Senate Bill 439 By: Senators Still of the 48th, Goodman of the 8th, Burns of the 23rd and Echols of the 49th AS PASSED A BILL TO BE ENTITLED AN ACT To amend Part 2 of Article 15 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated, the "Fair Business Practices Act of 1975," so as to provide for regulation of referral agencies for assisted living communities and personal care homes; to provide for disclosures to prospective residents and acknowledgments of receipt; to require verification of licensing of assisted living communities and personal care homes by referral agencies; 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. Part 2 of Article 15 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated, the "Fair Business Practices Act of 1975," is amended by adding a new Code section to read as follows: "10-1-393.22. (a) As used in this Code section, the term: (1) 'Assisted living community' means a personal care home with a minimum of 25 beds that is licensed as an assisted living community pursuant to Code Section 31-7-3. (2) 'Authorized representative' means an individual who is directly involved in the search for, is responsible for a resident entering into, or may become a party to an agreement for a resident to move into an assisted living community or personal care home. (3) 'Personal care home' means any dwelling, whether operated for profit or not, which undertakes through its ownership or management to provide or arrange for the provision of housing, food service, and one or more personal services for two or more adults who are not related to the owner or administrator by blood or marriage. Such term shall not include host homes, as such term is set forth in Code Section 37-1-20. (4) 'Personal services' means individual assistance with or supervision of self-administered medication and essential activities of daily living, including, but not limited to, eating, bathing, grooming, dressing, and toileting. Personal services shall not include medical, nursing, or health services; provided, however, that the department shall be authorized to grant a waiver of this provision in the same manner as provided for in Code Section 31-7-12.3 for the waiver of rules and regulations and in the same manner and only to the same extent as granted on or before June 30, 2011. (5) 'Referral agency' means an individual or entity that provides referrals to an assisted living community or personal care home of a prospective resident for a fee that is collected from the assisted living community or personal care home. Such term shall not include: (A) An assisted living community, personal care home, or its employees; or (B) A resident or an authorized representative of a resident of an assisted living community or personal care home, regardless of whether such resident or authorized representative receives a discount or other remuneration from the assisted living community or personal care home, for referring a prospective resident. (6) 'Resident' means a living individual who is seeking, considering, or receiving housing in an assisted living community or personal care home (b) No later than the time that a referral agency makes a referral to an assisted living community or personal care home, such referral agency shall conspicuously disclose in a written, electronic, or verbal form to a prospective resident or his or her authorized representative: (1) A description of the referral agency's services; (2) The existence of any relationship between the referral agency and the assisted living community or personal care home, including common ownership or control of the residence, or financial, business, management, contractual, or familial relationships between the referral agency and the assisted living community or personal care home; (3) That the referral agency receives a fee from the assisted living community or personal care home for the referral; (4) That the list of assisted living communities or personal care homes provided by the referral agency may not include all options that meet the prospective resident's stated preferences and needs; and (5) That the prospective resident or his or her authorized representative may at any time terminate all services provided by the referral agency, including the use of a prospective resident's personal information, by providing a written or electronic notice of termination to the referral agency. (c) A referral agency shall obtain from a prospective resident or his or her authorized representative a written, electronic, or verbal acknowledgment of receipt of the disclosure required in subsection (b) of this Code section in a physical or electronic form, which shall be retained by the referral agency. Such acknowledgment shall not create any contractual or exclusive relationship between the referral agency and the resident or his or her authorized representative and shall not prohibit a resident or his or her authorized representative from independently entering into a contract with or for any other assisted living community or personal care home. (d) Referral agencies shall not charge or collect a fee from an assisted living community or personal care home: (1) Unless the written, electronic, or verbal acknowledgment of receipt of the disclosure required by subsection (c) of this Code section is provided to the assisted living community or personal care home and the prospective resident or his or her authorized representative; or (2) In the event that more than 24 months have elapsed between the date that the referral was made and the date that the resident moved into the assisted living community or personal care home; provided, however, that, if, after the initial 12 months from the date the referral was made, the assisted living community or personal care home has confirmed in writing that the prospective resident has not entered into an agreement to move into an assisted living community or personal care home that he or she was referred to, the referral agency shall resubmit a referral to the assisted living community or personal care home. Such resubmitted referral shall reactivate such referral for the remaining 12 months. (e) A prospective resident or his or her authorized representative may at any time terminate all services provided by the referral agency, including the use of a prospective resident's personal information, by providing a written or electronic notice of termination to the referral agency. (f) Enforcement of this Code section shall only be by public enforcement by the Attorney General pursuant to this part and shall not be enforceable through a private right of action under Code Section 10-1-399." SECTION 2. All laws and parts of laws in conflict with this Act are repealed.