Cross references.

- Adoption, T. 19, C. 8.

Regulation of agencies providing physical therapy, nursing care, and other services in individuals' homes, § 31-7-150 et seq.

CHAPTER 1 GENERAL PROVISIONS

49-1-1. Definitions.

As used in this title, the term:

  1. "Board" means the Board of Human Services.
  2. "Commissioner" means the commissioner of human services.
  3. "County board" means a county or district board of family and children services.
  4. "County department" means a county or district department of family and children services.
  5. "County director" means the director of a county or district department of family and children services.
  6. "Department" means the Department of Human Services.

(Ga. L. 1937, p. 355, § 1; Ga. L. 1960, p. 85, § 1; Ga. L. 1963, p. 218, § 1; Ga. L. 1972, p. 1015, §§ 1201, 1203, 1204, 1215; Ga. L. 2009, p. 453, § 2-1/HB 228.)

49-1-2. Compliance of county departments with rules and regulations of the Department of Human Services.

All rules and regulations made by the Department of Human Services shall be binding on the counties and shall be complied with by the respective county departments.

(Ga. L. 1937, p. 311, § 4; Ga. L. 1937, p. 568, § 5; Ga. L. 1937, p. 630, § 4; Ga. L. 1952, p. 15, § 4; Ga. L. 2009, p. 453, § 2-1/HB 228.)

Administrative Rules and Regulations.

- Temporary assistance for needy families (TANF) programs, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Family and Children Services; Child Care Institutions, Chapter 290-2-28.

49-1-3. Power of Governor to reorganize state and local health and welfare organizations; appointment of district health and welfare directors and staff.

Reserved. Repealed by Ga. L. 2009, p. 453, § 2-1/HB 228, effective July 1, 2009.

Editor's notes.

- This Code section was based on Ga. L. 1975, p. 1211, § 1; Ga. L. 1976, p. 685, §§ 1, 2.

49-1-4. Sales by administrators to institutions prohibited.

No individual, supervisor, or member of the Board of Human Services or the county or district boards of family and children services having to do with the administration of this title shall be authorized or permitted, directly or indirectly, to sell supplies or other items of any kind or character to any of the institutions to be benefited by this title.

(Ga. L. 1937, p. 355, § 20A; Ga. L. 2009, p. 453, § 2-1/HB 228.)

49-1-5. Suspension and removal of county board member, county director, or employee or official of department.

  1. In order that the public welfare laws of this state may be better enforced, the Governor is authorized and empowered to suspend any member of any county board, any county director, or any employee or official of the department whenever he or she shall find that good cause for such suspension exists. Such suspension shall be by executive order of the Governor, which shall state the reason therefor. A copy of such order of suspension shall be sent to the person so suspended within five days after it is issued, by registered or certified mail or statutory overnight delivery, return receipt requested, together with a notice from the Governor or his or her executive secretary that the suspended person may be heard before the Governor at such time as may be stated in the notice, which hearing shall be not less than ten nor more than 20 days from the date of the notice. Upon such hearing, if the Governor shall find that good cause for the removal of the person so suspended exists, he or she is authorized and empowered to remove such member of any county board, any county director, or any employee or official in the department; whereupon, such person's tenure of office or employment shall terminate, subject to the right of appeal granted to any employee by or under authority of Chapter 20 of Title 45, and the vacancy shall be filled as provided by law. If the Governor shall find that good cause for the removal of such person does not exist, he or she shall, by appropriate executive order, restore him or her to duty.
  2. In addition to removal by the Governor as specified in subsection (a) of this Code section, the director of the Division of Family and Children Services may terminate the employment of any county director or district director subject to any right of appeal granted to such terminated director by or under the authority of Chapter 20 of Title 45, and the vacancy shall be filled as provided by law.

(Ga. L. 1941, p. 485, § 3; Ga. L. 2000, p. 240, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2009, p. 453, § 2-1/HB 228; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-93/HB 642.)

The 2012 amendment, effective July 1, 2012, substituted "by or under authority of Chapter 20 of Title 45" for "under the State Personnel Administration by Chapter 20 of Title 45" in the next-to-last sentence of subsection (a); and substituted "granted to such terminated director by or under the authority of Chapter 20 of Title 45" for "such director may have under the State Personnel Administration by Chapter 20 of Title 45" near the middle of subsection (b).

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

RESEARCH REFERENCES

ALR.

- Conclusiveness of governor's decision in removing or suspending officers, 92 A.L.R. 998.

49-1-6. Transfer of assets of nonprofit corporation to department.

  1. Any charitable or nonprofit corporation which has been granted a charter or articles of incorporation under the laws of this state may transfer all or a part of its assets to the department upon such terms as may be agreed upon between such corporation and the department, provided such corporation shall first have obtained authority to make such transfer in accordance with this Code section.
  2. Any such corporation may apply for authority to make such transfer by filing its petition with the superior court of the county in which such corporation has its principal office. Such application shall set forth the assets which the corporation desires to transfer to the department and the terms upon which it desires to transfer these assets.
  3. Such corporation, once a week for four weeks prior to the filing of such petition, shall publish notice in the newspaper of the county in which is located the principal office of the corporation, such newspaper being the newspaper in which notices of sheriff's sales are advertised. The notice shall set forth the date, time, and place when such application will be presented, the court to which it will be presented, and the assets which such corporation desires to transfer to the department.
  4. After a hearing, the court shall be authorized to grant the application and permit a transfer of the assets of the applicant upon terms as set out in the application or modified as the court may deem advisable, if the court considers this in the public interest; or the court may deny the application if the court deems such denial to be in the public interest. Where such corporation makes a transfer of all of its right, title, and interest in any of its assets to the department and such transfer is made pursuant to the authority of the court obtained in the manner provided for in this Code section, such transfer shall be conclusively deemed to be a proper and legal transfer.
  5. Should such corporation desire to transfer all of its assets to the department, the court to which such application is presented may include in its order a provision that upon the transfer by such corporation of all of its assets to the department and upon compliance with Chapter 3 of Title 14, the charter or articles of incorporation of such corporation shall stand surrendered and the corporation dissolved.
  6. Nothing contained in this Code section shall be considered as authorizing the department to accept a transfer of assets upon terms which would require the use of them by the department in a manner not authorized by law.

(Ga. L. 1952, p. 97, §§ 1-6; Ga. L. 2009, p. 453, § 2-1/HB 228.)

49-1-7. Home delivered meals, transportation, services for the elderly, and preschool children with special needs fund.

  1. The General Assembly finds that it is in the best interest of the state to provide for programs for home delivered meals, transportation services for the elderly, and preschool children with special needs, including but not limited to disabled children, troubled children, school readiness programs, and other similar needs for the benefit of the citizens of Georgia. In addition to and as a supplement to traditional financing mechanisms for such programs, it is the policy of this state to enable and encourage citizens voluntarily to support such programs.
  2. To support programs for home delivered meals, transportation services for the elderly, and preschool children with special needs which programs have been established or approved by the department or the Department of Community Health, the department may, without limitation, promote and solicit voluntary contributions through the income tax return contribution mechanism established in subsection (f) of this Code section, through offers to match contributions by any person with moneys appropriated or contributed to the department or the Department of Community Health for such programs, or through any fund raising or other promotional techniques deemed appropriate by the department or the Department of Community Health.
  3. There is established a special fund to be known as the "Home Delivered Meals, Transportation Services for the Elderly, and Preschool Children with Special Needs Fund." This fund shall consist of all moneys contributed under subsection (b) of this Code section, all moneys transferred to the department under subsection (f) of this Code section, and any other moneys contributed to this fund or to the home delivered meals, transportation services for the elderly, or preschool children with special needs programs of the department or the Department of Community Health and all interest thereon. All balances in the fund shall be deposited in an interest-bearing account identifying the fund and shall be carried forward each year so that no part thereof may be deposited in the general treasury. The fund shall be administered and the moneys held in the fund shall be expended by the department through the Division of Aging Services in furtherance of home delivered meals and transportation services to the elderly programs and by the Department of Community Health in furtherance of preschool children with special needs programs.
  4. Following the transmittal of contributions to the department for deposit in the fund pursuant to subsection (f) of this Code section, the expenditure of moneys in the fund shall be allocated as follows:
    1. Fifty percent of the contributions to the fund shall be used for home delivered meals and transportation services to the elderly programs; and
    2. Fifty percent of the contributions to the fund shall be transferred to the Department of Community Health to be used for preschool children with special needs programs.
  5. Contributions to the fund shall be deemed supplemental to and shall in no way supplant funding that would otherwise be appropriated for these purposes. Contributions shall only be used for benefits and services and shall not be used for personnel or administrative positions. The department and the Department of Community Health shall each prepare, by February 1 of each year, an accounting of the funds received and expended from the fund and a review and evaluation of all expended moneys of the fund. The reports shall be made available to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, to the members of the Board of Human Services, and, upon request, to members of the public.
    1. Unless an earlier date is deemed feasible and established by the Governor, each Georgia income tax return form for taxable years beginning on or after January 1, 1993, shall contain appropriate language, to be determined by the state revenue commissioner, offering the taxpayer the opportunity to contribute to the Home Delivered Meals, Transportation Services for the Elderly, and Preschool Children with Special Needs Fund established in subsection (c) of this Code section by either donating all or any part of any tax refund due, by authorizing a reduction in the refund check otherwise payable, or by contributing any amount over and above any amount of tax owed by adding that amount to the taxpayer's payment. The instructions accompanying the income tax return form shall contain a description of the purposes for which this fund was established and the intended use of moneys received from the contributions. Each taxpayer required to file a state income tax return who desires to contribute to such fund may designate such contribution as provided in this Code section on the appropriate income tax return form.
    2. The Department of Revenue shall determine annually the total amount so contributed, shall withhold therefrom a reasonable amount for administering this voluntary contribution program, and shall transmit the balance to the department for deposit in the fund established in subsection (c) of this Code section; provided, however, that the amount retained for administrative costs, including implementation costs, shall not exceed $50,000.00 per year. If, in any tax year, the administrative costs of the Department of Revenue for collecting contributions pursuant to this Code section exceed the sum of such contributions, the administrative costs which the Department of Revenue is authorized to withhold from such contributions shall not exceed the sum of such contributions.

(Code 1981, §49-1-9, enacted by Ga. L. 1992, p. 3241, § 1; Code 1981, §49-1-7, as redesignated by Ga. L. 2009, p. 453, § 2-1/HB 228.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, a comma was inserted following "Resources (now Services)" in the last sentence of subsection (e).

Pursuant to Code Section 28-9-5, in 2009, "that" was inserted following "however," in the first sentence of paragraph (f)(2).

Administrative Rules and Regulations.

