TITLE 16

Health and Safety

Regulatory Provisions Concerning Public Health

CHAPTER 11. NURSING FACILITIES AND SIMILAR FACILITIES

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


(a) Purpose. — The purpose of the criminal background check and drug screening requirements of this section and § 1142 of this title is the protection of the safety and well-being of residents of nursing facilities and similar facilities licensed pursuant to this chapter. These sections shall be construed broadly to accomplish this purpose.

(b) Definitions.

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

a. A person seeking employment in a facility, as defined below;

b. A current employee of a facility who seeks a promotion in the facility;

c. A self-employed person or a person employed by an agency for work in a facility;

d. A current employee of a facility or a person as defined in paragraph (b)(1)c. of this section above who the Department of Health and Social Services has a reasonable basis to suspect has been arrested for a disqualifying crime since becoming employed or commencing work;

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) "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.

(3) "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.

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

(5) "Facility" means any facility licensed pursuant to this chapter, including but not limited to nursing facilities (commonly referred to as nursing homes), assisted living facilities, intermediate care facilities for persons with intellectual disability; neighborhood group homes, family care homes, rest residential homes, intensive behavioral support and educational residences; retirement homes and rehabilitation homes with such terms to have such meaning as set forth in this title or, if not defined therein, as such terms are commonly used.

(6) "Grandfathered employee" means an employee of a facility who was not fingerprinted pursuant to this statute because the employment commenced before the effective date of the statute (March 31, 1999), and no requirement for fingerprinting has since applied (see paragraph (b)(1) of this section above).

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

(c) No employer may employ an applicant for work in a facility before obtaining a criminal history. The criminal history of any person not employed directly by the facility must be provided to the facility upon the person's commencement of work.

(d) Conditional hire. — The requirements of subsection (c) of this section may be suspended for 60 days 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.

(e) No employer is permitted to employ or continue to employ a person with a conviction deemed disqualifying by DHSS's regulations.

(f) Any employer 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.

(g) 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 facility. It must be stored in a manner that maintains its confidentiality.

(h) No applicant is permitted to be employed in a facility, other than conditionally pursuant to subsection (d) of this section above, until the applicant's employer has secured the applicant's criminal history.

(i) Before an applicant is permitted to be employed in a facility, 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 facility where the work is to be performed if the employer is other than the facility.

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

(k) All grandfathered employees must be fingerprinted by the SBI 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 the grandfathered employee continues to work at a nursing facility or similar facility;

(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.

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

(m) 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.

71 Del. Laws, c. 466, § 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 2, § 1; 74 Del. Laws, c. 195, §§ 1-6; 77 Del. Laws, c. 84, § 205; 78 Del. Laws, c. 303, § 2.;

(a) No employer is permitted to employ an applicant, as defined in § 1141 of this title, without first obtaining the results of that applicant's mandatory drug screening.

(b) All applicants, as defined in § 1141 of this title, must submit to mandatory drug screening, as specified by regulations promulgated by the Department of Health and Social Services (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) An agency, including but not limited to temporary agencies, must provide the drug screening results it receives regarding an applicant referred to work in a facility, as defined in § 1141 of this title, to that particular facility so that the facility is better able to make an informed decision whether to accept the referral.

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

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

71 Del. Laws, c. 466, § 2; 72 Del. Laws, c. 2, § 1; 72 Del. Laws, c. 366, § 1; 78 Del. Laws, c. 303, § 2.;

(a) Any nursing facility as defined in 42 U.S.C. § 1396r(a) shall comply with all requirements regarding such facilities contained in Title XIX of the Social Security Act [42 U.S.C. § 1396 et seq.] and in any federal regulation issued pursuant thereto.

(b) For any violation of subsection (a) of this section, a nursing facility shall be subject to 1 or more of the following remedies:

(1) Denial of payment with respect to any recipient under the state Medicaid program admitted to the nursing facility, with notice to the public and the facility as provided for by regulations promulgated by the Department.

(2) A civil fine between 2 percent to 100 percent of a facility's current per diem rate, which shall be collected with interest at the legal rate of interest, for each day in which a facility fails to comply with a requirement constituting a separate violation. Funds collected as a result of imposition of such a penalty shall be applied to the protection of the health or property of residents of the nursing facility found to have been in violation, including payment for the costs of relocation of residents to other facilities, maintenance of operation of a facility pending correction of deficiencies or closure, and reimbursement of residents for personal funds lost.

(3) The appointment, pursuant to regulations adopted by the Department, of temporary management to oversee the operation of the facility and to assure the health and safety of the facility's residents.

(4) In the case of an emergency, the closure of the facility, the transfer of residents in that facility or other facilities, or both.

(c) In the case of a nursing facility which, on 3 consecutive standard surveys conducted pursuant to the rules or regulations promulgated by the Department, has been found to have provided substandard quality of care or has otherwise failed to comply with the requirement imposed pursuant to subsection (a) or (e) of this section, the Department shall (regardless of what other remedies are provided):

(1) Impose the remedy described in subsection (b)(1) of this section; and

(2) Monitor the facility pursuant to regulations promulgated by the Department, until the facility has demonstrated, to the satisfaction of the Department, that the facility is in compliance with the requirements imposed pursuant to subsection (a) or (e) of this section, and that the facility will remain in compliance with such requirements.

(d) If a nursing facility has failed to comply with any of the requirements pursuant to subsection (a) or (e) of this section, within 3 months after the date the facility is found to be out of compliance with such requirements, the Department shall impose the remedy described in subsection (b)(1) of this section for all individuals who are admitted to the facility after such date.

(e) The Department may establish and promulgate such rules and regulations governing the administration and operation of this section as may be deemed necessary and which are not inconsistent with the laws of this State.

(f) The Secretary of the Department of Health and Social Services or the Secretary's designee shall have jurisdiction to hear any matter arising under subsections (a) and (e) of this section and shall have the power to impose any remedy listed under subsections (b), (c) and (d) of this section. Any party who is not satisfied with a decision of the Secretary or the Secretary's designee may appeal to the Superior Court for the county in which the facility is located. Such appeal must be filed within 30 days from the date of the Secretary's or the Secretary's designee's decision and shall be on the record made before the Secretary or the Secretary's designee.

(g) This section is intended to be applicable solely to nursing facilities as defined by 42 U.S.C. § 1396r(a) and shall not alter, amend, repeal, restrict or otherwise affect any existing Medicaid appeals procedures established by the Department.

67 Del. Laws, c. 79, § 1; 70 Del. Laws, c. 149, §§ 105, 106; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 466, § 1.;