Georgia’s New Long-Term Care Background Check Program

Written by: Brittany Cone, Esq. & Jordan Johnson, Esq.

On May 7, 2018, then Governor Nathan Deal signed Georgia’s new “Long-term Care Background Check Program” (the Program) into law with the purpose of promoting public safety and providing for comprehensive criminal background checks for owners, applicants for employment, and direct access employees. In many ways, this Program completely overhauls the laws applicable to long-term care facilities. Beginning October 1, 2019, the Program requires that all long-term care facilities submit background checks for all new owners, administrators, directors, onsite managers, and direct access employees. Background check applications for existing owners, administrators, directors, onsite managers, and direct access employees must be submitted on or before January 1, 2021.

Applicability

Previously, Georgia law contained vastly different background check standards for nursing homes, as compared to other types of long-term care facilities. The Program applies essentially the same background check standards to nursing homes, personal care homes, assisted living communities, private home care providers, home health agencies, hospice providers, intermediate care facilities, and adult day care facilities. Each of these facilities must require fingerprint background checks of owners, applicants for employment, and direct access employees.

Owners

The Program distinguishes between owners of nursing homes or intermediate care homes and that of the other facilities mentioned above as it applies to “owners.” For nursing homes and intermediate care homes, an “owner” is an individual who is, in some manner, actively involved in the operations of the facility itself, including providing management, operations, or administrative services and/or making employment, staffing, and budget decisions. In other words, to be considered an “owner” of a nursing home or intermediate care facility for background check purposes, you must be more than just a passive investor.

For all other long-term care facilities, an “owner” is an individual affiliated with a corporation, partnership, or association, who has ten (10) percent or greater ownership interest in a facility and performs one or more of the following: (A) purports to or exercises authority of a facility; (B) applies to operate or operates a facility; (C) maintains an office on the premises of a facility; (D) resides at the facility; (E) has direct access at a facility; (F) provides direct personal supervision of facility personnel by being immediately available to provide assistance and direction when such facility services are being provided; and/or (G) enters into a contract to acquire ownership of a facility.

Administrators, Directors, Onsite Managers, and other Direct Access Employees

In addition to owners of long-term care facilities, the Program also applies to any employee who has direct access to patients/residents regardless whether he/she was hired for employment or via contract. Direct access means having, or expecting to have, duties that involve routine personal contact with patients/residents, including face-to-face contact, hands-on physical assistance, verbal cuing, reminding, standing by, or monitoring. Direct access also includes participating in activities that require the person to be routinely alone with the patient/resident’s property or having access to such property or financial information. Per this definition, direct access employees include, but are not limited to, housekeepers, meal delivery staff, maintenance personnel, dieticians, corporate office employees with access to patients/residents’ financial information, and any volunteer who has duties that are equivalent to the duties of an employee. Ultimately, facilities are responsible for classifying employees as “direct access” or not.

Health care providers, such as physicians, dentists, nurses, and pharmacists who are licensed by the Georgia Composite Medical Board, the Georgia Board of Dentistry, the Georgia Board of Nursing, or the State Board of Pharmacy, are not considered employees for purposes of the Program and are therefore not subject to the background check requirements. In order for this professional licensing exemption to apply, the Facility must verify that the individual’s Georgia license is in good standing. If the license has expired or been revoked, a fingerprint background check is required.

Background Checks

Under the Program, the required background checks must be conducted using the fingerprints of each required individual and performed by the Georgia Bureau of Investigation and the Federal Bureau of Investigation (FBI). Individuals subject to mandatory fingerprinting under the Program must complete an application using the Georgia Criminal History Check System (GCHEXS). Once the application is complete, the applicant will be redirected to the Georgia Applicant Processing System (GAPS) to complete the registration process. The electronic submission of the fingerprints will involve Gemalto GAPS live scans, which captures images of the fingerprint and demographic data and then submits this information to the Georgia Crime Information Center and FBI for processing. The search results are ultimately forwarded to the Georgia Department of Community Health Office of Inspector General for review and issuance of either a satisfactory or an unsatisfactory determination.