- The Georgia Children and Elderly Fund, Official Compilation of the Rules and Regulations of the State of Georgia, Grants of the Children's Trust Fund Commission, Grant Program, § 98-1-.02.

Editor's notes.

- Former Code Section 49-1-7 (Ga. L. 1946, p. 45, § 1; Ga. L. 1960, p. 85, § 3; Ga. L. 1963, p. 218, § 7), relating to the purchase of adjacent lands for institutions, was repealed by Ga. L. 2009, p. 453, § 2-1, effective July 1, 2009.

49-1-8. Website access to link or portal to social services specific to kinship caregivers and children in their care; definitions.

  1. As used in this Code section, the term:
    1. "Basic necessities" means water, electricity, gas, power, light, heat, telephone, or other public utility services.
    2. "Child" means any person under 18 years of age.
    3. "Kinship caregiver" means a grandparent, aunt, uncle, great aunt, great uncle, cousin, sibling, or close family friend of a child who has assumed responsibility for raising such child in an informal, noncustodial, or guardianship capacity upon the parents of such child losing or abdicating the ability to care for or provide basic necessities for such child.
    4. "Parents" means the legal father and the legal mother of a child.
  2. The department shall have the authority to provide and shall take all necessary steps to so provide a separate link or portal on its website which provides access to social services that are specific to kinship caregivers and the children in their care. Such link or portal shall provide specific information and access for applying for public assistance benefits in this state as a kinship caregiver and on behalf of children in the care of a kinship caregiver.

(Code 1981, §49-1-8, enacted by Ga. L. 2016, p. 337, § 1-1/HB 962.)

Effective date.

- This Code section became effective July 1, 2016.

Editor's notes.

- Former Code Section 49-1-8, relating to sales of surplus products of institutions and disposition of proceeds, was repealed by Ga. L. 2009, p. 453, § 2-1/HB 228, effective July 1, 2009. The former Code section was based on Ga. L. 1939, p. 392, §§ 1, 4.

49-1-9. Redesignated.

Editor's notes.

- Ga. L. 2009, p. 453, § 2-1/HB 228, effective July 1, 2009, redesignated former Code Section 49-1-9 as present Code Section 49-1-7.

CHAPTER 2 DEPARTMENT OF HUMAN SERVICES

Article 1 General Provisions.
Article 2 Inspection Warrants for Residential Child Care Licensing.
Cross references.

- Probation officers, Uniform Rules for the Juvenile Courts of Georgia, Rule 2.4.

Sharing of court records among juvenile courts, Uniform Rules for the Juvenile Courts of Georgia, Rule 3.9.

Commencement of juvenile court proceeding for child on aftercare to Division of Youth Services, Uniform Rules for the Juvenile Courts of Georgia, Rule 4.6.

Time limitations upon other orders of disposition in juvenile court proceedings, Uniform Rules for the Juvenile Courts of Georgia, Rule 15.3.

Court costs for care of child certified by juvenile court, Uniform Rules for the Juvenile Courts of Georgia, Rule 21.1.

Law reviews.

- For annual survey of administrative law, see 67 Mercer L. Rev. 1 (2015).

RESEARCH REFERENCES

ALR.

- Social worker malpractice, 58 A.L.R.4th 977.

ARTICLE 1 GENERAL PROVISIONS

Editor's notes.

- The existing provisions of Chapter 2 were designated as Article 1 by Ga. L. 2009, p. 453, § 2-1/HB 228, effective July 1, 2009.

49-2-1. Department created; transfer of powers, functions, and duties of Department of Human Resources to Department of Human Services; creation, appointment, removal, and duties of commissioner; creation, appointment, and duties of kinship care enforcement administrator.

  1. There is created a Department of Human Services. The powers, functions, and duties of the Department of Human Resources as they existed on June 30, 2009, except for those relating to the Division of Mental Health, Developmental Disabilities, and Addictive Diseases, the Division of Public Health, and the Office of Regulatory Services, unless specifically transferred or reassigned to the Department of Community Health or the Department of Behavioral Health and Developmental Disabilities, are transferred to the Department of Human Services effective July 1, 2009, and the Department of Human Resources shall be reconstituted as the Department of Human Services effective July 1, 2009.
  2. There is created the position of commissioner of human services. The commissioner shall be the chief administrative officer of the department and be both appointed and removed by the board, subject to the approval of the Governor. Subject to the general policy established by the board, the commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department.
    1. As used in this subsection, the term:
      1. "Fictive kin" shall have the same meaning as set forth in Code Section 15-11-2.
      2. "Kinship caregiver" means a grandparent, aunt, uncle, great aunt, great uncle, cousin, or sibling of a child under the age of 18 or fictive kin who has assumed responsibility for raising such child in an informal, noncustodial, or guardianship capacity upon the legal parents of such child losing or abdicating the ability to care for or provide basic necessities for such child.
    2. There is created the position of kinship care enforcement administrator within the Department of Human Services who shall be appointed by and serve at the discretion of the commissioner of human services. The kinship care enforcement administrator shall account for, monitor, facilitate, and ensure compliance with all laws, rules, and regulations of the federal government and this state which relate to any programs, including, but not limited to, any pilot programs, subsidies, or benefits, available to kinship caregivers or the children within their care.

(Ga. L. 1972, p. 1015, § 1201; Ga. L. 2009, p. 453, § 2-1/HB 228; Ga. L. 2016, p. 337, § 2-1/HB 962.)

The 2016 amendment, effective July 1, 2016, added subsection (c).

Cross references.

- Powers and duties of Department of Community Health generally, § 31-2-1 et seq.

JUDICIAL DECISIONS

Cited in Department of Human Resources v. Briarcliff Haven, Inc., 141 Ga. App. 448, 233 S.E.2d 844 (1977).

OPINIONS OF THE ATTORNEY GENERAL

Commissioner's administrative powers not inhibited by Executive Reorganization Act.

- Exercise of the power given to the commissioner of human resources to establish the internal structure of the department and to expend available funds for those purposes is not inhibited by any provision of the "Executive Reorganization Act" (Ga. L. 1972, p. 1015), or by the "Board of Human Resources Act" (Ga. L. 1972, p. 1069), or by the statutory foundation for the functions transferred to the department. 1975 Op. Att'y Gen. No. 75-4.

Structural organization of department.

- Commissioner has statutory authority to establish the structural organization of the department, including authority to establish regional offices, and to expend available funds for those purposes. 1975 Op. Att'y Gen. No. 75-4.

49-2-2. Board created; qualifications and appointment of members; terms of office; vacancies; removal; per diem and expenses.

  1. There is created a Board of Human Services, as of July 1, 2009, which shall establish the general policy to be followed by the Department of Human Services created by Code Section 49-2-1. The powers, functions, and duties of the Board of Human Resources as they existed on June 30, 2009, except for those relating to the Division of Mental Health, Developmental Disabilities, and Addictive Diseases, the Division of Public Health, and the Office of Regulatory Services, unless specifically transferred or reassigned to the Board of Community Health or the Board of Behavioral Health and Developmental Disabilities, are transferred to the Board of Human Services effective July 1, 2009, and the Board of Human Resources as it existed on June 30, 2009, shall be abolished effective July 1, 2009. The board shall consist of nine members appointed by the Governor and confirmed by the Senate.
  2. The Governor shall designate the initial terms of the members of the board as follows: three members shall be appointed for one year; three members shall be appointed for two years; and three members shall be appointed for three years. Thereafter, all succeeding appointments shall be for three-year terms from the expiration of the previous term.
  3. Vacancies in office shall be filled by appointment by the Governor in the same manner as the appointment to the position on the board which becomes vacant, and the appointment shall be submitted to the Senate for confirmation at the next session of the General Assembly. An appointment to fill a vacancy, other than by expiration of a term of office, shall be for the balance of the unexpired term.
  4. Members of the board may be removed from office under the same conditions for removal from office of members of professional licensing boards provided in Code Section 43-1-17.
  5. There shall be a chairperson of the board, elected by and from the membership of the board, who shall be the presiding officer of the board.
  6. The members of the board shall receive per diem and expenses as shall be set and approved by the Office of Planning and Budget and in conformance with rates and allowances set for members of other state boards.

(Ga. L. 1972, p. 1069, § 2; Ga. L. 2002, p. 1420, § 1; Ga. L. 2009, p. 453, § 2-1/HB 228.)

Cross references.

- Rule-making power of Board of Human Services with regard to treatment of the mentally ill, developmentally disabled, and alcoholics, §§ 37-3-2,37-4-3,37-7-2.

Restriction on power of board members to contract with state-supported institutions, § 45-10-40 et seq.

Administrative Rules and Regulations.

- Hearings and petitions for rule-making, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources Administration, Chapter 290-1-1.

JUDICIAL DECISIONS

Cited in Ray v. Edwards, 557 F. Supp. 664 (N.D. Ga. 1982).

OPINIONS OF THE ATTORNEY GENERAL

Simultaneous service on county board of health.

- Person cannot serve simultaneously as board member and county board of health member. 1985 Op. Att'y Gen. No. 85-28.

Member subject to removal when more than seven rendering health services.

- Appointment to the Board of Human Resources of more than seven members who are engaged in providing health services is precluded; any person engaged in providing health services whose appointment to the board causes that limitation to be exceeded could not lawfully hold office and would be subject to removal. 1976 Op. Att'y Gen. No. 76-46.

Ga. L. 1976, p. 344, § 2 (see O.C.G.A. § 45-10-5) did not negate rule-making powers of Board of Human Resources. 1976 Op. Att'y Gen. No. 76-43.1.

49-2-2.1. Department of Human Services becomes successor-in-interest to all rights, duties, and obligations of former Department of Human Resources.

  1. The Department of Human Services shall succeed to all rules, regulations, policies, procedures, and administrative orders of the Department of Human Resources that are in effect on June 30, 2009, or scheduled to go into effect on or after July 1, 2009, and which relate to the functions transferred to the Department of Human Services pursuant to Code Section 49-2-1 and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources that are in effect on June 30, 2009, which relate to the functions transferred to the Department of Human Services pursuant to Code Section 49-2-1. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by the Department of Human Services by proper authority or as otherwise provided by law.
  2. The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July 1, 2009, by the Department of Human Resources which relate to the functions transferred to the Department of Human Services pursuant to Code Section 49-2-1 shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer of the functions to the Department of Human Services. In all such instances, the Department of Human Services shall be substituted for the Department of Human Resources, and the Department of Human Services shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions.
  3. All persons employed by the Department of Human Resources in capacities which relate to the functions transferred to the Department of Human Services pursuant to Code Section 49-2-1 on June 30, 2009, shall, on July 1, 2009, become employees of the Department of Human Services in similar capacities, as determined by the commissioner of human services. Such employees shall be subject to the employment practices and policies of the Department of Human Services on and after July 1, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Transferred employees who were subject to the state system of personnel administration provided for by Chapter 20 of Title 45 will lose no rights granted under such system as a result of such transfer. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the Department of Human Services.
  4. On July 1, 2009, the Department of Human Services shall receive custody of the state owned real property in the custody of the Department of Human Resources on June 30, 2009, and which pertains to the functions transferred to the Department of Human Services pursuant to Code Section 49-2-1.

