Georgia Enacts New Background Check Legislation for Long-Term Care Providers

by Arnall Golden Gregory LLP
Contact

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Arnall Golden Gregory LLP | Attorney Advertising

Written by:

Arnall Golden Gregory LLP
Contact
more
less

Arnall Golden Gregory LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.