DEPARTMENT OF HEALTH AND SOCIAL SERVICES
IN THE MATTER OF: |
|
REGULATIONS GOVERNING |
MANDATORY PRE-EMPLOYMENT |
CRIMINAL HISTORY RECORD CHECKS |
AND DRUG TESTING |
Pre-employment Criminal History Record Checks and Drug testing Regulations
NATURE OF THE PROCEEDINGS:
Delaware Health and Social Services (DHSS) initiated proceedings to promulgate Regulations in compliance with Senate Bill 13 passed in the 140th General Assembly regarding mandatory pre-employment criminal history record checks and drug testing for persons seeking to work in nursing homes or other facilities licensed under 16 Del.C. Ch. 11, either as actual employees of such facilities or as employees of a temporary agency which has referred them to the facility. DHSS’s proceedings o promulgate these regulations were initiated pursuant to 16 Del. C. 1141 and 1142.
On March 1, 1999, DHSS published the proposed regulations, along with a notice of the public comment period, in the Delaware Register of Regulations. Written comments from the public concerning the proposed regulations were invited, to be delivered to DHSS by April 1, 1999. In addition, public hearings were held on March 23 in New Castle County and on March 25, 1999, in Kent County.
Oral and written comments were received and evaluated. The results of that evaluation are summarized below.
SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED/FINDINGS OF FACT, WITH AGENCY RESPONSE:
Defining “temporary agency” to include contractors. Several commentators noted that the term “contractor” is not included in the governing law. This is in fact the case. However, the agency response is that in order to achieve the intent of the law, contractors who spend time in nursing homes on a regular basis must be covered. The similarities between contractors and “temporary agencies” are greater than the differences. As a way of achieving the intent of the law without overburdening the industry by having to cover service providers who come into a facility on an irregular basis, the definition of “temporary agency” has been revised. Contractors are incorporated within that definition, but only if the service is provided in the nursing home for 20 hours or more a week. In order to implement this regulation properly, contractors must ensure that all staff who come into the facility are subjected to the criminal background check and drug testing, even if such staff individually do not spend the full 20 hours in the facility.
Including home health agencies within the definition of “temporary agency.” Public comment was received to the effect that home health agencies are different from other types of agencies that provide staffing on an as-needed basis in nursing homes. However, the evidence submitted was not compelling. Such organizations are in effect performing as temporary agencies under these circumstances and must comply in accordance with the “temporary agency” criteria.
Including, as part of the definition of “temporary agency,” service providers whose arrangements are made directly with the resident or a family member. Comments were received containing the suggestion that when a service is provided to a resident as a result of an arrangement with that person or his/her family/guardian (rather than the nursing home), the service provider should be subject to all the provisions of these regulations. The agency response is that, indeed, this suggestion does reflect sound public policy. Every person who walks through the door of a nursing home poses a potential threat to residents and should have his/her criminal background checked. However, to extend the coverage of these regulations in such a manner would require an additional public comment period. In view of the need to protect nursing home residents by issuing final regulations for this law, this kind of substantial change cannot be made at this time. The agency will take these comments into consideration and determine whether future changes to the regulations should be made. For the present, only services arranged for by the facility itself are incorporated under the definition of “temporary agency.”
Burdensome reporting requirements. Numerous commentators noted that the reporting requirements in the draft regulations went beyond what was authorized in the law. That is indeed correct. To respond to this, several sections have been modified to remove those reporting requirements. However, the agency needs reports from facilities to achieve its purpose of protecting nursing home residents; thus, easy-to-use mechanisms will be established to obtain data from employers on the status of applicants who have been processed under these regulations.
Additions and modifications to the “disqualifying” crimes. Several commentators noted that there are serious crimes against the elderly and persons with disabilities which are not currently included in the list of disqualifying crimes. In addition, disqualification on the basis of a drug-related misdemeanor may be too harsh a penalty. However, adding crimes or changing the disqualifiers would force an additional public comment period. In view of the need to protect nursing home residents by issuing final regulations for this law, no changes to the disqualifying crimes can be made at this time. The agency will take the comments submitted into account and review the need to modify the disqualifying crimes in the immediate future. Further, employers have the discretion to use criminal history information to determine employment suitability, even if a crime does not automatically disqualify an individual from working.
