TITLE 31 HEALTH

Section 7. Regulation and Construction of Hospitals and Other Health Care Facilities, 31-7-1 through 31-7-412.

ARTICLE 11 FACILITY LICENSING AND EMPLOYEE RECORDS CHECKS

31-7-259. (Repealed effective October 1, 2019) Preliminary records check determination; suspension or revocation of license; refusal to issue regular license; fingerprint check; employment history; director's criminal liability; exempt employees; mitigating factors in criminal records check; civil penalty.

1. Before a person may become a director of any facility that has received either a temporary or regular license, that facility shall require that person to furnish to the department a preliminary records check application and a records check application and the department shall, under the procedures of Code Sections 31-7-252 and 31-7-253, make a preliminary records check determination and send notice thereof to the facility and director prior to the director beginning work. If the preliminary records check is unsatisfactory, the facility shall not hire the director. If the subsequent fingerprint records check determination is unsatisfactory, the facility shall take such steps as are necessary so that such person is no longer the director of the facility.
2. Before a person may become an employee of a facility, each potential employee of a facility shall request a criminal record check from a local law enforcement agency and submit the results of the criminal record check to the facility. The personal care home shall be authorized to rely on written information received from a local law enforcement agency, GCIC, or other official agency to determine whether the applicant for employment has a criminal record. A personal care home shall not employ a person with an unsatisfactory determination.
3. In addition, where an applicant for employment at a personal care home has not been a resident of the state for a period of three years preceding the date of application for employment, the personal care home shall attempt to obtain a criminal record check from the local law enforcement agency of the applicant's previous state of residence. If the local criminal record check from either the applicant's previous state of residence or this state indicates multistate offender status, the personal care home shall not employ the applicant until a determination is made as to whether the applicant has a criminal record. If the personal care home elects to determine the nature of the criminal activity, the personal care home shall transmit the preliminary records check application and the records check application on behalf of the potential employee to the department for processing through the GCIC. A personal care home shall not employ a person with an unsatisfactory determination.
4. If the personal care home is unable to obtain a criminal record check from the local law enforcement agency of the applicant's previous state of residence, it shall transmit a records check application to the department which shall process the application through the GCIC. A personal care home shall not employ a person with an unsatisfactory determination.
5. The fee for a criminal records check under this Code section shall be no greater than the actual cost of processing the request and shall be paid by the personal care home or by the applicant for employment. The law enforcement agency of this state receiving the request shall perform a criminal record check for a personal care home within a reasonable time but in any event within a period not to exceed three days of receiving the request.
6. Each application form provided by the employer to the applicant for employment shall conspicuously state the following: "FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A CRIMINAL RECORD CHECK AS A CONDITION OF EMPLOYMENT."
7. Both temporary and regular licenses are subject to suspension or revocation or the department may refuse to issue a regular license if a person becomes a director or employee subsequent to the granting of a license and that person does not undergo the records checks applicable to that director or employee and receive a satisfactory determination.
8. After the issuance of a regular or temporary license, the department may require a fingerprint records check on any director or employee to confirm identification for records search purposes, or when subsequent to a preliminary records check, the department has reason to believe that the director or employee has a criminal record. The department may require a fingerprints record check on any director or employee during the course of an abuse investigation involving the director or employee. In such instances, the department shall require the director or employee to furnish two full sets of fingerprints which the department shall submit to the GCIC together with appropriate fees collected from the director or employee or personal care home. Upon receipt thereof, the GCIC shall promptly transmit one set of fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and retain the other set and promptly conduct a search of its records and records to which it has access. The GCIC shall notify the department in writing of any derogatory finding, including but not limited to any criminal record obtained through the fingerprint record check or if there is no such finding. Where the department determines that the director or employee has a criminal record, the department shall notify the facility of the unsatisfactory determination and the facility shall take such steps as are necessary so that such person is no longer the director or an employee of the facility.
9. No personal care home may have any person as an employee after July 1, 2002, unless there is on file in the personal care home an employment history for that person and a satisfactory determination that the person does not have a criminal record.
10. Except as provided in subsection (l) of this Code section, a director of a facility having an employee whom that director knows or should reasonably know to have a criminal record, as defined in Code Section 31-7-250, shall be guilty of a misdemeanor.
11. The provisions of this Code section shall not apply to a member of the administrative staff or an applicant for an administrative staff position of a personal care home whose duties do not include management of resident funds or personal contact between that person and any paying resident of the home.
12. Where a personal care home determines that an applicant for employment has a criminal record but there are matters in mitigation of the criminal record, no physical harm was done to the victim, and the personal care home would like to hire the applicant, the personal care home may submit an application for a preliminary records check to the department on behalf of the potential employee on forms provided by the department. The personal care home shall not hire the potential employee to work in the home until the personal care home receives notification from the department that the applicant either has a satisfactory criminal record check or an administrative law judge has determined that the applicant is authorized to work in a personal care home.
13. Except as provided in subsection (l) of this Code section, a personal care home that hires an applicant for employment with a criminal record is in violation of licensing requirements and the department is authorized to impose a civil penalty pursuant to the authority granted it under the rules and regulations for the enforcement of licensing requirements.
14. 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, §31-7-259, enacted by Ga. L. 1985, p. 952, § 2; Ga. L. 2002, p. 942, § 8; Ga. L. 2018, p. 507, § 2-10/SB 336.)

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