Skip to Page Content
Delaware.gov  |  Text OnlyGovernor | General Assembly | Courts | Elected Officials | State Agencies
 Photo: Featured Delaware Photo
 
 
 Phone Numbers Mobile Help Size Print Email

Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsMay 2016

Table of Contents Previous Next

Authenticated PDF Version

9 DE Admin. Code 301
The Department of Services for Children, Youth and Their Families ("DSCYF") initiated proceedings to adopt State of Delaware DELACARE Regulations - Background Checks for Child-Serving Entities to comply with changes in Delaware and Federal Code. On March 1, 2016 the proposed changes were published in the Delaware Register of Regulations. Written comments were accepted until March 31, 2016. Several regulations were revised based on the comments received. The results of the evaluation of the comments received are summarized in the accompanying "Summary of Evidence."
In accordance with Delaware law, the Office of Child Care Licensing (OCCL) published in the Delaware Register of Regulations DELACARE Regulations - Background Checks for Child-Serving Entities in March 2016. The period of public comment ended March 31, 2016. Comments were provided by the following:
Agency Response: The agency revised regulation 4.7.1 to include language that "Such checks shall be valid for a 5 year period."
Agency Response: Regulations 4.7.2 and 5.1.2.1 explain that youth camps not receiving Federal Child Care Development Block Grant Funds are permitted to opt out of fingerprinting. The "opting out" is not mentioned in the other regulations under 5.0 because those regulations define other child-serving entities and the process they must follow for fingerprinting. The regulations under 5.0 will remain unchanged.
Agency Response: The agency added regulations 4.7.2.1, 4.7.2.2 and 4.7.2.3 to help clarify all of the name-based checks required whenever a youth camp elects not to go through the fingerprinting process.
Agency Response: The agency revised regulation 3.0 "Child-serving entity" by removing volunteers. The agency also revised regulations 4.6.1.1 and 4.7.1 by removing applicants, substitutes and volunteers. The revision of all three regulations removes the distinction of employee types from the definition of "employee." Regulation 5.1.1 will remain unchanged because a distinction of employee types is necessary to explain when fingerprinting is needed for each type of employee.
Agency Response: The agency revised these regulations to remove employee types such as volunteer, respite and adoptive parent which are already covered under the definition of "employee."
Agency Response: The term "child care persons" is no longer used in the law. The title to the revised regulations is Background Checks for Child-Serving Entities. The agency agrees that the definition of "employee" is used in different ways, but it is understood to mean those people who work (for money) in a child-serving entity or those who work (not for money) in a child serving entity, as well as any others who would have regular direct access to children, therefore no change was made to this definition.
THEREFORE, IT IS SO ORDERED, this 14th day of April, 2016, that the proposed Department of Services for Children, Youth and Their Families DELACARE Regulations - Background Checks for Child-Serving Entities is adopted and shall become effective ten (10) days from the date of its publication in the Delaware Register of Regulations, in accordance with 29 Del.C. §10118(e) and (g).
"Child Care Person" means any person who seeks employment for compensation, volunteers to provide direct child care service, or, for any reason, has regular direct access to children and/or adolescents under the age of 18 years. This definition shall include any employee or volunteer of the Department of Services for Children, Youth and Their Families or one of its contractors who has regular direct access to children and/or adolescents under the age of 18 years and foster parents.
"Conditional Child Care Person" means a child care person who has been offered a position or has agreed to volunteer with the Department or one of its contractors or in a residential child care facility. Under the provisions of the law, a child care person may be hired on a temporary basis until the determination of suitability is made by the Department. Foster parents may be provisionally approved prior to the results of the criminal background check and in accordance with the Division of Family Services policy. If a determination of unsuitability is made, the child care person will be dismissed and in the case of foster parents the conditional placement will be rescinded.
"Criminal History Supervisor” means the Department staff member, located in the Office of Child Care Licensing, who is responsible for the implementation of the criminal history policies, procedures, and regulations.
“Criminal History Specialist” means the Department staff member, located in the Office of Child Care Licensing, who is responsible for processing and reviewing criminal history information consistent with Departmental policies, procedures and regulations.
"Department" means the Department of Services for Children, Youth and Their Families.
"Direct Access" means the opportunity to have personal contact with persons receiving care.
"Employer" means any of the following:
"Foster Parents" means foster/respite/adoptive parents and all household members 18 years of age or older.
"Residential Child Care Facility" means any facility that provides care or treatment for children overnight or is a 24 hour facility. This facility is State owned and operated or is licensed by the Department to provide services.
"Volunteer" means any person who has direct access to children in the performance of unpaid duties and who will be in a facility or in the service of the Department for five (5) or more days in a fiscal year. Student interns, regularly scheduled volunteers, and volunteer counselors will be required to have a criminal history check under these regulations. (For limited, occasional, sporadic, one-time volunteer efforts that last less than five (5) days or 40 hours, employers must ensure that these volunteers will be supervised during any activities with children.)