Timeframes for DHSS feedback to facilities. Several commentators noted that the regulations do not specify the length of time by which DHSS will provide employers with information about the State and Federal criminal history background checks. This is indeed correct. The agency response is that their experience with this whole process is so new and there are too many variables that come into play to be able to set specific time frames. However, there is a recognition on the part of the agency that completion standards need to be set for the staff who will be investigating the criminal history reports. Such standards will be developed and they will be shared with the industry, so that it is clear what the completion timeline goals are.
Staff who are “promoted.” It was noted that the proposed regulations did not include a definition of “promotion.” This is correct, and a definition has been added.
Comparability of crimes among states. It was questioned whether crimes committed in another state will be interpreted according to the laws of Delaware or that other state. The agency response is that, indeed, the laws of Delaware will be binding. A crime committed in another state has to be comparable to the Delaware crime in order to result in a disqualification. No change in the language of the regulation is needed regarding this matter.
The use of juvenile records. Commentators questioned how juvenile records will be used. The agency response is that the law requires employers to consider all information provided in the criminal history report. If juvenile crimes are included, and the individual had been convicted, that information will have to be used.
Drug test results being due within ten days. Commentators brought up the fact that when a positive drug test result comes in, the applicant may want the opportunity for a re-evaluation of that result. The issue is when does the “ten-day” time line begin. The agency response is that the ten-day time line would not begin until the final test result is in. Language has been modified to clarify this in the regulation.
Responsibility for paying for a “second” fingerprinting. Commentators noted that they need a reliable way to determine whether a person has already been fingerprinted, to avoid having to pay for a second one. The agency response is that every effort will be made to help employers make that determination. Unfortunately, no fool proof method currently exists because the State Police does not have any way to check, when a person comes in for fingerprinting, whether it has already been done in compliance with this law.
Collecting payment for “second” fingerprintings. The draft regulations specified that the State Police would be the agency responsible for collecting from employers if an applicant is fingerprinted more than once during any five-year period. It has been determined that DHSS will assume this responsibility, and the regulations have been modified to reflect that.
Criminal history information to be provided by temporary agencies to nursing homes. Commentators stated that, in their view, the draft regulations erroneously require temporary agencies to provide full criminal history information to nursing homes. The agency response is that, in fact, this is not an erroneous interpretation of the law. The law states that no nursing home may hire any applicant without obtaining a report of the person's entire criminal history record from the State Police and a report from DHSS regarding its review of the person's FBI report. Language in the law makes it clear that persons referred by a temporary agency to a nursing home are "applicants." Thus, no nursing home can "hire" temporary staff without first obtaining a report of the person(s)’s entire criminal history record (State and Federal). Such information has to come from the temporary agency, who is the employer. This analysis is compelling, and the requirement as included in the draft regulations will remain in the final version.
Confidentiality of information. The draft regulations did not make clear the confidentiality responsibilities imposed on employers in the handling of criminal history information. New sections have been added at the end of the regulations to clarify what those responsibilities are. These are not new responsibilities; rather, they are clarifications of existing requirements, as mandated by the Delaware Code.
How to handle current employees of a facility who seek promotion and are found to have a disqualifying crime in their criminal history. This matter is not addressed in the regulations, as it is a matter of law. Any such employee would not be able to accept the promotion. However, the handling of his/her employment in the current position is something that each facility must determine in consultation with its own legal counsel.
Temporary agencies having to pay for criminal background checks. Commentators stated that there is an inequity in the fact that nursing homes and similar facilities do not have to pay for the criminal background checks, while temporary agencies do. Indeed, this is correct. The agency response is that the requirement is specifically included in the law and cannot be changed via regulation.
Terminating applicants if drug test is not completed within two months. It was suggested that perhaps such employees should be allowed to take a leave of absence. However, the law is specific in requiring that they be terminated under such circumstances.
Allowing applicants to begin work before drug test results have been received. It was recommended that drug test results be required prior to the start of employment. However, the law specifically allows applicants to begin conditional employment before the results have been received.
Paying Unemployment Compensation to applicants terminated for a disqualifying crime. Commentators expressed concern that applicants who are disqualified might be found eligible for Unemployment Compensation. The law does not address this issue. The agency response is that consultation will take place with the Department of Labor to determine what the issues are involving Unemployment Compensation and how the matter can be resolved.
DECISION/ORDER:
The Department finds that the changes made in response to the comments received during the public comment period do not substantially change the nature of the regulations. Rather, they help to clarify the regulations proposed, improve procedures and reduce the burden on employers. Thus, the regulations, as set forth in the attached revision, should be issued, in the best interest of the general public of the State of Delaware.
