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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsMarch 2013

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16 DE Admin. Code 3105
3105 Criminal History and Drug Testing for Nursing and Similar Facilities
The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the January 2013 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by January 31, 2013, at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
29 Del.C. Chap. 79, “Department of Health and Social Services.”
16 Del.C. §1141(m), “Criminal Background Checks.”
Comment: 1: First, in §3.0, definition of “criminal history”, the Division includes the following sentence: “It shall be limited to convictions and arrests for which no disposition is available.”. This is problematic. The EEOC guidance (incorporated by reference at §8.6) discourages reliance on arrest records by employers. Moreover, the incidence of arrest records without disposition is high:
Response: Except for the offenses listed at §8.2 the Division will no longer automatically disqualify applicants. The burden of analyzing and assessing suitability for employment rests with the employer. We are providing employers with the full record so they can conduct such an analysis and assessment in accordance with the EEOC guidelines.
Comment 2: Second, §5.2 envisions the BCC continuously monitoring employees in its Master List for both arrests and convictions. The BCC is then authorized to use its discretion in sharing arrest information with the employer. This is not consistent with the EEOC guidance. The EEOC provides the following characterization of arrest records:
Response: The Division will receive and analyze the rap back updates. Charges with unknown dispositions or non-convictions will only be forwarded to the employer at the discretion of the Division. Again, the only convictions the Division will classify as disqualifying” are listed at §8.2. Other considerations are left to the employer.
Comment 3: Third, §5.2 contains the following sentences:
Response: The Division reserves the discretion to notify employers of any new criminal court action including both pending and resolved cases, and any wanted status. The Division will inform the employer of the resolution of the criminal court action when known. We have replaced the word “conviction” with “outcome.”
Comment 4: Fourth, the term “discrete” should be substituted for “discreet” throughout the document. It is incorrectly used in §§6.3, 6.4, 9.2, and 10.3.
Response: Substitutions made as recommended.
9.2 Evidence of all drug tests not transmitted through the BCC which have been represented to have been secured must be maintained in a [discreet discrete] file and be available for inspection, without delay, upon request from an agent of DLTCRP.
10.3 The employer shall ensure that copies of all BCC consent forms signed by Applicants are maintained in a [discreet discrete] file which is immediately available, upon request, from any agent of DLTCRP.
Comment 5: Fifth, in §6.4, there is a plural pronoun (their) with a singular antecedent (employee). Consider substituting “inclusion” for “their place”.
Response: Substitutions made as recommended.
6.4 A copy of the BCC consent form executed by an Applicant for employment and a copy of the Master List Retention form executed by an employee who seeks to continue [their place inclusion] on the Master List pursuant to 6.2 above shall be maintained in separate [discreet discrete] files which are readily accessible, without delay, upon request by an agent of DLTCRP.
Comment 6: Sixth, §7.1 states as follows:
This is not entirely accurate. Title 19 Del.C. §708(b)(6) authorizes conditional employment based on difficult circumstances. At a minimum, consider inserting “generally” prior to “required”.
Response: Revision made as recommended.
7.1 Before hiring an Applicant, employers are [generally] required by law to obtain from prior employers and to provide to prospective employers Service Letters which provide specific information as required by the Department of Labor. 19 Del.C. §708.
Comment 7: Seventh, §7.2 recites as follows:
While this employer requirement may be conceptually sound, it may lack statutory authority. Title 19 Del.C. §708(b)(5) contemplates employers maintaining the Service Letters and honoring requests from prospective employers for the Service Letters pertaining to applicants. Violations of the law result in civil penalties. Council could not locate any statute which permits an employer to simply send the Service Letters to the BCC which would then respond to employer requests for the Letters.
Response: 19 Del.C. §708(b)(5) requires the previous employer to provide the letter, it does not specify the manner in which it must be delivered. The mandatory posting of the letter in the BCC by the previous employer upon termination of the employee will result in increased compliance with the statute and provide the letter to the new employer with no delay by the previous employer.