(Code 1981, §49-2-2.1, enacted by Ga. L. 2009, p. 453, § 2-1/HB 228; Ga. L. 2012, p. 446, § 2-94/HB 642.)

The 2012 amendment, effective July 1, 2012, substituted the present provisions of the third sentence of subsection (c) for the former provisions, which read: "Employees who are subject to the rules of the State Personnel Board and thereby under the State Personnel Administration and who are transferred to the department shall retain all existing rights under the State Personnel Administration."

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

49-2-3. Functions transferred to the board from other boards and commissions.

  1. The policy-making functions of the State Board for Children and Youth, contained in Ga. L. 1963, p. 81, are vested in the Board of Human Services.
  2. The policy-making functions of the Commission on Aging, created in Ga. L. 1962, p. 604, are vested in the Board of Human Services.

(Ga. L. 1972, p. 1015, §§ 1215-1217; Ga. L. 1982, p. 833, § 2; Ga. L. 2000, p. 1137, § 10; Ga. L. 2009, p. 453, § 2-1/HB 228.)

49-2-4. Creation of divisions; allocation of functions.

There shall be created in the department such divisions as may be found necessary for its effective operation. The commissioner shall have the power to allocate and reallocate functions among the divisions within the department.

(Ga. L. 1937, p. 355, § 7; Ga. L. 1960, p. 85, § 8; Ga. L. 2009, p. 453, § 2-1/HB 228.)

49-2-5. Department is institution of state; power to receive and disburse state, county, and federal funds.

The department is declared to be an institution of the state for which the powers of taxation over the whole state may be exercised, and the department is empowered and authorized to administer, expend, and disburse funds appropriated to it and allocated to it by the General Assembly, the respective counties of the state, and the United States, through its appropriate agencies and instrumentalities for the purpose of distributing old-age benefits and all other benefits as provided in this title.

(Ga. L. 1937, p. 355, § 2; Ga. L. 1960, p. 85, § 2; Ga. L. 1982, p. 3, § 49; Ga. L. 1983, p. 3, § 65; Ga. L. 2009, p. 453, § 2-1/HB 228.)

OPINIONS OF THE ATTORNEY GENERAL

Voluntarily donated county funds.

- Department may accept public funds donated voluntarily by counties for the provision of day care and other social services to welfare applicants and other authorized recipients. 1972 Op. Att'y Gen. No. 72-12.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Funds, § 70 et seq. 79 Am. Jur. 2d, Welfare Laws, § 53 et seq.

C.J.S.

- 64A C.J.S., Municipal Corporations, § 2027. 82 C.J.S., Statutes, §§ 487, 488.

49-2-6. Duties and powers of department.

  1. The department shall administer or supervise all county departments of the state as provided in Chapter 3 of this title.
  2. The department shall:
    1. Administer or supervise:
      1. All categories of public assistance established under Code Section 49-4-3;
      2. The operation of state charitable institutions;
      3. Agencies and institutions caring for dependent or mentally or physically disabled or aged adults; and
      4. Such other welfare activities or services as may be vested in it;
    2. Provide services to county governments, including the organization and supervision of county departments for the effective administration of welfare functions and the compilation of statistics and necessary information relative to public welfare problems throughout the state;
    3. Prescribe qualifications and salary standards for welfare personnel in state and county departments, subject to Chapter 20 of Title 45;
    4. Assist other state and federal departments, agencies, and institutions, when so requested, by performing services in conformity with the purposes of this title;
    5. Act as the agent of the federal government in welfare matters of mutual concern in conformity with this title and the administration of any federal funds granted to the state to aid in the furtherance of any functions of the department;
    6. Under rules and regulations prescribed by the board, designate county and district departments to serve as agents in the performance of all state welfare activities in the counties or districts;
    7. Have the right to designate private institutions as state institutions; to contract with such private institutions for such activities, in carrying out this title, as the department may deem necessary from time to time; and to exercise such supervision and cooperation in the operation of such designated private institutions as the department may deem necessary;
    8. Have the right to accept and execute gifts or donations for welfare purposes, as may be prescribed by the donors thereof;
    9. Have authority to delegate in whole or in part the operation of any institution or other activity of the department to any other appropriate department or agency of the state, county, or municipal governments; and to contract with and cooperate with such departments or subdivisions in any manner proper for carrying out the purposes of this title; and
    10. Administer such programs and provide such services as may be appropriate and necessary to strengthen family life and help needy individuals attain the maximum economic and personal independence of which they are capable, including services to applicants and recipients of old-age assistance to help them attain self-care, provided that the costs incurred by the county departments in administering this Code section in conjunction with the public assistance programs administered by the department shall be deemed to be administrative expenses.

(Ga. L. 1937, p. 355, § 6; Ga. L. 1949, p. 547, § 2; Ga. L. 1957, p. 368, § 3; Ga. L. 1960, p. 85, §§ 6, 7; Ga. L. 1963, p. 81, § 24; Ga. L. 1995, p. 1302, § 14; Ga. L. 2009, p. 453, § 2-1/HB 228.)

Cross references.

- Procedure for interrogation and taking of statements from hearing impaired persons arrested for violation of criminal laws, § 24-6-653.

Law reviews.

- For note, "Welfare Due Process: The Maximum Grant Limitation on the Right to Survive," see 3 Ga. L. Rev. 459 (1969). For comment discussing Williams v. Dandridge, 297 F. Supp. 450 (D. Md. 1969), as to the validity under the fourteenth amendment of a state "maximum grant" welfare provision, see 4 Ga. L. Rev. 203 (1969).

JUDICIAL DECISIONS

Cited in Georgia Dep't of Human Resources v. Demory, 138 Ga. App. 888, 227 S.E.2d 788 (1976).

OPINIONS OF THE ATTORNEY GENERAL

Payment of travel expenses authorized.

- Inasmuch as the creation of an advisory council was within the scope of Ga. L. 1937, p. 355 (see O.C.G.A. §§ 49-2-1 and49-2-7), it follows that the payment of the out-of-pocket travel expenses to enable the council to function efficiently and thus assist in the accomplishment of the department's express statutory duties as set forth in Ga. L. 1937, p. 355 (see O.C.G.A. §§ 49-2-6 and49-5-7 through former49-5-11), must also be an implied power, such disbursement being incidental to and reasonably necessary to the accomplishment of the department's purpose, duties, and responsibilities. 1963-65 Op. Att'y Gen. p. 320.

Voluntarily donated county funds.

- Department may accept public funds donated voluntarily by counties for the provision of day-care and other social services to welfare applicants and other authorized recipients. 1972 Op. Att'y Gen. No. 72-12.

Contracts with private institutions for services for mentally retarded children.

- Department may contract with a private institution for the purpose of providing day care and other specialized services for mentally retarded children, assign responsibility for the supervision of this contract, and use funds allocated from the Governor's Emergency Fund for these purposes, provided that they do not create a continuing obligation for the state. 1970 Op. Att'y Gen. No. 70-96.

Collection of child support recovery unit payments.

- Department of Human Resources is authorized to delegate to an appropriate agency the power to collect child support recovery unit payments from the responsible parent. 1982 Op. Att'y Gen. No. 82-99.

Department of Offender Rehabilitation may not enter into an arrangement with the Department of Human Resources in which employees of local probation offices, other than probation supervisors, may collect child support recovery unit money which arises from civil proceedings brought by the Department of Human Resources on behalf of errant fathers. 1982 Op. Att'y Gen. No. 82-99.

Heating Energy Assistance Team funds.

- Department of Human Resources may lawfully accept and distribute Heating Energy Assistance Team (HEAT) program funds. In doing so, paragraph (b)(9) (now paragraph (b)(8)) of O.C.G.A. § 49-2-6 is sufficient authority for the department to enter into an acceptance agreement or similar document assuring the donors of the intention to use the funds in the manner contemplated by the HEAT program. 1983 Op. Att'y Gen. No. 83-8.

Department of Human Resources may utilize the local departments of family and children services to distribute Heating Energy Assistance Team (HEAT) funds to needy persons as contemplated by the HEAT program. 1983 Op. Att'y Gen. No. 83-8.

Acceptance of federal funds preparing students for public assistance employment.

- Department is authorized to accept federal grants and to administer the grants for the purpose of making funds available to the department for matching federal funds for the purpose of making a direct grant from the department to the school for making direct grants to students wishing to prepare for employment in public assistance. 1971 Op. Att'y Gen. No. 71-147.

Contracts or cooperation with Board of Regents authorized.

- Department is authorized by law to contract or cooperate with the Board of Regents by accepting funds to be used for the purpose of making funds available to the department for matching federal funds for making a direct grant from the department to the school for making direct grants to students wishing to prepare for employment in public assistance. 1971 Op. Att'y Gen. No. 71-147.

Rules and regulations of department excluded from filing requirements.

- Rules and regulations promulgated by the Department of Human Resources in connection with the department's operation and administration of public assistance programs are expressly excluded from the general filing requirement of the Georgia Administrative Procedure Act, Ga. L. 1964, p. 338, § 1 et seq. (see O.C.G.A. §§ 50-13-1 through50-13-22). 1965-66 Op. Att'y Gen. No. 65-8.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 10. 70A Am. Jur. 2d, Social Security and Medicare, § 19. 79 Am. Jur. 2d, Welfare Laws, § 77.

C.J.S.

- 64 C.J.S., Municipal Corporations, § 1271. 72 C.J.S., Prisons and Rights of Prisoners, § 17 et seq.

ALR.

- Judicial questions regarding Federal Social Security Act and state legislation adopted in anticipation of or after the passage of that act, to set up "state plan" contemplated by it, 100 A.L.R. 697; 106 A.L.R. 243; 108 A.L.R. 613; 109 A.L.R. 1346; 118 A.L.R. 1220; 121 A.L.R. 1002.

49-2-7. Functions, duties, and authority transferred to the department from other state agencies.

  1. The functions, duties, and authority of the Board of Public Welfare, established by Ga. L. 1919, p. 222, as amended, as transferred and vested in the Board of Control of Eleemosynary Institutions by Ga. L. 1931, p. 7, Section 44A, are vested in the Department of Human Services.
  2. The functions, duties, and authority of the Department of Family and Children Services, created in Ga. L. 1937, p. 355, as amended, are vested in the Department of Human Services.
  3. The functions of the State Board for Children and Youth, created in Ga. L. 1963, p. 81, except for the policy-making functions transferred to the Board of Human Resources, are vested in the Department of Human Services.
  4. The functions, duties, and authority of the State Commission on Aging, created in Ga. L. 1962, p. 602, except the policy-making functions transferred to the Board of Human Services, are vested in the Department of Human Services.

