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House Bill 155 Summary and Analysis1

Origins of House Bill 155

On January 25, 2007, Representative Willard (49th Dist.) introduced House Bill 155 in the Georgia 2007 General Assembly Legislative Session. On January 26, 2007, Senator Smith (52nd Dist.) introduced Senate Bill 51, which was identical to House Bill 155. These companion bills are part of the Department of Human Resources' legislative package. HB 155 is the bill that has moved forward during the 2007 session.

Legislative Purpose

The proposed bill, if enacted, would amend Chapter 2 of Title 49 of the Official Code of Georgia Annotated by creating a new Code section, 49-2-14.1. This section would require criminal background checks for Department of Human Resources (DHR) providers who operate a personal care home, private home care, child welfare agencies, child care institutions, child-placing agencies, and maternity homes. This background check would be conducted as part of the licensure process. The bill also would provide a uniform method for making a criminal background check, would specify which offenses would prohibit someone from operating a licensed facility, and would also provide for the promulgations of administrative rules and regulations. Furthermore, the bill enumerates crimes that would constitute a criminal record for the purposes of licensure, as not every criminal activity would result in licensure ineligibility.

Summary and Explanation of the Proposed Changes

HB 155 would require mandatory criminal background checks for listed service providers seeking licensure and would change current law in several ways. First, while current law applies only to Department of Human Resources employees and those providing direct care to DHR clients, HB 155 would mandate that a new category of individuals, licensee holders, would be subject to mandatory criminal background checks. Second, while the current O.C.G.A. § 49-2-14 does not list particular disqualifying crimes, HB 155 enumerates 13 offenses that will prohibit an applicant from obtaining a license. Third, background checks under current law examine only convictions and pleas of nolo contendere; HB 155 extends the inquiry into offenses where there is an arrest with charges pending, crimes where a defendant receives no adjudication of guilt as part of a first offender program or an arrest and charge where adjudication is withheld for other reasons. The bill also clarifies the appeals process, if DHR denies a license on the basis of criminal background check results, and the bill insulates GCIC, DHR, law enforcement agencies, and their employees from claims of defamation, invasion of privacy, negligence, and similar charges related to the "dissemination of information or determination[s]" made based on this code section.

Below is a more detailed analysis of the proposed changes for HB 155:

  1. Expands the criminal history background check to include pending charges

    1. Current law. O.C.G.A. § 49-2-14 is not uniform with regard to the type of information included in a criminal background check. In O.C.G.A. § 49-2-14(b) and (c), the criminal background check is limited to "conviction data," defined in paragraph (a) as "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." However, O.C.G.A. § 49-2-14(g), which applies to criminal background checks for adults either providing care to or living in a home of someone providing services to a child who is subject to a DHR referral, complaint, or investigation, includes both arrest and conviction information.

    2. Proposed Change. House Bill 155 would require an examination of arrest data, defined as "a record of an arrest where the time for prosecution of the charge has not expired," for all criminal background checks required under the statute. It would also include an examination of offenses where there was no adjudication as part of a first offender plea or withheld adjudication.

  2. Applies to licensees and not employees

    1. Current law. Except for the provision in O.C.G.A. § 49-1-14 that applies to those living in a home with a child who is subject to a DHR referral, complaint, or investigation, the statute is limited to prospective employees.

    2. Proposed Change House Bill 155 applies to DHR licensees. Licenses for listed facilities, namely personal care homes, private home care providers, community living arrangements, or child welfare agencies, including a child-caring institution, child-placing agency, and maternity home, will become conditioned on the facility owners submitting to a criminal history background check.

  3. Defines which crimes will preclude the issuance of a license

    1. Current law Current law does not specify which conviction records, if any, would preclude employment.

    2. Proposed Change House Bill 155 prohibits a person with a specific criminal record from receiving a DHR license. The bill lists thirteen pertinent sections:

      1. O.C.G.A. § 16-5-1 -- murder and felony murder

      2. O.C.G.A. § 16-5-21 -- aggravated assault

      3. O.C.G.A. § 16-5-24 -- aggravated battery

      4. O.C.G.A. § 16-5-70 -- cruelty to children

      5. O.C.G.A. § 16-5-100 -- cruelty to a person 65 years of age or older

      6. O.C.G.A. § 16-1-1 -- rape

      7. O.C.G.A. § 16-6-2 -- aggravated sodomy

      8. O.C.G.A. § 16-6-4 -- child molestation

      9. O.C.G.A. § 16-6-5 -- enticing a child for indecent purposes

      10. O.C.G.A. § 16-6-5.1 -- sexual assault against persons in custody, detained persons, or patient in hospitals or other institutions

      11. O.C.G.A. § 16-6-22.2 -- aggravated sexual battery

      12. O.C.G.A. § 16-8-41 -- armed robbery

      13. O.C.G.A. § 30-5-8 -- relating to abuse, neglect, or exploitation of a disabled adult or elder person

      14. Any offense from another jurisdiction that would be the equivalent to a crime enumerated above

  4. Requires criminal background check to be conducted as part of the licensure process

    1. Current Law. Mandatory criminal background checks are not a part of the licensure process.

    2. Proposed Change. No facility license will be issued until the owner, defined as someone with at least 10% ownership in the facility and who meets the proposed criteria for involvement, submits to a criminal background check through the Georgia Crime Information Center and the Federal Bureau of Investigations or through a law enforcement agency with the authority to conduct such checks.

  5. Establishes an expedited appeals process for licenses denied on the basis of criminal background check results

    1. Current Law. O.C.G.A. § 49-2-14 does not address remedies for an adverse decision based on a criminal records background check.

    2. Proposed Change. HB 155 allows for an expedited administrative hearing based on an adverse decision. During the hearing, the administrative 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, other indicia of rehabilitation, the facility's history of compliance with the regulations, and the owner's involvement with the licensed facility." Furthermore, the bill insulates involved agencies and their employees from civil charges that may stem from the legal dissemination of information or from decisions made based on adverse information.

1March 20, 2007 by Tammy Wilsker, JD, MSW Candidate, Georgia State School of Social Work Class of 2008.

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