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New law brings tougher eldercare background screening — for employees AND owners

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Henry R. Chalmers
Henry R. Chalmers

A new law in Georgia signed by Gov. Nathan Deal (R) on May 7 will provide additional safeguards against elder abuse at long-term care facilities.

The “Georgia Long-Term Care Background Check Program” will require that owners, applicants and employees of long-term care facilities in Georgia be subject to a national fingerprint-based background check system through the FBI database. The law takes effect Oct. 1, 2019.

As the population of elderly Americans continues to grow, I would expect to see other states adopt similar protections.

What is especially noticeable about this particular law is the requirement that owners, and not just employees, pass background checks. The Georgia legislature obviously set out to enhance protections at all levels of a care organization, which hopefully will translate into better conditions for our elderly population.

Georgia Bureau of Investigation Director Vernon Keenan told the Atlanta Journal-Constitution last June that 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.”

The Georgia Council on Criminal Justice Reform recommended changing the law.

“Most surrounding states use the FBI's fingerprint-based national background check to screen prospective employees seeking work at nursing homes,” a February council report stated. “This ensures that applicants who are convicted of crimes that make them ineligible to work in nursing homes do not move to an adjoining state and obtain employment in a facility.”

Georgia's existing background check system is name-based and reviews applicants only for crimes that occur in the state.

The new law consolidates three existing background check statutes and applies to personal care homes, assisted living communities, private home care providers, home health agencies, hospice providers, nursing homes, skilled nursing facilities, intermediate care homes and adult day care facilities licensed pursuant to Georgia Department of Community Health (DCH) regulations.

It requires background checks on applicants and employees who have routine contact with patients or their financial information, and owners who actively participate in operations. Passive investors in long-term facilities are not covered by the tougher law.

In addition to fingerprint background checks, the law requires a check of owners, applicants, and employees against Georgia's nurse aide registry, state sexual offender registry, and the federal List of Excluded Individuals and Entities. If an applicant has not resided in Georgia for at least two years, the registry check must be expanded to the states in which the applicant resided for the previous two years.

A facility may not employ or contract with an individual who (a) appears on a registry check, (b) has been found by a state or federal agency to have engaged in neglect, abuse or misappropriation of property, (c) has a professional license that is not in good standing, or (d) has been found by DCH to be “unsatisfactory” based on the individual's background check.

The law also creates a “caregiver registry,” where the public can view criminal-background-check results for individuals providing care to the elderly at a residence or location not licensed by DCH.

Following a background check performed under the new fingerprint check system, a provider will be able to access a report stating that the individual is “satisfactory” or “unsatisfactory” for ownership or employment.  Providers are given certain immunity for employment actions taken in reliance on the report.

The law also provides immunity to facilities that hire an employee with a clean, “thumbs-up” background check, but who has a criminal record that was not captured by the check.

Henry R. Chalmers is a partner at the Atlanta and Washington law firm Arnall Golden Gregory LLP, where he is co-chair of the Litigation Practice Group and co-chair of the Background Screening Industry Team. His practice is focused on complex litigation (including class actions) and alternative dispute resolution for public and closely-held companies, consumer reporting agencies, fiduciaries and government entities.

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