Georgia General Assembly Considering New Background Check Legislation

The Georgia General Assembly is considering new legislation that would implement a comprehensive program of national fingerprint background checks for Georgia long-term care facilities. If passed, Senate Bill 406, the “Georgia Long-Term Care Background Check Program,” will consolidate three existing background check statutes and replace them with a single, comprehensive background check law applicable to all owners, applicants, and employees of long-term care facilities. The new Bill will implement a national fingerprint-based background check system through the FBI database for long-term care employees, applicants, and owners. Existing owners and employees would have until January 1, 2021, to submit a records check application to the department or submit evidence of a satisfactory background check.

Provider Types Included:

SB 406 will implement and update background check programs for 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 Bill will require 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 would be required to obtain background checks under the Bill. But passive investors, called “excluded parties,” who do not actively participate in the operations of the facility are not required to undergo background checks. 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:

Rather than applying to all employees connected with a long-term care facility, the Bill instead limits the definition and extends only to those applicants or 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 Bill 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 Bill also extends to employees with routine access to patients’ financial information, such as “debit and credit cards, resident trust funds, banking records, stock accounts, or brokerage accounts.
Facilities would not, therefore, 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.

Registry Checks:

In addition to the background check system, the Bill would also require a check of owners, applicants, and employees against Georgia’s state nurse aide registry, state sexual offender registry, and the federal excluded individuals list. 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.

The Bill 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. As stated in SB 406, the 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 receive employment determinations as provided in Article 14 of this chapter.” The registry would therefore apply only to an “employee” providing personal care services, or to an “applicant” applying to provide such services.

Appeals:

The Bill 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:

The new fingerprint background system provides a “thumbs-up or thumbs-down” report. 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 – a green light / red light response. Thus, because the government controls the response and the facilities’ access to information, the Bill currently includes immunity language for employment actions taken in reliance on a report. In addition, the Bill 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. The Bill would protect facilities against claims of negligent hiring, negligent retention, and similar claims relating to a negative background history.

Legislative Tracking:

AGG is tracking this Bill. If you have questions about the Bill or if you would like additional information, please contact Jason E. Bring.