HB 1097: Mental health; criminal background, license status, and registry checks for owners, applicants, and employees of certain mental health facilities; provide

House Bill 1097 (AS PASSED HOUSE AND SENATE)

By: Representatives Petrea of the 166th, Dempsey of the 13th, Hilton of the 48th, Cameron of the 1st, and Sainz of the 180th

A BILL TO BE ENTITLED

AN ACT

To amend Titles 35 and 37 of the Official Code of Georgia Annotated, relating to law enforcement officers and agencies and mental health, respectively, so as to provide for covered individuals to submit certain information for national criminal history background checks; to provide for procedures for authorized agencies to make fitness determinations; provide for criminal background, license status, and registry checks for owners, applicants, and employees of certain mental health facilities; to provide for the Department of Behavioral Health and Developmental Disabilities to submit fingerprints to the Federal Bureau of Investigation and Georgia Crime Information Center for the purpose of background checks to find disqualifying criminal history records; to provide for maintenance of personnel files; to provide for procedures relating to applicants or employees with ineligible determinations; to provide for civil penalties for failure to terminate employees with ineligible determinations; to provide for notice for applicants; to provide for revocation of licenses; to provide for administrative review; to provide for appeals of administrative decisions; to provide for civil immunity; to provide for rules and regulations; to provide for definitions; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and agencies, is amended in Chapter 3, relating to the Georgia Bureau of Investigation, by revising Code Section 35-3-34.2, relating to exchange of national criminal history background checks on providers of care to children, the elderly, and persons with disabilities, as follows:

"35-3-34.2.

(a) It is the purpose of this Code section to authorize and facilitate, but not require, the exchange of national criminal history background checks with authorized agencies on behalf of qualified entities and qualified entities as authorized under federal law the NCPA.

(b) As used in this Code section, the term:

(1) 'Authorized agency' means any local government agency designated to report, receive, or disseminate information under the NCPA and the VCA.

(2) 'Care' means the provision of care, treatment, education, training, instruction, supervision, or recreation to children, the elderly, or individuals with disabilities.

(3) 'Child' or 'children' means any person under 18 years of age.

(4) 'Covered individual' means:

(A) A person who:

(i) Is employed by, contracts with, or volunteers with an authorized agency or qualified entity;

(ii) Owns or operates a qualified entity; or

(iii) Has or may have supervised or unsupervised access to a person to whom the authorized agency or qualified entity provides care; or

(B) A person who:

(i) Seeks to be employed by, contract with, or volunteer with an authorized agency or qualified entity;

(ii) Seeks to own or operate a qualified entity; or

(iii) Seeks to have or may have supervised or unsupervised access to a person to whom the authorized agency or qualified entity provides care. (5) 'FBI' means the Federal Bureau of Investigation.

(6) 'Individuals with disabilities' means persons with a mental or physical impairment who require assistance to perform one or more daily living tasks. (4)(7) 'National criminal history background check' means a fingerprint based check of state and national criminal history files based on submission of a set of classifiable fingerprints and records fee.

(5)(8) 'NCPA' means the National Child Protection Act of 1993, 42 U.S.C. Sections 3759, 5101 note, 5119, and 5119a through 5119c amended by the Volunteers for Children Act of 1998, 34 U.S.C. Section 4101, et seq.

(6)(9) 'ORI' means an originating agency identifier.

(7) 'Provider' means:

(A) A person who:

(i) Is employed by or volunteers with a qualified entity;

(ii) Owns or operates a qualified entity; or

(iii) Has or may have unsupervised access to a person to whom the qualified entity provides care; and

(B) A person who:

(i) Seeks to be employed by or volunteer with a qualified entity;

(ii) Seeks to own or operate a qualified entity; or

(iii) Seeks to have or may have unsupervised access to a person to whom the qualified entity provides care.

(8)(10) 'Qualified entity' means a business or organization, whether public, private, for profit, not for profit, or voluntary, that provides care or care placement services, including a business or organization that licenses or certifies others to provide care or care placement services.

(9) 'VCA' means the Volunteers for Children Act, 42 U.S.C. Sections 5101 note, 5119a, and 5119b.