THEREFORE, IT IS ORDERED, that the Regulations governing MANDATORY PRE-EMPLOYMENT CRIMINAL HISTORY RECORD CHECKS AND DRUG TESTING are adopted, as herein revised, and shall become effective ten days after publication of the final regulations in the Delaware Register of Regulations.
April 15, 1999
GREGG C. SYLVESTER, MD
SECRETARY
Draft
Final
DELAWARE HEALTH AND SOCIAL SERVICES PROPOSED REGULATIONS FOR CRIMINAL HISTORY RECORD CHECKS AND DRUG TESTING
Title 16 Del C. Sections 1141 and 1142
STATE OF DELAWARE
DELAWARE HEALTH AND SOCIAL SERVICES
PROPOSED REGULATIONS FOR CRIMINAL HISTORY RECORD CHECKS AND PRE-EMPLOYMENT DRUG TESTING FOR PERSONS WORKING IN NURSING HOMES AND OTHER FACILITIES LICENSED UNDER 16 Del. C. Ch. 11.
LEGAL BASIS
1. The legal base for these regulations is in the Delaware Code, Title 16, Chapter 11, Sections 1141 and 1142.
PURPOSE
2. 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.
DEFINITIONS
3. “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.
4. “Applicant” means any person seeking employment in a nursing home; a current employee of such facility 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.
[5. “Contractor or Temporary Agency” means any person or organization that provides services to a nursing home where the work responsibilities are located in the facility on a regular or intermittent basis and where the nursing home’s need for the service is ongoing (i.e., whether or not the specific person performs the service regularly or intermittently, the nursing home will need to ensure that those services are provided). This includes, but is not limited to, such services as housekeeping, food service, security, physicians, beauticians, and therapists. It does not include companies or vendors working on the physical structures, systems or grounds of nursing homes on a temporary, as needed, basis. For the purposes of these regulations, contractors are included in the definition of temporary agencies and are therefore subject to the same requirements as temporary agencies.]
[6. 5.] “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).]
[7. 6.] "Department or DHSS" means Delaware Health & Social Services.
[8. 7.] “Disqualifying convictions or disqualifying crimes” are the items delineated in Section 17 of these regulations.
[9. 8.] “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.
[10. 9.] “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.
[11. 10.] “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.
[12.11.] 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.
[13.12.] “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.
[13. “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.]
[14. “Temporary agency or contractor” means any business organization or person that places persons with another business organization to perform services. As used in these regulations, a temporary agency includes home health agencies which make such placements and contractors.]
[14. “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.]
PERSONS SUBJECT TO THE LAW
15. 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 [placed referred] on or after March 31, 1999, [at to] a nursing home are subject to the provisions of 16 Del C. 1141 and 1142.
FREQUENCY OF CRIMINAL HISTORY RECORD CHECKS
16. 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. [Section] 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. [Section] 1141. However, employers, at their own expense, shall have the right to require more frequent background checks.
CRITERIA FOR UNSUITABILITY FOR EMPLOYMENT
17. The following types of criminal convictions (or such crimes, if committed in another jurisdiction, which are comparable under Delaware law) automatically disqualify a person from working in a nursing home, if the person was convicted of the offense within the time parameters specified:
[•Any felony, if convicted within the last five years.]
• Those Class A misdemeanors included in Title 11, Chapter 5, Subchapter II, Subpart A, of the Delaware Code, if convicted within the last five years.
• Any misdemeanor [in Delaware] involving a controlled substance, a counterfeit controlled substance, or a designer drug as specified in Chapter 47 of Title 16 of the Delaware Code, [or conviction of a crime in any state or local jurisdiction, any Federal or military reservation or the District of Columbia, or any foreign jurisdiction that would be equivalent to such a misdemeanor in Delaware,] if convicted within the last five years.
• Any felony [in Delaware] involving a controlled substance, a counterfeit controlled substance, or a designer drug as specified in Chapter 47 of Title 16 of the Delaware Code, [or conviction of a crime in any state or local jurisdiction, any Federal or military reservation or the District of Columbia, or any foreign jurisdiction that would be equivalent to such a felony in Delaware,] if convicted within the last ten years.
• Any violent felony, as specified in Title 11 Del C. Section 4201 (c), if convicted within the last ten years.
• Conviction of any act causing death (as defined in Title 11, Chapter 5, Subchapter II, Subpart B, of the Delaware Code, with no time limit.
