HB1097: HB1097 Mental health; criminal background, license status, and registry checks for owners, applicants, and employees of certain mental health facilities; provide

26 HB 1097/AP 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 Annot ated, relating to law1 enforcement officers and agencies and mental health, respective ly, so as to provide for2 covered individuals to submit certain information for national criminal history background3 checks; to provide for procedures for authorized agencies to ma ke fitness determinations;4 provide for criminal background, license status, and registry checks for owners, applicants,5 and employees of certain mental health facilities; to provide f or the Department of6 Behavioral Health and Developmental Disabilities to submit fing erprints to the Federal7 Bureau of Investigation and Georgia Crime Information Center fo r the purpose of8 background checks to find disqualifying criminal history records; to provide for maintenance9 of personnel files; to provide for procedures relating to appli cants or employees with10 ineligible determinations; to provide for civil penalties for f ailure to terminate employees11 with ineligible determinations; to provide for notice for applicants; to provide for revocation12 of licenses; to provide for administrative review; to provide f or appeals of administrative13 decisions; to provide for civil immunity; to provide for rules and regulations; to provide for14 definitions; to provide for related matters; to repeal conflicting laws; and for other purposes.15 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:16 H. B. 1097 - 1 - 26 HB 1097/AP SECTION 1.17 Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and18 agencies, is amended in Chapter 3, relating to the Georgia Bure au of Investigation, by19 revising Code Section 35-3-34.2, relating to exchange of nation al criminal history20 background checks on providers of care to children, the elderly, and persons with disabilities,21 as follows:22 "35-3-34.2.23 (a) It is the purpose of this Code section to authorize and fa cilitate, but not require, the24 exchange of national criminal history background checks with au thorized agencies on25 behalf of qualified entities and qualified entities as authorized under federal law the NCPA.26 (b) As used in this Code section, the term:27 (1) 'Authorized agency' means any local government agency designated to report,28 receive, or disseminate information under the NCPA and the VCA.29 (2) 'Care' means the provision of care, treatment, education, training, instruction,30 supervision, or recreation to children, the elderly, or individuals with disabilities.31 (3) 'Child' or 'children' means any person under 18 years of age.32 (4) 'Covered individual' means:33 (A) A person who:34 (i) Is employed by, contracts with, or volunteers with an auth orized agency or35 qualified entity;36 (ii) Owns or operates a qualified entity; or37 (iii) Has or may have supervised or unsupervised access to a p erson to whom the38 authorized agency or qualified entity provides care; or39 (B) A person who:40 (i) Seeks to be employed by, contract with, or volunteer with an authorized agency41 or qualified entity;42 (ii) Seeks to own or operate a qualified entity; or43 H. B. 1097 - 2 - 26 HB 1097/AP (iii) Seeks to have or may have supervised or unsupervised acc ess to a person to44 whom the authorized agency or qualified entity provides care.45 (5) 'FBI' means the Federal Bureau of Investigation.46 (6) 'Individuals with disabilities' means persons with a menta l or physical impairment47 who require assistance to perform one or more daily living tasks.48 (4)(7) 'National criminal history background check' means a fingerprint based check of49 state and national criminal history files based on submission o f a set of classifiable50 fingerprints and records fee.51 (5)(8) 'NCPA' means the National Child Protection Act of 1993, 42 U. S.C. Sections52 3759, 5101 note, 5119, and 5119a through 5119c amended by the Volunteers for Children53 Act of 1998, 34 U.S.C. Section 4101, et seq.54 (6)(9) 'ORI' means an originating agency identifier.55 (7) 'Provider' means:56 (A) A person who:57 (i) Is employed by or volunteers with a qualified entity;58 (ii) Owns or operates a qualified entity; or59 (iii) Has or may have unsupervised access to a person to whom the qualified entity60 provides care; and61 (B) A person who:62 (i) Seeks to be employed by or volunteer with a qualified entity;63 (ii) Seeks to own or operate a qualified entity; or64 (iii) Seeks to have or may have unsupervised access to a perso n to whom the65 qualified entity provides care.66 (8)(10) 'Qualified entity' means a business or organization, whether public, private, for67 profit, not for profit, or voluntary, that provides care or care placement services, including68 a business or organization that licenses or certifies others to provide care or care69 placement services.70 H. B. 1097 - 3 - 26 HB 1097/AP (9) 'VCA' means the Volunteers for Children Act, 42 U.S.C. Sections 5101 note, 5119a,71 and 5119b.72 (c) An authorized agency The center is responsible for the designation of authorized73 agencies and qualified entities within its local jurisdiction and for the submission of74 national criminal history background checks as authorized under the NCPA and