(c) An authorized agency The center is responsible for the designation of authorized agencies and qualified entities within its local jurisdiction and for the submission of national criminal history background checks as authorized under the NCPA and the VCA pursuant to this Code section.

(d) An authorized agency, other than a criminal justice agency as defined in Code Section 35-3-30, must request an ORI from the FBI for the express purpose of submitting national criminal history background checks under this Code section. Requests shall be made in writing to the FBI through the center.

(e) National criminal history background checks shall be submitted directly to the center for a state records check; fingerprint cards identification information shall then be forwarded to the FBI for a national check. The responses from both the state and national criminal history background checks shall be returned to the authorized agency.

(f) The authorized agency may provide directly to the qualified entity the state criminal history record provided as part of the national criminal history background check.

(g) An authorized agency shall be responsible for review of the national criminal history record provided as part of the national criminal history background check to determine whether the provider has been convicted of or is under indictment for a crime that bears upon the provider's the covered individual's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities and to convey that determination to the qualified entity. The authorized agency shall make reasonable efforts to communicate the fitness determination to the qualified entity within 15 business days of receipt of the results of the national criminal history background check.

(h) The authorized agency or qualified entity must obtain the fingerprints of the provider covered individual, communicate the fitness determination of the authorized agency to the provider covered individual, and notify the provider covered individual of his or her right to challenge the accuracy and completeness of any information contained in the national criminal history background check.

(i) Fees charged for a national criminal history background check shall be determined based on reasonable costs as allowed under federal law of the background check.

(j) The provisions of this Code section shall be supplementary to and not in place of any other law of this state which authorizes or requires background checks.

(k) Any person, authorized agency, or qualified entity, or any person who is an employee of an authorized agency or qualified entity, shall not disseminate any criminal history record information or any information concerning any criminal history record information except the determination of fitness which such person obtains pursuant to for the purpose of determining a covered individual's fitness as authorized in this Code section."

SECTION 2.

Title 37 of the Official Code of Georgia Annotated, relating to mental health, is amended in Chapter 1, relating to governing and regulation of mental health, by revising subsections (a) through (d) of Code Section 37-1-28, relating to conviction data, as follows: "(a) As used in this Code section, the term:

(1) 'Client' means any person who receives developmental disability, mental health or substance use treatment support, or prevention services authorized or funded by the department.

(2) 'Contractor' means any person, entity, or agency that enters into a contract with the department to provide goods or services.

(3) 'Conviction 'conviction data' means a record of a finding or verdict of guilty or a plea of guilty or a plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought.

(4) 'GCIC' means the Georgia Crime Information Center established under Article 2 of Chapter 3 of Title 35.

(b) The department may receive from any law enforcement agency conviction data that is relevant to a person whom the department or its contractors is considering as a final selectee for employment, or is employing, in a position the duties of which involve direct care, treatment, custodial responsibilities, or any combination thereof for its clients.

(c) The department may receive from any law enforcement agency conviction data which is relevant to a person whom the department or its contractors is considering as a final selectee for employment, or is employing, in any position the duties of which give that person access to another person's financial information, protected health information as defined in the federal Health Insurance Portability and Accountability Act, criminal history information or criminal records, or other information the privacy of which is protected by law in a position if, in the judgment of the employer, a final employment decision regarding the selectee can only be made by a review of conviction data in relation to the particular duties of the position and the security and safety of clients, the general public, or other employees.

(d) The department is authorized to conduct national background checks by the submission of fingerprints to the Federal Bureau of Investigation through the GCIC. In order to determine the suitability of a license candidate, owner, applicant, or employee, the department shall require such person to furnish the department with a full set of fingerprints to enable a criminal background investigation to be conducted. The department shall establish a uniform method of obtaining conviction data under subsection (a) subsections (b) and (c) of this Code section which shall be applicable to the department and its contractors. Such uniform method shall require the submission to the Georgia Crime Information Center of fingerprints and the records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit 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 own records and records to which it has access. After receiving the fingerprints and fee, the Georgia Crime Information Center shall notify the department in writing of any derogatory finding, including, but not limited to, any conviction data regarding the fingerprint records check or if there is no such finding department to submit fingerprints to GCIC, along with the records research fee in accordance with Code Section 35-3-35. If no disqualifying record is identified at the state level, GCIC is authorized to submit the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. If a criminal record is identified at the state level, GCIC shall request a national criminal history record check from the Federal Bureau of Investigation through a national identifier number system used for identifying fingerprints. After receiving acceptable fingerprints and such fee from the department, GCIC shall notify the department in writing of any criminal record found in the records of GCIC and the Federal Bureau of Investigation or if there is no such finding. Upon receipt of GCIC's report, the department shall make a determination about an owner's, applicant's, or employee's criminal record."

