Subject 111-8-12 RULES AND REGULATIONS FOR CRIMINAL BACKGROUND CHECKS
These rules are adopted and published pursuant to the Official Code of Georgia Annotated (O.C.G.A.) § 31-7-350 et seq. (effective Oct. 1, 2019).
These rules, known as the Rules and Regulations for Criminal Background Checks, establish the minimum standards for the Georgia Long-term Care Background Check Program for conducting criminal background checks of owners, applicants for employment, administrators, onsite managers, directors and direct access employees at certain facilities.
In these rules, unless the context otherwise requires, the terms set forth herein shall mean the following:
|(1)||"Abuse" means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. Such term includes the deprivation by an individual of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. Such term includes verbal abuse, sexual abuse, physical abuse, and mental abuse, including abuse facilitated or enabled through the use of technology.|
|(2)||"Conviction" means a finding or verdict of guilty or a plea of guilty regardless of whether an appeal of the conviction has been sought.|
|(3)|| "Crime" means
|(4)||"Criminal background check" means a search of the criminal records maintained by the Georgia Crime Information Center and the Federal Bureau of Investigation to determine whether an owner, applicant for employment, or employee has a criminal record.|
|(5)|| "Criminal record" means any of the
|(6)||"Department" means the Department of Community Health of the State of Georgia, its agents and employees.|
|(7)||"Direct access" means having, or expecting to have, duties that involve 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 or access to such property or financial information such as the patient's, resident's, or client's checkbook, debit and credit cards, resident trust funds, banking records, stock accounts, or brokerage accounts.|
|(8)||"Employee" means any individual who has direct access and who is hired by a facility through employment, or through a contract with such facility, including, but not limited to, housekeepers, maintenance personnel, dieticians, and any volunteer who has duties that are equivalent to the duties of an employee providing such services. Such term shall not include an 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. Such term shall not include any licensed healthcare provider, including, but not limited to 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.|
|(10)||"Fingerprint records check determination" means a satisfactory or unsatisfactory determination by the department based upon fingerprint based national criminal history information.|
|(11)||"GCIC" means the Georgia Crime Information Center established under Article 2 of Chapter 3 of Title 35.|
|(12)||"License" or "Permit" means the document issued by the department to authorize a facility to operate.|
|(13)|| "Owner" in the
context of a nursing home or intermediate care home means an individual who is
not an "excluded party" as such term is defined in O.C.G.A. § 31-7-3.3,
otherwise such term means an individual or any person affiliated with a
corporation, partnership, or association, who has 10 percent or greater
ownership interest in a facility and who performs one or more of the following:
|(14)||"Records check application" means fingerprints in such form and of such quality as prescribed by GCIC under standards adopted by the Federal Bureau of Investigation and a records search fee to be established by the department by rule and regulation, payable in such form as the department may direct to cover the cost of obtaining a criminal background check.|
|(15)||"Registry check" means a review of the nurse aide registry provided for in O.C.G.A. § 31-2-14, the state sexual offender registry, and the List of Excluded Individuals and Entities as authorized in Sections 1128 and 1156 of the federal Social Security Act, as it existed on February 1, 2018, or any other registry useful for the administration of, or mandated under, these rules.|
|(16)||"Satisfactory determination" means a written determination that an individual for whom a criminal background check was performed was found to have no criminal record.|
|(17)||"Unsatisfactory determination" means a written determination that an individual for whom a criminal background check was performed was found to have a criminal record.|
|(18)||"Willful" means acting deliberately, not that there is an intention to inflict injury or harm.|
|(1)||Prior to a criminal background check required by these rules, the facility shall perform a registry check of the owner, administrator, onsite manager, director, and employees. If an individual has not resided in this state for at least two years, the facility shall conduct registry checks of each state in which the individual resided for the previous two years, as represented by such individual or as otherwise determined by the facility.|
|(2)||If the subject of the criminal background check is a licensed healthcare professional or is required to hold a professional license as a qualification for the position, a query of available information maintained by the Georgia Composite Medical Board, the Secretary of State, or other applicable licensing boards shall be conducted prior to a criminal background check to determine that such individual has a professional license and is in good standing.|
|(3)||If the individual appears on a registry or has a professional license that is not in good standing, the facility must comply with the Rule 111-8-12-.06.|
|(4)||Except as provided in subsection (c) of O.C.G.A. § 31-7-359, nothing in these rules shall be construed to limit the responsibility or ability of a facility to screen owners, applicants for employment, administrators, onsite managers, directors or employees through additional methods.|
|(1)|| A records check application shall be
|(2)||In lieu of a records check application, the facility may submit documentation, satisfactory to the department, that the individual has received a satisfactory determination within the immediately preceding 12 months (provided the prior satisfactory determination was issued on or after October 1, 2019) or at any time prior if the individual's fingerprints have been retained under authority of O.C.G.A. § 35-33-3(a)(1)(f).|
|(1)|| Except for the
Grace Period described in paragraph (3) below, an individual required to submit
to a registry check and criminal background check shall not be employed by,
contracted with, or allowed to work as an employee at a facility, or to serve
as an administrator, onsite manager or director of the facility, if:
|(2)||An individual whose professional license is not in good standing may be employed by a facility in a position wherein his or her duties do not require professional licensure, so long as he or she has a satisfactory determination.|
|(4)||Personnel file. A personnel file for each employee shall be maintained by the facility. Such files shall be available for inspection by the department but shall otherwise be maintained to protect the confidentiality of the information contained therein and shall include, but not be limited to, evidence of each employee's satisfactory determination, registry check, and licensure check, if applicable.|
|(5)||Notice to applicants. Each application form provided by a facility to an applicant for employment shall conspicuously state the following: "FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A NATIONAL AND STATE BACKGROUND CHECK AS A CONDITION OF EMPLOYMENT."|
When the department determines that an owner has an unsatisfactory determination as a result of a criminal background check or has appeared on a registry check, the department shall notify such owner of the ineligible status for ownership and shall take the necessary steps to revoke the facility's license or refuse to issue a license if an application is pending.
The department may require a criminal background check on any facility owner, administrator, onsite manager, director or employee during the course of an abuse investigation involving such individual or if the department receives information that such individual was arrested for a crime. In such instances, the department shall require the owner or employee to furnish two full sets of fingerprints which the department shall submit to GCIC together with appropriate fees collected from the owner or employee.
The department shall impose a civil monetary penalty fine in the amount of the lesser of $10,000.00 or $500.00 for each day that a violation of these rules occurs. The daily civil monetary penalty fine shall be imposed only from the time the facility knew or should have known that it employed an individual with a criminal record and until the date such individual's employment is terminated.
|(1)|| An owner, applicant for employment,
employee, administrator, onsite manager or director may:
|(2)||Applicants for employment, employees, administrators, onsite managers or directors who received an unsatisfactory determination or whose name appears on a registry check conducted pursuant to these rules shall be eligible to appeal such determination pursuant to Chapter 13 of title 50, the "Georgia Administrative Procedure Act." In a hearing held pursuant to this paragraph, the hearing officer shall consider in mitigation the length of time since the crime was committed, the absence of additional criminal charges, the circumstances surrounding the commission of the crime, and other indicia of rehabilitation.|
In the event that any rule, sentence, clause or phrase of any of these rules and regulations may be construed by any court of competent jurisdiction to be invalid, illegal, unconstitutional, or otherwise unenforceable, such determination or adjudication shall in no manner affect the remaining rules or portions thereof. The remaining rules or portions thereof shall remain in full force and effect as if such rule or portions thereof so determined, declared or adjudicated invalid or unconstitutional were not originally part of these rules.