the VCA75 pursuant to this Code section.76 (d) An authorized agency, other than a criminal justice agency as defined in Code Section77 35-3-30, must request an ORI from the FBI for the express purpose of submitting national78 criminal history background checks under this Code section. Re quests shall be made in79 writing to the FBI through the center.80 (e) National criminal history background checks shall be submitted directly to the center81 for a state records check; fingerprint cards identification information shall then be82 forwarded to the FBI for a national check. The responses from both the state and national83 criminal history background checks shall be returned to the authorized agency.84 (f) The authorized agency may provide directly to the qualifie d entity the state criminal85 history record provided as part of the national criminal history background check.86 (g) An authorized agency shall be responsible for review of the national criminal history87 record provided as part of the national criminal history background check to determine88 whether the provider has been convicted of or is under indictme nt for a crime that bears89 upon the provider's the covered individual's fitness to have responsibility for the safety and90 well-being of children, the elderly, or individuals with disabi lities and to convey that91 determination to the qualified entity. The authorized agency shall make reasonable efforts92 to communicate the fitness determination to the qualified entity within 15 business days93 of receipt of the results of the national criminal history background check.94 (h) The authorized agency or qualified entity must obtain the fingerprints of the provider95 covered individual, communicate the fitness determination of the authorized agency to the96 provider covered individual, and notify the provider covered individual of his or her right97 H. B. 1097 - 4 - 26 HB 1097/AP to challenge the accuracy and completeness of any information contained in the national98 criminal history background check.99 (i) Fees charged for a national criminal history background ch eck shall be determined100 based on reasonable costs as allowed under federal law of the background check.101 (j) The provisions of this Code section shall be supplementary to and not in place of any102 other law of this state which authorizes or requires background checks.103 (k) Any person, authorized agency, or qualified entity, or any person who is an employee104 of an authorized agency or qualified entity, shall not dissemin ate any criminal history105 record information or any information concerning any criminal history record information106 except the determination of fitness which such person obtains pursuant to for the purpose107 of determining a covered individual's fitness as authorized in this Code section."108 SECTION 2.109 Title 37 of the Official Code of Georgia Annotated, relating to mental health, is amended in110 Chapter 1, relating to governing and regulation of mental health, by revising subsections (a)111 through (d) of Code Section 37-1-28, relating to conviction data, as follows:112 "(a) As used in this Code section, the term:113 (1) 'Client' means any person who receives developmental disab ility, mental health or114 substance use treatment support, or prevention services authori zed or funded by the115 department.116 (2) 'Contractor' means any person, entity, or agency that enters into a contract with the117 department to provide goods or services.118 (3) 'Conviction 'conviction data' means a record of a finding or verdict of guilty or a plea119 of guilty or a plea of nolo contendere with regard to any crime, regardless of whether an120 appeal of the conviction has been sought.121 (4) 'GCIC' means the Georgia Crime Information Center established under Article 2 of122 Chapter 3 of Title 35.123 H. B. 1097 - 5 - 26 HB 1097/AP (b) The department may receive from any law enforcement agency conviction data that is124 relevant to a person whom the department or its contractors is considering as a final125 selectee for employment, or is employing, in a position the duties of which involve direct126 care, treatment, custodial responsibilities, or any combination thereof for its clients.127 (c) The department may receive from any law enforcement agency conviction data which128 is relevant to a person whom the department or its contractors is considering as a final129 selectee for employment, or is employing, in any position the d uties of which give that130 person access to another person's financial information, protec ted health information as131 defined in the federal Health Insurance Portability and Accountability Act, criminal history132 information or criminal records, or other information the privacy of which is protected by133 law in a position if, in the judgment of the employer, a final emp loyment decision134 regarding the selectee can only be made by a review of convicti on data in relation to the135 particular duties of the position and the security and safety of clients, the general public,136 or other employees.137 (d) The department is authorized to conduct national background checks by the submission138 of fingerprints to the Federal Bureau of Investigation through the GCIC. In order to139 determine the suitability of a license