In the Know

Georgia Enacts New Background Check Legislation for Long-Term Care Providers
May 15, 2018
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Arnall Golden Gregory LLP
Georgia has enacted a new law implementing a comprehensive program of background checks for Georgia long-term care facilities. The “Georgia Long-term Care Background Check Program” consolidates three existing background check statutes and replaces them with a single, comprehensive background check law applicable to all owners, applicants, and employees of long-term care facilities. The new law includes a national fingerprint-based background check system through the FBI database for long-term care employees, applicants, and owners. The law becomes effective October 1, 2019, and existing owners and employees have until January 1, 2021, to submit a records check application to the Department of Community Health or submit evidence of a satisfactory background check.

Provider Types Included

The law’s new background check program applies to personal care homes, assisted living communities, private home care providers, home health agencies, hospice providers, nursing homes, skilled nursing facilities, intermediate care homes, and adult day care facilities licensed pursuant to DCH regulations. The law requires background checks on applicants and employees who have routine contact with patients or their financial information and owners who actively participate in operations.

Applicability to Owners

Most owners of long-term care facilities will now be required to undergo background checks, but passive investors, called “excluded parties,” who do not actively participate in the operations of a facility are not required to do so. For example, passive investors who do not provide management, operation, or administrative services for the facility would not be subjected to the background check requirements.

Definition of Employee and Access to Residents as Trigger

The law does not extend to all employees connected with a long-term care facility. Instead, it covers only those applicants and employees who have “routine personal contact with a patient, resident, or client, including face-to-face contact, hands-on physical assistance, verbal cuing, reminding, standing by or monitoring or activities that require the person to be routinely alone with the patient’s, resident’s, or client’s property. . . .” The law explicitly excludes from the “employee” definition any “individual who contracts with the facility, whether personally or through a company, to provide utility, construction, communications, accounting, quality assurance, human resource management, information technology, legal, or other services if the contracted services are not directly related to providing services to a patient, resident, or client of the facility.” The law also covers employees with routine access to patients’ financial information, such as “checkbooks, debit and credit cards, resident trust funds, banking records, stock accounts, or brokerage accounts. Facilities therefore would not be responsible for conducting criminal background checks on employees and contractors who have no routine direct access to patients or their financial information or property.

Background Checks

In addition to finger-print background checks, the law requires a check of owners, applicants, and employees against Georgia’s state nurse aide registry, state sexual offender registry, and the federal List of Excluded Individuals and Entities. If an applicant has not resided in Georgia for at least two years, the registry check must be expanded to the states in which the applicant resided for the previous two years.

If applicable to an owner, applicant, or employee, a separate search of information maintained by the Georgia Composite Medical Board, the Secretary of State, or other relevant licensing boards must be conducted prior to a criminal background check to validate that the individual’s professional license is in good standing.

A facility may not employ or contract with an individual who (a) appears on a registry check, (b) has been found by a state or federal agency to have engaged in neglect, abuse or misappropriation of property, (c) has a professional license that is not in good standing, or (d) has been found by DCH to be “unsatisfactory” based on the individual’s background check. The state will impose civil penalties against a facility that fails to terminate such an employee immediately. Additionally, an owner of a facility who appears on a registry check, or whose background check results are found by DCH to be “unsatisfactory,” may not operate a facility or hold a license to do so.

Caregiver Registry

The new law also creates a “caregiver registry,” a public-facing registry that would allow patients to view criminal background check results for individuals providing care to elderly individuals who receive health and personal care services at a residence or location not licensed by DCH. The expressed intent behind establishing and maintaining a caregiver registry is to provide employers of personal care home providers (i.e., family members or guardians of elderly persons who want personal care home services) “with access to employment eligibility determinations conducted by [DCH] in a similar manner as licensed facilities . . . .” The registry therefore would apply only to an “employee” providing personal care services, or to an “applicant” applying to provide such services.

Appeals

The law includes an appeal mechanism for existing employees and owners, as well as applicants, to challenge a negative report that would deny employment or ownership. This appeal process would include an administrative appeal hearing.

Liability Protections

Background checks performed under the new fingerprint check system will produce a report stating that the subject of the report is “satisfactory” or “unsatisfactory” for ownership or employment. Providers will not have access to the report details to determine whether a past offense poses a threat to current residents. The report will only indicate whether the applicant or employee can be hired – ”thumbs up” / “thumbs down” response. Because the government controls the reports and the facilities’ access to information, providers are given certain immunity for employment actions taken in reliance on a report. In addition, the law provides immunity to facilities that hire an employee with a clean, “thumbs-up” background check, but who has a criminal record that was not captured by the check.

More Information

If you would like additional information about this new law and its impact on long-term care providers, please contact Jason E. Bring or Samuel M. Shapiro. And for questions about employment background screening in general, please contact the co-chairs of Arnall Golden Gregory’s Background Screening Team, Henry R. Chalmers and Montserrat M. Miller.