§ 1145 Criminal background checks.
(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 under this title or who employ a person to provide care in a private residence. These sections must be construed broadly to accomplish this purpose.
(b) Definitions. — As used in this subchapter:
(1) "Applicant" means any of the following:
a. A person seeking employment with an employer.
b. A current employee who seeks a promotion from an employer.
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)m, § 122(3)o., or § 122(3)x. of this title.
d. A current employee of an employer who the Department 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 the former employee's criminal background for a fixed time period.
(2) "Authorized representative" means an individual who has the highest priority to act for the patient under law, and who has the authority to make decisions with respect to the patient's health-care preferences. The patient's authorized representative can be 1 of the following:
a. An individual designated by a patient under an advance health-care directive; an agent under a medical durable power of attorney for health-care decisions.
b. A guardian of the person appointed under Chapter 39 or 39A of Title 12, in accordance with the authority granted by the court; a surrogate appointed under Chapter 25 of this title.
c. An individual who is otherwise authorized under applicable law to make health-care decisions on the patient's behalf, if the patient lacks decision-making capacity.
(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 home-care agency or private residence.
(4) "Criminal history" means a report from the Department regarding its review of the applicant's entire federal criminal history from the Federal Bureau of Investigation, under Public Law 92-544 as amended (28 U.S.C. § 534) and the applicant's Delaware record from the State Bureau of Identification.
(5) "Department" means the Department of Health and Social Services.
(6) "Employer" means a home-care agency; a management company that contracts to provide services on behalf of a home-care agency; or other business entity, including a temporary employment agency, that contracts to provide services on behalf of a home-care agency.
(7) "Home-care agency" means all programs or agencies licensed under § 122(3)m., § 122(3)o., or § 122(3)x. of this title that provide services to individuals in their private residence.
(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.
(9) "SBI" means the State Bureau of Identification.
(c) An employer may not employ an applicant for work in a private residence before obtaining 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 authorized representative 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 the Department.
(1) The BCC user fee shall be set by regulation, but may not exceed that charged to an employer.
(2) The cost of the criminal background check from SBI or drug screening must be borne by the person making the request.
(e) 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.
(1) 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.
(2) The Department may not issue a criminal history if the applicant fails to provide information to the Department regarding the status or disposition of an arrest within 45 days from the date of notice from the Department of an open criminal charge. The Department may extend the time limits for good cause shown.
(f) An employer, other than a private person, may not employ or continue to employ an individual with a conviction deemed disqualifying by the Department's regulations.
(g) Any employer, other than a private person, who employs an applicant and fails to secure a criminal history is 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.
(i) No applicant is permitted to be employed by an employer other than conditionally under subsection (e) of this section until the applicant's employer has secured the applicant's criminal history.
(j) Before an applicant may be employed by an employer, the applicant must, upon request, do any of the following:
(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 authorized representative.
(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), (m) [Repealed.]
(n) The Department shall promulgate regulations regarding all of the following:
(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 the Department provides in the criminal history about disqualifying and nondisqualifying criminal convictions.
(5) The methods for notifying applicants and employers of the results of the Department'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.
§ 1146 Mandatory drug screening.
(b) An employer may not employ any applicant without first obtaining the results of that applicant's mandatory drug screening.
(c) All applicants, with the exception of a 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 the Department. The requirement for drug screening for self-employed persons seeking employment in a private residence is left to the discretion of the individual in need of care in the private residence.
(d) The Department shall promulgate regulations regarding the pre-employment screening of all applicants for use of the following illegal drugs:
(4) Phencyclidine ("PCP").
(6) Any other illegal drug specified by the Department under regulations promulgated under this section.
(e) An employer may not 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 authorized representative.
(f) The employer must provide confirmation of the drug screen in the manner prescribed by the Department's regulations.
(g) 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.