(a)

(1) All persons or entities operating a child care agency as defined in this part, unless exempt as provided in § 71-3-503, shall establish a drug testing policy for employees, directors, licensees and operators of child care agencies and for other persons providing services under contract or for remuneration for the agency, who have direct contact, as defined by the department, with a child in the care of the agency.

(2) The policy shall specify how testing should be completed by the child care agency and provide for immediate and effective enforcement action involving such persons by the child care agency in the event of a positive drug test.

(3) The policy shall be provided by the child care agency to persons employed or engaged for contract or remunerative services prior to July 1, 2009, and to all such persons upon initial employment or initial engagement in contract or remunerative services for the agency.

(4) The policy established pursuant to this section shall not supersede the requirements of § 71-3-502(d)(7)(C)(v) that all persons described in § 71-3-502(d)(7)(C)(v) satisfactorily complete a drug test prior to engaging in transportation services for children in a child care agency.

(b)

(1) The policy shall require drug testing based upon reasonable suspicion that employees, directors, licensees, or operators of a child care agency, or other persons providing services under contract or for remuneration for the agency are engaged in the use of illegal drugs.

(2) The policy shall require persons employed or engaged for contract or remunerative services prior to July 1, 2009, to have a drug test based upon reasonable suspicion that the persons are engaged in the use of illegal drugs.

(3) Events that may give rise to reasonable suspicion for purposes of requiring a drug test include, but are not limited to:

(A) Deterioration in job performance or changes in personal traits or characteristics;

(B) Appearance in a specific incident or observation which indicates that an individual is under the present influence of drugs;

(C) Changes in personal behavior not attributable to other factors;

(D) Involvement in or contribution to an accident where the use of drugs is reasonably suspected, regardless of whether the accident involves actual injury; or

(E) Alleged violation of or conviction of criminal drug law statutes involving the use of illegal drugs or prescription drugs.

(c) A child care agency shall, at no expense to the state, maintain for five (5) years and immediately make available to the department upon request a copy of drug testing results for an individual who is employed as a caregiver, director, licensee or operator at the child care agency, or for other persons providing services under contract or for remuneration for the agency, who have direct contact with children in the care of the agency.

(d) It shall be the responsibility of the individual who is to be tested to pay the appropriate fees necessary to obtain a drug test pursuant to the policy established by a child care agency. Drug testing results obtained under this section are confidential and may be disclosed only for purposes of enforcing this part.

(e) Notwithstanding subsection (a), a licensee or operator of a family child care home who has direct contact with children in the care of the family child care home shall submit to a drug test at the expense of the licensee or operator, when the department has reasonable suspicion to believe that the licensee or operator is engaged in the use of illegal drugs.

(f) A child care agency that does not comply with this section is subject to the department:

(1) Denying the application for a license;

(2) Denying the application for a license renewal; or

(3) Suspending or revoking a license issued.