(Ga. L. 1972, p. 1015, §§ 15, 1203, 1204, 1212, 1213; Ga. L. 1978, p. 239, § 1; Ga. L. 2000, p. 1137, § 11; Ga. L. 2009, p. 453, § 2-1/HB 228.)

OPINIONS OF THE ATTORNEY GENERAL

Position of director, office of aging, may be placed in classified service of merit system only by act of General Assembly. 1974 Op. Att'y Gen. No. 74-32.

49-2-8. Approval of physicians employed by department.

Reserved. Repealed by Ga. L. 2009, p. 453, § 2-1/HB 228, effective July 1, 2009.

Editor's notes.

- This Code section was based on Ga. L. 1972, p. 1069, § 7.

49-2-9. Powers of department in administering and disbursing funds.

In administering any funds appropriated or made available to the department for welfare purposes, the department shall have the power:

  1. To make use of all local processes to enforce the minimum standards prescribed under or pursuant to the laws providing for grants-in-aid; and
  2. To administer and disburse any and all funds which may be allocated by any municipality of the state or private organization or society for such purposes as may be designated by such municipality or other agency. The department may use a reasonable percentage of such funds for administrative costs, not to exceed 10 percent of the total sum administered.

(Ga. L. 1937, p. 355, § 8; Ga. L. 2009, p. 453, § 2-1/HB 228.)

OPINIONS OF THE ATTORNEY GENERAL

Heating Energy Assistance Team funds.

- Department of Human Resources may utilize the local departments of family and children services to distribute Heating Energy Assistance Team (HEAT) funds to needy persons as contemplated by the HEAT program. 1983 Op. Att'y Gen. No. 83-8.

RESEARCH REFERENCES

C.J.S.

- 64A C.J.S., Municipal Corporations, § 2095.

49-2-10. State appropriations; state, county, and federal welfare funds are for public purpose.

For the purpose of carrying out the duties and obligations of the department for performance of welfare services of the state, for administrative costs, for matching such federal funds as may be available for all of the aforesaid services, for the purpose of establishing an equalization fund to be used in assisting those counties which may be unable otherwise to bear their proportionate share of the expenses of administration and of dispensing the benefits provided for under this title, and for dispensing all of the benefits provided for under this title, the General Assembly shall make appropriations out of the general fund of the state or otherwise for the various and separate activities of the department. All funds appropriated or allocated to the department or to the county departments by the General Assembly, the fiscal authorities of the respective counties, and by the federal government through its appropriate agencies and instrumentalities are declared to be funds provided for a public purpose; and all appropriations provided for in this Code section and hereafter may be expended and distributed by the department for the purposes provided for under this title.

(Ga. L. 1937, p. 355, § 16; Ga. L. 2009, p. 453, § 2-1/HB 228.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Funds, §§ 70, 72.

49-2-11. Acceptance and disbursement of federal aid; compliance with conditions; use of appropriations for matching funds.

  1. Notwithstanding any provision in this title to the contrary, particularly Articles 2, 3, and 5 of Chapter 4 of this title, nothing therein contained shall be construed to prevent the acceptance of more than 50 percent federal matching funds. The department may accept and disburse the maximum percentage of federal grant-in-aid funds made available to this state by the federal government under any formula of variable grants or other formula for the granting of federal grants-in-aid.
  2. The department is authorized to comply with the requirements prescribed by Congress as conditions to federal grants.
  3. To the end of empowering the department to comply with federal requirements and to effectuate the purposes of grant-in-aid welfare programs, the board is authorized to promulgate all necessary rules and regulations and the department is authorized to do all things necessary and proper for the securing of the maximum amount of such federal grants.
  4. In the event that Congress appropriates funds for grants-in-aid to the state governments for the purpose of assisting them in the operation of general assistance programs, medical assistance programs, or any other welfare programs, the department is authorized to cooperate with the federal government in such programs, to accept funds from the federal government in the maximum amounts made available, to disburse them, and to comply with all requirements of the federal government necessary for the securing of such grant-in-aid funds.
  5. Any state funds which are made available by appropriation to the department for matching federal funds shall be available to supply the state portion of expenditures for general assistance programs, medical assistance programs, or any other type welfare programs provided for by the federal government which benefit the citizens or residents of this state.
  6. Notwithstanding subsections (a) through (e) of this Code section, the Department of Community Health shall be the single state agency for the administration of the state medical assistance plan.

(Ga. L. 1945, p. 196, §§ 1-5; Ga. L. 1961, p. 222, §§ 1, 2; Ga. L. 1977, p. 384, § 1; Ga. L. 1999, p. 296, § 24; Ga. L. 2009, p. 453, § 2-1/HB 228.)

OPINIONS OF THE ATTORNEY GENERAL

Federal funds matched under formulas provided by federal and state regulations.

- Department may accept and disburse federal funds and match the federal funds under such formulas as may be provided by the federal government and adopted by the state rules and regulations to the maximum amount provided by federal statute. 1945-47 Op. Att'y Gen. p. 649.

Federal funds to assist students preparing for employment in public assistance.

- Department is authorized to accept federal grants and to administer the grants for the purpose of making funds available to the department for matching federal funds for making a direct grant from the department to the school for making direct grants to students wishing to prepare for employment in public assistance. 1971 Op. Att'y Gen. No. 71-147.

Department employee may not contract to sell to the state any services when that sale would benefit, or be likely to benefit, the employee. 1970 Op. Att'y Gen. No. U70-236.

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, § 10.

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, § 207.

49-2-12. Development and revision of transportation plan for programs of department.

  1. All divisions and sections within the department shall make an inventory of all the various vehicles to which the department holds title and shall investigate their utilization patterns in order to establish and develop a consolidated and coordinated transportation plan for the various human services programs of the department, including, but not limited to, those programs relating to the aged and to the mentally and physically disabled.
  2. Other departments and agencies of the state shall cooperate with the Department of Human Services in mutually beneficial agreements regarding the establishment and development of a coordinated transportation plan involving various vehicles to which the state has title.
  3. The plan required to be developed under this Code section shall identify the fully allocated costs of the transportation component of their services and take into consideration various limitations on the expenditure of federal funds which may arise in any consolidated or coordinated transportation system. No later than June 30, 1980, a preliminary transportation plan shall be submitted by the department to the Human Relations and Aging Committee of the House of Representatives and the Education and Youth Committee of the Senate, which plan shall be revised and submitted to such committees every two years thereafter.

(Ga. L. 1980, p. 1008, § 1; Ga. L. 1992, p. 6, § 49; Ga. L. 1995, p. 1302, § 14; Ga. L. 2009, p. 453, § 2-1/HB 228.)

49-2-13. Identifying transportation needs of the elderly and persons with disabilities and alternatives to meet needs.

All divisions and sections within the department, in cooperation with the Department of Transportation, shall identify those areas of the state where the general transportation needs of the elderly and persons with disabilities are not and cannot be adequately served by bus service and community service centers furnishing transportation. In further cooperation with the Department of Transportation, the department shall identify alternatives for meeting the transportation needs of these persons and shall report to the committees specified in subsection (c) of Code Section 49-2-12 as required therein. Such alternative means to be considered for providing for the transportation needs of these persons should include, but shall not be limited to:

  1. Contract service resulting from competitive bidding by private sector bus operators operating under Article 1 of Chapter 7 of Title 46;
  2. Contract service resulting from competitive bidding by taxi operators;
  3. Negotiated fee basis with municipal and area-wide transportation systems serving the general public; or
  4. Any combination of paragraphs (1) through (3) of this Code section.

(Ga. L. 1980, p. 1008, § 2; Ga. L. 1995, p. 1302, § 16; Ga. L. 2009, p. 8, § 49/SB 46; Ga. L. 2009, p. 453, § 2-1/HB 228.)

49-2-13.1. Financial assistance for transportation services for the elderly and persons with disabilities.

  1. The department may, when funds are available from the United States government for such purposes, provide financial assistance with such funds, or such funds and state general funds appropriated for these purposes, to private nonprofit corporations and associations for the specific purpose of assisting them in providing transportation services meeting the special needs of the elderly or persons with disabilities, or both, for whom the department determines that the mass transportation services planned, designed, and carried out by local public bodies, agencies, and authorities are unavailable, insufficient, or inappropriate. Such financial assistance shall be subject to those terms, conditions, requirements, and restrictions as the department determines to be necessary or appropriate in order to carry out the purposes of this Code section.
  2. In order to effectuate and enforce this Code section, the department is authorized to promulgate necessary rules and regulations and to prescribe conditions and procedures in order to assure compliance in carrying out the purposes of this Code section.

(Code 1981, §49-2-13.1, enacted by Ga. L. 1990, p. 915, § 3; Ga. L. 1995, p. 1302, § 16; Ga. L. 1996, p. 6, § 49; Ga. L. 2009, p. 453, § 2-1/HB 228.)

49-2-14. Record search for conviction data on prospective employees.