While a background check is pending, facilities may permit individuals to have direct access to residents for no more than thirty (30) days as long as the individual is under the direct supervision of a staff member who has a satisfactory determination. If, for whatever reason, a determination has not been issued within thirty (30) days, the facility must disallow the individual from having direct access. This “grace period” has two conditions: (1) administrators, directors, and onsite managers cannot work while their background check is pending; and (2) before an individual is allowed direct access, the facility must obtain a Georgia-only criminal background check to confirm that individual has not been found guilty of abuse, neglect, exploitation, misappropriation of property, or mistreatment by a court of law.¹

Registry Check

In addition to fingerprint background checks, the Program requires that long-term care facilities conduct a “registry check” of each owner, direct access employee, or employment applicant before the background check is completed. This registry check includes a review of the nurse aid registry, the state sexual offender registry, and the federal office of inspector general exclusions list. This registry check can be accomplished using GCHEXS. If the individual has not resided in Georgia for at least two (2) years prior to submitting an employment application, the facility is required to conduct a registry check of each state in which the applicant resided for the previous two (2) years.

Crimes

There are a number of crimes that “disqualify” an owner, employee, or applicant under the Program, most of which are felony offenses. For an exhaustive list of these Georgia crimes, please see the attached table,² Georgia’s Long Term Care Background Check Program-Disqualifying Crimes, prepared by the Georgia Department of Community Health. An individual is excluded for a violation of these crimes even if arrested, charged, and sentenced for such after entering a plea of nolo contendere, being given first offender treatment without an adjudication of guilt, or having the adjudication or sentence otherwise withheld. Generally, if more than ten (10) years have elapsed since the completion of all terms of the sentence at the time the background check is conducted, the individual is not disqualified under the Program. With that said, there are several more serious crimes that totally exclude an individual regardless of when it was dispositioned, including:

• Felony trafficking of persons for labor or sexual servitude as prohibited by O.C.G.A. § 16-5-46;
• Neglecting disabled adults, elder persons, or residents as prohibited by O.C.G.A. § 16-5-101;
• Exploitation and intimidation of disabled adults, elder persons, and residents as prohibited by O.C.G.A. § 16-5-102;
• Any of the following when committed against a law enforcement officer while the officer is engaged in the performance of his/her official duties:
  • Felony aggravated assault in violation of O.C.G.A. § 16-5-21;
  • Felony aggravated battery in violation of O.C.G.A. § 16-5-24;

A cursory reading of the applicable statute (O.C.G.A. § 31-7-351(B)) appears to indicate that all the offenses listed in O.C.G.A. § 42-8-60(j) would permanently bar an individual from serving as a direct access employee or owner. However, according to our discussions with the Department of Community Health, this is not how the law will be interpreted. Rather, only those crimes referenced in both O.C.G.A. § 31-7-351(3) and O.C.G.A.42-8-60(j) will permanently disqualify an individual.

If an unsatisfactory determination is received, the Program does provide an appeal mechanism to challenge the conclusion. This appeal process includes an administrative appeal hearing. Individuals with unsatisfactory determinations cannot continue in their capacities during the appeal process.

Periodic Checks

A satisfactory background check is good for twelve (12) months. However, if the initial fingerprints are retained under the Rap Back program, which goes into effect on October 1, 2019, no additional background check is required unless the retained fingerprints are removed from the Rap Back system. The Rap Back program is a process in which fingerprints are kept at the time of fingerprinting to allow for ongoing monitoring should there be a subsequent criminal event. This reduces the financial and administrative burden on facilities of periodic background checks.

Penalties

When an individual is found to have an unsatisfactory determination or a failed registry check, the facility is required to terminate or not hire the individual. If the facility fails to do so, the facility will be liable for a monetary penalty of $500 per day, up to $10,000.00 for each occurrence. The daily penalty is calculated from the day the facility knew or should have known that it employed a disqualified individual until said employee is terminated. In addition to these monetary penalties, employing disqualified individuals carries other civil liability risks, which can severely increase the value of any civil suit in which liability is in some way related to the disqualified individual. With that said, the Program does provide immunity to long-term care facilities that act in reliance and in good-faith on the final determination in making employment decisions.

Conclusion

Due to the significant implications, it is essential for all long-term care facilities to comply with Georgia’s Long-term Care Background Check Program. Since the changes are rather comprehensive, the Department of Community Health has issued several useful documents, including a Frequently Asked Questions page. Additionally, we are available to assist with any questions or issues that may arise.

Resources

Georgia’s Long Term Care Background Check Program Flowchart

Georgia’s Long Term Care Background Check Program – Disqualifying Crimes