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 individuals and agencies for the purpose of employment of the person whose record is sought, provided the use of the conviction data is limited to the purpose for which it was given.
"Active on the child protection registry" means substantiated by the Division of Family Services for abuse or neglect at level II, III[,] or IV and reportable to employers.
"Administrative review" means a review provided to persons that are determined ineligible or prohibited on the basis of the background check results.
"Background check" means a State of Delaware and federal (national) fingerprinted report of a person's entire criminal history, a Department of Services for Children, Youth and Their Families child protection registry check and other checks as required by State or federal law.
"Child protection registry" means a central registry of information about persons the Division of Family Services has found cause to believe or a court has substantiated through court adjudication as having committed child abuse or neglect since August 1, 1994. Each substantiated incident shall be designated at one of three levels: II, III, IV.
"Child protection registry check" means a computer search of the child protection registry to determine if a person is active on the registry as a perpetrator in any substantiated case of child abuse or neglect.
"Child-serving entity" means any of the following: The Department of Services for Children, Youth and Their Families; which includes any employee [or volunteer] of the Department or one of its contractors; residential child care facilities in Delaware which are under contract with or operated directly by the Department; child care providers as defined in 31 Del.C. §342(1); youth camps or summer schools that are exempt from licensing requirements; or facilities and individuals registered and eligible for Federal Child Care Development Block Grant funds through the Delaware Department of Health and Social Services.
"Conditional employee" means a person who has been offered a position, or has agreed to volunteer, or provide foster care on a temporary basis until the determination of eligibility is made by the Department.
"Contractor" means a person, not an employee, providing services within a child-serving entity who has regular direct access to children, or provides services directly to a child or children.
"Conviction" or "Convicted" means as defined in 16 Del.C. §902(6).
"Criminal history specialist" means the Department staff member, located in the Office of Child Care Licensing, who is responsible for processing and reviewing background check information consistent with departmental policies, procedures, and regulations.
"Criminal history supervisor" means the Department staff member, located in the Office of Child Care Licensing, who is responsible for the implementation of the background check policies, procedures, and regulations.
"Criminal History Unit" means the Department unit, located in the Office of Child Care Licensing that is responsible for completing background checks.
"Delaware Justice Information System" or "DELJIS" means the central state agency responsible for the database which contains Delaware's criminal justice information including arrests and convictions.
"Department" means the Department of Services for Children, Youth and Their Families.
"Direct access" means the opportunity to have personal [unsupervised] contact with children receiving care.
"Employee" means any person seeking paid employment with a child-serving entity, or any person who for any reason has regular direct access to children such as a volunteer, or provides services directly to a child or children at a child-serving entity. This definition shall also include adult household members in licensed and license exempt child care homes and applicants wishing to become foster, respite, or adoptive parents and their adult household members.
"Employer" means any child-serving entity.
"Felony convictions involving physical or sexual assault crimes" means as defined in 31 Del.C. §309.
"Foster parents" means foster, respite, and adoptive parents and all household members 18 years of age or older.
"Licensed child care" means as defined in 31 Del.C. §342(1).
"License exempt child care" means provider types that are exempt from licensure as defined in the Office of Child Care Licensing's Delacare regulations and the Department of Health and Social Services' policies.
"Misdemeanor convictions against children" means as defined in 31 Del.C. §309.
"Office of Child Care Licensing" or "OCCL" means the entity within the Department authorized under 31 Del.C. §§341-345 to promulgate and enforce regulations and standards for the conduct of child care, including the licensing thereof, and the development and implementation of policies and procedures.
"Prohibited" means a person has a prohibited conviction or child protection registry substantiation that prevents them from employment, volunteering, contracting, or being a foster parent as designated under 31 Del.C. §309, The Adoption and Safe Families Act of 1997 [(42 USC §106)] and The Child Care Development Block Grant Act of 2014 [(42 USC §658H)].
"Prohibited child protection registry substantiation" means a child abuse or neglect substantiation that prevents a person from employment, volunteering, contracting, or being a foster parent as designated under 16 Del.C. §923.
"Prohibited conviction" means a felony or misdemeanor conviction that prevents a person from employment, volunteering, contracting, or being a foster parent as designated under 31 Del.C. §309, The Adoption and Safe Families Act of 1997 [(42 USC §106)] and The Child Care Development Block Grant Act of 2014 [(42 USC §658H)].
"Regular direct access" means the opportunity to have personal contact for five days or 40 hours in a calendar year with children receiving care. Employers must ensure that employees and contractors will be supervised at all times. If supervision is not possible, a background check must be completed before allowing direct access.