  1. As used in this Code section, the term "conviction data" means 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.
  2. The department may receive from any law enforcement agency conviction data that is relevant to a person whom the department, its contractors, or a district or county health agency is considering as a final selectee for employment in a position the duties of which involve direct care, treatment, custodial responsibilities, or any combination thereof for its clients. The department may also receive conviction data which is relevant to a person whom the department, its contractors, or a district or county health agency is considering as a final selectee for employment in a position if, in the judgment of the employer, a final employment decision regarding the selectee can only be made by a review of conviction data in relation to the particular duties of the position and the security and safety of clients, the general public, or other employees. Further, the department or any licensed child-placing agency, designated by the department to assist it in preparing studies of homes in which children in its custody may be placed, may receive from any law enforcement agency conviction data that is relevant to any adult person who resides in a home where children in the custody of the department may be placed.
  3. The department shall establish a uniform method of obtaining conviction data under subsection (a) of this Code section which shall be applicable to the department and its contractors. Such uniform method shall require the submission to the Georgia Crime Information Center of fingerprints and the records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. After receiving the fingerprints and fee, the Georgia Crime Information Center shall notify the department in writing of any derogatory finding, including, but not limited to, any conviction data regarding the fingerprint records check or if there is no such finding.
  4. All conviction data received shall be for the exclusive purpose of making employment decisions or decisions concerning children in the custody of the department or who are the subjects of a child protective services referral, complaint, or investigation and shall be privileged and shall not be released or otherwise disclosed to any other person or agency. Immediately following the employment decisions or upon receipt of the conviction data concerning any adult person who has contact with a child who is the subject of a child protective services referral, complaint, or investigation or who resides in a home where children in the custody of the department may be placed, all such conviction data collected by the department or the licensed child-placing agency shall be maintained by the department or child-placing agency pursuant to laws regarding and the rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable. Penalties for the unauthorized release or disclosure of any conviction data shall be as prescribed pursuant to laws regarding and rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable.
  5. Notwithstanding subsection (c) of this Code section, when a contractor to this department is a personal care home, Article 14 of Chapter 7 of Title 31 shall apply.
  6. The department may promulgate written rules and regulations to implement the provisions of this Code section.
  7. The department may receive from any law enforcement agency criminal history information, including arrest and conviction data, and any and all other information which it may be provided pursuant to state or federal law which is relevant to any adult person who resides in a home where children in the custody of the department have been or may be placed or which is relevant to any adult person who resides in the home of or provides care to a child who is the subject of a child protective services referral, complaint, or investigation to the fullest extent permissible by federal and state law, including but not limited to Public Law 92-544. The department shall establish a uniform method of obtaining criminal history information under this subsection. Such method shall require the submission to the Georgia Crime Information Center of fingerprints together with any required records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit the fingerprints submitted by the department to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. Such method shall also permit the submission of the names alone of such adult persons to the proper law enforcement agency when the department is considering placement of a child in exigent circumstances for a name based check of such adult person's criminal history information as maintained by the Georgia Crime Information Center and the Federal Bureau of Investigation. In such exigent circumstances, the department shall submit fingerprints of those adult persons in the placement home, together with any required records search fee, to the Federal Bureau of Investigation within 15 calendar days of the date of the name based check on that person. The fingerprints shall be forwarded to the Federal Bureau of Investigation through the Georgia Crime Information Center in accordance with Code Section 35-3-35. Following the submission of such fingerprints, the department may receive the criminal history information, including arrest and conviction data, relevant to such person. In the event that a child has been placed in exigent circumstances, a name based records search has been requested for any adult person of the placement household, and that adult refuses to provide fingerprints after being requested to do so by the department, the child shall be immediately removed from the placement household by the department, provided that the child is in the custody of the department.
  8. The department shall be authorized to conduct a name or descriptor based check of any adult person's criminal history information, including arrest and conviction data, and other information from the Georgia Crime Information Center regarding any adult person who resides in a home where children in the custody of the department have been or may be placed or which is relevant to any adult person who resides in the home of or provides care to a child who is the subject of a child protective services referral, complaint, or investigation without the consent of such adult person and without fingerprint comparison to the fullest extent permissible by federal and state law.
  9. If the department is participating in the program described in subparagraph (a)(1)(F) of Code Section 35-3-33, the Georgia Bureau of Investigation and the Federal Bureau of Investigation shall be authorized to retain fingerprints obtained pursuant to this Code section for such program and the department shall notify the individual whose fingerprints were taken of the parameters of such retention.

(Code 1981, §49-2-14, enacted by Ga. L. 1986, p. 1225, § 1; Ga. L. 1999, p. 574, § 2; Ga. L. 2002, p. 942, § 9; Ga. L. 2003, p. 495, § 1; Ga. L. 2005, p. 789, §§ 1, 2/HB 180; Ga. L. 2006, p. 72, § 49/SB 465; Ga. L. 2009, p. 453, § 2-1/HB 228; Ga. L. 2018, p. 507, § 2-12/SB 336; Ga. L. 2018, p. 611, § 2-1/SB 406.)

The 2018 amendments. The first 2018 amendment, effective July 1, 2018, added subsection (i). The second 2018 amendment, effective October 1, 2019, substituted the present provisions of subsection (e) for the former provisions, which read: "Notwithstanding the provisions of subsection (c) of this Code section, when a contractor to this department is a personal care home, the provisions of Code Sections 31-7-250 through 31-7-264 shall apply."

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 119 (2018). For note on 1999 amendment to this Code section, see 16 Ga. St. U. L. Rev. 227 (1999).

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, § 71 et seq.

C.J.S.

- 67 C.J.S., Officers and Public Employees, § 28 et seq.

49-2-14.1. Records check requirement for licensing certain facilities.

  1. As used in this Code section, the term:
    1. "Conviction" means a finding or verdict of guilty or a plea of guilty regardless of whether an appeal of the conviction has been sought.
    2. "Crime" means commission of the following offenses:
      1. A violation of Code Section 16-5-1;
      2. A violation of Code Section 16-5-21, relating to aggravated assault;
      3. A violation of Code Section 16-5-24, relating to aggravated battery;
      4. A violation of Code Section 16-5-70, relating to cruelty to children;
      5. A violation of Article 8 of Chapter 5 of Title 16;
      6. A violation of Code Section 16-6-1, relating to rape;
      7. A violation of Code Section 16-6-2, relating to aggravated sodomy;
      8. A violation of Code Section 16-6-4, relating to child molestation;
      9. A violation of Code Section 16-6-5, relating to enticing a child for indecent purposes;
      10. A violation of Code Section 16-6-5.1, relating to improper sexual contact by employee or agent;
      11. A violation of Code Section 16-6-22.2, relating to aggravated sexual battery;
      12. A violation of Code Section 16-8-41; or
      13. Any other offense committed in another jurisdiction that, if committed in this state, would be deemed to be a crime listed in this paragraph without regard to its designation elsewhere.
    3. "Criminal record" means any of the following:
      1. Conviction of a crime;
      2. Arrest, charge, and sentencing for a crime where:
        1. A plea of nolo contendere was entered to the charge;
        2. First offender treatment without adjudication of guilt pursuant to the charge was granted; or
        3. Adjudication or sentence was otherwise withheld or not entered on the charge; or
      3. 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.
    4. "Facility" means a child welfare agency required to be licensed under Code Section 49-5-12.
    5. "GCIC" means the Georgia Crime Information Center established under Article 2 of Chapter 3 of Title 35.
    6. "GCIC information" means criminal history record information as defined in Code Section 35-3-30.
    7. "License" means the document issued by the department to authorize the facility to operate.
    8. "Owner" means any individual or any person affiliated with a corporation, partnership, or association with 10 percent or greater ownership interest in a facility providing care to persons under the license of the facility in this state and who:
      1. Purports to or exercises authority of the owner in a facility;
      2. Applies to operate or operates a facility;
      3. Maintains an office on the premises of a facility;
      4. Resides at a facility;
      5. Has direct access to persons receiving care at a facility;
      6. Provides direct personal supervision of facility personnel by being immediately available to provide assistance and direction during the time such facility services are being provided; or
      7. Enters into a contract to acquire ownership of a facility.
    9. "Records check application" means fingerprints in such form and of such quality as prescribed by the Georgia Crime Information Center under standards adopted by the Federal Bureau of Investigation and a records search fee to be established by the department by rule and regulation, payable in such form as the department may direct to cover the cost of obtaining criminal background information pursuant to this Code section.
  2. An owner with a criminal record shall not operate or hold a license to operate a facility, and the department shall revoke the license of any owner operating a facility or refuse to issue a license to any owner operating a facility if it determines that such owner has a criminal record; provided, however, that an owner who holds a license to operate a facility on or before June 30, 2007, shall not have his or her license revoked prior to a hearing being held before a hearing officer pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
    1. Prior to approving any license for a new facility and periodically as established by the department by rule and regulation, the department shall require an owner to submit a records check application. The department shall establish a uniform method of obtaining an owner's records check application.
      1. Unless the department contracts pursuant to subparagraph (B) of this paragraph, the department shall transmit to the GCIC the fingerprints and records search fee from each fingerprint records check application in accordance with Code Section 35-3-35. Upon receipt thereof, the GCIC shall promptly transmit the fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its records and records to which it has access. Within ten days after receiving fingerprints acceptable to the GCIC and the fee, the GCIC shall notify the department in writing of any criminal record 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 determination about an owner's criminal record and shall notify the owner in writing as to the department's determination as to whether the owner has or does not have a criminal record.
      2. The department may either perform criminal background checks under agreement with the GCIC or contract with the GCIC and appropriate law enforcement agencies which have access to GCIC and Federal Bureau of Investigation information to have those agencies perform for the department criminal background checks for owners. The department or the appropriate law enforcement agencies may charge reasonable fees for performing criminal background checks.
      1. The department's determination regarding an owner's criminal record, or any action by the department revoking or refusing to grant a license based on 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.
      2. In a hearing held pursuant to subparagraph (A) of this paragraph or subsection (b) of this Code section, the hearing 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 in arriving at a decision as to whether the criminal record requires the denial or revocation of the license to operate the facility. Where a hearing is required, at least 30 days prior to such hearing, the hearing officer shall notify the office of the prosecuting attorney who initiated the prosecution of the crime 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 as contemplated within this Code section. If objections are made, the hearing officer shall take such objections into consideration in considering the case.
    2. The GCIC, the department, any law enforcement agency, and the employees of any such entities shall not 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 Code section.
  3. All information received from the Federal Bureau of Investigation or the GCIC shall be for the exclusive purpose of approving or denying the granting of a license to a new facility or the revision of a license of an existing facility when a new owner is proposed and shall not be released or otherwise disclosed to any other person or agency. All such information collected by the department shall be maintained by the department pursuant to laws regarding and the rules or regulations of the Federal Bureau of Investigation and the GCIC, as is applicable. Penalties for the unauthorized release or disclosure of any such information shall be as prescribed pursuant to laws regarding and rules or regulations of the Federal Bureau of Investigation and the GCIC, as is applicable.
  4. The requirements of this Code section are supplemental to any requirements for a license imposed by Article 3 of Chapter 5 of this title or Article 14 of Chapter 7 of Title 31.
  5. The department shall promulgate written rules and regulations to implement the provisions of this Code section.
  6. If the department is participating in the program described in subparagraph (a)(1)(F) of Code Section 35-3-33, the Georgia Bureau of Investigation and the Federal Bureau of Investigation shall be authorized to retain fingerprints obtained pursuant to this Code section for such program and the department shall notify the individual whose fingerprints were taken of the parameters of such retention.

(Code 1981, §49-2-14.1, enacted by Ga. L. 2007, p. 305, § 1/HB 155; Ga. L. 2008, p. 1145, § 3/HB 984; Ga. L. 2009, p. 453, § 2-1/HB 228; Ga. L. 2013, p. 524, § 3-8/HB 78; Ga. L. 2014, p. 444, § 2-13/HB 271; Ga. L. 2018, p. 507, § 2-13/SB 336; Ga. L. 2018, p. 611, § 2-2/SB 406; Ga. L. 2019, p. 912, § 8/SB 9.)