SECTION 3.

Said title is further amended in said chapter by adding a new article to read as follows: "ARTICLE 8

37-1-140.

As used in this article, the term:

(1) 'Applicant' means a person applying to be a direct access employee at a facility.

(2) 'Conviction' means a finding or verdict of guilty or a plea of guilty, including a plea of guilty pursuant to Code Section 42-8-60, regardless of whether an appeal of the conviction has been sought.

(3) 'Crime' means commission of:

(A) Any of the following offenses:

(i) A violation of Code Section 16-5-3;

(ii) A violation of Code Section 16-5-70;

(iii) A violation of Code Section 16-5-101;

(iv) A violation of Code Section 16-5-102;

(v) A violation of Code Section 16-6-3;

(vi) A violation of Code Section 16-6-4;

(vii) A violation of Code Section 16-6-5;

(viii) A violation of Code Section 16-6-5.1;

(ix) A violation of Code Sections 16-7-60, 16-7-60.1,16-7-61, or 16-7-62;

(x) A violation of Chapter 8 of Title 16;

(xi) A violation of Code Section 16-10-31; or

(xii) A violation of Code Section 30-5-8;

(B) A felony violation of:

(i) Chapters 5, 6, 9 or 13 of Title 16;

(ii) Code Section 16-4-1;

(iii) Code Section 16-7-2; or

(iv) Subsection (f) of Code Section 31-7-12.1; or

(C) Any other offense committed in another jurisdiction which, if committed in this state, would be deemed to constitute an offense identified in this paragraph without regard to its designation elsewhere.

(4) 'Criminal background check' means a search of the criminal records maintained by GCIC and the Federal Bureau of Investigation to determine whether an owner, applicant, or employee has a criminal record.

(5) 'Criminal record' means any of the following:

(A) Conviction of a crime;

(B) Arrest, charge, and sentencing for a crime when:

(i) A plea of nolo contendere was entered to the crime;

(ii) First offender treatment without adjudication of guilt was granted to the crime; or

(iii) An adjudication or sentence was otherwise withheld or not entered for the crime; or

(C) Arrest and charges for a crime if the charge is pending, unless the time for prosecuting such crime has expired pursuant to Chapter 3 of Title 17.

(6) 'Direct access' means having, or expecting to have, duties that involve routine personal contact with a patient, resident, or client, including, but not limited to, face-to-face contact, hands-on physical assistance, verbal cuing, reminding, standing by or monitoring or 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, including, but not limited to, the patient's, resident's, or client's checkbook, debit and credit cards, resident trust funds, banking records, stock accounts, or brokerage accounts.

(7) 'Eligible determination' means a written determination that a person for whom a criminal background check was performed and was found to have no criminal record.

(8) 'Employee' means any individual who has direct access to, 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. Such term shall not include a person who contracts with the facility, whether personally or through a company, to provide utility, construction, communications, accounting, quality assurance, human resource management, information technology, legal, or other services if the contracted services are not directly related to providing services to a patient, resident, or client of the facility.

(9) 'Facility' means:

(A) A community living arrangement to be licenced under Article 1 of Chapter 13 of this title;

(B) A drug abuse treatment and education program required to be licensed under Article 1 of Chapter 5 of Title 26; or

(C) An adult residential mental health program required to be licensed pursuant to Article 7 of Chapter 3 of Title 37.

(10) 'Fingerprint records check determination' means an eligible or ineligible determination by the department based upon fingerprint based national criminal history information.

(11) 'GCIC' means the Georgia Crime Information Center established under Article 2 of Chapter 3 of Title 35.

