false, incomplete or inaccurate child sex abuser information shall be guilty of a class G felony and shall be punished according to Chapter 42 of this title.

(c) The Superior Court shall have exclusive jurisdiction of offenses under this subchapter.

68 Del. Laws, c. 441, § 1.;

(a) Definitions.

(1) "Child care facility'' means any child care facility which is required to be licensed by the Department of Services for Children, Youth and Their Families.

(2) "Direct access'' means the opportunity to have personal contact with persons receiving care during the course of one's assigned duties.

(3) "Health care facility'' means any custodial or residential facility where health, nutritional or personal care is provided for persons, including nursing homes, hospitals, home health care facilities and adult day care facilities.

(4) "Person seeking employment'' means any person applying for employment in a public school or a public school district, any person applying for employment in a health care facility or child care facility, or any person applying for a license to operate a child care facility.

(5) "Person seeking employment with a public school'' means any person seeking employment for compensation with a public school or with an agency that supplies contracted services to students of a public school or any other person who for any reason has regular direct access to children at any public school, as that term is defined in this section, including substitute teachers.

(6) "Public school'' means any public school and includes any board of education, school district, reorganized school district, special school district, or charter school, and any person acting as an agent thereof.

(b) No employer who operates a health care facility or child care facility and no public school may hire any person seeking employment without requesting and receiving a Child Protection Registry check for the person. Notwithstanding any provision to the contrary, no person seeking employment with such an employer may be hired if the person seeking employment is currently on the Child Protection Registry at Child Protection Level III or IV as provided in subchapter II of Chapter 9 of Title 16, or has been convicted of any offense contained in Child Protection Level IV, or for 7 years after the conviction date if the person has been convicted of any Level III offense in which a child was the victim. A person who is employed in a health care facility or child care facility or public school has an affirmative duty to inform, and shall inform, that person's own employer of any criminal conviction or of any entry on the Child Protection Registry.

(c) Any employer who is required to request a Child Protection Registry check under this section shall obtain a statement signed by the person seeking employment wherein the person authorizes a full release for the employer to obtain the information provided pursuant to such a check.

(d) Notwithstanding the provisions of this section, when exigent circumstances exist which require an employer to fill a position in order to maintain the required or desired level of service, the employer may hire a person seeking employment on a conditional basis after the employer has requested a Child Protection Registry check. The employment of the person pursuant to this subsection shall be conditional and contingent upon the receipt of the Child Protection Registry check by the employer. Any person hired pursuant to this subsection shall be informed in writing, and shall acknowledge in writing, that the person's own employment is conditional, and contingent upon receipt of the Child Protection Registry check.

(e) The Department of Services for Children, Youth and Their Families shall promulgate regulations giving guidance for a procedure to notify employers of any relevant matters indicated in the Child Protection Registry check.

(f) Costs associated with providing a Child Protection Registry check shall be borne by the State.

(g) Any employer who hires a person seeking employment without requesting and receiving a Child Protection Registry check for such person shall be subject to a civil penalty or not less than $1,000 nor more than $5,000 for each violation.

(h) Any person or organization whose primary concern is that of child welfare and care, including any nonpublic school, and which is not otherwise required to do so under the provisions of this section may voluntarily submit to the provisions of this section at such person's or organization's expense pursuant to procedures established by the Department of Services for Children, Youth and Their Families. The provisions of § 8562 of this title do not apply to such persons or organizations.

71 Del. Laws, c. 199, § 15; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 200, § 2; 73 Del. Laws, c. 412, §§ 10-19.;

(a) Definitions. — As used in this section:

(1) "Adult abuse'' means:

a. Physical abuse by unnecessarily inflicting pain or injury to an adult who is impaired. This includes, but is not limited to, hitting, kicking, pinching, slapping, pulling hair or any sexual molestation. When any act constituting physical abuse has been proven, the infliction of pain shall be assumed.

b. Emotional abuse which includes, but is not limited to, ridiculing or demeaning an adult who is impaired, making derogatory remarks to an adult who is impaired or cursing directed towards an adult who is impaired, or threatening to inflict physical or emotional harm on an adult who is impaired.

(2) "Adult who is impaired'' means any person 18 years of age or older who, because of physical or mental disability, is substantially impaired in the ability to provide adequately for the person's own care and custody or any person who is a patient or resident of a nursing facility and similar facility.

(3) "Child care facility'' means any child care facility that is required to be licensed by the Department of Services for Children, Youth and Their Families.

(4) "Direct access'' means the opportunity to have personal contact with persons receiving care during the course of one's assigned duties.

(5) "Financial exploitation'' means the illegal or improper use or abuse by another person, whether for profit or other advantage, of the resources or financial rights of an adult who is impaired.

