TITLE 31 HEALTH

Section 2. Department of Community Health, 31-2-1 through 31-2-20.

ARTICLE 3 GEORGIA HEALTH CARE FREEDOM

31-2-9. (Repealed effective October 1, 2019) Records check requirement for certain health care facilities; definitions; use of information gathered in investigation; penalties for unauthorized release or disclosure; rules and regulations; retention of fingerprints.

1. As used in this Code section, the term:
   1. "Conviction" means a finding or verdict of guilty or a plea of guilty regardless of whether an appeal of the conviction has been sought.
   2. "Crime" means commission of the following offenses:
      1. A violation of Code Section 16-5-1;
      2. A violation of Code Section 16-5-21;
      3. A violation of Code Section 16-5-24;
      4. A violation of Code Section 16-5-70;
      5. A violation of Article 8 of Chapter 5 of Title 16;
      6. A violation of Code Section 16-6-1;
      7. A violation of Code Section 16-6-2;
      8. A violation of Code Section 16-6-4;
      9. A violation of Code Section 16-6-5;
      10. A violation of Code Section 16-6-5.1;
      11. A violation of Code Section 16-6-22.2;
      12. A violation of Code Section 16-8-41;
      13. A felony violation of Code Section 31-7-12.1;
      14. Any other offense committed in another jurisdiction that, if committed in this state, would be deemed to be a crime listed in this paragraph without regard to its designation elsewhere; or
      15. Any other criminal offense as determined by the department and established by rule adopted pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," that would indicate the unfitness of an individual to provide care to or be in contact with persons residing in a facility.
   3. "Criminal record" means any of the following:
      1. Conviction of a crime;
      2. Arrest, charge, and sentencing for a crime where:
         1. A plea of nolo contendere was entered to the charge;
         2. First offender treatment without adjudication of guilt pursuant to the charge was granted; or
         3. Adjudication or sentence was otherwise withheld or not entered on the charge; or
      3. Arrest and being charged for a crime if the charge is pending, unless the time for prosecuting such crime has expired pursuant to Chapter 3 of Title 17.
   4. "Facility" means a:
      1. Personal care home required to be licensed or permitted under Code Section 31-7-12;
      2. Assisted living community required to be licensed under Code Section 31-7-12.2;
      3. Private home care provider required to be licensed under Article 13 of Chapter 7 of this title; or
      4. Community living arrangement subject to licensure under paragraph (8) of subsection (d) of Code Section 31-2-4.
   5. "GCIC" means the Georgia Crime Information Center established under Article 2 of Chapter 3 of Title 35.
   6. "GCIC information" means criminal history record information as defined in Code Section 35-3-30.
   7. "License" means the document issued by the department to authorize the facility to operate.
   8. "Owner" means any individual or any person affiliated with a corporation, partnership, or association with 10 percent or greater ownership interest in a facility providing care to persons under the license of the facility in this state and who:
      1. Purports to or exercises authority of the owner in a facility;
      2. Applies to operate or operates a facility;
      3. Maintains an office on the premises of a facility;
      4. Resides at a facility;
      5. Has direct access to persons receiving care at a facility;
      6. Provides direct personal supervision of facility personnel by being immediately available to provide assistance and direction during the time such facility services are being provided; or
      7. Enters into a contract to acquire ownership of a facility.
   9. "Records check application" means fingerprints in such form and of such quality as prescribed by the Georgia Crime Information Center and 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 criminal background information pursuant to this Code section.
2. An owner with a criminal record shall not operate or hold a license to operate a facility, and the department shall revoke the license of any owner operating a facility or refuse to issue a license to any owner operating a facility if it determines that such owner has a criminal record; provided, however, that an owner who holds a license to operate a facility on or before June 30, 2007, shall not have his or her license revoked prior to a hearing being held before a hearing officer pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
3. 1. Prior to approving any license for a new facility and periodically as established by the department by rule and regulation, the department shall require an owner to submit a records check application. The department shall establish a uniform method of obtaining an owner's records check application.
   2. 1. Unless the department contracts pursuant to subparagraph (B) of this paragraph, the department shall transmit to the GCIC the fingerprints and records search fee from each fingerprint records check application in accordance with Code Section 35-3-35. Upon receipt thereof, the GCIC shall promptly transmit the fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its records and records to which it has access. Within ten days after receiving fingerprints acceptable to the GCIC and the fee, the GCIC shall notify the department in writing of any criminal record or if there is no such finding. After a search of Federal Bureau of Investigation records and fingerprints and upon receipt of the bureau's report, the department shall make a determination about an owner's criminal record and shall notify the owner in writing as to the department's determination as to whether the owner has or does not have a criminal record.
      2. The department may either perform criminal background checks under agreement with the GCIC or contract with the GCIC and appropriate law enforcement agencies which have access to GCIC and Federal Bureau of Investigation information to have those agencies perform for the department criminal background checks for owners. The department or the appropriate law enforcement agencies may charge reasonable fees for performing criminal background checks.
   3. 1. The department's determination regarding an owner's criminal record, or any action by the department revoking or refusing to grant a license based on such determination, shall constitute a contested case for purposes of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," except that any hearing required to be held pursuant thereto may be held reasonably expeditiously after such determination or action by the department.
      2. In a hearing held pursuant to subparagraph (A) of this paragraph or subsection (b) of this Code section, 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, other indicia of rehabilitation, the facility's history of compliance with the regulations, and the owner's involvement with the licensed facility in arriving at a decision as to whether the criminal record requires the denial or revocation of the license to operate the facility. Where a hearing is required, at least 30 days prior to such hearing, the hearing officer shall notify the office of the prosecuting attorney who initiated the prosecution of the crime in question in order to allow the prosecutor to object to a possible determination that the conviction would not be a bar for the grant or continuation of a license as contemplated within this Code section. If objections are made, the hearing officer shall take such objections into consideration in considering the case.
   4. Neither the GCIC, the department, any law enforcement agency, nor the employees of any such entities shall be responsible for the accuracy of information nor have any liability for defamation, invasion of privacy, negligence, or any other claim in connection with any dissemination of information or determination based thereon pursuant to this Code section.
4. All information received from the Federal Bureau of Investigation or the GCIC shall be for the exclusive purpose of approving or denying the granting of a license to a new facility or the revision of a license of an existing facility when a new owner is proposed and shall not be released or otherwise disclosed to any other person or agency. All such information collected by the department shall be maintained by the department pursuant to laws regarding and the rules or regulations of the Federal Bureau of Investigation and the GCIC, as is applicable. Penalties for the unauthorized release or disclosure of any such information shall be as prescribed pursuant to laws regarding and rules or regulations of the Federal Bureau of Investigation and the GCIC, as is applicable.
5. The requirements of this Code section are supplemental to any requirements for a license imposed by Article 3 of Chapter 5 of Title 49 or Article 11 of Chapter 7 of this title.
6. The department shall promulgate written rules and regulations to implement the provisions of this Code section.
7. If the department is participating in the program described in subparagraph (a)(1)(F) of Code Section 35-3-33, the Georgia Bureau of Investigation and the Federal Bureau of Investigation shall be authorized to retain fingerprints obtained pursuant to this Code section for such program and the department shall notify the individual whose fingerprints were taken of the parameters of such retention.