(12) 'Indirect ownership interest' means an ownership interest in a corporation, partnership, legal entity, or association which owns an ownership interest in another corporation, partnership, legal entity, or association. This term includes an ownership interest in any corporation, partnership, legal entity, or association that has an indirect ownership interest in a facility or in a license candidate.

(13) 'Ineligible determination' means a written determination that a person for whom a criminal background check was performed was found to have a criminal record.

(14) 'License' means the document issued by the department to authorize a facility to operate.

(15) 'License candidate' means a person, corporation, partnership, legal entity, or association applying for a license to operate a facility.

(16) 'Owner' means a person with an ownership interest in a facility or license candidate or with an ownership interest in a corporation, partnership, legal entity, or association which has any ownership interest in a facility or license candidate, including an indirect ownership interest.

(17) 'Ownership interest' means the possession of equity in the capital, stock, or profits of either a:

(A) Facility or license candidate; or

(B) Corporation, partnership, legal entity, or association that holds a license for a facility.

(18) 'Records check application' means fingerprints in such form and of such quality as prescribed by GCIC 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 a criminal background check.

(19) 'Registry check' means a review of the nurse aide registry provided for in Code Section 31-2-14, the national and state sexual offender registries, and the List of Excluded Individuals and Entities as authorized in Sections 1128 and 1156 of the federal Social Security Act, as it existed on February 1, 2018, or any other registry useful for the administration of this article as specified by rules of the department.

37-1-141.

(a)(1) A registry check of an owner, applicant, or employee shall be required prior to a criminal background check and shall be initiated by the applicable facility or license candidate.

(2) A registry check shall be performed by such facility or license candidate and may include reviewing registries of any other states in which the applicant previously resided.

(3) If an applicant has not resided in this state for at least two years, the facility or license candidate shall conduct registry checks of each state in which the applicant resided for the previous two years as represented by such applicant or as otherwise determined by the applicable facility or license candidate.

(b) If applicable to an owner, applicant, or employee, a query of available information maintained by the Georgia Composite Medical Board, the Secretary of State, or other applicable licensing boards shall be conducted prior to a criminal background check to validate that such individual's professional license is in good standing.

(c) Except as provided in subsection (c) of Code Section 37-1-148, nothing in this Code section shall be construed to limit the responsibility or ability of a facility or license candidate to screen owners, applicants, or employers through additional methods.

37-1-142.

(a) Accompanying any application for a new license, the license candidate, each owner and applicant, and each employee of the license candidate shall complete a records check in accordance with rules set by the department. The department is authorized to conduct national background checks by the submission of fingerprints to the Federal Bureau of Investigation through GCIC. In order to determine the suitability of a license candidate, owner, applicant, or employee, the department shall require such person to furnish the department with a full set of fingerprints to enable a criminal background investigation to be conducted. The department may receive from any law enforcement agency conviction data that is relevant to a person who is a license candidate, owner, applicant, or employee. (b)(1) The department shall submit fingerprints to GCIC. If no disqualifying record is identified at the state level, GCIC is authorized to submit the fingerprints to the Federal Bureau of Investigation for a national criminal history record check.

(2) If a criminal record is identified at the state level, GCIC shall request a national criminal history record check from the Federal Bureau of Investigation through a national identifier number system used for identifying fingerprints.

(3) Within ten days after receiving acceptable fingerprints from the department, GCIC shall notify the department in writing of any criminal record found in the records of GCIC and the Federal Bureau of Investigation, or if there is no such finding. Upon receipt of GCIC's report, the department shall make a determination about an owner's, applicant's, or employee's criminal record.

(c) Neither GCIC, the department, any law enforcement agency, nor the employees of any such entities shall be responsible for the accuracy of the information nor have 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.

(d) All information received from GCIC or the Federal Bureau of Investigation shall be used exclusively for employment or licensure purposes 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 the rules and regulations of GCIC and the Federal Bureau of Investigation as are applicable. Penalties for unauthorized release or disclosure of any such information shall be prescribed pursuant to state law or rules or regulations of GCIC and the Federal Bureau of Investigation as are applicable.

(e) 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.

37-1-143.