Comment 8: Eighth, in §8.1, first sentence, the word “to” should be inserted between “authorized” and “furnish”. Moreover, in the first sentence, the word “to” should be inserted between “person” and “employers”.
Response: Insertions made as recommended.
8.1 The SBI is authorized [to] furnish information pertaining to the identification and conviction data for any person [to] employers or prospective employers so long as the information is used solely for purposes of making an employment decision. 11 Del.C. 8513(c) and(c)(1).
Comment 9: Ninth, in §8.2, the 15-year period for abuse/neglect convictions seems a bit long. By analogy, felony theft convictions have a 10-year disqualifying period. Consider a shorter period for misdemeanors involving abuse/neglect. The conviction information would still be disclosed pursuant to the criminal background check but there would not be a categorical, “no-exceptions” disqualification from employment if the 15-year standard were modified.
Response: Theft will no longer be an automatic disqualifier. The Division has determined that 15 years is an appropriate time period.
Comment 10: Tenth, in §8.3.1, consider substituting “inform” for “informs”. There is also a plural pronoun (them) with a singular antecedent (individual). Consider substituting “the individual” for “them”. Alternatively, the term “him” could be substituted. See Delaware Administrative Code Style Manual, §3.3.2.1.
Response: §8.3.1 has been deleted.
Comment 11: Eleventh, in §8.3.2, I believe the fourth “bullet” (Evidence...conduct) is “bunched” with the third bullet.
Response: §8.3.2 has been deleted.
Comment 12: Twelfth, in §12.3, capitalize “Bureau”.
Response: Amended as recommended.
Comment 13: Thirteenth, in §12.5.1, there is a plural pronoun (their) with a singular antecedent (Applicant). Consider substituting “his”. See Delaware Administrative Code Style Manual, §3.3.2.1.
Response: Amended as recommended.
Comment 14: Fourteenth, in §11.5.4, substitute “names” for “name”.
Response: Not found in §11.5.4 but amended as recommended at §12.5.4.
12.5.4 Written documentation of the date and time of the review and the [name names] of those present shall be maintained by DLTCRP.
Comment 15: Fifteenth, Title 29 Del.C. §7972 provides for due process and a hearing to contest BCC errors. Hearings must be consistent with the APA. The regulation omits information in this context. For example, in §11.5, an applicant should be able to obtain a written copy of BCC disclosures to bring to an attorney or facilitate checking accuracy based on other records. Moreover, there is no mention of a hearing in the regulation. There is only an obtuse reference to “appeal” in §15.5.5.
Response: The determination of a disqualifying conviction based on §8.2 is the only determination made by the Division. Consistent with the statutory language at 29 Del.C. §7972 challenges to those determinations will be consistent with the Administrative Procedures Act, 29 Del.C. Chapter 101. That process for appeal has been successfully applied previously under 16 Del.C., in particular for appeals of remedies imposed for noncompliance and is set forth at §1114. All other information provided through the BCC originates from other sources. Determinations are made by those other sources or by the employers themselves and challenges will be directed to those sources for resolution.
Comment 16: We believe that some “grandfathered employees” may not consent to be fingerprinted to obtain an SBI number or may not comply within the 120 day timeframe prescribed in the proposed regulations and will have to be terminated by the employer.
Response: The 120 day timeframe is a statutory requirement.
Comment 17: It has been reported to our association that regularly employees who are terminated for “abuse or neglect” have successfully obtained unemployment benefits. We believe that this should not be permitted under any circumstances but fear it will also occur with grandfathered employees that are terminated for lack of compliance with the new BCC regulations.
Response: Unemployment benefits are the purview of the Department of Labor. The Division cannot control or regulate policies or decisions of another agency. We appreciate the comment and will share it with the Department of Labor administration.
The Department finds that the proposed changes as set forth in the January 2013 Register of Regulations, amended as noted herein, should be adopted.
