Bill Text: GA HB1220 | 2011-2012 | Regular Session | Introduced
Bill Title: Day care centers; employees and directors; require satisfactory child protective services report
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-03-12 - House Second Readers [HB1220 Detail]
Download: Georgia-2011-HB1220-Introduced.html
12 LC
35 2633
House
Bill 1220
By:
Representative Mitchell of the
88th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 1A of Title 20 of the Official Code of Georgia Annotated, relating
to early care and learning, so as to require a satisfactory child protective
services report for employees and directors of day care centers and related
child care facilities; to amend Article 8 of Chapter 5 of Title 49, relating to
the Central Child Abuse Registry, so as to authorize the Division of Family and
Children Services of the Department of Human Services to provide certain
information on the registry to the Department of Early Care and Learning; to
provide for related matters; to provide an effective date; to repeal conflicting
laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
1A of Title 20 of the Official Code of Georgia Annotated, relating to early care
and learning, is amended by revising Article 2, relating to background checks,
as follows:
"ARTICLE
2
20-1A-30.
As
used in this article, the term:
(1)
'Center' means a day-care center, group day-care home, family day-care home, or
child care learning center which is required to be licensed or registered under
Article 1 of this chapter.
(1.1)
'Child protective services report' means a report from the abuse registry
maintained by the Division of Family and Children Services of the Department of
Human Services indicating whether a person appears on such registry and has any
confirmed reports of child abuse on the Child Protective Services Information
System required to be established by Code Section 49-5-181.
(2)
'Conviction' means a finding or verdict of guilty or a plea of guilty regardless
of whether an appeal of the conviction has been sought.
(3)
'Crime' means any felony; a violation of Code Section 16-5-23, relating to
simple battery, when the victim is a minor; a violation of Code Section 16-12-1,
relating to contributing to the delinquency of a minor; a violation of Chapter 6
of Title 16, relating to sexual offenses; a violation of Code Section 16-4-1,
relating to criminal attempt when the crime attempted is any of the crimes
specified by this paragraph; or any other offenses committed in another
jurisdiction which, if committed in this state, would be one of the enumerated
crimes listed in this paragraph.
(4)
'Criminal record' means:
(A)
Conviction of a crime;
(B)
Arrest, charge, and sentencing for a crime where:
(i)
A plea of nolo contendere was entered to the charge;
(ii)
First offender treatment without adjudication of guilt pursuant to the charge
was granted; provided, however, that this division shall not apply to a
violation of Chapter 13 of Title 16, relating to controlled substances, or any
other offense committed in another jurisdiction which, if it were committed in
this state, would be a violation of Chapter 13 of Title 16 if such violation or
offense constituted only simple possession; or
(iii)
Adjudication or sentence was otherwise withheld or not entered on the charge;
provided, however, that this division shall not apply to a violation of Chapter
13 of Title 16, relating to controlled substances, or any other offense
committed in another jurisdiction which, if it were committed in this state,
would be a violation of Chapter 13 of Title 16 if such violation or offense
constituted only simple possession; or
(C)
Arrest and being charged for a crime if the charge is pending, unless the time
for prosecuting such crime has expired pursuant to Chapter 3 of Title
17.
(5)
'Director' means the chief administrative or executive officer of a
facility.
(5.1)
'Division' means the Division of Family and Children Services of the Department
of Human Services.
(6)
'Emergency temporary employee' means an employee other than a director whose
duties involve personal contact between that person and any child being cared
for at the facility and who is hired on an expedited basis to avoid
noncompliance with staffing standards for centers required by law, rule, or
regulation.
(7)
'Employee' means any person, other than a director, employed by a center to
perform at any of the center's facilities any duties which involve personal
contact between that person and any child being cared for at the facility and
also includes any adult person who resides at the facility or who, with or
without compensation, performs duties for the center which involve personal
contact between that person and any child being cared for by the
center.
(8)
'Employment history' means a record of where a person has worked for the past
ten years.
(9)
'Facility' means a center's real property at which children are received for
care.
(10)
'Fingerprint records check determination' means a satisfactory or unsatisfactory
determination by the department based upon a records check comparison of GCIC
information with fingerprints and other information in a records check
application.