The 2013 amendment, effective July 1, 2013, substituted "Article 8 of Chapter 5 of Title 16" for "Code Section 16-5-100, relating to cruelty to a person 65 years of age or older" at the end of subparagraph (a)(2)(E); substituted "or" for ", relating to armed robbery" at the end of subparagraph (a)(2)(L); deleted subparagraph (a)(2)(M), which read: "A violation of Code Section 30-5-8, relating to abuse, neglect, or exploitation of a disabled adult or elder person; or"; and redesignated former subparagraph (a)(2)(N) as present subparagraph (a)(2)(M).

The 2014 amendment, effective July 1, 2014, deleted ", relating to murder and felony murder" following "Code Section 16-5-1" at the end of subparagraph (a)(2)(A).

The 2018 amendments. The first 2018 amendment, effective July 1, 2018, added subsection (g). The second 2018 amendment, effective October 1, 2019, substituted "Article 14" for "Article 11" near the end of subsection (e).

The 2019 amendment, effective July 1, 2019, and continued, effective October 1, 2019, rewrote subparagraph (a)(2)(J), which read: "A violation of Code Section 16-6-5.1, relating to sexual assault against persons in custody, detained persons, or patients in hospitals or other institutions;".

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2007, "to" was inserted preceding "this Code section" in paragraph (a)(9).

Administrative Rules and Regulations.

- Criminal Justice Information Exchange and Dissemination, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Crime Information Council, Practice and Procedure, Chapter 290-5-35.

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 119 (2018).

49-2-15. Service of notice against department.

When any action is brought against the Department of Human Services, the Board of Human Services, the commissioner of human services, or any employee or agent thereof or when any action is brought in which the department could be held responsible for damages awarded in such action, it shall be the duty of the plaintiff to provide for service of notice of the pendency of such action by providing for service of a second original process, issued from the court in which the action is filed, upon the commissioner of human services personally or upon a person designated by the commissioner in writing to serve as agent for the acceptance of such service of process. The service of process in such action shall not be perfected until such second original process has been served as provided in this Code section. The provisions of this Code section shall be cumulative of any other requirements imposed by law for the service of process or notice.

(Code 1981, §49-2-15, enacted by Ga. L. 1989, p. 497, § 1; Ga. L. 2009, p. 453, § 2-1/HB 228.)

Editor's notes.

- Ga. L. 1989, p. 497, § 2, not codified by the General Assembly, provided that the amendment to this Code section by the Act shall apply to all actions filed on or after July 1, 1989.

JUDICIAL DECISIONS

No application to review of decision on placing person on child abuse registry.

- Alleged child abuser properly served the Department of Human Services with a petition for judicial review of a decision to place the alleged abuser on the child abuse registry, O.C.G.A. Ý 49-5-183, by serving the attorneys who had represented the department before the administrative law judge; the alleged abuser was not required to serve the commissioner of the department. O.C.G.A. Ý 49-2-15, requiring service on the commissioner by second original process in actions against the department, did not apply. Schuman v. Dep't of Human Servs., 354 Ga. App. 509, 841 S.E.2d 218 (2020).

49-2-16. Council for Welfare Administration.

Reserved. Repealed by Ga. L. 2015, p. 552, § 12/SB 138, effective July 1, 2015.

Editor's notes.

- This Code section was based on Code 1981, § 49-2-16, enacted by Ga. L. 1996, p. 1423, § 1; Ga. L. 2009, p. 453, § 2-1/HB 228.

49-2-17. Disciplinary actions against licensees or license applicants for certain violations.

  1. This Code section shall be applicable to any agency, facility, institution, or entity subject to regulation by the department under Chapter 5 of this title. For purposes of this Code section, the term "license" shall be used to refer to any license, permit, registration, or commission issued by the department pursuant to the provisions of the law cited in this subsection.
  2. The department shall have the authority to take any of the actions enumerated in subsection (c) of this Code section upon a finding that the applicant or licensee has:
    1. Knowingly made any false statement of material information in connection with the application for a license, or in statements made or on documents submitted to the department as part of an inspection, survey, or investigation, or in the alteration or falsification of records maintained by the agency, facility, institution, or entity;
    2. Failed or refused to provide the department with access to the premises subject to regulation or information pertinent to the initial or continued licensing of the agency, facility, institution, or entity;
    3. Failed to comply with the licensing requirements of this state; or
    4. Failed to comply with any provision of this Code section.
  3. When the department finds that any applicant or licensee has violated any provision of subsection (b) of this Code section or laws, rules, regulations, or formal orders related to the initial or continued licensing of the agency, facility, institution, or entity, the department, subject to notice and opportunity for hearing, may take any of the following actions:
    1. Refuse to grant a license; provided, however, that the department may refuse to grant a license without holding a hearing prior to taking such action;
    2. Administer a public reprimand;
    3. Suspend any license for a definite period or for an indefinite period in connection with any condition which may be attached to the restoration of said license;
    4. Prohibit any applicant or licensee from allowing a person who previously was involved in the management or control, as defined by rule, of any agency, facility, institution, or entity which has had its license or application revoked or denied within the past 12 months to be involved in the management or control of such agency, facility, institution, or entity;
    5. Revoke any license;
    6. Impose a fine, not to exceed a total of $25,000.00, of up to $1,000.00 per day for each violation of a law, rule, regulation, or formal order related to the initial or ongoing licensing of any agency, facility, institution, or entity; or
    7. Limit or restrict any license as the department deems necessary for the protection of the public, including, but not limited to, restricting some or all services of or admissions into an agency, facility, institution, or entity for a time certain.

      In taking any of the actions enumerated in this subsection, the department shall consider the seriousness of the violation, including the circumstances, extent, and gravity of the prohibited acts, and the hazard or potential hazard created to the health or safety of the public.

  4. The department may deny a license or otherwise restrict a license for any applicant who has had a license denied, revoked, or suspended within one year of the date of an application or who has transferred ownership or governing authority of an agency, facility, institution, or entity subject to regulation by the department within one year of the date of a new application when such transfer was made in order to avert denial, revocation, or suspension of a license.
  5. With regard to any contested case instituted by the department pursuant to this Code section or other provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action, the department may, in its discretion, dispose of the action so instituted by settlement. In such cases, all parties, successors, and assigns to any settlement agreement shall be bound by the terms specified therein and violation thereof by any applicant or licensee shall constitute grounds for any action enumerated in subsection (c) of this Code section.
  6. The department shall have the authority to make public or private investigations or examinations inside or outside of this state to determine whether the provisions of this Code section or any other law, rule, regulation, or formal order relating to the licensing of any agency, facility, institution, or entity has been violated. Such investigations may be initiated at any time, in the discretion of the department, and may continue during the pendency of any action initiated by the department pursuant to subsection (c) of this Code section.
  7. For the purpose of conducting any investigation, inspection, or survey, the department shall have the authority to require the production of any books, records, papers, or other information related to the initial or continued licensing of any agency, facility, institution, or entity.
  8. Pursuant to the investigation, inspection, and enforcement powers given to the department by this Code section and other applicable laws, the department may assess against an agency, facility, institution, or entity reasonable and necessary expenses incurred by the department pursuant to any administrative or legal action required by the failure of the agency, facility, institution, or entity to fully comply with the provisions of any law, rule, regulation, or formal order related to the initial or continued licensing. Assessments shall not include attorney's fees and expenses of litigation, shall not exceed other actual expenses, and shall only be assessed if such investigations, inspection, or enforcement actions result in adverse findings, as finally determined by the department, pursuant to administrative or legal action.
  9. For any action taken or any proceeding held under this Code section or under color of law, except for gross negligence or willful or wanton misconduct, the department, when acting in its official capacity, shall be immune from liability and suit to the same extent that any judge of any court of general jurisdiction in this state would be immune.
  10. In an administrative or legal proceeding under this Code section, a person or entity claiming an exemption or an exception granted by law, rule, regulation, or formal order has the burden of proving this exemption or exception.
  11. This Code section and all actions resulting from its provisions shall be administered in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  12. The provisions of this Code section shall be supplemental to and shall not operate to prohibit the department from acting pursuant to those provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action for the department. In cases where those other provisions of law so authorize other disciplinary grounds and actions, but this Code section limits such grounds or actions, those other provisions shall apply.
  13. The department is authorized to promulgate rules and regulations to implement the provisions of this Code section.

(Code 1981, §49-2-17, enacted by Ga. L. 2009, p. 453, § 2-1/HB 228.)

49-2-18. Director of Division of Family and Children Services; appointment; qualifications.

  1. The Governor shall appoint the director of the Division of Family and Children Services of the department who shall serve at the pleasure of the Governor. The director shall be an employee of the department but shall report directly to the Governor.
  2. The director shall have a college degree and at least one of the following qualifications:
    1. Educational background or managerial experience involving work with vulnerable populations;
    2. Work experience in a setting dealing with the safety or well-being of children or other vulnerable populations; or
    3. Experience working in or managing a complex, multidisciplinary business or government agency.

(Code 1981, §49-2-18, enacted by Ga. L. 2015, p. 552, § 1/SB 138.)

Effective date.

- This Code section became effective July 1, 2015.

49-2-19. DFCS State Advisory Board; membership; duties; officers and committees.

  1. There is established the DFCS State Advisory Board which shall consist of 20 members appointed by the Governor as follows:
    1. One representative from each of the 15 DFCS regions; and
    2. Five members who are either state legislators or representatives from the fields of:
      1. Child welfare;
      2. Former youth in foster care;
      3. Public health or behavioral health and developmental disabilities;
      4. Private child welfare care provider; or
      5. Juvenile justice.
  2. The advisory board shall review and make recommendations to the director of the Division of Family and Children Services of the department regarding issues relating to the protection of children and the welfare and public assistance functions of the division. Such review and recommendations shall include, but not be limited to, the following:
    1. Examination of current law, rules and regulations, and policy and recommendations to improve the ability of the division to increase the safety of children, respond to child maltreatment, and ensure the well-being of and timely permanency for children who are referred to and involved in the child welfare system;
    2. Propose legislative or administrative changes to policies and programs that are integral to the protection of children and the welfare and public assistance functions of the division;
    3. Examination of caseload assignments and ratios of child protective services workers and recommendations for reasonable expectations for such workers and supervision and support needed to perform their jobs; and
    4. Recommendations on improved collaboration among state, local, community, and public and private stakeholders in child welfare programs and services that are administered by the division.
  3. The advisory board shall elect a chairperson from among its membership. The advisory board may elect such other officers and establish committees as it considers appropriate.
  4. The advisory board shall meet at least quarterly and at such additional times as it shall determine necessary to perform its duties. The advisory board shall also meet on the call of the chairperson, the director of the Division of Family and Children Services of the department, or the Governor. The director of the Division of Family and Children Services of the department shall participate in such meetings and provide a quarterly report to the advisory board in advance of each quarterly meeting.
  5. Members shall serve without compensation, although each member of the advisory board shall be reimbursed for actual expenses incurred in the performance of his or her duties from funds available to the advisory board; provided, however, that any legislative member shall receive the allowances authorized by law for legislative members of interim legislative committees and any members who are state employees shall be reimbursed for expenses incurred by them in the same manner as they are reimbursed for expenses in their capacities as state employees.