(a) An applicant seeking employment with a facility or a current employee at a facility shall consent to a national and state background check that includes a registry check, a check of information maintained by a professional licensing board, if applicable, and a criminal background check in accordance with rules set by the department. The department is authorized to conduct national background checks by the submission of fingerprints to the Federal Bureau of Investigation through GCIC. In order to determine an applicant's suitability as an employee of a facility, the department shall require such applicant to furnish the department with a full set of fingerprints to enable a criminal background investigation to be conducted. Such criminal background investigations shall be conducted in the manner set forth in subsections (b), (c), (d), and (e) of Code Section 37-1-142. The department may receive from any law enforcement agency conviction data that is relevant to such an applicant or to any employee of the facility. (b)(1) A person required to submit to a registry check and criminal background check shall not be employed by, contracted with, or allowed to work as an employee at a facility if:

(A) The person appears on a registry check;

(B) There is a substantiated finding of neglect, abuse, or misappropriation of property by a state or federal agency pursuant to an investigation conducted in accordance with 42 U.S.C. Section 1395-i or 1396r as it existed on February 1, 2018;

(C) The person's professional license, if applicable, is not in good standing; or

(D) The facility receives notice from the department that the person has been found to have an ineligible determination.

(2) A person whose professional license is not in good standing may be employed by a facility in a position where his or her duties do not require professional licensure, provided that he or she provides a fingerprint record check determination in the same manner as an applicant.

(c) An applicant or employee may:

(1) Obtain information concerning the accuracy of his or her criminal record, and the department shall refer the person to the appropriate state or federal law enforcement agency that was involved in the arrest or conviction;

(2) Challenge the finding that he or she is the true subject of the results from a registry check, and the department shall refer the person to the agency responsible for maintaining the registry; and

(3) Appeal his or her disqualifying determination pursuant to Code Section 37-1-147.

37-1-144.

(a) A personnel file for each employee shall be maintained by each facility. Such files shall be available for inspection by the department and other appropriate enforcement authorities but shall otherwise be maintained to protect the confidentiality of the information contained within. The information shall include, but not be limited to, evidence of each employee's eligible determination, registry check, and licensure check, if applicable.

(b)(1)(A) The department may require a criminal background check on any owner or employee of a facility during the course of an investigation involving such owner or employee or if the department receives information the owner or employee was arrested for a crime.

(B) The criminal background check provided in subparagraph (A) of this paragraph may be fingerprint based and shall be conducted in the manner set forth in subsections (b), (c), (d), and (e) of Code Section 37-1-142. The department may receive from any law enforcement agency conviction data that is relevant to any owner or employee of the facility.

(C) GCIC shall notify the department in writing of any ineligible determination, including, but not limited to, any criminal record obtained through the fingerprints records check determination or if there is no finding of a criminal record.

(D) 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 person whose fingerprints were taken of the parameters of fingerprint retention.

(2) When the department determines that an applicant or employee has an ineligible determination, the department shall notify the facility that the applicant or employee is ineligible to hire or employ and shall take the necessary steps so that the employee is no longer employed at the facility; provided, however, that a facility may retain a current employee during the period of any administrative review or appeal provided for in paragraph (4) of this subsection.

(3) When the department determines that an owner has an ineligible determination, the department shall notify the owner of the ineligible status for ownership and shall take the necessary steps to revoke the facility's license.

(4) An owner, applicant, or employee may appeal his or her disqualifying ineligible status determination pursuant to Code Section 37-1-147.

37-1-145.

A facility that does not terminate an employee who has been found to have an ineligible determination or failed a registry check shall be liable for a civil monetary penalty in the amount of $500.00 for each day that a violation occurs, not to exceed a total of $10,000.00. The daily civil monetary penalty shall be imposed only from the time the facility knew or should have known that it employed a person with a criminal record and until the date such individual's employment is terminated; provided, however, that the penalty shall not be imposed for any period of time during which the facility may retain the employee under the provisions of paragraph (2) of subsection (b) of Code Section 37-1-144.

37-1-146.

Each employment application form provided by a facility to an applicant shall conspicuously state the following: 'FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A NATIONAL AND STATE BACKGROUND CHECK AS A CONDITION

OF EMPLOYMENT.'

37-1-147.