(11)
'GCIC' means the Georgia Crime Information Center established under Article 2 of
Chapter 3 of Title 35.
(12)
'GCIC information' means criminal history record information as defined in Code
Section 35-3-30.
(13)
'License' means the document issued by the department to authorize the center to
which it is issued to operate a facility.
(14)
'National fingerprint records check determination' means a satisfactory or
unsatisfactory determination by the department in accordance with applicable law
based upon a report from the Federal Bureau of Investigation after a search of
bureau records and fingerprints.
(15)
'Preliminary records check application' means an application for a preliminary
records check determination on forms provided by the department.
(16)
'Preliminary records check determination' means a satisfactory or unsatisfactory
determination by the department based only upon a comparison of GCIC information
with other than fingerprint information regarding the person upon whom the
records check is being performed.
(17)
'Records check application' means two sets of classifiable fingerprints, a
records search fee to be established by the board by rule and regulation,
payable in such form as the department may direct to cover the cost of a
fingerprint records check under this article, and an affidavit by the applicant
disclosing the nature and date of any arrest, charge, or conviction of the
applicant for the violation of any law, except for motor vehicle parking
violations, whether or not the violation occurred in this state, and such
additional information as the department may require.
(18)
'Satisfactory determination' means a written determination that a person for
whom a records check was performed was found to have no criminal
record.
(19)
'State fingerprint records check determination' means a satisfactory or
unsatisfactory determination by the department in accordance with applicable law
based upon a records check comparison of GCIC information with fingerprints and
other information in a records check application.
(20)
'Unsatisfactory determination' means a written determination that a person for
whom a records check was performed has a criminal record.
20-1A-31.
(a)
Each center shall be required to obtain a separate license for each facility and
shall have a separate director for each facility.
(b)
An applicant for a new license shall apply for a separate license for each new
facility in this state owned or operated by that applicant and shall have a
separate director for each such facility.
20-1A-32.
(a)
Accompanying any application for a new license for a facility, the applicant
shall furnish to the department a records check application for the director and
a satisfactory preliminary records check for each employee of such facility. In
lieu of such records check applications, the applicant may submit evidence,
satisfactory to the department, that within the immediately preceding 12 months
the director received satisfactory state and national fingerprint records check
determinations and each employee received a satisfactory preliminary records
check determination, or that any employee other than the director whose
preliminary records check revealed a criminal record of any kind has either
subsequently received satisfactory state and national fingerprint records check
determinations or has had the unsatisfactory determination reversed in
accordance with Code Section 20-1A-43
or other
lawful provisions. The department may
either perform preliminary records checks under agreement with GCIC or contract
with GCIC and appropriate law enforcement agencies which have access to GCIC
information to have those agencies perform for the department a preliminary
records check for each preliminary records check application submitted thereto
by the department. Either the department or the appropriate law enforcement
agencies may charge reasonable fees for performing preliminary records
checks.
(b)
Accompanying any application for a new license for a facility, the applicant
shall furnish to the department a child protective services report application
for the director and each employee of such facility. The department shall
obtain and the division shall provide a child protective services report in a
manner prescribed by the division.
20-1A-33.
(a)
After being furnished the required records check application under Code Section
20-1A-32 the department shall notify in writing the license applicant as to each
person for whom an application was received regarding whether the department's
determination as to that person's state fingerprint records check was
satisfactory or unsatisfactory. If the preliminary records check determination
was satisfactory as to each employee of an applicant's facility and the state
fingerprint records check was satisfactory as to the director, that applicant
may be issued a license for that facility if the applicant otherwise qualifies
for a license under Article 1 of this chapter. If the state or national
fingerprint records check determination was unsatisfactory as to the director of
an applicant's facility, the applicant shall designate another director for that
facility after receiving notification of the determination and proceed under
Code Section 20-1A-32 and this Code section to obtain state and national
fingerprint records checks for that newly designated director. If the
preliminary records check for any employee other than the director revealed a
criminal record of any kind, such employee shall not be allowed to work in the
center until he or she either has obtained satisfactory state and national
fingerprint records check determinations or has had the unsatisfactory
determination reversed in accordance with Code Section 20-1A-43
or other
lawful provisions. If the determination
was unsatisfactory as to any employee of an applicant's facility, the applicant
shall, after receiving notification of that determination, take such steps as
are necessary so that such person is no longer an employee. Any employee other
than the director who receives a satisfactory preliminary records check shall
not be required to obtain a fingerprint records check unless such an employee
has been designated as a director or as permitted by the provisions of
subsection (c) of Code Section 20-1A-39.