"Residential child care facility" means any facility that provides care or treatment for children overnight or is a 24-hour facility. This facility is State owned and operated or is licensed by the OCCL to provide services.
["Volunteer" means any person who has regular direct access to children in the performance of unpaid duties at a child-serving entity.]
"Youth camp" means a child-serving entity having custody or control of one or more school-age children, unattended by parent or guardian, for the purpose of providing a program of recreational, athletic, educational and/or religious instruction or guidance and operates for up to 12 weeks for three or more hours per day, during the months of May through September or some portion thereof, or during holiday breaks in the course of a school year, and is operated in a space or location that is not subject to licensing pursuant to 31 Del.C. §344.
4.2 Department contractors. Background checks shall be conducted on contractor employees [and volunteers] that have regular direct access or provide services directly to a child or children.
4.5.1.1 [Applicants, eE]mployees[, substitutes, volunteers,] and contractors within family child care, large family child care, early care and education centers, school age centers, child placing agencies, and residential child care facilities.
4.6.1.1 [Applicants, eE]mployees,[, substitutes, volunteers,] and contractors within child care facilities and youth camps receiving Federal Child Care Development Block Grant funds through the Delaware Department of Health and Social Services.
4.7.1 Background checks shall be conducted on [applicants,] employees[, substitutes, volunteers,] and contractors at youth camps. [Such checks shall be valid for a 5 year period.]
4.7.2 Youth camps not receiving Federal Child Care Development Block Grant Funds may elect not to go through the fingerprinting process, but instead choose to perform [a name-based Delaware criminal background check and child protection registry check for prospective employees, substitutes, volunteers, and contractors through the DELJIS and the Department and an out-of-state criminal record check using private third party providers including a social security number trace search and county-based criminal record search in the counties in which the individual has resided within the past 10 years. all of the following:
5.1.2 Licensed child care employees, license exempt child care employees, and youth camp employees [as required] must be fingerprinted within 30 days of the start of employment and provide the State Bureau of Identification receipt of fingerprinting to their employer.
6.3 The Adoption and Safe Families Act of 1997 [(42 USC §106)] prohibits people from becoming foster or adoptive parents if they have the following felony convictions:
6.4 The Child Care Development Block Grant Act of 2014 [(42 USC §658H)] prohibits child care persons from employment, volunteering, substituting, contracting, or living in licensed child care centers, family child care homes, and license exempt facilities and homes if such person:
6.4.4 Has been convicted of a felony consisting of [Mm]urder, child abuse or neglect, a crime against children, including child pornography, spousal abuse, a crime involving rape or sexual assault, kidnapping, arson, physical assault or battery committed at any time; or
6.4.5 Has been convicted of a felony [Dd]rug-related offense committed during the preceding 5 years; or
7.1 Information received from the background check shall be reviewed by the criminal history specialist to determine eligibility for employment, [volunteering,] contracting, [and] foster care[, respite care and adoption] based on the following criteria:
7.1.1.1 Criminal convictions other than those that are prohibited shall be reviewed in consideration of the criteria below. Other convictions for offenses which may make an employee[, volunteer,] or contractor ineligible for employment [or volunteering,] or may make a prospective foster parent ineligible are those in the Delaware Code, [Titles 11 and 16] which may contain (but are not limited to) the following characteristics:
7.1.1.2 The criminal convictions contained in subsection 7.1.1.1 involving the employee, [volunteer,] contractor, or foster parent shall be reviewed in consideration of other criteria below.
8.1 The background check[s] is only one factor being considered in the hiring or approval process. If the employer makes an adverse judgment before the check is completed or based on any criterion other than the background check, this administrative review does not apply.
8.2 Any person who is determined ineligible or prohibited as a result of an adverse judgment made by the Criminal History Unit on the basis of the [criminal] background check results, shall be entitled to an administrative review for reconsideration.
8.3 If the person believes the [criminal] background check information resulting in a determination of ineligible or prohibited is inaccurate or incomplete, the person may request an administrative review. The request must be submitted in writing to the Criminal History Unit within10 business days of receiving notification of the determination of ineligible or prohibited.
8.5 In the case of an administrative review of a decision involving a Department operated facility or Department [staff, employee,] the applicable division director or designee shall conduct the review in conjunction with personnel and within the context of these regulations, merit rules and labor agreements, and the employment status of the person.
Subsequent criminal history information received after the initial background check, shall be reviewed by the Criminal History Unit [to determine and shared with the child-serving entity when there are concerns with] a person's continued eligibility for employment, volunteering, contracting, foster care, respite care and adoption.
12.1 11 Del.C. §8513(c)(1) permits the State Bureau of ldentification to furnish information concerning the identification and conviction data of any person seeking employment as long as the information is only used for the purpose it was given.
Last Updated: December 31 1969 19:00:00.
site map   |   about this site   |    contact us   |    translate   |    delaware.gov