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 <del>on
behalf of qualified entities</del> <ins>and qualified entities</ins> as authorized under <del>federal law</del> <ins>the NCPA.
</ins> (b) As used in this Code section, the term:
(1) 'Authorized agency' means any <del>local</del> government agency designated to report,
receive, or disseminate information under the NCPA <del>and the VCA.
</del> (2) 'Care' means the provision of care, treatment, education, training, instruction,
supervision, or recreation to children, the elderly, or individuals with disabilities.
(3) <ins>'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
</ins>
<ins>(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)</ins> 'FBI' means the Federal Bureau of Investigation.
<ins>(6) 'Individuals with disabilities' means persons with a mental or physical impairment
who require assistance to perform one or more daily living tasks.
</ins> <del>(4)(7)</del> '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.
<del>(5)(8)</del> 'NCPA' means the National Child Protection Act of 1993, <del>42 U.S.C. Sections
3759, 5101 note, 5119, and 5119a through 5119c</del> <ins>amended by the Volunteers for Children
Act of 1998, 34 U.S.C. Section 4101, et seq.
</ins> <del>(6)(9)</del> 'ORI' means an originating agency identifier.
<del>(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.
</del> <ins>(8)(10)</ins> '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.
<del>(9) 'VCA' means the Volunteers for Children Act, 42 U.S.C. Sections 5101 note, 5119a,
and 5119b.
</del> (c) <del>An authorized agency</del> <ins>The center</ins> is responsible for the designation of <ins>authorized
agencies and</ins> qualified entities <del>within its local jurisdiction and</del> for the submission of
national criminal history background checks <del>as authorized under the NCPA and the VCA
</del> <ins>pursuant to this Code section.
</ins> (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 <del>cards</del> <ins>identification information</ins> 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 <del>of the national criminal history
record provided as part</del> of the national criminal history background check to determine
<del>whether the provider has been convicted of or is under indictment for a crime that bears
upon the provider's</del> <ins>the covered individual's</ins> 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. <ins>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.
</ins> (h) The <ins>authorized agency or</ins> qualified entity must obtain the fingerprints of the <del>provider
</del> <ins>covered individual,</ins> communicate the fitness determination of the authorized agency to the
<del>provider</del> <ins>covered individual,</ins> and notify the <del>provider</del> <ins>covered individual</ins> 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 <del>reasonable</del> costs <del>as allowed under federal law</del> <ins>of the background check.
</ins> (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
<ins>record information</ins> or any information concerning any criminal history <ins>record information
</ins> except <del>the determination of fitness which such person obtains pursuant to</del> <ins>for the purpose
of determining a covered individual's fitness as authorized in</ins> 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:
<ins>(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</ins> <del>'conviction</del> 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.
<ins>(4) 'GCIC' means the Georgia Crime Information Center established under Article 2 of
Chapter 3 of Title 35.
</ins>
(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, <ins>or is employing,</ins> 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, <ins>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</ins> <del>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.
</del> (d) <ins>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.</ins> The
department shall establish a uniform method of obtaining conviction data under
<del>subsection (a)</del> <ins>subsections (b) and (c)</ins> of this Code section which shall be applicable to the
department and its contractors. Such uniform method shall require the <del>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
</del>
<del>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</del> <ins>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."
</ins> SECTION 3.
Said title is further amended in said chapter by adding a new article to read as follows:
<ins>"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:
</ins>
<ins>(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;
</ins>
<ins>(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;
</ins>
<ins>(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
</ins>
<ins>(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.
</ins>
<ins>(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
</ins>
<ins>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
</ins>
<ins>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.
</ins>
<ins>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
</ins>
<ins>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.'
</ins>
<ins>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,
</ins>
<ins>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
</ins>
<ins>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
</ins>
<ins>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."
</ins> SECTION 4.
All laws and parts of laws in conflict with this Act are repealed.