(b)
After being furnished the required child protective services report, the
department shall notify in writing the license applicant as to each person for
whom an application was received regarding whether the department's
determination as to that person's child protective services report was
satisfactory or unsatisfactory. If the child protective services report was
unsatisfactory as to the director of an applicant's facility, the applicant
shall designate another director for that facility after receiving notification
of the determination and proceed under Code Section 20-1A-32 and this Code
section to obtain a child protective services report for the newly designated
director. If the child protective services report for any employee other than
the director revealed a confirmed report of child abuse, such employee shall not
be allowed to work in the center until he or she has had the unsatisfactory
determination reversed in accordance with Code Section 20-1A-43 or other lawful
provisions. If the determination was unsatisfactory as to any employee of an
applicant's facility, the applicant shall, after receiving notification of that
determination, take such steps as are necessary so that such person is no longer
an employee.
20-1A-34.
The
department shall transmit to GCIC both sets of fingerprints and the records
search fee from each fingerprint records check application. Upon receipt
thereof, GCIC shall promptly transmit one set of fingerprints to the Federal
Bureau of Investigation for a search of bureau records and an appropriate report
and shall retain the other set and promptly conduct a search of its records and
records to which it has access. Within ten days after receiving fingerprints
acceptable to GCIC, the application, and fee, GCIC shall notify the department
in writing of any derogatory finding, including but not limited to any criminal
record, of the state fingerprint records check or if there is no such finding.
After a search of Federal Bureau of Investigation records and fingerprints and
upon receipt of the bureau's report, the department shall make a national
fingerprint records determination.
20-1A-35.
After
receiving a Federal Bureau of Investigation report regarding a national
fingerprint records check under Code Section 20-1A-34, the department shall make
a determination based thereon and notify in writing the license applicant as to
whether that records check was satisfactory or unsatisfactory. If the national
fingerprint records check determination was unsatisfactory as to the director of
an applicant's facility, after receiving notification of that determination,
that applicant shall designate another director for such facility for
which
director
whom
the applicant has not received or made an unsatisfactory preliminary or
fingerprint records check determination and proceed under the requirements of
Code Sections 20-1A-32 through 20-1A-34 and this Code section to obtain state
and national fingerprint records check determinations for the newly designated
director. The director may begin working upon the receipt of a satisfactory
state fingerprint records check determination pending the receipt of the
national fingerprint records check determination from the department. The
department may revoke the license of that facility if the facility fails to
comply with the requirements of this Code section and Code Section 20-1A-33 to
receive satisfactory state and national fingerprint determinations on the
director or to comply with Code Section 20-1A-33 regarding employees other than
the director.
20-1A-36.
(a)
No facility operated as an early care and education program or similar facility
or any operator of such a facility shall employ any person who has been
convicted of or who has entered a plea of guilty or nolo contendere to any
offense specified in Code Section 16-12-1.1 or allow any such person to reside
at or be domiciled at such facility in violation of Code Section 16-12-1.1. The
department shall either deny the issuance of or revoke the license, commission,
or registration of any such facility violating the provisions of this
Code
section
subsection.
The powers and duties set forth in this
Code
section
subsection
are cumulative and not intended to limit the powers and duties set forth
throughout this article.
(b)
No facility operated as an early care and education program or similar facility
or any operator of such a facility shall employ any person who has a child
protective services report that reveals a confirmed report of child abuse, or
allow any such person to reside at or be domiciled at such facility. The
department shall either deny the issuance of or revoke the license, commission,
or registration of any such facility violating the provisions of this
subsection. The powers and duties set forth in this subsection are cumulative
and not intended to limit the powers and duties set forth throughout this
article. Every employee of a facility shall have a satisfactory child
protective services report prior to being employed by the facility.
