Ga. Comp. R. & Regs. R. 290-2-5-.05 - Criminal History Background Checks, Licenses and Exemptions

(1) Criminal History Background Checks for Owners Required. Prior to approving any license for a new child-caring institution and periodically as established by the Department by rule and regulation, the Department shall require an owner to submit a records check application so as to permit the Department to obtain criminal history background information on the owner.

(a) An owner may not be required to submit a records check application if it is determined that the owner does not do at least one of the following:

1. Maintains an office on the premises where services are provided to children;

2. Resides on the premises where services are provided to children;

3. Has direct access to residents receiving care; or

4. Provides direct personal supervision of personnel by being immediately available to provide assistance and direction during the time services are being provided to children.

(b) In lieu of a records check application, an owner may submit evidence, satisfactory to the Department, that within the immediately preceding 12 months the owner has received a satisfactory criminal history background check determination.

(2) A child-caring institution license shall not be issued, and any license issued shall be revoked where it has been determined that the owner has a criminal record involving any of the following covered crimes, as outlined in O.C.G.A. Section 49-2-14.1 et seq., and the Department's decision to deny or revoke a license has not been reversed in accordance with O.C.G.A. Section 49-2-14.1.

(3) An owner with a valid child-caring institution license who acquires a criminal record involving any of the covered crimes identified in O.C.G.A. Section 49-2-14.1 shall disclose the criminal record to the Department.

(4) If at any time the Department has reason to believe an owner holding a valid license has a criminal record involving any of the covered crimes identified in O.C.G.A. Section 49-2-14.1, the Department shall require the owner to submit a records check application immediately for determination of whether a revocation action is necessary. Prior to the revocation of the license becoming final, the owner is entitled to an administrative hearing unless the owner has not begun providing services under the license. Where services are not currently being provided under the license, the decision of the administrative hearing officer must precede the initiation of services.

(5) Criminal History Background Checks for Director and Employees Required. Prior to serving as a director of a licensed Institution, a person newly hired, rehired, or transferred to the director position shall submit a records check application and receive a satisfactory determination or be eligible to serve as a director as a result of an administrative hearing.

(a) A person with an unsatisfactory criminal history background check determination may not serve as a director of a licensed child-caring institution if it is determined that such person has a criminal record as identified in O.C.G.A. Section 49-5-60 and has not had an unsatisfactory determination reversed in accordance with O.C.G.A. Sections 49-5-60 et seq., and 49-5-73.

(b) Prior to serving as an employee other than a director of a licensed Institution, a person must submit a preliminary record check application and receive a satisfactory determination. Provided however, should there be an unsatisfactory determination, the person must submit to a fingerprint record check and get a satisfactory determination or be determined eligible to be employed by the Institution as a result of an administrative hearing.

(c) A person with an unsatisfactory background check determination may not serve as an employee of a licensed child-caring institution if it is determined that such person has a criminal record as identified in O.C.G.A. Section 49-5-60 and has not had an unsatisfactory determination reversed in accordance with O.C.G.A. Sections 49-5-60 et seq., and 49-5-73.

(d) In lieu of a records check application, a director or employee may submit evidence, satisfactory to the Department, that within the immediately preceding 12 months the above personnel have received a satisfactory records check determination or a satisfactory preliminary records check determination.

(6) Licenses. No person, partnership, association, corporation or entity shall operate a child-caring institution in the state without first obtaining a license to operate the Institution by demonstrating compliance with the necessary requirements set forth in these rules. No child-caring institution shall provide room, board and watchful oversight to more than 16 children on its premises without approval by the Department's Residential Child Care Licensing in accordance with applicable policies and procedures.

(a) Effective January 1, 2025, any Institution with multiple separate living units located on the same premises that provides or proposes to provide room, board, and watchful oversight to a combined total of six or more children shall be licensed.

(b) Institutions operated as a part of a local church ministry or religious nonprofit school or a nonprofit religious charitable organization may request to be commissioned in lieu of licensed. All provisions of these rules shall apply to Institutions that request to be commissioned, and for the purposes of these rules, the term license shall have the same meaning as commission.

(c) A license may be issued, upon presentation of evidence satisfactory to the Department, that the facility is in compliance with applicable statutes and these rules. The license is valid for the period of time specified by the Department, unless voluntarily surrendered by the holder, reduced to a restricted or temporary license or suspended or revoked by the Department.

(7) Temporary License. The Department may in its discretion issue a temporary license if the health and safety of the children to be served by the Institution will not be endangered. A temporary license will be valid for a specified period not to exceed one (1) year and may be issued in the following instances:

(a) If an Institution complies with these rules but has not yet enrolled children; or

(b) If an Institution is not in full compliance with these rules but has demonstrated satisfactory evidence that it is making progress toward meeting these rules and has submitted an acceptable plan of correction; or

(c) If the Department finds that any child-caring institution applicant does not meet rules and regulations prescribed by the Department but is attempting to meet such rules and regulations, the Department may, in its discretion, issue a temporary license or commission to such child-caring institution, but such temporary license or commission shall not be issued for more than a one-year period.