• Conviction of any sexual offense designated as a felony in Title 11, Chapter 5, Subchapter II, Subpart D of the Delaware Code, with no time limit.
[• Any felony, other than those specified above, if convicted within the last five years.]
18. In regard to other criminal convictions, the following criteria are to be used in determining whether a person is suitable for employment in a nursing home:
A. Type of offense(s)
B. Frequency of offense(s)
C. Length of time since the offense(s)
D. Age at the time of the offense(s)
E. Severity of the offense(s)
F. Record since the offense(s)
G. Nature of the offense(s) in relation to the type of job assignment
H. Disposition of the offense(s).
SANCTIONS
19. Sanctions against applicants shall be applied and enforced in the following circumstance(s):
A. 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.
B. Failure of an applicant to comply with pre-employment drug testing, as required, shall result in a civil penalty of not less than $1,000 nor more than $5,000 for each violation.
[C. Violations will be reported by the employer to the Division of Long Term Care Residents Protection.]
20. Sanctions against employers shall be applied and enforced in the following circumstance(s):
A. An employer who hires an applicant conditionally before receiving verification that the applicant has been fingerprinted and that the State and Federal criminal history record checks have been requested shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.
B. An employer who hires an applicant for final 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 shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.
C. An employer who hires an applicant for final employment and fails to request and/or fails to obtain a written report regarding 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.
D. Employer failure to comply with the pre-employment drug testing law shall result in a civil penalty of not less than $1,000 nor more than $5,000 for each violation.
[E. Violations are to be reported to the Division of Long Term Care Residents Protection.]
EMPLOYER RESPONSIBILITIES
21. Criminal history record checks and drug testing are to be completed on applicants who have been prescreened and to whom an offer of employment may be made. Payment for drug testing is the responsibility of the employer or the applicant.
22. Conditional employment cannot begin until the employer has received evidence that the applicant’s State and Federal criminal history records have been requested, he/she has been fingerprinted, and he/she has requested the appropriate drug testing. Under no circumstances shall an applicant be employed on a conditional basis for more than 2 months if the drug test results have not been received by his/her employer.
23. An employer whose nursing home includes both licensed and unlicensed areas must ensure that all persons who perform services in the licensed areas comply with the law.
24. The employer shall ensure that every application for employment at a nursing home specifies that the applicant is required 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 Investigations appropriation of Title II of Public Law 92-544. In addition, every application for employment shall contain a statement that must be signed by the applicant in which the applicant grants full release for the employer to request and obtain any such records or information contained on a criminal history record.
25. The employer shall ensure that a criminal history record request form has been completed and that the employer copy is maintained in its files.
26. The employer shall also maintain a signed copy of a verification of providing fingerprints to the Delaware State Police form.
27. 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 testing, as long as the person has also provided verification of fingerprinting. All persons hired shall be informed in writing and shall acknowledge, in writing, that his/her drug test results have been requested.
28. The employer must ensure that no applicant remains employed in conditional status for more than two months without receiving the results of the mandatory drug testing. If the drug testing results are not received within two months, the applicant must be terminated from employment, or in the case of an applicant [who was conditionally seeking] promot [ed ion], the applicant [can must] be [returned to his/her prior position demoted] or removed from employment in the nursing home.
29. The employer must provide to the Department a copy of each applicant’s [final mandatory] drug test results within 10 business days of their receipt . [Along with the results, or as soon thereafter as the decision is made, the employer shall notify the Department as to whether the applicant shall remain employed.]
30. When the employer is notified of conviction of one or more disqualifying crimes in either the State or Federal criminal history of an applicant, the employer shall terminate the applicant [immediately. A copy of or documentation of the termination notification shall be sent to the Department and a copy maintained in the facility’s files.]
31. If an employer wishes to have a criminal history record check conducted on an applicant who has been the subject of a qualifying State and Federal background check within the previous 5 years, the cost for this must be borne by the employer. Payment must be made directly to the State Police. The Department will, at no cost, provide the results of the Federal Bureau of Investigation information, just as it would for an applicant who had not had such a check conducted within the previous 5 years.
32. If a person is fingerprinted under the auspices of these regulations more than once during a five-year period, the cost of that fingerprinting will not be borne by the State. [The potential employer is required to confirm with DHSS that the applicant has been previously fingerprinted.] If billed, the Department will [return such invoices to the State Police so that they can] obtain payment from the employer specified on the criminal history record request form. Such employer may obtain payment from the applicant.