20-1A-37.
(a)
Notwithstanding any other provision of this article, an individual who resides
in a family day-care home, as defined by Code Section 20-1A-2, shall not be
required to provide fingerprints for routine fingerprints records checks if the
operator of the family day-care home provides the department with an affidavit
stating that such individual is not present in the home at the same time as the
children who are received for pay for supervision and care. However, all
persons residing in a family day-care home are required to obtain satisfactory
preliminary records checks
and are also
required to obtain a satisfactory child protective services
report and submit them
both
to the department.
(b)
As an alternative to the requirements set out in this article pertaining to
obtaining preliminary criminal records check determinations through the
department for employees of centers and adults residing in a family day-care
home, but not including directors of centers, centers may obtain GCIC
information through local law enforcement agencies. The center shall be
responsible for reviewing the GCIC information obtained for the potential
employee or adult residing in the family day-care home and making a written
determination that the individual does not have a criminal record as defined in
this article. This written determination, together with all supporting
documentation received from any law enforcement agency, must be maintained in
the center's file and available for inspection by the department. This
satisfactory determination must be made before the employee begins any duties
for the center. However, where there is an urgent need for an emergency
temporary employee to work at a center's facility in order to avoid immediate
noncompliance with staffing requirements, such center may utilize the applicant
as an emergency temporary employee after applying for the preliminary records
check through the local law enforcement agency and completing the affidavit. In
such emergency situations, the director of the center must complete an
affidavit, with all supporting documentation attached thereto, stating that the
GCIC information has been requested through an identified local law enforcement
agency and that the results were not immediately available to the center prior
to assigning the employee to work with children at the center's facility in
order to avoid immediate noncompliance with staffing ratios. The affidavit with
supporting documentation must be maintained in the center's file on the
individual and available to the department for inspection. The director shall
review the GCIC information upon receipt, but in no case shall an emergency
temporary employee be permitted to continue working for more than three days
without having a satisfactory determination made by the director and entered
into the center's file on the employee with all supporting documentation. The
department shall promulgate rules and regulations limiting the extent to which
centers are authorized to use emergency temporary employees in accordance with
this subsection. Employees, emergency temporary employees, and other adults
required to have records checks who are utilized by centers are subject to all
other requirements set forth in this article. Where the department has reason
to question the validity of the GCIC information or the satisfactory
determination made by the center, the department may require the employee,
emergency temporary employee, or other adult to submit a preliminary criminal
records check application through the department together with appropriate
fees.
20-1A-38.
(a)
If the director of a facility which has been issued a license ceases to be the
director of that facility, the licensee shall thereupon designate a new
director. After such change, the licensee of that facility shall notify the
department of such change and of any additional information the department may
require regarding the newly designated director of that facility. Such
information shall include but not be limited to any information the licensee may
have regarding preliminary or any fingerprint records check determinations
regarding that director. After receiving a change of director notification, the
department shall make a written determination from the information furnished
with such notification and the department's own records as to whether
satisfactory or unsatisfactory preliminary or state and national fingerprint
records check determinations have ever been made for the newly designated
director. If the department determines that such director within 12 months
prior thereto has had satisfactory state and national fingerprint records check
determinations, such determinations shall be deemed to be satisfactory state and
national fingerprint records check determinations as to that director. The
license of that facility shall not be adversely affected by that change in
director, and the licensee shall be so notified.
(b)
If the department determines under subsection (a) of this Code section that
there has ever been an unsatisfactory preliminary or state or national
fingerprint records check determination of the newly designated director which
has not been legally reversed, the center and that director shall be so
notified. The license for that director's facility shall be indefinitely
suspended or revoked unless the center designates another director for whom it
has not received or made an unsatisfactory preliminary or state or national
fingerprint records check determination and proceeds pursuant to the provisions
of this Code section relating to a change of director.