candidate, owner, applic ant, or employee, the140 department shall require such person to furnish the department with a full set of141 fingerprints to enable a criminal background investigation to b e conducted. T h e142 department shall establish a uniform method of obtaining convic tion data under143 subsection (a) subsections (b) and (c) of this Code section which shall be applicable to the144 department and its contractors. Such uniform method shall require the submission to the145 Georgia Crime Information Center of fingerprints and the records search fee in accordance146 with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center147 shall promptly transmit fingerprints to the Federal Bureau of Investigation for a search of148 bureau records and an appropriate report and shall promptly con duct a search of its own149 records and records to which it has access. After receiving th e fingerprints and fee, the150 H. B. 1097 - 6 - 26 HB 1097/AP Georgia Crime Information Center shall notify the department in writing of any derogatory151 finding, including, but not limited to, any conviction data regarding the fingerprint records152 check or if there is no such finding department to submit fingerprints to GCIC, along with153 the records research fee in accordance with Code Section 35-3-3 5. If no disqualifying154 record is identified at the state level, GCIC is authorized to submit the fingerprints to the155 Federal Bureau of Investigation for a national criminal history record check. If a criminal156 record is identified at the state level, GCIC shall request a national criminal history record157 check from the Federal Bureau of Investigation through a national identifier number system158 used for identifying fingerprints. After receiving acceptable fingerprints and such fee from159 the department, GCIC shall notify the department in writing of any criminal record found160 in the records of GCIC and the Federal Bureau of Investigation or if there is no such161 finding. Upon receipt of GCIC's report, the department shall make a determination about162 an owner's, applicant's, or employee's criminal record."163 SECTION 3.164 Said title is further amended in said chapter by adding a new article to read as follows:165 "ARTICLE 8166 37-1-140.167 As used in this article, the term:168 (1) 'Applicant' means a person applying to be a direct access employee at a facility.169 (2) 'Conviction' means a finding or verdict of guilty or a plea of guilty, including a plea170 of guilty pursuant to Code Section 42-8-60, regardless of wheth er an appeal of the171 conviction has been sought.172 (3) 'Crime' means commission of:173 (A) Any of the following offenses:174 H. B. 1097 - 7 - 26 HB 1097/AP (i) A violation of Code Section 16-5-3;175 (ii) A violation of Code Section 16-5-70;176 (iii) A violation of Code Section 16-5-101;177 (iv) A violation of Code Section 16-5-102;178 (v) A violation of Code Section 16-6-3;179 (vi) A violation of Code Section 16-6-4;180 (vii) A violation of Code Section 16-6-5;181 (viii) A violation of Code Section 16-6-5.1;182 (ix) A violation of Code Sections 16-7-60, 16-7-60.1,16-7-61, or 16-7-62;183 (x) A violation of Chapter 8 of Title 16;184 (xi) A violation of Code Section 16-10-31; or185 (xii) A violation of Code Section 30-5-8;186 (B) A felony violation of:187 (i) Chapters 5, 6, 9 or 13 of Title 16;188 (ii) Code Section 16-4-1;189 (iii) Code Section 16-7-2; or190 (iv) Subsection (f) of Code Section 31-7-12.1; or191 (C) Any other offense committed in another jurisdiction which, if committed in this192 state, would be deemed to constitute an offense identified in t his paragraph without193 regard to its designation elsewhere.194 (4) 'Criminal background check' means a search of the criminal records maintained by195 GCIC and the Federal Bureau of Investigation to determine whether an owner, applicant,196 or employee has a criminal record.197 (5) 'Criminal record' means any of the following:198 (A) Conviction of a crime;199 (B) Arrest, charge, and sentencing for a crime when:200 (i) A plea of nolo contendere was entered to the crime;201 H. B. 1097 - 8 - 26 HB 1097/AP (ii) First offender treatment without adjudication of guilt was granted to the crime;202 or203 (iii) An adjudication or sentence was otherwise withheld or not entered for the crime;204 or205 (C) Arrest and charges for a cr ime if the cha rge is pending, u nless the time for206 prosecuting such crime has expired pursuant to Chapter 3 of Title 17.207 (6) 'Direct access' means having, or expecting to have, duties that involve routine208 personal contact with a patient, resident, or client, including , but not limited to,209 face-to-face contact, hands-on physical assistance, verbal cuing, reminding, standing by210 or monitoring or activities that require the person to be routinely alone with the patient's,211 resident's, or client's property or access to such property or financial information,212 including, but not limited to, the patient's, resident's, or cl ient's checkbook, debit and213 credit cards, resident trust funds, banking records, stock accounts, or brokerage accounts.214 (7) 'Eligible determination' means a written determination tha t a person for whom a215 criminal background check was performed and was found to have no criminal record.216 (8) 'Employee' means any individual