Background Check Law for Nursing Home Owners Creates Questions

The state of Georgia this month implemented a new background check law for nursing home owners, who will now be subject to the same requirements as frontline caregivers and other employees who interact with residents. But the threshold for who qualifies as an owner remains unclear.

Employees, owners, and administrators will be required to undergo fingerprint background checks starting October 1, 2019, according to an analysis of the law from the firm of Arnall Golden Gregory, LLP. That check involves a search of the FBI’s registry, and long-term care stakeholders will also be required to submit to a check of Georgia’s sex offender registry — as well as those of states where the applicant or potential owner lived in the previous two years.

In addition, the law creates a state “caregiver registry” for active personal care employees, Arnall Golden Gregory noted.

Who qualifies as an owner, however, will be largely up to interpretation.

The law specifically exempts so-called “passive investors” who do not directly oversee operations at a facility, but the language contains significant wiggle room. For example, an owner is defined as someone with a 10% or greater ownership stake who, among other things, “purports to or exercises authority of a facility,” has an office on site, can directly access the building, or who even agrees to buy a specific facility.

That brings a level of subjectivity to the way the law will eventually be applied, according to Arnall Golden Gregory partner Henry Chalmers.

“The new law requires background checks of anyone who enters into a contract to acquire ownership of a facility,” Chalmers told SNN. “The specific impact of the law remains to be seen.”

The push for reform came from the Georgia Council on Criminal Justice Reform, which called out the Peach State’s background check process in its 2017-2018 recommendation report.

“Most surrounding states use the FBI’s fingerprint-based national background check to screen prospective employees seeking work at long-term care homes,” the government-sponsored group wrote in its report. “This ensures that applicants who are convicted of a crime that makes them ineligible to work in such homes do not move to an adjoining state and obtain employment in a facility.”

But Georgia only used a name-based system that searched for crimes that occurred within the state’s borders, a structure that concerned the members of the council — which include state lawmakers, judges, and the executive counsel to Gov. Nathan Deal.

“In 2017, the council learned that there are approximately 25,000 employees in more than 10 different facility categories that provide care for the elderly and are subject only to the name-based background check,” the members wrote.

Deal, a Republican, touted the legislation in a statement at the time of its introduction in February.

“These common-sense reforms lay the foundation for a more equitable criminal justice system and bring us another step forward in making Georgia a safer, more prosperous place to call home,” Deal said.

In addition to prospective owners and applicants, the law applies to existing players in the space, who must submit an application for a background check by New Year’s Day 2021. Still, despite the lack of formal clarity on the law, Chalmers emphasized that the state — with its growing elderly population attracted to warm temperatures — is still open to investors.

“Regardless, Georgia remains a good market for long-term care facilities,” he said.

Written by Alex Spanko

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Alex Spanko
Assistant Editor at Aging Media Network
Alex covers the skilled nursing and reverse mortgage industries for Aging Media. Outside of work, he reads nonfiction, yells at Mets games from his couch, and enjoys pretty much any type of whiskey or scotch — often all at once.

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