THEREFORE, IT IS ORDERED, that the proposed regulation to amend the Title XIX Medicaid State Plan and the Division of Social Services Manual (DSSM) regarding the Medical Assistance during Transition to the Medicare Program is adopted and shall be final effective March 11, 2013
3105 Criminal History Record Checks and Drug Testing for Nursing and Similar Facilities
The legal base for these regulations is in the 16 Del.C. Ch. 11 §§1141 and 1142.
The overall purpose of these regulations is to ensure the safety and well-being of residents of facilities licensed pursuant to 16 Del.C. Ch. 11. To this end, persons selected for employment in these facilities, effective March 31, 1999, will be subject to pre-employment criminal history checks and pre-employment drug testing. Further, these regulations apply to any person referred by a temporary agency, as herein defined, to such facilities for temporary employment who was hired by such agency on or after March 31, 1999.
“Applicant” means any person seeking employment in a nursing home; a current employee of such facility, as defined herein, who seeks promotion within the same facility; and/or a person hired on or after March 31, 1999, by a temporary agency (as defined below and including, but not limited to, contractors and home health agencies) who is sent by that agency to work in a nursing home.
“Conditional Employment” is the period of time during which an applicant is working in a nursing home while his/her employer has not received the results of (a) the State criminal history record, (b) the Federal criminal history record, and (c) the drug test. Conditional employment must end immediately if either the State or Federal criminal history record contains disqualifying crime(s).
"Department or DHSS" means Delaware Health & Social Services.
“Disqualifying Convictions or Disqualifying Crimes” are the items delineated in Section 6.0 of these regulations.
“Employer” is any person, business entity, management company, temporary agency, or other organization that hires persons to work in a nursing home or that places persons for work in a nursing home.
“Evidence” means verification from the State Bureau of Identification or designee that the applicant has been fingerprinted and that his/her criminal history records have been requested. In addition, evidence means documentation that drug testing has been performed.
“Final Employment” is contingent upon the employer’s receipt of the State Bureau of Identification criminal history record containing evidence of no disqualifying crimes or of any factors which would render that applicant unsuitable for employment in a nursing home; a report by the Department that there are no disqualifying crimes in such person’s Federal criminal record; and the results of the drug testing.
To “hire” means to begin employment of an applicant after March 31, 1999, or to pay wages for the services of a person who has not worked for the employer during the preceding twelve-month period.
“Illegal Drug” means: marijuana/cannabis; cocaine; opiates including heroin; phencyclidine (PCP); amphetamines; and any other illegal drug subsequently specified by the Department in the absence of a valid physician prescription.
“Nursing Home” means a residential facility that provides shelter and food to more than one person who, because of their physical and/or mental condition, require a level of care and services suitable to their needs to contribute to their health, comfort, and welfare; and who are not related within the second degree of consanguinity to the controlling person or persons of the facility. The facilities covered here are those licensed pursuant to 16 Del.C. Ch. 11, and include but are 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.
“Promotion” means any change in job classification which results in additional responsibility and/or an increase in wages. It does not include a change in job status from parttime to fulltime.
“Temporary Agency” for purposes of these regulations means any organization, employer, business entity, contractor, or home health agency that provides services in a nursing home. In the case of contractors, services are covered if they are provided on a regular basis.
“Regular Basis” for purposes of this definition means that the services are provided for 20 hours or more per week. Companies, contractors, and/or vendors working on the physical structures, systems or grounds of nursing homes on an as-needed basis are not included within this definition or these regulations.
All applicants hired on or after March 31, 1999, and all current employees who seek promotion in a nursing home are subject to the provisions of 16 Del.C. §1141 and §1142. In addition, all persons hired on or after March 31, 1999, by a temporary agency (as defined herein) and referred on or after March 31, 1999, to a nursing home are subject to the provisions of 16 Del.C. §1141 and §1142.
Any applicant who has been the subject of a qualifying background check in Delaware within the previous 5 years shall be exempt from 16 Del.C. §1141, except that the applicant is not exempt from subsequent employer access to the information contained in that background check. To qualify, such a check must include both State and Federal criminal history record checks and be pursuant to 16 Del.C. §1141. However, employers, at their own expense, shall have the right to require more frequent background checks.