who has direct access to, and who is hired by, a217 facility through employment, or through a contract with such facility, including, but not218 limited to, housekeepers, maintenance personnel, dieticians, and any volunteer who has219 duties that are equivalent to the duties of an employee providi ng such services. Such220 term shall not include a person who contracts with the facility , whether personally or221 through a company, to provide utility, construction, communications, accounting, quality222 assurance, human resource management, information technology, legal, or other services223 if the contracted services are not directly related to providin g services to a patient,224 resident, or client of the facility.225 (9) 'Facility' means:226 (A) A community living arrangement to be licenced under Article 1 of Chapter 13 of227 this title;228 H. B. 1097 - 9 - 26 HB 1097/AP (B) A drug abuse treatment and education program required to b e licensed under229 Article 1 of Chapter 5 of Title 26; or230 (C) An adult residential mental health program required to be licensed pursuant to231 Article 7 of Chapter 3 of Title 37.232 (10) 'Fingerprint records check determination' means an eligib le or ineligible233 determination by the department based upon fingerprint based national criminal history234 information.235 (11) 'GCIC' means the Georgia Crime Information Center established under Article 2 of236 Chapter 3 of Title 35.237 (12) 'Indirect ownership interest' means an ownership interest in a corporation,238 partnership, legal entity, or association which owns an ownersh ip interest in another239 corporation, partnership, legal entity, or association. This t erm includes an ownership240 interest in any corporation, partnership, legal entity, or asso ciation that has an indirect241 ownership interest in a facility or in a license candidate.242 (13) 'Ineligible determination' means a written determination that a person for whom a243 criminal background check was performed was found to have a criminal record.244 (14) 'License' means the document issued by the department to authorize a facility to245 operate.246 (15) 'License candidate' means a person, corporation, partners hip, legal entity, or247 association applying for a license to operate a facility.248 (16) 'Owner' means a person with an ownership interest in a facility or license candidate249 or with an ownership interest in a corporation, partnership, le gal entity, or association250 which has any ownership interest in a facility or license candidate, including an indirect251 ownership interest.252 (17) 'Ownership interest' means the possession of equity in the capital, stock, or profits253 of either a:254 (A) Facility or license candidate; or255 H. B. 1097 - 10 - 26 HB 1097/AP (B) Corporation, partnership, legal entity, or association tha t holds a license for a256 facility.257 (18) 'Records check application' means fingerprints in such form and of such quality as258 prescribed by GCIC under standards adopted by the Federal Bureau of Investigation and259 a records search fee to be established by the department by rule and regulation, payable260 in such form as the department may direct to cover the cost of obtaining a criminal261 background check.262 (19) 'Registry check' means a review of the nurse aide registr y provided for in Code263 Section 31-2-14, the national and state sexual offender registr ies, and the List of264 Excluded Individuals and Entities as authorized in Sections 1128 and 1156 of the federal265 Social Security Act, as it existed on February 1, 2018, or any other registry useful for the266 administration of this article as specified by rules of the department.267 37-1-141.268 (a)(1) A registry check of an owner, applicant, or employee shall be required prior to a269 criminal background check and shall be initiated by the applica ble facility or license270 candidate.271 (2) A registry check shall be performed by such facility or li cense candidate and may272 include reviewing registries of any other states in which the applicant previously resided.273 (3) If an applicant has not resided in this state for at least two years, the facility or license274 candidate shall conduct registry checks of each state in which the applicant resided for275 the previous two years as represented by such applicant or as o therwise determined by276 the applicable facility or license candidate.277 (b) If applicable to an owner, applicant, or employee, a query of available information278 maintained by the Georgia Composite Medical Board, the Secretar y of State, or other279 applicable licensing boards shall be conducted prior to a crimi nal background check to280 validate that such individual's professional license is in good standing.281 H. B. 1097 - 11 - 26 HB 1097/AP (c) Except as provided in subsection (c) of Code Section 37-1-148, nothing in this Code282 section shall be construed to limit the responsibility or abili ty of a facility or license283 candidate to screen owners, applicants, or employers through additional methods.284 37-1-142.285 (a) Accompanying any application for a new license, the licens e candidate, each owner286 and applicant, and each employee of the license candidate shall complete a records check287 in accordance with rules set by the department. The department is