Subchapter IV. Criminal Background Checks; Mandatory Drug Testing; Nursing Home Compliance with Title XIX of the Social Security Act
TITLE 16
Health and Safety
Regulatory Provisions Concerning Public Health
CHAPTER 11. NURSING FACILITIES AND SIMILAR FACILITIES
Subchapter IV. Criminal Background Checks; Mandatory Drug Testing; Nursing Home Compliance with Title XIX of the Social Security Act
§ 1141. Criminal background checks.
(a) Purpose. -- It is the intent of the General Assembly that the primary purpose of the criminal background check and drug testing requirements of this section and § 1142 of this title is the protection of the safety and well-being of residents of nursing homes and other facilities licensed pursuant to this chapter. These sections shall be construed broadly to accomplish this purpose.
(b) Definitions. --
(1) "Applicant" means any of the following:
a. A person seeking employment in a nursing home;
b. A current employee of a nursing home who seeks a promotion in the facility;
c. A person referred by a temporary agency to a nursing home;
d. A current employee of a nursing home or temporary agency who the Department has a reasonable suspicion has been convicted of a disqualifying crime since becoming employed.
(2) "Nursing home" means any facility licensed pursuant to this chapter, including but 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;
(c) No employer who operates a nursing home or a management company or other business entity that contracts to operate a nursing home may hire or employ any applicant without obtaining a report of the person's entire criminal history record from the State Bureau of Identification and a report from DHSS regarding its review of a report of the person's entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544.
(d) No agency, including but not limited to temporary employment agencies, may refer an applicant to a nursing home without obtaining, at said agency's expense, a report of the person's entire criminal history record from the State Bureau of Identification and a written report from DHSS regarding its review of the person's entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544.
(e) The State Bureau of Identification shall be the intermediary for the purposes of this section, and DHSS shall be the screening point for the receipt of said federal criminal history records. DHSS shall promulgate regulations regarding the criteria for unsuitability for employment, including the types of criminal convictions which automatically disqualify a person from working in a nursing home, and as to other criminal convictions, the criteria for determining whether a particular individual is unsuitable for such employment. These regulations shall also address the DHSS review of the federal criminal records, and the means for notifying employers of the results of that review.
(f) Conditional hire. -- Notwithstanding the provisions of subsection (c) of this section, the employer may hire or employ an applicant on a conditional basis when the employer receives evidence that the applicant has requested his or her state and federal criminal history record, and has been fingerprinted by the State Bureau of Identification. "Evidence" for purposes of this subsection shall be a verification from the State Bureau of Identification that the person has been fingerprinted and both the state and federal criminal history records have been requested.
The final employment of an applicant pursuant to this subsection shall be contingent upon the employer's receipt of the State Bureau of Identification criminal history record if there are no disqualifying convictions as defined by DHSS regulations and a report by DHSS that there are no disqualifying convictions in such person's federal criminal record. Thus, an employer must immediately terminate a conditionally-hired employee or any current employee upon notification of the employee's conviction of any disqualifying crime (as defined by DHSS regulations) -- whether the information is received from the State Bureau of Identification or from the DHSS report regarding the federal criminal history.
(g) Any employer who hires or employs an applicant for 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 and/or a written report regarding the suitability of the applicant based on the applicant's federal criminal history shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. Any such employer shall also be subject to this penalty if he or she conditionally hires or employs an applicant before receiving verification from the State Bureau of Identification that the applicant has been fingerprinted and that the state and federal criminal background checks have been requested.
(h) Notwithstanding any requirements of Chapter 85 of this title to the contrary, the State Bureau of Identification shall furnish information to the employer, including but not limited to temporary agencies, pertaining to the entire Delaware criminal history record of any applicant to work in a nursing home. Such information shall be provided to the employer and to DHSS pursuant to the procedures established by the Superintendent of the State Police. The criminal history information provided to the employer, to a nursing home by the agency/employer referring an applicant to a nursing home, and to DHSS is strictly confidential. Its use is restricted to the purpose of determining suitability of an applicant for employment in a nursing home.
(i) Every application for employment with a nursing home or for referral to work in a nursing home shall require the applicant 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 Investigation appropriation of Title II of Public Law 92-544. In addition, every application for employment shall contain a signed statement from the applicant that the applicant grants full release for the employer to request and obtain any such records or information contained on a criminal history record. If the employer is a temporary agency referring the applicant to work in a nursing home, the applicant must also sign a full release giving the employer permission to provide any criminal history information received about the applicant to any facility to which the applicant is referred to work.
(j) Any individual who either fails to make a full and complete disclosure on an application or a full and complete disclosure of any information required to obtain a criminal history record as required by subsection (c) of this section, shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.
(k) Except as otherwise noted in this section, the costs for the State Bureau of Identification and Federal Bureau of Investigation background checks made pursuant to this section shall not be borne by the State.
(l) Notwithstanding any provision of this title to the contrary, any applicant who has been fingerprinted and received a qualifying state and federal background check, pursuant to the terms of this section within the previous 5 years, shall be exempt from the provisions of this section. However, employers, at their own discretion and expense, shall have the right to require more frequent background checks.