6.1 Those Class A misdemeanors included in 11 Del.C. Ch. 5 Subchapter II, Subpart A, if convicted within the last five years.
6.2 Any misdemeanor involving a controlled substance, a counterfeit controlled substance, or a designer drug as specified in 16 Del.C. Ch. 47, if convicted within the last five years.
6.3 Any felony involving a controlled substance, a counterfeit controlled substance, or a designer drug as specified in 16 Del.C. Ch. 47, if convicted within the last ten years.
6.4 Any violent felony, as specified in 11 Del.C. §4201(c), if convicted within the last ten years.
6.5 Conviction of any act causing death, as defined in 11 Del.C. Ch. 5 Subchapter II, Subpart B, with no time limit.
6.6 Conviction of any sexual offense designated as a felony in 11 Del.C. Ch. 5 Subchapter II, Subpart D, with no time limit.
8.1.1 Failure by an applicant to disclose relevant criminal history information on a criminal history record request form that is subsequently disclosed as a result of the criminal history record check shall result in a civil penalty of not less than $1,000 nor more than $5,000 for each violation.
10.5 The employer shall ensure that a criminal history record request form has been completed and that the employer copy is maintained in its files.
10.6 The employer shall also maintain a signed copy of a verification of providing fingerprints to the Delaware State Police form.
10.9 The employer must provide to the Department a copy of each applicant’s final drug test results within 10 business days of their receipt.
11.3 In the case of contractors covered by these regulations, all applicants who provide services in a nursing home as an employee of a contractor must comply with the requirements of 16 Del.C. §1141 and §1142. Thus, each individual – even though he/she may not work in the nursing home for 20 hours in any given week – must comply, if the contractor is providing services in the nursing home for 20 hours or more per week.
12.1 Applicants are responsible for completing all information accurately and completely on a criminal history record request form; a verification of providing fingerprints to the Delaware State Police form; and any form provided by the employer for use in obtaining mandatory pre-employment drug testing. Any applicant who refuses to complete any one or more of these forms is deemed to have voluntarily withdrawn his/her application.
12.2 The applicant is responsible for having his/her fingerprints taken and returning a verification of providing fingerprints to the Delaware State Police form to the employer.
14.1 Title 11, subsection 8513 (c) (1) of the Delaware Code permits the State Bureau of Identification to “furnish information pertaining to the identification and conviction data of any person...of whom the Bureau has record...to ...[i]ndividuals and agencies for the purpose of employment of the person whose record is sought, provided...[t]he use of the conviction data shall be limited to the purpose for which it was given..."
The legal basis for these regulations is 16 Del.C. §§1141 and 1142 and 29 Del.C. §7972.
The overall purpose of these regulations is to ensure the safety and well-being of residents of facilities licensed pursuant to 16 Del.C., Ch 11. To that end, persons selected for employment in facilities will be subject to pre-employment background checks and pre-employment drug testing.
“Applicant” is a person seeking employment in a facility as defined below; a current employee of a facility who seeks a promotion in the facility; a self-employed person or a person employed by an agency for work in a facility; a current employee, regardless of when hired, who the Department has a reasonable basis to suspect has been arrested for a disqualifying crime since becoming employed or commencing work; a former employee who consents prior to leaving employment to periodic review of his or her criminal background for a fixed time period. See 16 Del.C. 1141.
“Background Check Center (BCC)” means the electronic system which combines 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, or home care agency as those terms are defined in the enabling statute. See 29 Del.C. §7972.
BCC disclosures” means the data on an Applicant that is generated by the BCC system.
“BCC consent form” means the form provided by DHSS which informs the Applicant of the scope of the BCC, the Applicant’s legal obligations, and the legal sanctions for failure to provide complete and accurate information.
“Criminal background check (CBC)”: The process conducted by the State Bureau of Identification of using an individual’s fingerprints to identify the person and to conduct both a State and a federal criminal background check.
