Delaware - 2000
SPONSOR: Sen. Marshall
DELAWARE STATE SENATE
140th GENERAL ASSEMBLY
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:
"§ 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;
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.
a.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.
b.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.
c.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.
shall promulgate regulations regarding the criteria for
unsuitability for employment,DHSS 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.
d.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.
e.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.
f.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.
g.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
& nbsp;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.
&&&&&&&&
&& h.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.
i.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.
j.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.
a.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.
b.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
c.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.
d.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,
SYNOPSIS
This Bill extends the effective date of the Criminal
Background Check/Drug Testing law to March 31, 1999. It also deletes the two month limit
on conditional hires in the criminal background check context, and replaces it with the
requirement that an employer immediately terminate a conditionally hired employee upon
notification of the employee's conviction of any disqualifying crime. Additionally it
requires a temporary agency to provide all criminal
Author: Sen. Marshall
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