(a) Purpose. —
The purpose of the criminal background check and drug screening requirements of this section and § 1142 of this title is the protection of the safety and well-being of residents of long-term care facilities licensed pursuant to this chapter. These sections shall be construed broadly to accomplish this purpose.
(b) Definitions. —
As used in this subchapter:
(1) “Applicant” means any of the following:
a. A person seeking employment in a facility.
b. A current employee of a facility who seeks a promotion in the facility.
c. A self-employed person or a person employed by an agency for work in a facility.
d. A current employee of a facility or a person as defined in paragraph (b)(1)c. of this section who the Department has a reasonable basis to suspect has been arrested for a disqualifying crime since becoming employed or commencing work.
e. A former employee who consents prior to leaving employment to periodic review of his or her criminal background for a fixed time period.
(2) “Background Check Center (BCC)” means the electronic system which combines the 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 long-term care facility.
(3) “Criminal history” means a report from the Department regarding its review of the applicant's entire federal criminal history from the Federal Bureau of Investigation, under Public Law 92-544 as amended (28 U.S.C. § 534), and the applicant's Delaware record from the State Bureau of Identification.
(4) [Repealed.]
(5) “Facility” means any facility licensed under subchapter I of this chapter.
(6) [Repealed.]
(7) “SBI” means the State Bureau of Identification.
(c) An employer may not employ an applicant for work in a facility before obtaining a criminal history. The criminal history of any person not employed directly by the facility must be provided to the facility upon the person's commencement of work.
(d) The requirements of subsection (c) of this section may be suspended for 60 days if the employer wishes to employ the applicant on a conditional basis.
(1) Before an employer may offer conditional employment, the employer must receive verification that the applicant has been fingerprinted by the SBI for purposes of the criminal history.
(2) The Department may not issue a criminal history if the applicant fails to provide information to the Department regarding the status or disposition of an arrest within 45 days from the date of notice from the Department of an open criminal charge. The Department may extend the time limits for good cause shown.
(e) An employer may not employ or continue to employ an individual with a conviction deemed disqualifying by the Department's regulations.
(f) Any employer who employs an applicant and fails to secure a criminal history is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. An employer is also subject to this penalty if that employer conditionally employs an applicant before receiving verification that the applicant has been fingerprinted for purposes of the criminal history.
(g) The criminal history provided to the employer is strictly confidential. It may be used solely to determine the suitability of an applicant for employment or continued employment in a facility. It must be stored in a manner that maintains its confidentiality.
(h) An applicant may not be employed in a facility, other than conditionally under subsection (d) of this section, until the applicant's employer has secured the applicant's criminal history.
(i) Before an applicant is permitted to be employed in a facility, the applicant must, upon request, do all of the following:
(1) Provide accurate information sufficient to secure a criminal history.
(2) Execute a full release to enable the employer to secure a criminal history and to update the criminal history while employed.
(3) Execute a full release giving the employer permission to provide the criminal history to the facility where the work is to be performed if the employer is other than the facility.
(j) An applicant who fails to comply with subsection (i) of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.
(k), (l) [Repealed.]
(m) The Department shall promulgate regulations regarding all of the following:
(1) The criteria it uses to determine unsuitability for employment.
(2) The policies and procedures for preparing the criminal history which govern the frequency of criminal record review and updating.
(3) The frequency with which fingerprints must be obtained.
(4) The information that the Department provides in the criminal history about disqualifying and nondisqualifying criminal convictions.
(5) The methods for notifying applicants and employers of the results of the Department's review, and for providing applicants with the criminal history.
(6) The administrative review process available to a person desiring to contest adverse information.
(7) Other provisions required to achieve the purpose of this section.