(Code 1981, §49-2-19, enacted by Ga. L. 2015, p. 552, § 1/SB 138.)

Effective date.

- This Code section became effective July 1, 2015.

ARTICLE 2 INSPECTION WARRANTS FOR RESIDENTIAL CHILD CARE LICENSING

49-2-20. Definitions.

As used in this article, the term:

  1. "Inspection warrant" means a warrant authorizing a search or inspection of private property where such a search or inspection is one that is necessary for the enforcement of a residential child care licensing law.
  2. "Residential child care licensing law" means this chapter and Chapter 5 of this title and any rule or regulation duly promulgated thereunder.

(Code 1981, §49-2-20, enacted by Ga. L. 2009, p. 453, § 2-1/HB 228.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, "this article" was substituted for "this part" in the introductory language of this Code section.

49-2-21. Persons who may obtain inspection warrants; authorization of searches or inspections of property.

The commissioner or the commissioner's designee, in addition to other procedures now or hereafter provided, may obtain an inspection warrant under the conditions specified in this article. Such warrant shall authorize the commissioner or the commissioner's designee to conduct a search or inspection of property either with or without the consent of the person whose property is to be searched or inspected if such search or inspection is one that is elsewhere authorized under the rules and regulations duly promulgated pursuant to a residential child care licensing law.

(Code 1981, §49-2-21, enacted by Ga. L. 2009, p. 453, § 2-1/HB 228.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, "this article" was substituted for "this part" at the end of the first sentence in this Code section.

49-2-22. Procedure for issuance of inspection warrants.

  1. Inspection warrants shall be issued only by a judge of a court of record whose territorial jurisdiction encompasses the property to be inspected.
  2. The issuing judge shall issue the warrant when the judge is satisfied that the following conditions are met:
    1. The one seeking the warrant must establish under oath or affirmation that the property to be inspected is to be inspected as a part of a legally authorized program of inspection which includes that property or that there is probable cause for believing that there is a condition, object, activity, or circumstance which legally justifies such an inspection of that property; and
    2. The issuing judge determines that the issuance of the warrant is authorized by this article.

(Code 1981, §49-2-22, enacted by Ga. L. 2009, p. 453, § 2-1/HB 228.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, "this article" was substituted for "this part" at the end of paragraph (b)(2).

49-2-23. Requirements for validly issued inspection warrant; contents of warrant.

The inspection warrant shall be validly issued only if it meets the following requirements:

  1. The warrant is attached to the affidavit required to be made in order to obtain the warrant;
  2. The warrant describes either directly or by reference to the affidavit the property upon which the inspection is to occur and is sufficiently accurate that the executor of the warrant and the owner or possessor of the property can reasonably determine from it the property of which the warrant authorizes an inspection;
  3. The warrant indicates the conditions, objects, activities, or circumstances which the inspection is intended to check or reveal; and
  4. The warrant refers in general terms to the statutory or regulatory provisions sought to be enforced.

(Code 1981, §49-2-23, enacted by Ga. L. 2009, p. 453, § 2-1/HB 228.)

49-2-24. Evidence generated inadmissible in criminal proceedings.

No facts discovered or evidence obtained in an inspection conducted under authority of an inspection warrant issued pursuant to this article shall be competent as evidence in any criminal proceeding against any party.

(Code 1981, §49-2-24, enacted by Ga. L. 2009, p. 453, § 2-1/HB 228.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, "this article" was substituted for "this part" in this Code section.

49-2-25. Proceedings for injunction for purpose of enjoining violations of provisions of residential child care licensing law; injunction to abate public nuisance injurious to public health, safety, or comfort.

The Department of Human Services is empowered to institute appropriate proceedings for injunction in the courts of competent jurisdiction in this state for the purpose of enjoining a violation of any provision of a residential child care licensing law as now existing or as may be hereafter amended or of any regulation or order duly issued by the board or department. The department is also empowered to maintain action for injunction to abate any public nuisance which is injurious to the public health, safety, or comfort. Such actions may be maintained notwithstanding the fact that such violation also constitutes a crime and notwithstanding that other adequate remedies at law exist. Such actions may be instituted in the name of the department in the county in which a violation of any provision of this title occurs.

(Code 1981, §49-2-25, enacted by Ga. L. 2009, p. 453, § 2-1/HB 228.)

CHAPTER 3 COUNTY AND DISTRICT DEPARTMENTS, BOARDS, AND DIRECTORS OF FAMILY AND CHILDREN SERVICES

Cross references.

- Supervision and support of paupers by counties, T. 36, C. 12.

RESEARCH REFERENCES

ALR.

- Social worker malpractice, 58 A.L.R.4th 977.

49-3-1. Establishment of county and district departments, boards, and directors.

  1. There shall be in each county of the state a county department of family and children services, which shall consist of a county board of family and children services, a county director of family and children services, and such additional employees as may be necessary for the efficient performance of the welfare services of the county.
  2. With the approval of the Department of Human Services, two or more counties may, however, unite and form a district department of family and children services, in which case a county board shall be appointed for each county composing the district as provided in Code Section 49-3-2 and those boards, acting together, shall constitute the district board. All duties and responsibilities set forth in this title for county departments shall also apply to district departments. The district director and other executive staff of any district department shall be appointed by the Department of Human Services, provided that the department shall not appoint as district director any person whose appointment is not approved by a majority of the district board concerned in a meeting of such district board called for that purpose.

(Ga. L. 1937, p. 355, § 9; Ga. L. 1975, p. 1211, § 1; Ga. L. 2009, p. 453, § 2-2/HB 228.)

JUDICIAL DECISIONS

County departments were state rather than county offices for purposes of O.C.G.A. § 15-12-71 and, thus, as state offices, were not subject to a grand jury's power of inspection and investigation. Floyd County Grand Jury v. Department of Family & Children Servs., 218 Ga. App. 832, 463 S.E.2d 519 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Board member can hold over until successor appointed.

- Construing former Code 1933, § 89-105 and Ga. L. 1937, p. 355, §§ 9 and 10 (see O.C.G.A. §§ 45-2-4,49-3-1, and49-3-2) together, a county welfare board (now county board of family and children services) member whose term has expired can and should hold over and perform the duties of such office until the member's successor has been duly appointed and qualified. 1948-49 Op. Att'y Gen. p. 466.

49-3-2. Appointment of county board members; terms; vacancies; per diem and expenses; role of county board.

  1. Each county board shall consist of between five and seven members who shall be appointed by the governing authority of the county. No person serving as a member of a county board on July 1, 2015, shall have such person's term of office shortened by this subsection. On and after that date, however, vacancies in such office which occur for any reason, including but not limited to expiration of the term of office, shall be filled by appointment of the county governing authority except as provided in subsection (c) of this Code section. No elected officer of the state or any subdivision thereof shall be eligible for appointment to the county board. In making appointments to the county board of family and children services, the governing authority shall ensure that appointments are reflective of gender, race, ethnic, and age characteristics of the county population. Further, the governing authority shall ensure that all appointments made on or after July 1, 2015, are made from the following categories:
    1. Pediatric health care providers, active or retired;
    2. Appropriate school personnel, active or retired;
    3. Emergency responders, active or retired;
    4. Law enforcement personnel, active or retired;
    5. Private child welfare service providers, active or retired;
    6. Alumni of the child welfare system;
    7. Mental health care providers, active or retired;
    8. Former foster parents; and
    9. Leaders within the faith-based community, active or retired.
  2. The term of office of members of the county board shall be for five years and until the appointment and qualification of their respective successors.
  3. Appointments to fill vacancies on the county board caused by death, resignation, or removal before the expiration of a term shall be made for the remainder of such term in the same manner as provided in this Code section for original appointments. In the event that the governing authority of the county shall fail to fill any such vacancy or any vacancy caused by expiration of term on the county board within 90 days after such vacancy occurs, the commissioner may appoint members to the county board to fill such vacancies.
  4. Members of the county board shall serve without compensation, except that they shall be paid a per diem of not less than $15.00 per month and shall be reimbursed for traveling and other expenses actually incurred in the performance of their official duties; provided, however, that the gross expenses assessed against a county shall not exceed the amount of the budget of the county previously set aside and levied by the county authorities for such expenses.
  5. The role of the county board shall be to protect the well-being of this state's children while preserving family integrity. County boards may review the administration of all welfare and public assistance functions for the county, including such programs as Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), employment services, child protective services, foster care, and adoptions, and shall report no less than annually and not later than December 15 of each year to the director of the Division of Family and Children Services of the department the effectiveness of the county department's provision of services, the needs of the community, and its recommendations for improved operations of the county department. County boards shall serve as an active liaison and a link between the county department and the local community. County boards shall support the overall mission of the Division of Family and Children Services of the department.

(Ga. L. 1937, p. 355, § 10; Ga. L. 1963, p. 222, § 1; Ga. L. 1981, p. 960, § 1; Ga. L. 1988, p. 1354, § 1; Ga. L. 1994, p. 505, § 1; Ga. L. 2015, p. 552, § 2/SB 138; Ga. L. 2016, p. 376, § 1/HB 765; Ga. L. 2017, p. 774, § 49/HB 323.)

The 2015 amendment, effective July 1, 2015, rewrote this Code section.

The 2016 amendment, effective July 1, 2016, added ", active or retired" at the end of paragraphs (a)(1) through (a)(5), (a)(7), and (a)(9).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised capitalization throughout subsection (e).

JUDICIAL DECISIONS

Board action valid despite ineligibility of board member for appointment.

- While a justice of the peace is such an elective officer of the state as would render the justice ineligible under this section for appointment by the constituted fiscal or financial agents of a county as a member of the county board of public welfare (now county board of family and children services), yet, notwithstanding such ineligibility, if the justice is appointed as a member of the board and acts as such, the justice, while so acting, is a member of the board de facto, and the official acts of the board wherein the justice participates are valid, and cannot be collaterally attacked upon the ground that such person was incompetent to hold such office. Zorn v. Walker, 206 Ga. 181, 56 S.E.2d 511 (1949).

Cited in Employees Retirement Sys. v. Baughman, 241 Ga. 339, 245 S.E.2d 282 (1978).

OPINIONS OF THE ATTORNEY GENERAL

Commissioner has choice in selecting person for board.

