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16 DE Admin. Code 3110
In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 29 of the Delaware Code, Section 7971(d)(1), Delaware Health and Social Services (DHSS) / Division of Long Term Care Residents Protection is proposing to amend Regulation 3110 Criminal History Record Checks and Drug Testing for Home Health Agencies.
29 Del.C. §7971(d)(1), Delaware Health and Social Services (DHSS) / Division of Long Term Care Residents Protection
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.
“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.
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.



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