To assist facilities and employers in developing policies below is a link to the Delaware Administrative Code, Section 3105 which lists the employer’s responsibilities. The actual text is also listed for reference. Additional requirements can be found at 16 Del. C. §§ 1141, 1142, 1145 and 1146.
3105 Criminal History and Drug Testing for Nursing and Similar Facilities (delaware.gov)
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DEFINITIONS
“Agency” means all programs or home care agencies licensed pursuant to 16 Del.C. §122(3(m), or (3)(0), or (3)(x).
“Facility” means a nursing facility or similar facility licensed pursuant to 16 Del.C. Ch. 11.
“Individualized Assessment” is the process of evaluating the suitability of an individual with a criminal history for employment.
“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.
Persons Subject to the Law
All persons working in facilities are required to be on the Master List of the BCC. New Applicants must be processed through the BCC and will automatically be placed on the Master List if hired. Current employees, whether grandfathered or not, must be added to the Master List through the process directed by DHCQ.
No employer is permitted to continue to employ a grandfathered employee who has not been assigned an SBI number (through fingerprinting or retrieval by DHCQ of an SBI# previously assigned) and entered into the BCC within 120 days from the date of BCC implementation
Non-grandfathered current employees must be entered into the BCC by September 30, 2013
Consent forms
An employee must execute a BCC consent form as a condition of employment. The consent ends when the employment ends unless the employee chooses to extend the consent to expedite rehire and avoid the need for repeat fingerprinting if the employee was last fingerprinted within 3 years.
An employee whose employment is terminating may, at the time of separation, execute a Master List retention form in order to remain on the Master List of the BCC. The consent period is 3 years from the date last fingerprinted, less the intervening time. For example, a person fingerprinted on June 1 of year X; can consent to remain on the Master List until May 30 of year x+3 [June 1, 2013 to May 30, 2016]. Consent cannot extend beyond 3 years from the date last fingerprinted.
The original Grandfathered employee consent form shall accompany the employee to SBI for fingerprinting if so directed by DHCQ because an SBI# is not already known by DHCQ due to prior fingerprinting. A copy of the Grandfathered employee consent form shall be maintained in a discrete file which is readily accessible, without delay, upon request by an agent of DHCQ.
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 inclusion on the Master List pursuant to 6.2 above shall be maintained in separate discrete files which are readily accessible, without delay, upon request by an agent of DHCQ.
Service Letters
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.
When an employee hired after the effective date of the BCC is terminated, the employer shall promptly complete a Service Letter which will be stored by the BCC and available to the next prospective employer. The Service Letter shall expire after 5 years.
Criminal History
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).
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).
DHSS adopts the guidance from the Equal Employment Opportunity Commission, Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, 915.002, issued 4/25/2012
Notification of Criminal History review - If the Criminal History review reveals no criminal history, DHCQ has no duty to inform the Applicant. If a criminal history is revealed, DHCQ shall inform the Applicant by United States mail or in whatever alternate method the Applicant requests, such as e-mail or text message.
Drug Tests
The BCC provides an electronic conduit through the Delaware Health Information Network (DHIN) to transmit the results of a drug test from a DHIN participating laboratory to the employer. An employer that chooses not to engage a DHIN-participating laboratory will certify that a drug test has been secured by checking a box in the BCC. If the box is checked, it constitutes a representation that a drug test which complies with statutory requirements, 11 Del.C. 1142, has been secured prior to hiring.
Evidence of all drug tests not transmitted through the BCC which have been represented to have been secured must be maintained in a discrete file and be available for inspection, without delay, upon request from an agent of DHCQ.
Further Facility/Employer Responsibilities
An employer whose facility includes both licensed and unlicensed areas must ensure that all persons who perform services in the licensed areas comply with the law.
The employer shall ensure that every application for employment at a facility executes the BCC consent form.
The employer shall ensure that copies of all BCC consent forms signed by Applicants are maintained in a discrete file which is immediately available, upon request, from any agent of DHCQ.
The employer must ensure that no Applicant is employed without first receiving the results of the Applicant’s mandatory drug test.
The employer must maintain an accurate BCC Master List by promptly reflecting the termination of any person no longer working in the facility.
An employee whose employment is terminated may remain on the Master List to facilitate reemployment by the same or another facility up to 3 years beyond the date the individual was last fingerprinted. See 6.2 above. When that date is reached the employee will automatically be removed from the Master List without further action by the employer.
An Applicant who is entered into the BCC whose employment status (withdrawn, hired) is not completed by the employer within 30 days will be dropped from the BCC system.
The employer is prohibited from sharing BCC disclosure information with any other person, employer or agency 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.
The employer shall use the BCC disclosures solely for the purpose of determining the suitability of an Applicant for employment.
Responsibilities of non-facility employers who are within the scope of the BCC.
Any non-facility employer working or providing workers to a facility is subject to the following requirements:
All the requirements listed in Section 10 above.
The obligation to provide BCC disclosures to any facility or individual who will be receiving the services of the employee.
Section 182.
Any non-state agency whose employees are required to receive criminal background checks pursuant to 16 Del. C. § 1141 and § 1145, shall provide to the Department of Health and Social Services quarterly reports including a list of all employees hired over the preceding quarter for the purposes of verification. The Department of Health and Social Services shall review those lists to ensure compliance with 16 Del. C. § 1141 and § 1145.
The reports shall be submitted to the Division of Health Care Quality within 30 days of the end of the preceding quarter. Please submit reports to the Background Check Center at dhss_dltcrp_bcc@delaware.gov