(c)
If the department determines under subsection (a) of this Code section that
there have been no state and national fingerprint records check determinations
regarding the newly designated director within the immediately preceding 12
months, the department shall so notify the center. The center shall furnish to
the department the fingerprint records check application of the newly designated
director after the date the notification is sent by the department or the
license of that facility shall be indefinitely suspended or revoked. If that
fingerprint records check application is so received, unless the department has
within the immediately preceding 12 months made a satisfactory state fingerprint
records check determination regarding the newly designated director, the
department shall perform a state fingerprint records check determination of the
newly designated director, and the applicant and that director shall be so
notified. If that determination is unsatisfactory, the provisions of subsection
(b) of this Code section regarding procedures after notification shall apply.
If that determination is satisfactory, the department shall perform a national
fingerprint records check determination for that director as provided in Code
Sections 20-1A-34 and 20-1A-35. The director may begin working upon the receipt
of a satisfactory state fingerprint records check determination pending the
receipt of the national fingerprint records check determination from the
department. If that determination is satisfactory, the center and director for
whom the determination was made shall be so notified after the department makes
its determination, and the license for the facility at which that person is the
newly designated director shall not be adversely affected by that change of
director. If that determination is unsatisfactory, the provisions of subsection
(b) of this Code section shall apply.
(d)
Prior to the employment of a newly designated director, such director shall have
completed a child protective services report and shall receive a satisfactory
report indicating that he or she has no record of child abuse.
20-1A-39.
(a)
Before a person may become an employee other than a director of any center after
that center has received a license, that center shall require that person to
obtain a satisfactory preliminary records check
and a
satisfactory child protective services
report. The center shall maintain
documentation in the employee's personnel file, which is available to the
department upon request, which reflects that a satisfactory preliminary criminal
records check
was
and a
satisfactory child protective services report
were received before the employee began
working with children. If the preliminary records check for any potential
employee other than the director reveals a criminal record of any kind, such
potential employee shall not be allowed to begin working until either such
potential employee has obtained satisfactory state and national fingerprint
records check determinations or has had the unsatisfactory preliminary or
fingerprint records check determination reversed in accordance with Code Section
20-1A-43 or
other lawful provisions. If either the
preliminary or state or national fingerprint records determination is
unsatisfactory, the center shall, after receiving notification of the
determination, take such steps as are necessary so that such person is no longer
an employee. Any potential employee other than the director who receives a
satisfactory preliminary records check determination shall not be required to
obtain a fingerprint records check determination except as permitted in
accordance with subsection (c) of this Code section.
If the child
protective services report is unsatisfactory, such potential employee shall not
be allowed to begin working until he or she has had the unsatisfactory child
protective services report reversed or removed.
(b)
A license is subject to suspension or revocation and the department may refuse
to issue a license if a director or employee does not undergo the records and
fingerprint checks
or a child
protective services report applicable to
that director or employee and receive satisfactory determinations.
(c)
After the issuance of a license, the department may require a fingerprint
records check on any director or employee to confirm identification for records
search purposes, when the department has reason to believe the employee has a
criminal record that renders the employee ineligible to have contact with
children in the center, or during the course of a child abuse investigation
involving the director or employee.
(d)
No center may hire any person as an employee unless there is on file in the
center an employment
history, a
satisfactory child protective services
report, and a satisfactory preliminary
records check or, if the preliminary records check determination revealed a
criminal record of any kind as to such person, either satisfactory state and
satisfactory national records check determinations for that person or proof that
an unsatisfactory determination has been reversed in accordance with Code
Section 20-1A-43
or other
lawful provisions.
(e)
A director of a facility having an employee whom that director knows or should
reasonably know to have a criminal record
or record of
confirmed child abuse that renders the
employee ineligible to have contact with children in the center shall be guilty
of a misdemeanor.
20-1A-40.
(a)
GCIC and law enforcement agencies which have access to GCIC information shall
cooperate with the department in performing preliminary and fingerprint records
checks required under this article and shall provide such information so
required for such records checks notwithstanding any other law to the contrary
and may charge reasonable fees therefor.