33. The employer will notify the Department if an applicant is separated from employment for any reason prior to completion of the criminal history check process.
34. The employer will have the responsibility for using the results of the criminal history record check and the drug testing as factors in making the determination of suitability for final employment, unless the State and/or Federal criminal history record check identifies the presence of a conviction of one or more disqualifying crimes, in which case the applicant is automatically disqualified for final employment and must be terminated.
35. The employer will notify the applicant of the findings.
[36. The Department reserves the right to obtain data from employers on the employment status of applicants covered under these regulations.]
[36. The employer will notify the Department of the names of all persons who were offered and accepted conditional and final employment.
37. It is recommended that employers require that all new employees after March 31, 1999, notify them of any subsequent convictions. Subsequent convictions may impact the suitability of employment of the employee, as determined by the employer.]
RESPONSIBILITIES OF TEMPORARY AGENCIES
[38.][37.] As employers, temporary agencies are responsible for all items delineated above under the section titled “EMPLOYER RESPONSIBILITIES” (sections 21-37).
[39.][38.] In addition, temporary agencies are responsible for the cost of criminal history record checks.
[39. 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. ]
40. [Also,] [t T] emporary agencies are required to inform nursing homes of any criminal background identified in the criminal history information provided by the State Bureau of Identification and the Federal report, as summarized by the Department, regarding any [applicant person] placed or referred for work at such facility. The temporary agency must have each applicant sign a full release giving the agency permission to provide any such criminal history information received about him/her to any nursing home where the person is placed to work.
41. Temporary agencies are required to inform nursing homes of the mandatory drug test results of [applicants persons placed or] referred for work in such facilities. Applicants shall sign a full release giving the agency permission to provide any such information to any nursing home where they are placed to work.
APPLICANTS’ RESPONSIBILITIES
42. 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.
43. 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.
44. The applicant is responsible for informing any potential employer if he/she has already been fingerprinted under the jurisdiction of these regulations. [The potential employer is required to confirm with DHSS that the applicant has been previously fingerprinted.] The cost for additional fingerprinting, done above and beyond the one fingerprinting per five-year period required by these regulations, shall not be borne by the State.
45. The applicant is responsible for completing the required drug testing and providing verification to the employer.
THE DEPARTMENT’S RESPONSIBILITIES
46. The Department is responsible for promulgating these regulations and revising them, as the need may arise.
47. Since an applicant’s Federal criminal record may not be provided to a privately-owned entity or to the applicant, the Department will issue a report to the employer based upon the information received.
48. Once the Department has received all necessary documentation , it shall perform a review, guided by criteria and timelines developed by the Department, and issue a written summary of findings to the employer. If conviction of a disqualifying crime is included on the State or Federal criminal history report, the Department will [immediately] notify the employer [immediately], prohibiting either the hire or continued conditional employment of the applicant.
CONFIDENTIALITY
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..."
49. The Department shall store written and electronically-recorded criminal history record information in a secure manner, to provide for the confidentiality of records and to protect against any possible threats to their security and integrity.
50. The Department shall limit the use of the criminal history record information to its purpose of determining suitability for employment.
51. The Department shall not release to employers, as defined in these regulations, copies of actual written reports of criminal history records prepared by the Federal Bureau of Investigation.
52. The following procedure shall be established to permit the review of criminal history record files by the applicant:
A. An applicant shall submit a request in writing to the Department for the on-site review of his/her criminal history record file.
B. An appointment shall be made for the applicant to review the record at the Department. Photo identification will be required at the time of the review.
C. The record shall be reviewed in the presence of a Department employee.
D. Written documentation of the date and time of the review and the name of those present shall be filed in the criminal history record file for the applicant.
E. The Department shall not remove criminal history records (written and electronic) from the secure files for any purpose other than to permit review by the named applicant.
53. Criminal history record information shall not be disseminated to any persons other than the applicant, his/her employer or subsequent employer(s), nursing homes to which a person is [referred placed] by a temporary agency, or the Department (11 Del. C. Section 513(d)).
[54 All employers are required to store criminal history record information in a secure manner, to provide for the confidentiality of records and to protect against any possible threats to their security and integrity. Employers are reminded that the confidentiality of such information is required under 11 Del.C.8514. Knowing and reckless violation is a Class A Misdemeanor.
55. Employers must limit the use of the criminal history record information to its purpose of determining suitability for employment.]