“Criminal History” means a report from DLTCRP regarding its review of the Applicant’s entire federal criminal history from the Federal Bureau of Investigation, pursuant to Public Law 92-544 and amended (28U.S.C. § 534) and his or her Delaware record from the State Bureau of Identification. The Criminal History shall not include arrests that did not result in a conviction. It shall be limited to convictions and arrests for which no disposition is available.
“Delaware Health Information Network (DHIN)” means the State’s sanctioned provider of health information exchange services. 16 Del.C. Ch. 103
“Department” or “DHSS” means the Department of Health and Social Services. DHSS owns and operates the BCC.
“Delaware Judicial Information System (DELJIS)” means the agency which maintains all records of criminal arrests and convictions in the State of Delaware.
“Division” or “DLTCRP” means the Division of Long Term Care Residents Protection, Department of Health and Social Services. The Division is responsible for background checks for licensed facilities.
“Facility” means a nursing facility or similar facility licensed pursuant to 16 Del.C. Ch. 11.
“Grandfathered employee” is a current employee who was employed by a facility prior to March 31, 1999, and thus was exempted from the requirement enacted at that time that all facility employees have a criminal background check.
“Grandfathered employee consent form” is a consent form to be used for Grandfathered employees who are not subject to the entire review process of the BCC, and thus need consent only to the assignment of an SBI number, which may involve providing fingerprints at SBI. All Grandfathered persons must be on the BCC Master List within 120 days from commencement of the BCC system.
“Individualized Assessment” is the process of evaluating the suitability of an individual with a criminal history for employment.
“Master List” is the list maintained by the BCC for each employer. The list contains the names of all persons who:
“Master List retention form” means the form provided by DHSS which an employee whose employment is terminating may choose to execute in order to stay on the Master List for up to 3 years post-fingerprinting in order to facilitate re-employment.
“Rap-back” is the process of continuous monitoring an employee’s arrest and conviction record through DELJIS. The process is limited to Delaware arrests and convictions.
“SBI” means the State Bureau of Identification. It is the agency which processes all criminal background checks in the State of Delaware.
“Service Letter” means a letter containing specific information about a prospective employee’s prior employment. Service Letters are a statutory requirement found at 19 Del.C. §708.
6.4 A copy of the BCC consent form executed by an Applicant for employment and a copy of the Master List Retention form executed by an employee who seeks to continue [their place inclusion] on the Master List pursuant to 6.2 above shall be maintained in separate [discreet discrete] files which are readily accessible, without delay, upon request by an agent of DLTCRP.
7.1 Before hiring an Applicant, employers are [generally] required by law to obtain from prior employers and to provide to prospective employers Service Letters which provide specific information as required by the Department of Labor. 19 Del.C. §708.
8.1 The SBI is authorized [to] furnish information pertaining to the identification and conviction data for any person [to] employers or prospective employers so long as the information is used solely for purposes of making an employment decision. 11 Del.C. 8513(c) and(c)(1).
8.2 Disqualifying convictions. No facility shall employ a person who has, within the past 15 years, been convicted of abusing, neglecting or mistreating a resident of a facility, or an adult who is impaired. See 11 Del.C. 8564 and 42 CFR §483.13(c)(1)(ii).
[8.3.1 Individualized Assessment – Before excluding a prospective employee on the basis of a criminal conviction, other than a disqualifying conviction as described in 8.2 above, the employer must conduct an individualized assessment. Individualized assessment generally requires that an employer informs the individual that he or she may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to them; and considers whether the individual’s additional information shows that the past criminal conduct is not job related and consistent with business necessity.
9.2 Evidence of all drug tests not transmitted through the BCC which have been represented to have been secured must be maintained in a [discreet discrete] file and be available for inspection, without delay, upon request from an agent of DLTCRP.
10.3 The employer shall ensure that copies of all BCC consent forms signed by Applicants are maintained in a [discreet discrete] file which is immediately available, upon request, from any agent of DLTCRP.
12.5.4 Written documentation of the date and time of the review and the name[s] of those present shall be maintained by DLTCRP.
Last Updated: December 31 1969 19:00:00.
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