Georgia Targets Elder Abuse with New Background Check Law

A new Georgia law will require nursing home and other long-term care workers to submit to extensive background checks. The Georgia Long-Term Care Background Check Program will take effect Oct. 1. Georgia joins the majority of other states mandating enhanced satisfactory background checks for care workers.

The new law, signed by Gov. Nathan Deal on May 7, 2018, is intended to promote public safety for a growing and vulnerable aging population. Reports of elder abuse have been on the rise in recent years as the elderly population grows. Investigations into abuse of elders and adults with disabilities by the Georgia Bureau of Investigation have increased 145 percent in the last five years, according to the agency.

The new law, codified at O.C.G.A. Section 31-7-350, et seq., will require care workers with direct access to seniors in long-term care facilities to pass a national background check. A new fingerprinting requirement is expected to go into effect in January 2021, allowing employers time to conduct more extensive background checks on current employees.

The new law applies to owners, applicants for employment, and employees providing care or owning a personal care home, assisted living community, private home care provider, home health agency, hospice care, nursing home, skilled nursing facility or adult daycare.

Currently, Georgia caretakers must only submit to a name-based background check that is limited to crimes committed in Georgia. This offers limited protection at best; information about an individual from another state with a criminal history or who is using an assumed name would not be uncovered. The enhanced background check requirement would more comprehensively incorporate reviews of the FBI database, state and national databases of criminal records, the nurse aide registry, and state sexual offender and other registries.

Terms Defined

Under the new law, "direct access" means having, or expecting to have, duties that involve routine personal contact with a patient, resident or client. Direct access includes face-to-face contact, hands-on physical assistance, verbal cuing, reminding, standing by or monitoring 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.

Further, "employee" is defined as 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. Expressly excluded from this definition are physicians, dentists, nurses and pharmacists who are licensed by the state. Also excluded from the mandatory background check are individuals who contract with a facility (personally or through a company) to provide utility, construction, communications, accounting, quality assurance, human resource management, information technology, legal or other services that are not directly related to providing services to a patient, resident or client of the facility. Families (a spouse, parent, sibling or grandparent) and guardians of elderly persons (age 65+) seeking personal care services will have the same access to a central state caregiver registry for care-worker employment determinations as licensed facilities.

Violations

Penalties for violations can range from monetary penalties to license revocation. Failure to comply with the new law subjects the facility to liability for civil monetary penalties of $500 for each day that a violation occurs (up to $10,000). The exposure for a facility begins from the time the facility knew or should have known that it employed an individual with a criminal record until the date such an individual's employment is terminated.

Next Steps

Covered Georgia employers in the care-taking industry should comply with the new law and ensure that:

• Each application form provided by a covered facility to an applicant conspicuously state: FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A NATIONAL AND STATE BACKGROUND CHECK AS A CONDITION OF EMPLOYMENT.
  
• Personnel records for covered entities include evidence of each employee's satisfactory determination, registry check and licensure check, as applicable.

Emily S. Borna and Todd Van Dyke are attorneys with Jackson Lewis in Atlanta. © 2019 Jackson Lewis. All rights reserved. Reposted with permission.