authorized to conduct288 national background checks by the submission of fingerprints to the Federal Bureau of289 Investigation through GCIC. In order to determine the suitability of a license candidate,290 owner, applicant, or employee, the department shall require suc h person to furnish the291 department with a full set of fingerprints to enable a criminal background investigation to292 be conducted. The department may receive from any law enforcement agency conviction293 data that is relevant to a person who is a license candidate, owner, applicant, or employee.294 (b)(1) The department shall submit fingerprints to GCIC. If no disqualifying record is295 identified at the state level, GCIC is authorized to submit the fingerprints to the Federal296 Bureau of Investigation for a national criminal history record check.297 (2) If a criminal record is identified at the state level, GCI C shall request a national298 criminal history record check from the Federal Bureau of Investigation through a national299 identifier number system used for identifying fingerprints.300 (3) Within ten days after receiving acceptable fingerprints from the department, GCIC301 shall notify the department in writing of any criminal record f ound in the records of302 GCIC and the Federal Bureau of Investigation, or if there is no such finding. Upon303 receipt of GCIC's report, the department shall make a determina tion about an owner's,304 applicant's, or employee's criminal record.305 (c) Neither GCIC, the department, any law enforcement agency, nor the employees of any306 such entities shall be responsible for the accuracy of the information nor have liability for307 H. B. 1097 - 12 - 26 HB 1097/AP defamation, invasion of privacy, negligence, or any other claim in connection with any308 dissemination of information or determination based thereon pursuant to this Code section.309 (d) All information received from GCIC or the Federal Bureau of Investigation shall be310 used exclusively for employment or licensure purposes and shall not be released or311 otherwise disclosed to any other person or agency. All such information collected by the312 department shall be maintained by the department pursuant to the rules and regulations of313 GCIC and the Federal Bureau of Investigation as are applicable. Penalties for unauthorized314 release or disclosure of any such information shall be prescribed pursuant to state law or315 rules or regulations of GCIC and the Federal Bureau of Investigation as are applicable.316 (e) If the department is participating in the program described in subparagraph (a)(1)(F)317 of Code Section 35-3-33, the Georgia Bureau of Investigation and the Federal Bureau of318 Investigation shall be authorized to retain fingerprints obtain ed pursuant to this Code319 section for such program, and the department shall notify the individual whose fingerprints320 were taken of the parameters of such retention.321 37-1-143.322 (a) An applicant seeking employment with a facility or a curre nt employee at a facility323 shall consent to a national and state background check that inc ludes a registry check, a324 check of information maintained by a professional licensing boa rd, if applicable, and a325 criminal background check in accordance with rules set by the d epartment. The326 department is authorized to conduct national background checks by the submission of327 fingerprints to the Federal Bureau of Investigation through GCIC. In order to determine328 an applicant's suitability as an employee of a facility, the de partment shall require such329 applicant to furnish the department with a full set of fingerpr ints to enable a criminal330 background investigation to be conducted. Such criminal background investigations shall331 be conducted in the manner set forth in subsections (b), (c), ( d), and (e) of Code332 H. B. 1097 - 13 - 26 HB 1097/AP Section 37-1-142. The department may receive from any law enfo rcement agency333 conviction data that is relevant to such an applicant or to any employee of the facility.334 (b)(1) A person required to submit to a registry check and cri minal background check335 shall not be employed by, contracted with, or allowed to work as an employee at a facility336 if:337 (A) The person appears on a registry check;338 (B) There is a substantiated finding of neglect, abuse, or misappropriation of property339 by a state or federal agency pursuant to an investigation conducted in accordance with340 42 U.S.C. Section 1395-i or 1396r as it existed on February 1, 2018;341 (C) The person's professional license, if applicable, is not in good standing; or342 (D) The facility receives notice from the department that the person has been found to343 have an ineligible determination.344 (2) A person whose professional license is not in good standing may be employed by a345 facility in a position where his or her duties do not require p rofessional licensure,346 provided that he or she provides a fingerprint record check det ermination in the same347 manner as an applicant.348 (c) An applicant or employee may:349 (1) Obtain information concerning the accuracy of his or her c riminal record, and the350 department shall refer the person to the appropriate state or f ederal law enforcement351 agency that was involved in the arrest or conviction;352 (2) Challenge the finding that he or she is the true subject of the results from a registry353 check, and the department shall refer the person to the agency responsible for maintaining354 the registry; and355 (3) Appeal his or her disqualifying determination pursuant to Code Section 37-1-147.356 H. B. 1097 - 14 - 26 HB 1097/AP 37-1-144.357 (a) A personnel file for each employee shall be maintained by each facility. Such files358 shall be available for inspection by the department and other a ppropriate enforcement359 authorities but shall otherwise be maintained to protect the co nfidentiality of the360 information contained within. The information shall include, b ut not be limited to,361 evidence of each employee's eligible determination, registry check, and licensure check,362 if applicable.363 (b)(1)(A) The department may require a criminal background check on any owner or364 employee of a facility during the course of an investigation in volving such owner or365 employee or if the department receives information the owner or employee was arrested366 for a crime.367 (B) The criminal background check provided in subparagraph (A) of this paragraph368 may be fingerprint based and shall be conducted in the manner set forth in subsections369 (b), (c), (d), and (e) of Code Section 37-1-142. The department may receive from any370 law enforcement agency conviction data that is relevant to any owner or employee of371 the facility.372 (C) GCIC shall notify the department in writing of any ineligi ble determination,373 including, but not limited to, any criminal record obtained thr ough the fingerprints374 records check determination or if there is no finding of a criminal record.375 (D) If the department is participating in the program describe d in376 subparagraph (a)(1)(F) of Code Section 35-3-33, the Georgia Bureau of Investigation377 and the Federal Bureau of Investigation shall be authorized to retain fingerprints378 obtained pursuant to this Code section for such program, and th e department shall379 notify the person whose fingerprints were taken of the paramete rs of fingerprint380 retention.381 (2) When the department determines that an applicant or employ ee has an ineligible382 determination, the department shall notify the facility that the applicant or employee is383 H. B. 1097 - 15 - 26 HB 1097/AP ineligible to hire or employ and shall take the necessary steps so that the employee is no384 longer employed at the facility; provided, however, that a faci lity may retain a current385 employee during the period of any administrative review or appe al provided for in386 paragraph (4) of this subsection.387 (3) When the department determines that an owner has an ineligible determination, the388 department shall notify the owner of the ineligible status for ownership and shall take the389 necessary steps to revoke the facility's license.390 (4) An owner, applicant, or employee may appeal his or her dis qualifying ineligible391 status determination pursuant to Code Section 37-1-147.392 37-1-145.393 A facility that does not terminate an employee who has been fou nd to have an ineligible394 determination or failed a registry check shall be liable for a civil monetary penalty in the395 amount of $500.00 for each day that a violation occurs, not to exceed a total of $10,000.00. 396 The daily civil monetary penalty shall be imposed only from the time the facility knew or397 should have known that it employed a person with a criminal record and until the date such398 individual's employment is terminated; provided, however, that the penalty shall not be399 imposed for any period of time during which the facility may re tain the employee under400 the provisions of paragraph (2) of subsection (b) of Code Section 37-1-144.401 37-1-146.402 Each employment application form provided by a facility to an a pplicant shall403 conspicuously state the following: 'FOR THIS TYPE OF EMPLOYMENT, STATE LAW404 REQUIRES A NATIONAL AND STATE BACKGROUND CHECK AS A CONDITION405 OF EMPLOYMENT.'406 H. B. 1097 - 16 - 26 HB 1097/AP 37-1-147.407 (a)(1) An owner of a facility with an ineligible determination or whose name appears on408 a registry check shall not operate or hold a license, and the department shall revoke the409 license of, or refuse to issue a license to, any facility with an owner with an ineligible410 determination or whose name appears on a registry check.411 (2) Prior to approving any li cense for a facility and periodic ally as established by the412 department by rule, the department shall require each owner, applicant, and employee to413 submit to a registry check and criminal background check pursua nt to Code414 Sections 37-1-141 and 37-1-142.415 (3) The department may provide by rule for a process where an owner, applicant, or416 employee can request an administrative review of an ineligible determination or of a417 determination that the owner's, applicant's, or employee's name appears on a registry418 check. If such administrative review is provided for in the ru les of the department, it419 shall be timely requested by the owner, applicant, or employee and completed before any420 appeal provided for in paragraph (4) of this subsection may be filed or requested.421 (4)(A) An owner, employee, or applicant who received an ineligible determination or422 