Georgia Passes Long-term Care Background Check Legislation!
Title 31-7-350 of O.C.G.A. (amended)
by Kym Kurey
On May 7th, Governor Nathan Deal (R) signed the “Georgia Long-Term Care Background Check Program” (House substitute to SB 406) into law. The amended law requires that “direct access” owners, applicants and employees of long-term care (LTC) facilities pass both a national and statewide fingerprint-based background check utilizing the FBI and GCIC/state databases for all states the individual has lived within the prior two (2) years, unless each owner and employee received a satisfactory determination within the immediate preceding twelve (12) months.
“These common-sense reforms lay the foundation for a more equitable criminal justice system and bring us another step forward in making Georgia a safer, more prosperous place to call home,”
stated the Governor.
Georgia Bureau of Investigation Director Vernon Keenan stated,
elder abuse “is what I call an iceberg crime. You only see a small part of the criminal activity and the rest remains out of sight and hidden.”
Reports of elder abuse have been on the rise in recent years, with investigations into abuse of elders and adults with disabilities increasing to 145 percent in the last five years, according to the agency.
The background check law takes effect Oct. 1, 2019 and must be fully complied with on or before January 1, 2021. Recommended by The Georgia Council on Criminal Justice Reform and based on their 82-page annual report, the law appears to consolidate three existing background screening statutes.
“In 2017, the council learned that there are approximately 25,000 employees in more than 10 different facility categories that provide care for the elderly and are subject only to the name-based background check,” the members wrote.
While I applaud the mindset and much-needed expansion of protection for Georgia’s vulnerable population, they removed, as opposed to supplemented, one of the key elements in a criminal background check – the “name-based” check. The all too common misconception is that a fingerprint search will reveal all criminal history, including convictions. This is simply not true. Fingerprint records, while excellent for positively identifying an alleged offender, contain predominantly arrest information that is rarely updated with current status or disposition information on a case. The defendant may or may not have even been convicted. A name-based check will reveal criminal cases that did not require fingerprints, as well as the most current and complete disposition information available. Under the new law, a facility MAY ALSO use an additional means by way of conducting a background check, but it is not mandatory (nor will they be liable for missing information not found via the fingerprint search).
In addition to fingerprint background checks, a check against Georgia's Nurse’s Aide Registry (NAR), state sexual offender registry, the federal List of Excluded Individuals and Entities, as well as verifying if a professional license is in good standing (when applicable) are required.
An individual whose professional license is not in good standing may still be employed in a position that does not require professional licensure.
The law also requires the establishment of a caregiver's registry to allow certain employers access to criminal background checks conducted by the department.
Penalties for Noncompliance – If a facility doesn’t terminate for an unsatisfactory determination, the civil penalty will be the lesser of $10,000 or $500 for every day that a violation occurs (days are determined by the time the facility knew or should have known until the date the individual’s employment is terminated.
Since 2010, Centers for Medicare & Medicaid Services (CMS), has awarded more than $64 million in federal grants to 26 States through their mandate to establish a comprehensive national background check program for direct patient access employees in their state. (4)
Georgia’s neighbors, Florida and North Carolina also received grant money for their respective programs, with Florida being the first to implement.
Eight years later…. where are all the grant funded state programs???
That’s a lot of elder care going unchecked – not to mention the money!
April 12th, 1995 - HB 318 was signed into law, requiring a “name-based” criminal record check of GCIC information for all nursing home employee applicants. The new law did NOT require current employees (persons employed prior to the passing of the law) to undergo a criminal record check. Through the DCH, Georgia law required owners and directors to have both state and national fingerprint checks, but not their employees. (1)
2010 -Georgia required name-based background checks through GCIC on any employee, or applicant for employment, of nursing homes (excluding persons employed by the nursing home prior to July 1, 1995)
June of 2010 – Solicitations for federal grant awards, through the Centers for Medicare & Medicaid Services (CMS), for states to develop background check programs was implemented (3)
July of 2012 – Georgia received $2,633,765 in CMS federal grant money
June 1st, 2015 – (approximately 3 years after they received grant funding)
Georgia instituted the “Georgia Voluntary Background Check Program”, a pilot fingerprint-based background check program that only home health agencies and employees of private home care providers would initially be allowed to participate in. (2)
By August 2015, DCH would open the pilot program up to long-term care providers; once the program was fully functional, applicants for employment with hospice, long-term acute care hospitals and employees of nursing homes would also be allowed to participate.
Registry checks were also required for participation in the program.
May 2018 - “Georgia Long-Term Care Background Check Program”
· Expanding background checks to include fingerprint data from both the state (GCIC) and national (FBI) databases, uncovering possible crimes committed outside of the state of Georgia. Not only does this increase the scope of the search, but also aides in identifying the subject of the criminal record
· Expanding background checks to include BOTH owners and prospective employees/employees of LTC facilities
· Pretty hefty fines for non-compliance
· Fingerprint databases often only contain the initial “arrest” data and miss over 50% of disposition information
· “Name-based” criminal record searches are allowed, but no longer required
LTC facilities are defined as: personal care homes, assisted living communities, private home care providers, personal care providers, LTC hospitals, residential care providers arranging for or providing LTC services, intermediate care facilities for individuals with intellectual disabilities, home health agencies, hospice providers, nursing homes, skilled nursing facilities, intermediate care homes, and adult day care facilities.
2 - (2015 Voluntary Program)
3 - CMS National Background Check Program
4 - OIG Report
The information contained herein is opinion only and should NOT be construed as legal advice, guidance or counsel. Employers should consult their own attorney about their compliance responsibilities under the FCRA and applicable state law. BridgesCTS expressly disclaims any warranties or responsibility, or damages associated with or arising out of information provided.