A new law in Georgia requires nursing home and other long-term care workers to undergo comprehensive background checks. The Georgia Long-Term Care Background Check Program goes into effect on October 1, joining the majority of other states that require more comprehensive background checks for care workers.
The new law, signed by Governor Nathan Deal on May 7, 2018, is designed to improve public safety for a growing and vulnerable aging population. In recent years, reports of elder abuse have increased as the elderly population increases. Georgia Bureau of Investigation investigations into elder abuse and adults with disabilities have increased 145 percent in the past five years, according to the agency.
The new law, codified in OCGA Section 31-7-350 et seq., will require caregivers with direct access to seniors in long-term care facilities to pass a national background check. A new fingerprinting requirement is set to take effect in January 2021, giving employers time to conduct more comprehensive background checks on current employees.
The new law applies to owners, job applicants and employees who provide care or own a nursing home, assisted living facility, private nursing service, home health service, hospice, retirement home, nursing facility or adult day care facility.
Currently, nursing assistants in Georgia are only required to undergo a name-based background check limited to crimes committed in Georgia. This provides limited protection at best; information about an out-of-state individual with a criminal past or who uses an assumed name would not be revealed. The expanded background check requirement would include more comprehensive checks of the FBI database, state and national criminal records databases, the nursing assistant registry and state sex offender registries, and other registries.
Defined terms
Under the new law, “direct access” means having or will have duties that involve routine personal contact with a patient, resident, or client. Direct access includes personal contact, hands-on physical assistance, verbal cues, reminders, on-call, or supervision of activities that require the individual to be routinely alone with or have access to the patient, resident, or client's property or financial information, such as the patient, resident, or client's checkbook, debit and credit cards, resident trust funds, bank records, stock accounts, or brokerage accounts.
In addition, “employee” is defined as any person who has direct access and is hired by a facility through employment or through a contract with that facility, including but not limited to housekeepers, maintenance personnel, dietitians, and any volunteer whose duties are analogous to those of an employee providing such services. Specifically excluded from this definition are physicians, dentists, nurses, and pharmacists who are licensed by the state. Also excluded from the mandatory background check are individuals who contract with a facility (personally or through a company) for utility, construction, communications, accounting, quality assurance, human resources administration, information technology, legal, or other services not directly related to the provision of services to a patient, resident, or client of the facility. Families (spouses, parents, siblings, or grandparents) and guardians of elderly persons (65+) who use personal care services have the same access to a centralized state caregiver hiring registry as licensed facilities.
Violations
Penalties for violations can range from fines to license revocation. Failure to comply with the new law will subject the facility to civil fines of $500 per day of violation (up to $10,000). A facility's exposure begins from the date the facility knew or should have known that it was employing an individual with a criminal record and ends on the date employment with that individual is terminated.
Next Steps
Affected Georgia nursing employers should comply with the new law and ensure the following:
- Each application form provided to an applicant by a covered entity shall clearly state: “For this type of employment, a national and federal background check is required as a condition of employment under state law.”
- The personnel files of covered entities shall contain evidence of each employee's satisfactory evaluation, as well as a registry check and license review, where applicable.
Emily S. Borna and Todd Van Dyke are attorneys with Jackson Lewis in Atlanta. © 2019 Jackson Lewis. All rights reserved. Republished with permission.
