Sample Enforcement Letter
By Certified Mail
October 31, 2000__________________
Re: Enforcement Action Pursuant to the Criminal Background Check/Drug Testing Law
State law requires criminal background checks and drug tests of all applicants for nursing home employment in Delaware. As stated in this law, its primary purpose is the "protection of the safety and well being of residents of nursing homes". 16 Del. C. §§1141,1142.
Criminal Background Check & Drug Test Law:
This 18 month-old law specifically addresses the duty of a temporary employment agency, such as yours, to obtain the criminal history information, if any, on the persons you refer for nursing home jobs. The law mandates that:
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. 16 Del. C. §1141(d).
The law also requires that temporary employment agencies obtain the results of drug testing before referring employees for nursing home jobs. It mandates the following:
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. 16 Del. C. §1142(a).
Further, the law requires the employer to provide copies of the drug test results to this Division within 10 business days of receipt of the results. 16 Del. C. § 1142(f).
An important additional mandate is that the temporary agency is required to inform nursing homes of the criminal history information as well as the drug test results regarding any applicant referred for work at such facility. The reason is clear - "so that the facility is better able to make an informed decision whether to accept the referral". 16 Del. C. §1142(e).
Violations of Law:
As a temporary employment agency that refers employees to long term care facilities in Delaware, your company is subject to this law and its regulations. However, our Investigations Section, led by John Thomas Murray, Investigations Chief, has determined that you failed to comply with this law regarding a number of employees you referred to and placed in nursing homes during the past year.
Based on a sample of your employees, we found ________________ criminal background check violations and ________________ drug testing violations by your company. That is, ________________ failed to obtain criminal history information on ________________ people you placed for work in nursing homes. You also failed to obtain drug test results for ________________ people you placed for work in nursing homes. Attached is a table containing the names of employees your company placed for work in nursing homes without meeting the criminal background check and drug test requirements of the law. Given that these results are based on a sample, we expect this does not represent the full extent of your noncompliance with the law.
The civil penalties for violations of the Criminal Background Check/Drug Testing law range from not less than $1,000 nor more than $5,000 for each violation. Given that this is the first statewide enforcement action under the law, and thus, involves no repeat violations, the DHSS Division of Long Term Care Residents Protection is assessing the following civil penalties: $2,000 per criminal background check violation and $1,500 per drug test violation. The total penalty assessed against ________________, or any successor entity, is ________________ . Payment of this penalty is due within 30 business days of receipt of this letter.
Appeal Process & Informal Dispute Resolution:
You have the right to an administrative hearing to appeal this enforcement action and its civil penalty. If you wish to appeal, you must submit your written request to Barbara R. Webb, Deputy Director, at the above address within 30 business days of receipt of this letter. Your hearing request should identify the specific issues, findings of fact and/or conclusions of law that you challenge.
Within the 30 day appeal period, you also have the opportunity to raise any questions or to provide additional information relevant to this enforcement action in an informal manner by contacting Ms. Webb at (302) 577-6661. You have 10 business days from receipt of this letter to pursue such informal dispute resolution. In the interest of fairness, we offer this avenue for the exchange of relevant information, which in some cases, may obviate the need for an administrative hearing.
For the sake of residents' protection, this Division hopes that we find full compliance by your company with the Criminal Background Check/Drug Testing law in the future.