(a)(1) An owner of a facility with an ineligible determination or whose name appears on a registry check shall not operate or hold a license, and the department shall revoke the license of, or refuse to issue a license to, any facility with an owner with an ineligible determination or whose name appears on a registry check.

(2) Prior to approving any license for a facility and periodically as established by the department by rule, the department shall require each owner, applicant, and employee to submit to a registry check and criminal background check pursuant to Code Sections 37-1-141 and 37-1-142.

(3) The department may provide by rule for a process where an owner, applicant, or employee can request an administrative review of an ineligible determination or of a determination that the owner's, applicant's, or employee's name appears on a registry check. If such administrative review is provided for in the rules of the department, it shall be timely requested by the owner, applicant, or employee and completed before any appeal provided for in paragraph (4) of this subsection may be filed or requested. (4)(A) An owner, employee, or applicant who received an ineligible determination or a determination that his or her name appears on a registry check and who has exhausted any administrative review rights provided for in this Code section shall be eligible to appeal such determination pursuant to Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.'

(B) In a hearing held pursuant to subparagraph (A) of this paragraph, 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, and other indicia of rehabilitation. (5)(A) Any action by the department revoking or refusing to grant a license based on any owner's ineligible determination or determination that the owner's name appears on a registry check 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 to such Act may be held reasonably expeditiously after such determination or action by the department.

(B)(i) In a hearing held pursuant to subparagraph (A) of this paragraph, the hearing officer shall consider in mitigation the:

(I) Length of time since the crime was committed;

(II) Absence of additional criminal charges;

(III) Circumstances surrounding the commission of the crime;

(IV) Other indicia of rehabilitation;

(V) Facility's history of compliance with the regulations; and

(VI) 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.

(ii) When a hearing is required, the hearing officer shall notify the office of the prosecuting attorney who initiated the prosecution of the crime in question at least 30 days prior to the hearing to allow the prosecuting attorney to object to a possible determination that the conviction would not be a bar for the grant or continuation of a license as contemplated by this Code section. If objections are made, the hearing officer shall take such objections into consideration.

(b) The requirements of this Code section are supplemental to any requirements for a license imposed by other applicable Code sections.

37-1-148.

(a) No person, including the department, a facility, or a person acting on behalf of such entities, shall be liable for civil damages or be subject to any claim, demand, cause of action, or proceeding of any nature as a result of actions taken in good faith to comply with this article, including the disqualification of an applicant from employment on the basis of a disqualifying crime or ineligible determination.

(b)(1) A facility that has obtained an eligible determination on an owner, applicant, or employee in accordance with this article or confirmation that such owner, applicant, or employee has obtained a favorable final administrative review or appeal decision pursuant to Code Section 37-1-147, shall be immune from liability for claims of negligent hiring when such claims are based on the criminal record of such owner, applicant, or employee, even when the information contained in the criminal background check used by the department is later determined to have been incomplete or inaccurate; provided, however, that such immunity shall not preclude the liability of a facility concerning claims based on information beyond the scope of the criminal record and eligible determination about the owner, applicant, or employee of which the facility knew or should have known.

(2) When a facility has obtained an eligible determination on an owner, applicant, or employee, there shall be a rebuttable presumption of due care for claims of negligent hiring, negligent retention, or other similar claims to the extent the claims are based on an owner's, applicant's, or employee's criminal record.

(c) Nothing in this article shall require a facility to conduct any other type of criminal history check of an owner, applicant, or employee, and a facility shall not be held liable for claims of negligent hiring, negligent retention, or other similar claims based solely or in part on its failure to conduct other types of criminal history checks.

(d) Nothing in this article shall be construed to waive the sovereign immunity of the state, the department, or any other entity of the state.

37-1-149.

The department shall promulgate written rules and regulations related to the requirements and implementation of this article, including, but not limited to, establishing percentages of ownership interest relevant for the enforcement of this article. In establishing such percentages of ownership, the department may regard any percentage of ownership greater than zero as constituting an ownership interest as defined in this article, or the department may by rule or regulation deem that a higher percentage of ownership is necessary to constitute such ownership."

SECTION 4.

All laws and parts of laws in conflict with this Act are repealed.