(b)
Any person who knowingly and under false pretenses requests, obtains, or
attempts to obtain GCIC information otherwise authorized to be obtained pursuant
to this article, or who knowingly communicates or attempts to communicate such
information obtained pursuant to this article to any person or entity except in
accordance with this article, or who knowingly uses or attempts to use such
information obtained pursuant to this article for any purpose other than as
authorized by this article shall be fined not more than $5,000.00, imprisoned
for not more than two years, or both.
20-1A-41.
(a)
Neither GCIC, the department, any law enforcement agency, nor the employees of
any such entities shall be responsible for the accuracy of information nor have
any liability for defamation, invasion of privacy, negligence, or any other
claim in connection with any dissemination of information or determination based
thereon pursuant to this article.
(b)
A center, its director, and its employees shall have no liability for
defamation, invasion of privacy, or any other claim based upon good faith action
thereby pursuant to the requirements of this article.
20-1A-42.
The
requirements of this article are supplemental to any requirements for a license
imposed by Article 1 of this chapter.
20-1A-43.
A
determination by the department regarding preliminary or fingerprint records
checks or
regarding a satisfactory child protective services
report under this article, or any action
by the department revoking, suspending, or refusing to grant or renew a license
based upon such determination, shall constitute a contested case for purposes of
Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' except that
any hearing required to be held pursuant thereto may be held reasonably
expeditiously after such determination or action by the department. It is
expressly provided that upon motion from any party, the hearing officer may, in
his or her discretion, consider matters in mitigation of any conviction,
provided that the hearing officer examines the circumstances of the case and
makes an independent finding that no physical harm was done to a victim and also
examines the character and employment history since the conviction and
determines that there is no propensity for cruel behavior or behavior involving
moral turpitude on the part of the person making a motion for an exception to
sanctions normally imposed. If the hearing officer deems a hearing to be
appropriate, he or she will also notify at least 30 days prior to such hearing
the office of the prosecuting attorney who initiated the prosecution of the case
in question in order to allow the prosecutor to object to a possible
determination that the conviction would not be a bar for the grant or
continuation of a license or employment as contemplated within this chapter. If
objections are made, the hearing officer will take such objections into
consideration in considering the case.
20-1A-44.
The
board is authorized to provide by regulation for the administration of this
article."
SECTION
2.
Article
8 of Chapter 5 of Title 49 of the Official Code of Georgia Annotated, relating
to the Central Child Abuse Registry, is amended by revising Code Section
49-5-185, relating to access to information in the registry, as
follows:
"49-5-185.
(a)
Except as otherwise provided in subsection (c) of this Code section and
subsection (b) of Code Section 49-5-186, only an abuse investigator, medical
examiner, coroner, or out-of-state abuse investigator which has investigated, or
is investigating, a case of possible child abuse shall be provided any
information from the abuse registry and shall only be provided information
relating to that case for purposes of using that information in such
investigation.
(b)
The department shall provide the Governor's office, the General Assembly,
district attorneys, and law enforcement agencies with a statistical analysis of
reported cases from the abuse registry at the end of each calendar year. This
analysis shall not include the names of any children, parents, or persons
alleged to have committed child abuse. This analysis shall not be protected by
any laws prohibiting the dissemination of confidential information.
(c)(1)
A person may make a written request to any DFACS office to find out whether such
person's name is included on the abuse registry. Upon presentation of a
passport, military identification card, driver's license, or identification card
authorized under Code Sections 40-5-100 through 40-5-104, the office receiving
such request shall disclose to such person whether that person's name is
included on the abuse registry and, if so, whether the report is classified as
confirmed or unconfirmed, the date upon which the person's name was listed on
the registry, and the county in which the investigation was conducted which
resulted in such inclusion.
(2)
The DFACS office receiving a request from the Department of Early Care and
Learning to find out whether a person's name is included on the abuse registry
shall disclose to the Department of Early Care and Learning whether that
person's name is included on the abuse registry and if so, whether the report is
classified as confirmed or unconfirmed, the date upon which the person's name
was listed on the registry, and the county in which the investigation was
conducted which resulted in such
inclusion."
SECTION
3.
This
Act shall become effective on July 1, 2012.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.