1. Upon presentation of satisfactory evidence that such Institution is making progress toward meeting prescribed rules and regulations of the Department, the Department may, in its discretion, reissue such temporary license or commission for one additional period not to exceed one year.

2. As an alternative to a temporary license or commission, the Department, in its discretion, may issue a restricted license or commission which states the restrictions on its face.

(8) Restricted License. The Department may in its discretion issue a restricted license in lieu of a temporary or regular license. The restricted license may be granted either in connection with the initial application process for a license or as a result of a subsequent determination made by the Department concerning compliance with these rules. The restriction shall appear on the face of the license and shall restrict an Institution from providing care or services which are beyond the capability of the licensee to provide. The restriction may include but is not limited to the number and/or age of the children served by the Institution.

(9) License Qualifications. In order to obtain or retain a license, the following conditions shall be met:

(a) The director of the Institution and its employees must be qualified, as defined in these rules, to administer or work in an Institution. The Department may presume that the director and employees are qualified, subject to satisfactory determinations on the criminal history background checks. However, the Department may require additional reasonable verification of the qualifications of the director and employees either at the time of application for a license or at any time during the license period. The Institution shall electronically notify the Department's Residential Child Care Licensing unit on forms provided by the Department within three (3) business days when there is a change in the director, human services professional or in the corporate structure, organization, or administration of the Institution.

(b) A qualified residential treatment program shall be accredited by an independent, not-for-profit organization in accordance with the provisions of 42 U.S.C. Section 672(k)(4)(G) and maintain such accreditation. Denial, loss of, or any negative change in accreditation status must be reported to the Department's, Residential Child Care Licensing unit within three (3) business days upon notification by the accreditation body.

(c) A commercial sexual exploitation recovery center shall be certified as a victim assistance program in accordance with the provisions of O.C.G.A. Section 15-21-132(e) and maintain such certification. Denial, loss of, or any negative change in certification status must be reported to the Department's, Residential Child Care Licensing unit within three (3) business days upon notification by the Criminal Justice Coordinating Council.

(10) License is Nontransferable. A license to operate an Institution is not transferable in any way. Each license shall be returned to the Department immediately upon the suspension, revocation, restriction of the license or termination of the operation.

(11) Renewal of License. A license will be renewed upon a determination by the Department that the Institution presents satisfactory evidence of meeting the requirements set forth in these rules.

(12) Exemptions. All programs providing or planning to provide full-time care to six or more children through the age of 18 outside their homes and meet all other criteria of a child-caring institution shall obtain either a child-caring institution license or an exemption from licensure. Any person or entity believed to be exempt from licensure shall apply to the Department for exemption. A program that is not exempt from licensure shall be subject to applicable rules and regulations. An exemption granted by the Department is an exemption from licensure, and does not affect the authority of local, regional or state health department officials, the state fire marshal or local fire prevention officials to inspect facilities. These rules shall not apply to the following kinds of programs providing care to children:

(a) Child welfare agencies and other facilities and institutions wherein children and youths are detained which are operated by any Department or agency of state, county, or municipal government.

(b) Any bona fide boarding school whose primary purpose of admission is education, provided that such facility in order to claim exemption shall operate as a private school in accordance with O.C.G.A. Section 20-2-690 et seq., or its successor statute, shall have classroom facilities which are not used for residential living and shall not have been granted nor have assumed legal custody of children attending the facility.

(c) Facilities or programs both owned and operated by any Department or agency of federal, state, county, or municipal government. For purposes of this rule, facilities or programs are not exempt from licensure as a child-caring institution if facility or program premises are leased, rather than owned, by federal, state, county, or municipal government. In addition, facilities or programs are not exempt from licensure if the government entity assumes or exercises no authority nor control over daily program services, functions or operations.

(d) Temporary recreational facilities and programs which limit residency to no more than three months, such as summer camps.

Notes

Ga. Comp. R. & Regs. R. 290-2-5-.05

O.C.G.A. §§ 49-5-8, 49-5-12, 49-2-14.1, 49-5-60 et seq., 15-11-2(60.2), 15-21-132(e).

Original Rule entitled "Governing Body" adopted. F. Oct. 1, 1974; eff. Oct. 21, 1974. Repealed: New Rule entitled "Building, Grounds and Equipment" adopted. F. Aug. 26, 1975; eff. Sept. 15, 1975. Repealed: New Rule entitled "Licenses and Exemptions" adopted. F. June 30, 1994; eff. August 1, 1994, as specified by the Agency. Repealed: New Rule of same title adopted. F. June 5, 2007; eff. June 25, 2007. Repealed: New Rule entitled "Criminal Background Checks, Licenses and Exemptions" adopted. F. Jan. 24, 2008; eff. Feb. 13, 2008. Amended: F. Dec. 7, 2020; eff. Jan. 1, 2021, as specified by the Agency. Amended: F. Jan. 9, 2024; eff. Jan. 29, 2025.