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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsMarch 2013

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16 DE Admin. Code 3110
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. §1145 (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 disqualifier 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, in §3.0 definition of “Division or DLTCRP’, consider adding ”and home health agencies” to the end since this is the subject of the regulation.
Response: Amended as recommended.
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 programs and home health agencies].
Comment 3: Third, §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 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 4: Fourth, §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 5: Fifth, 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 6: Sixth, 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 7: Seventh, §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 8: Eighth, §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 9: Ninth, 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 10: Tenth, 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: The Division has determined that 15 years is an appropriate time period.
Comment 11: Eleventh, 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 12: Twelfth, 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 13: Thirteenth, in §10.8 insert “any” before ‘other”. Compare analogous §10.8 in the proposed Criminal History Record Checks and Drug Testing regulation. 16 DE Reg. 716 (January 1, 2013).
Response: Amended as recommended.
10.8 The employer is prohibited from sharing BCC disclosure information with [any] other person, agency, or facility except when requested because the subject of the BCC disclosure will be working for that employer in a facility or in the personal private residence of the requesting party.
Comment 14: Fourteenth, in §11.1, capitalize “Bureau”.
Response: Amended as recommended.
Comment 15: Fifteenth, in §11.5.1, 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 16: Sixteenth, in §11.5.4, substitute “names” for “name”.
Response: Amended as recommended at §12.5.4.
11.5.4 Written documentation of the date and time of the review and the [name names] of those present shall be maintained by DLTCRP.
Comment 17: Seventeenth, 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.
The Department finds that the proposed changes as set forth in the January 2013 Register of Regulations, as amended 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.
3110 Criminal History Background Checks and Drug Testing for Programs and Home Health Care Agencies
The purpose of these regulations is to ensure the safety and well-being of residents in this State who use the services of home health agencies licensed pursuant to 16 Delaware Code, §122(3)o, and/or self-employed healthcare givers in the resident’s own home or home of residence. To this end, persons selected for employment by home health agencies shall be subject to pre-employment criminal history checks and pre-employment drug testing; persons selected for employment by private individuals may be subject to pre-employment criminal history checks and pre-employment drug testing at the discretion of the private individual selecting the person for employment.
Conditional Employment” pertains to the period of time during which an applicant is working 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 results of the testing for illegal drugs. Conditional employment must end immediately if either the state or federal criminal history record contains disqualifying crime(s) as delineated in Section 3.1 of these regulations.
“Department or DHSS” means Department of Health and Social Services.
“Employer” is any person, business entity, management company, home health agency, temporary agency, or other organization that hires persons or that places persons in a private residence for the purposes of providing licensed nursing services, home health aide services, physical therapy, speech pathology, occupational therapy or social services.
“Final Employment” means employment upon the employer’s receipt of the State Bureau of Identification criminal history record containing evidence of no disqualifying convictions, a report by the Department that there are no disqualifying convictions in such person’s federal criminal record, and the results of the testing for illegal drugs.
“Hire” means to begin employment of an applicant, or to pay wages for the services of a person who has not worked for the employer during the preceding three-month period, or to refer a caregiver to a private residence in return for a finder or placement fee.
“Home Health Agency” is any business entity, public or private, which provides directly or through contract arrangements, to individuals in their home or private residence, either (a) two or more of the following services: licensed nursing, home health aide, physical therapy, speech pathology, occupational therapy, or social services where at least one of these services is licensed nursing or home health aide services or (b) home health aide services exclusively, provided under appropriate supervision.
“Illegal drug” for purposes of these regulations means marijuana/cannabis, cocaine, opiates including heroin, phencyclidine (PCP), amphetamines, barbiturates, benzodiazepene, methadone, methaqualone and propoxyphene.
“Promotion” means any change in job classification that results in additional responsibility and/or an increase in wages. It does not include a change in job status from part-time to full-time.
3.1.1 Conviction of any act causing death as defined in 11 Delaware Code, Chapter 5, Subchapter II, Subpart B with no time limit;
3.1.2 Conviction of any sexual offense designated as a felony in 11 Delaware Code, Chapter 5, Subchapter II, Subpart D with no time limit;
3.1.3 Conviction of any violent felony as specified in 11 Delaware Code, Section 4201(c) within the last ten years;
3.1.7 Conviction of any Class A misdemeanor included in 11 Delaware Code, Chapter 5, Subchapter II, Subpart A within the last five years;
3.1.8 Conviction of any attempt to commit a crime, as defined in 11 Delaware Code, Section 531, with respect to any of the above listed offenses.
3.3.1 The employer shall ensure that a Criminal History Record Request Form has been completed and that the employer copy is maintained in the employer’s files.
3.3.2 The employer shall maintain a signed copy of the Receipt/Verification of Providing Fingerprints Form from the Delaware State Police.
3.4.1 Applicants are responsible for completing all information accurately and completely on the Criminal History Record Request Form and any form provided by the employer for use in obtaining mandatory pre-employment testing for illegal drugs. Any applicant who refuses to complete one or more of these forms shall be deemed to have voluntarily withdrawn his/her application.
3.4.2 The applicant is responsible for having his/her fingerprints taken and for returning a Receipt/Verification of Providing Fingerprints to the Delaware State Police Form to the employer.
3.6.1 In accordance with 11 Delaware Code, Section 8513(c), the Department shall receive information from the State Bureau of Identification pertaining to the identification and conviction data of any person for whom the Bureau has a record solely for the purpose of determining suitability for employment of the person whose record is received.
The legal basis for these regulations is 16 Del.C. §§1145 and 1146 and 29 Del.C. §7972.
The overall purpose of these regulations is to ensure the safety and well-being of individuals in the care of home care agencies licensed pursuant to 16 Del.C., Ch 11. To that end, persons selected for employment will be subject to pre-employment background checks and pre-employment drug testing.
“Agency” means all programs or home care agencies licensed pursuant to 16 Del.C. §122(3(m), or (3)(0), or (3)(x).
“Applicant” is a person seeking employment with an employer as defined in 16 Del.C. §1145(b)(1).
“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 collected and 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)” means 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 programs and home health agencies].
“Facility” means a nursing facility or similar facility licensed pursuant to 16 Del.C. Chapter 11.
“Grandfathered employee” is a current employee who was employed by an agency prior to July 1, 2001, and thus was exempted from the requirement enacted at that time that all agency 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 the Department.
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) or any theft-related misdemeanor conviction within the past 18 months, or theft-related felony within the past 10 years.
8.2 Disqualifying convictions. No agency 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, or of a theft-related misdemeanor within the past 2 years, or of a theft-related felony within the past 10 years. 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 the Department.
11.5.4 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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