The following analysis of Georgia’s news long-term care screening law comes to us from compliance expert, Kym Kurey. Check her blog for complete coverage of the new Georgia law. 

As reported in the County House Research June Tip Sheet, on May 7, 2018, Governor Nathan Deal 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 facilities pass both national and statewide fingerprint-based background checks utilizing the FBI and GCIC/state databases and expanding the search scope beyond Georgia to all states where the individual has lived within the prior two (2) years. A determination will be made as to whether an individual is “satisfactory” or “unsatisfactory” based on the given parameters.

In announcing the new regulations, Governor Deal said, “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.”

While the much-needed expansion of protection for Georgia’s vulnerable population is laudable, instead of supplementing existing regulations, Georgia removed one of the key elements in a criminal background check – the “name-based” check. A name-based check will reveal criminal records where fingerprints were not required, or the initial arrest information was either not updated (with a disposition) or reported at all. 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).

The 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 consolidates three existing background check 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,” councilmembers wrote. In addition to fingerprint background checks, the new legislation requires 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). Surprisingly, however, 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 LTC background check program.

The Pros:

• Expanding background checks to include fingerprint data from both the state (GCIC) and national (FBI) databases, increasing the search scope beyond GA and positively identifying the subject of the criminal record
• Expanding background checks to include ALL “direct access” owners and prospective employees/employees of LTC facilities
• Pretty hefty fines for non-compliance

The Cons:

• Fingerprint databases often provide “arrest” information only, subsequently missing over 50% of disposition data
• “Name-based” criminal record searches are allowed, but not required, which greatly limits, if not eliminates, any opportunity for Consumer Reporting Agencies (and the subsequent consumer protections via the FCRA) from providing searches to this market

The information contained herein is opinion only and should NOT be construed as legal advice, guidance or counsel.  Employers should consult their own attorneys about their compliance responsibilities under the FCRA and applicable state law. County House Research and BridgesCTS expressly disclaim any warranties or responsibility, or damages associated with or arising out of information provided.