(Code 1981, §31-2-14, enacted by Ga. L. 2009, p. 453, § 1-1/HB 228; Ga. L. 2010, p. 878, § 31/HB 1387; Ga. L. 2011, p. 227, § 10/SB 178; Code 1981, §31-2-9, as redesignated by Ga. L. 2011, p. 705, § 4-4/HB 214; Ga. L. 2012, p. 351, § 2/HB 1110; Ga. L. 2013, p. 524, § 3-2/HB 78; Ga. L. 2014, p. 444, § 2-8/HB 271; Ga. L. 2015, p. 598, § 1-8/HB 72; Ga. L. 2018, p. 507, § 2-6/SB 336.)

The 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, in subparagraph (a)(4)(B), substituted "this title" for "Title 31"; and, at the beginning of paragraph (a)(5), substituted "GCIC" for "CIC".

The 2011 amendments. The first 2011 amendment, effective July 1, 2011, added present subparagraph (a)(4)(B), and redesignated former subparagraphs (a)(4)(B) and (a)(4)(C) as present subparagraphs (a)(4)(C) and (a)(4)(D), respectively. The second 2011 amendment, effective July 1, 2011, redesignated former Code Section 31-2-14 as present Code Section 31-2-9.

The 2012 amendment, effective July 1, 2012, in paragraph (a)(2), deleted "or" at the end of subparagraph (M), substituted "; or" for a period at the end of subparagraph (N), and added subparagraph (a)(2)(O).

The 2013 amendment, effective July 1, 2013, rewrote subparagraph (a)(2)(E); substituted "or" for ", relating to armed robbery" at the end of subparagraph (a)(2)(L); deleted former subparagraph (a)(2)(M), which read: "A violation of Code Section 30-5-8, relating to abuse, neglect, or exploitation of a disabled adult or elder person;"; and redesignated former subparagraph (a)(2)(N) as present subparagraph (a)(2)(M).

The 2014 amendment, effective July 1, 2014, deleted ", relating to murder and felony murder" following "Code Section 16-5-1" at the end of subparagraph (a)(2)(A).

The 2015 amendment, effective July 1, 2015, deleted ", relating to aggravated assault" following "Code Section 16-5-21" in subparagraph (a)(2)(B); deleted ", relating to aggravated battery" following "Code Section 16-5-24" in subparagraph (a)(2)(C); deleted ", relating to cruelty to children" following "Code Section 16-5-70" in subparagraph (a)(2)(D); deleted ", relating to rape" following "Code Section 16-6-1" in subparagraph (a)(2)(F); deleted ", relating to aggravated sodomy" following "Code Section 16-6-2" in subparagraph (a)(2)(G); deleted ", relating to child molestation" following "Code Section 16-6-4" in subparagraph (a)(2)(H); deleted ", relating to enticing a child for indecent purposes" following "Code Section 16-6-5" in subparagraph (a)(2)(I); deleted ", relating to sexual assault against persons in custody, detained persons, or patients in hospitals or other institutions" following "Code Section 16-6-5.1" in subparagraph (a)(2)(J); deleted ", relating to aggravated sexual battery" following "Code Section 16-6-22.2" in subparagraph (a)(2)(K); added present subparagraph (a)(2)(M); and redesignated former subparagraphs (a)(2)(M) and (a)(2)(N) as present subparagraphs (a)(2)(N) and (a)(2)(O), respectively.

The 2018 amendment, effective July 1, 2018, added subsection (g).