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By: Will Collins
This month, Georgia’s Governor signed into effect a law implementing a comprehensive background check system in an effort to target and curb elder abuse, placing additional screening, notice, and retention requirements on long-term care organizations as well as presenting liability landmines and safe-harbors that these organizations should be cognizant of moving forward.
Effective October 1, 2019, the Georgia Long-term Care Background Check Program, requires that certain personnel are subject to both a “records check” and a “registry check,” allowing until January 1, 2021 for organizations to either submit a records check application or evidence showing satisfactory completion of a records check within the last twelve months for these personnel to the Department of Community Health (“DCH”).
The records check and registry check take substantial steps beyond Georgia’s current name-based single state criminal background check, expanding required screenings to include checks of the GCIS and FBI fingerprint databases, Georgia Nurse’s Aide Registry, Sexual Offender Registry, and the Federal List of Excluded Individuals and Entities. The Background Check Program goes further, expanding the registry check to any state where an individual resided for the previous two years when the individual has been a Georgia resident for less than two years.
The Background Check Program applies to Assisted Living Communities, Personal Care Homes, Home Health Organizations, Intermediate Care Homes, Hospice Providers, Nursing Homes, Skilled Nursing Facilities, and Adult Day Care Facilities.
The Background Check Program covers both owners active in operations as well as any applicant or current employee with direct access, which is defined as any position that will routinely:
This includes housekeepers, maintenance personnel, dietitians, as well as any volunteer with similar access. Though the Background Check Program excludes certain types of contractors, it covers personnel that are contracted for a role “directly related to providing services to a patient, resident, or client of the facility.”
Record Retention and Notice Requirements
The Background Check Program requires that covered organizations maintain a personnel file for each employee, which shall be available for inspection and review by “appropriate enforcement agencies,” and at a minimum must include “evidence of each employee’s satisfactory determination, registry check, and licensure check.”
Organizations must also include a conspicuous notification on an application form that a state and national background check is required as a condition of employment and comply with the notification process established for denial of employment or adverse employment action based on unsatisfactory determination during the screening, including providing individuals the right to appeal the determination.
Liability and Safe Harbors
The good news for organizations covered by the Background Check Program is that when a denial of employment or an adverse employment action is based on a good faith attempt to comply with the screening requirements, the Program offers protection from damages or a claim, demand, cause of action, or proceeding of any nature.
Compliance with the Background Check Program similarly offers organizations both a “rebuttable presumption of due care” in negligent hiring or negligent retention claims or immunity from negligent hiring claims if certain conditions are met.
However, failure to comply with the Background Check Program’s requirements not only will subject an organization to civil monetary penalties, but may also act as evidence that the organization fell below the standard of care in negligence-based claims.
We will closely monitor this issue as DCH develops regulations implementing the Background Check Program and can help you ensure your organization is prepared for these changes in Georgia law. For those with employees outside of Georgia, the attorneys in our Labor and Employment National Practice Section are well versed in state and industry specific screening requirements and regulations, so let us know if we can assist you assess compliance or litigate claims arising in this area.
If you have any questions or would like more information, please contact Will Collins at [email protected].