(6) "Health care service provider'' means any person or entity that provides services in a custodial or residential setting where health, nutritional or personal care is provided for persons receiving care, including, but not limited to, hospitals, home health care agencies, adult care facilities, temporary employment agencies and contractors that place employees or otherwise provide services in custodial or residential settings for persons receiving care, and hospice agencies. "Health care services provider'' does not include any private individual who is seeking to hire a self-employed health caregiver in a private home.

(7) "Mistreatment'' includes the inappropriate use of medications, isolation, or physical or chemical restraints on or of an adult who is impaired.

(8) "Neglect'' means:

a. Lack of attention to physical needs of the adult who is impaired including, but not limited to, toileting, bathing, meals and safety;

b. Failure to report the health problems or changes in health problems or changes in health condition of an adult who is impaired to an immediate supervisor or nurse;

c. Failure to carry out a prescribed treatment plan for an adult who is impaired; or

d. A knowing failure to provide adequate staffing which results in a medical emergency to any adult who is impaired where there has been documented history of at least 2 prior cited instances of such inadequate staffing levels in violation of staffing levels required by statute or regulations promulgated by the Department of Health and Social Services, all so as to evidence a wilful pattern of such neglect.

(9) "Nursing facility '' and "similar facility '' means any facility required to be licensed under Chapter 11 of Title 16. This includes, but is not limited to, facilities commonly called nursing homes, assisted living facilities, intermediate care facilities for persons with intellectual disabilities, neighborhood group homes, family care homes and rest residential care facilities. Also included are the Stockley Center, the Delaware Psychiatric Center and hospitals certified by the Department of Health and Social Services pursuant to § 5001 or § 5136 [repealed] of Title 16.

(10) "Person receiving care'' means a person who, because of that person's physical or mental condition, requires a level of care and services suitable to that person's needs to contribute to that person's health, comfort and welfare.

(11) "Person seeking employment'' means any person applying for employment with or in a health care service provider, nursing facility or similar facility or child care facility where the employment may afford direct access, or a person applying for licensure to operate a child care facility. It shall also include a self-employed health caregiver who has direct access in any private home.

(b) The name of any person found, after investigation by the Department of Health and Social Services, to have committed adult abuse, neglect, mistreatment or financial exploitation shall be entered on the Adult Abuse Registry; provided, however, that such person may request an administrative hearing pursuant to Department of Health and Social Services regulations before such entry becomes final. The hearing officer for the administrative hearing shall have the power to compel the attendance of witnesses and the production of evidence. The finding by the hearing officer shall constitute the final decision of the Department of Health and Social Services and shall be appealable, on the record, by either party to Superior Court.

(c) No health care service provider, nursing home or similar facility, or child care facility shall hire any person seeking employment without first checking the Adult Abuse Registry. For purposes of this subsection, the Adult Abuse Registry shall be the central registry of information maintained pursuant to Chapter 79 of Title 29 relating to the individuals against whom a charge of patient abuse, neglect, mistreatment or financial exploitation has been substantiated.

(d) Notwithstanding the provisions of this section, when exigent circumstances exist which require an employer subject to this section to fill a position in order to maintain the required or desired level of service, the employer may hire a person seeking employment on a conditional basis after the employer has requested an Adult Abuse Registry check. Any person hired pursuant to this subsection shall be informed in writing, and shall acknowledge in writing, that the person's employment is conditional and contingent upon receipt of the Adult Abuse Registry check.

(e) Records relating to the Adult Abuse Registry are not public records and are not subject to disclosure under Chapter 100 of Title 29. Regulations promulgated by the Department of Health and Social Services may authorize online access to the names of those actively listed on the Adult Abuse Registry and whether the listing is due to a substantiated finding of abuse, neglect, mistreatment or financial exploitation.

(f) The Delaware Department of Health and Social Services shall promulgate regulations to implement this section. Such regulations may include regulations for Adult Abuse Registry checks of contractors providing services in a custodial or residential setting for persons receiving care, regulations for the disclosure of Adult Abuse Registry records, regulations to establish hearing procedures and length of time on the Adult Abuse Registry, and regulations for the removal of a person from the Adult Abuse Registry before the expiration of the person's registration period where the Delaware Department of Health and Social Services deems that the person no longer poses a threat to any person receiving care.

(g) Costs associated with providing an Adult Abuse Registry check shall be borne by the State.

(h) Any employer who is required to request and receive an Adult Abuse Registry check and fails to do so shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. The Justice of the Peace Courts shall have jurisdiction over this offense.

71 Del. Laws, c. 201, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 476, § 1; 75 Del. Laws, c. 147, § 1; 77 Del. Laws, c. 89, §§ 1-3, 5; 78 Del. Laws, c. 224, § 25; 79 Del. Laws, c. 442, § 2.;