71 Del. Laws, c. 466, § 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 2, § 1; 74 Del. Laws, c. 195, §§ 1-6; 77 Del. Laws, c. 84, § 205.;
§ 1142. Mandatory drug testing.
(a) No employer who operates a nursing home, management company, other business entity contracted to operate a nursing home, or agency that refers employees to work in a nursing home may hire any applicant, as defined in § 1141 of this title, without first obtaining the results of such applicant's mandatory drug screening.
(b) All applicants, as defined in § 1141 of this title, shall submit to mandatory drug testing, as specified by regulations promulgated by DHSS.
(c) DHSS shall promulgate regulations, regarding the pre-employment testing of all applicants, for use of the following illegal drugs:
(1) Marijuana/cannabis;
(2) Cocaine;
(3) Opiates;
(4) Phencyclidine ("PCP");
(5) Amphetamines;
(6) Any other illegal drug specified by DHSS, pursuant to regulations promulgated pursuant to this section.
(d) Conditional hire. -- Notwithstanding the provisions of subsection (b) of this section, 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 screening. The final employment of an applicant pursuant to this subsection shall be contingent upon receipt of the results of the drug screening. In addition, all persons hired pursuant to § 1141 of this title shall be informed in writing and shall acknowledge, in writing, that his/her results have been requested. Under no circumstances shall an applicant hired on a conditional basis pursuant to this subsection be employed on a conditional basis for more than 2 months.
(e) An agency, including but not limited to temporary agencies, must provide the drug screening results it receives regarding a person referred to work in a nursing home to that particular nursing home so that the facility is better able to make an informed decision whether to accept the referral.
(f) Mandatory drug testing. -- The employer shall provide to DHSS copies of the results of any drug screening required by this section pursuant to regulation.
(g) Any applicant or employer who fails to comply with the requirements of this section shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.
71 Del. Laws, c. 466, § 2; 72 Del. Laws, c. 2, § 1; 72 Del. Laws, c. 366, § 1.;
§ 1143. Standards of care for nursing homes providing care to Medicaid recipients.
(a) Any nursing facility as defined in 42 U.S.C. § 1396r(a) shall comply with all requirements regarding such facilities contained in Title XIX of the Social Security Act [42 U.S.C. § 1396 et seq.] and in any federal regulation issued pursuant thereto.
(b) For any violation of subsection (a) of this section, a nursing facility shall be subject to 1 or more of the following remedies:
(1) Denial of payment with respect to any recipient under the state Medicaid program admitted to the nursing facility, with notice to the public and the facility as provided for by regulations promulgated by the Department.
(2) A civil fine between 2 percent to 100 percent of a facility's current per diem rate, which shall be collected with interest at the legal rate of interest, for each day in which a facility fails to comply with a requirement constituting a separate violation. Funds collected as a result of imposition of such a penalty shall be applied to the protection of the health or property of residents of the nursing facility found to have been in violation, including payment for the costs of relocation of residents to other facilities, maintenance of operation of a facility pending correction of deficiencies or closure, and reimbursement of residents for personal funds lost.
(3) The appointment, pursuant to regulations adopted by the Department, of temporary management to oversee the operation of the facility and to assure the health and safety of the facility's residents.
(4) In the case of an emergency, the closure of the facility, the transfer of residents in that facility or other facilities, or both.
(c) In the case of a nursing facility which, on 3 consecutive standard surveys conducted pursuant to the rules or regulations promulgated by the Department, has been found to have provided substandard quality of care or has otherwise failed to comply with the requirement imposed pursuant to subsection (a) or (e) of this section, the Department shall (regardless of what other remedies are provided):
(1) Impose the remedy described in subsection (b)(1) of this section; and
(2) Monitor the facility pursuant to regulations promulgated by the Department, until the facility has demonstrated, to the satisfaction of the Department, that the facility is in compliance with the requirements imposed pursuant to subsection (a) or (e) of this section, and that the facility will remain in compliance with such requirements.
(d) If a nursing facility has failed to comply with any of the requirements pursuant to subsection (a) or (e) of this section, within 3 months after the date the facility is found to be out of compliance with such requirements, the Department shall impose the remedy described in subsection (b)(1) of this section for all individuals who are admitted to the facility after such date.
(e) The Department may establish and promulgate such rules and regulations governing the administration and operation of this section as may be deemed necessary and which are not inconsistent with the laws of this State.
(f) The Secretary of the Department of Health and Social Services or the Secretary's designee shall have jurisdiction to hear any matter arising under subsections (a) and (e) of this section and shall have the power to impose any remedy listed under subsections (b), (c) and (d) of this section. Any party who is not satisfied with a decision of the Secretary or the Secretary's designee may appeal to the Superior Court for the county in which the facility is located. Such appeal must be filed within 30 days from the date of the Secretary's or the Secretary's designee's decision and shall be on the record made before the Secretary or the Secretary's designee.
(g) This section is intended to be applicable solely to nursing facilities as defined by 42 U.S.C. § 1396r(a) and shall not alter, amend, repeal, restrict or otherwise affect any existing Medicaid appeals procedures established by the Department.
67 Del. Laws, c. 79, § 1; 70 Del. Laws, c. 149, §§ 105, 106; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 466, § 1.;