a determination that his or her name appears on a registry check and who has exhausted423 any administrative review rights provided for in this Code section shall be eligible to424 appeal such determination pursuant to Chapter 13 of Title 50, t he 'Georgia425 Administrative Procedure Act.'426 (B) In a hearing held pursuant to subparagraph (A) of this par agraph, the hearing427 officer shall consider in mitigation the length of time since the crime was committed,428 the absence of additional criminal charges, the circumstances s urrounding the429 commission of the crime, and other indicia of rehabilitation.430 (5)(A) Any action by the department revoking or refusing to grant a license based on431 any owner's ineligible determination or determination that the owner's name appears on432 a registry check shall constitute a contested case for purposes of Chapter 13 of Title 50,433 H. B. 1097 - 17 - 26 HB 1097/AP the 'Georgia Administrative Procedure Act,' except that any hearing required to be held434 pursuant to such Act may be held reasonably expeditiously after such determination or435 action by the department.436 (B)(i) In a hearing held pursuant to subparagraph (A) of this paragraph, the hearing437 officer shall consider in mitigation the:438 (I) Length of time since the crime was committed;439 (II) Absence of additional criminal charges;440 (III) Circumstances surrounding the commission of the crime;441 (IV) Other indicia of rehabilitation;442 (V) Facility's history of compliance with the regulations; and443 (VI) Owner's involvement with the licensed facility in arriving at a decision as to444 whether the criminal record requires the denial or revocation o f the license to445 operate the facility.446 (ii) When a hearing is required, the hearing officer shall not ify the office of the447 prosecuting attorney who initiated the prosecution of the crime in question at least 30448 days prior to the hearing to allow the prosecuting attorney to object to a possible449 determination that the conviction would not be a bar for the grant or continuation of450 a license as contemplated by this Code section. If objections are made, the hearing451 officer shall take such objections into consideration.452 (b) The requirements of this Code section are supplemental to any requirements for a453 license imposed by other applicable Code sections.454 37-1-148.455 (a) No person, including the department, a facility, or a pers on acting on behalf of such456 entities, shall be liable for civil damages or be subject to an y claim, demand, cause of457 action, or proceeding of any nature as a result of actions taken in good faith to comply with458 H. B. 1097 - 18 - 26 HB 1097/AP this article, including the disqualification of an applicant from employment on the basis of459 a disqualifying crime or ineligible determination.460 (b)(1) A facility that has obtained an eligible determination on an owner, applicant, or461 employee in accordance with this article or confirmation that such owner, applicant, or462 employee has obtained a favorable final administrative review o r appeal decision463 pursuant to Code Section 37-1-147, shall be immune from liability for claims of negligent464 hiring when such claims are based on the criminal record of suc h owner, applicant, or465 employee, even when the information contained in the criminal background check used466 by the department is later determined to have been incomplete or inaccurate; provided,467 however, that such immunity shall not preclude the liability of a facility concerning468 claims based on information beyond the scope of the criminal re cord and eligible469 determination about the owner, applicant, or employee of which the facility knew or470 should have known.471 (2) When a facility has obtained an eligible determination on an owner, applicant, or472 employee, there shall be a rebuttable presumption of due care f or claims of negligent473 hiring, negligent retention, or other similar claims to the extent the claims are based on474 an owner's, applicant's, or employee's criminal record.475 (c) Nothing in this article shall require a facility to conduc t any other type of criminal476 history check of an owner, applicant, or employee, and a facility shall not be held liable for477 claims of negligent hiring, negligent retention, or other simil ar claims based solely or in478 part on its failure to conduct other types of criminal history checks.479 (d) Nothing in this article shall be construed to waive the sovereign immunity of the state,480 the department, or any other entity of the state.481 37-1-149.482 The department shall promulgate written rules and regulations related to the requirements483 and implementation of this article, including, but not limited to, establishing percentages484 H. B. 1097 - 19 - 26 HB 1097/AP of ownership interest relevant for the enforcement of this arti cle. In establishing such485 percentages of ownership, the department may regard any percentage of ownership greater486 than zero as constituting an ownership interest as defined in this article, or the department487 may by rule or regulation deem that a higher percentage of owne rship is necessary to488 constitute such ownership."489 SECTION 4.490 All laws and parts of laws in conflict with this Act are repealed.491 H. B. 1097 - 20 -