- It was the intent of the legislature in stating that the Director of the State Department of Family and Children Services (now Commissioner of Human Resources) shall select for each position on a county board one of the three names submitted by the county commissioners so that the director may be given a choice. 1963-65 Op. Att'y Gen. p. 256.

Commissioner has right to reject names submitted and appoint members.

- Since it is the legislative intent of this section to provide the director (now commissioner) a choice, the director has the right to reject the names of the few qualified who are submitted and, of the director's own motion, make appointments to fill the vacancies existing on the county board. 1963-65 Op. Att'y Gen. p. 256.

Appointment of public assistance recipient creates conflict of interest.

- Public assistance recipient serving as member of county board of family and children services would have both opportunity and temptation to profit by his or her official duties. For this reason, a conflict of interest would arise in the event that a public assistance recipient is appointed to a county board of family and children services. 1981 Op. Att'y Gen. No. 81-32.

Board member can hold over until successor appointed.

- Construing former Code 1933, § 89-105 and Ga. L. 1937, p. 355, §§ 9 and 10 (see O.C.G.A. §§ 45-2-4,49-3-1, and49-3-2) together, a county welfare board (now county board of family and children services) member whose term has expired can and should hold over and perform the duties of such office until the member's successor has been duly appointed and qualified. 1948-49 Op. Att'y Gen. p. 466.

Section directory and not mandatory.

- Language contained in this section is directory and not mandatory and, therefore, the Director of the State Department of Family and Children Services (now Commissioner of Human Resources) may name members of a county board in the event that any county board is not named within a reasonable time as provided in that section. 1963-65 Op. Att'y Gen. p. 256.

County board member not disqualified as candidate for elective state office.

- This section prohibits any member of the county board from serving on that board while the member is an elected officer of the state or any subdivision thereof. A county board member would not be disqualified as a candidate for an elective state office, but the member would be disqualified to hold membership on the county board after election and qualification. 1957 Op. Att'y Gen. p. 34.

Members of the General Assembly are elected officers and would come within the provision of this section. 1948-49 Op. Att'y Gen. p. 723.

County boards and departments of family and children services.

- County boards and departments of family and children services are state instrumentalities and their employees are state employees. 1977 Op. Att'y Gen. No. U77-54.

49-3-3. Appointment of county director; bond of county director.

  1. Each county board of family and children services shall recommend to the commissioner of human services one or more names for appointment to the position of county director. The commissioner is designated as the appointing authority for the department and may accept or reject any such recommendation.
  2. The county director shall give bond for the faithful performance of his duties and the faithful accounting of all moneys coming into his hands as such county director, in such a manner and under such terms and conditions as may be prescribed by the Department of Human Services.

(Ga. L. 1937, p. 355, § 11; Ga. L. 1951, p. 282, § 1; Ga. L. 2000, p. 240, § 2; Ga. L. 2008, p. 345, § 1/HB 715; Ga. L. 2009, p. 453, §§ 2-2, 2-4/HB 228.)

JUDICIAL DECISIONS

Commissioner not required to ignore considerations of local concern.

- If the commissioner determines that the local concern and reaction to the selection of the recommended applicant, arising not from the applicant's race or other impermissible criteria but from the public's perception of the applicant's ability to render them impartial service, would proximately result in the diminution of effectiveness to run the department, and would result in an adverse public image for the county and state departments, the commissioner should not be required to ignore such considerations in the commissioner's capacity as appointing authority. Horne v. Skelton, 152 Ga. App. 654, 263 S.E.2d 528 (1979).

Authority to decline county board's recommendation.

- As the administrative officer with the express power to make the appointment, it follows by necessary implication that the commissioner has the authority to decline to follow the county board's recommendation. Horne v. Skelton, 152 Ga. App. 654, 263 S.E.2d 528 (1979).

Cited in Employees Retirement Sys. v. Baughman, 241 Ga. 339, 245 S.E.2d 282 (1978).

OPINIONS OF THE ATTORNEY GENERAL

County boards and departments of family and children services.

- County boards and departments of family and children services are state instrumentalities and their employees are state employees. 1977 Op. Att'y Gen. No. U77-54.

49-3-3.1. Annual report from county director of department of family and children services; personal appearance.

  1. The county director of the department of family and children services of each county shall provide an annual report no later than December 31 of each year, beginning in the year 2000, to the county board, county commission, and the director of the Division of Family and Children Services.The county director of the department of family and children services of each county shall notify each member of the General Assembly whose legislative district includes any part of that county of the availability of the annual report but shall not be required to distribute copies of the annual report to the members. The report shall include the following information for the 12 month period ending June 30 of that year:
    1. The number of children for whom the county department has received a complaint of child abuse pursuant to Code Section 19-7-5;
    2. General demographic data such as gender, race, and age regarding children specified in paragraph (1) of this subsection;
    3. The number of children taken into county department custody;
    4. The number of placements of children in county department custody by the type of placement;
    5. The length of time in county department custody by the number of children; and
    6. Any other information required by the director of the Division of Family and Children Services.
  2. A majority of the legislative delegation whose members are required to receive notification pursuant to subsection (a) of this Code section shall be authorized to require the director of the department of family and children services of the county which provided that report to appear before that delegation and to answer questions regarding that report and other matters relating to issues of child abuse and child protective services.

(Code 1981, §49-3-3.1, enacted by Ga. L. 2000, p. 240, § 3; Ga. L. 2005, p. 1036, § 38/SB 49.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2000, "subsection" was substituted for "Code section" at the end of paragraph (a)(2).

49-3-4. Appointment of staff; salaries; power of commissioner to transfer employees.

  1. The county department staff necessary to administer welfare activities within the county shall be appointed pursuant to the rules and regulations of the Department of Human Services and the State Personnel Board and subject to the approval of the commissioner of human services. Staff appointments shall meet the qualifications prescribed by the department.
  2. The salaries of the members of the staff shall be fixed by the county director in conformity with the salary schedule prescribed by the Department of Human Services.
  3. The commissioner shall have power to transfer from one county to another or from one district to another any employee of a county department.

(Ga. L. 1937, p. 355, §§ 12, 14; Ga. L. 1951, p. 282, § 1; Ga. L. 1963, p. 222, § 2; Ga. L. 2000, p. 240, § 4; Ga. L. 2009, p. 453, §§ 2-2, 2-4/HB 228; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-95/HB 642.)

The 2012 amendment, effective July 1, 2012, substituted "State Personnel Board" for "State Personnel Administration" in the first sentence of subsection (a).

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

JUDICIAL DECISIONS

No authority of board, superior court, or appellate court to compel promotions.

- Neither the Board of Human Resources, the superior court, nor the appellate court has the authority to compel a promotion when the appointing authority has, within the bounds of the authority's permissible discretions, declined to do so. Horne v. Skelton, 152 Ga. App. 654, 263 S.E.2d 528 (1979).

County not "employer" for federal civil rights purposes.

- Position of mental health center service coordinator at a county health department is created by the State of Georgia and is governed by the Georgia State Merit System of Personnel Administration for the Georgia Department of Human Resources with respect to the terms and conditions of employment including hiring, termination, promotion, demotion, and wage rates. A fortiori, the county is not an "employer" within the meaning of Title VII (42 U.S.C. § 2000e et seq.) of the federal Civil Rights Act of 1964. Lewis v. DeKalb County, 569 F. Supp. 11 (N.D. Ga. 1983).

Cited in Employees Retirement Sys. v. Baughman, 241 Ga. 339, 245 S.E.2d 282 (1978).

OPINIONS OF THE ATTORNEY GENERAL

County boards and departments of family and children services are state instrumentalities and their employees are state employees. 1977 Op. Att'y Gen. No. U77-54.

49-3-5. Powers and duties of county director.

The county director shall be the executive and administrative officer of the county department, shall be responsible for operations and personnel, and shall serve as the secretary of the county board. He shall prepare and submit to the county board for its approval an annual budget of all funds necessary for the county department. He shall prepare annually a full report of the operations and administration of the county department.

(Ga. L. 1937, p. 355, § 12; Ga. L. 1963, p. 222, § 2; Ga. L. 1976, p. 685, § 2.)

49-3-6. Functions of county department.

  1. The primary purpose of county departments shall be to protect children. To achieve this primary purpose, the county departments shall, in accordance with rules and regulations of the Division of Family and Children Services of the department:
    1. Investigate reports of abuse or neglect;
    2. Assess, promote, and support the safety of a child in a safe and stable family or other appropriate placement in response to allegations of abuse or neglect;
    3. Work cooperatively with law enforcement regarding reports that include criminal conduct allegations;
    4. In collaboration with the family treatment court division planning group, if one exists, establish a written protocol to assess cases involving substantiated reports of abuse or neglect for possible referral to a family treatment court division. Such protocol shall be consistent with the Council of Accountability Courts of Georgia's certification requirements and include sufficient criteria to determine the need for substance abuse treatment; and
    5. Without compromising child safety, coordinate services to achieve and maintain permanency on behalf of the child, strengthen the family, and provide prevention, intervention, and treatment services pursuant to this title.
  2. In addition to the purpose in subsection (a) of this Code section, and subject to the rules and regulations of the Board of Human Services, the county department shall be charged with the administration of all forms of public assistance in the county, including home relief; indoor and outdoor care for those in need; temporary assistance for needy families; old-age assistance; aid to the blind and otherwise disabled; the care and treatment of dependent and neglected children; and such other welfare activities as shall be delegated to it by the Division of Family and Children Services of the department or by the county commissioners.

(Ga. L. 1937, p. 355, § 13; Ga. L. 1995, p. 1302, § 14; Ga. L. 1997, p. 1021, § 7; Ga. L. 2009, p. 453, §§ 2-2, 2-3/HB 228; Ga. L. 2015, p. 422, § 5-100/HB 310; Ga. L. 2015, p. 552, § 3/SB 138; Ga. L. 2017, p. 585, § 1-5/SB 174.)

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, inserted "juvenile" preceding "probation officer" in the last sentence of the previously existing provisions of this Code section. The second 2015 amendment, effective July 1, 2015, rewrote this Code section. See Code Commission note regarding the effect of these amendments.

The 2017 amendment, effective July 1, 2017, in subsection (a), substituted "or" for "and" in paragraph (a)(1), deleted "and" at the end of paragraph (a)(3), added paragraph (a)(4), and redesignated former paragraph (a)(4) as present paragraph (a)(5).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2015, the amendment to this Code section by Ga. L. 2015, p. 422, § 5-100/HB 310, was treated as impliedly repealed and superseded by Ga. L. 2015, p. 552, § 3/SB 138, due to irreconcilable conflict.

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 284 (1997). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017).

JUDICIAL DECISIONS

Cited in In re R.L.M., 171 Ga. App. 940, 321 S.E.2d 435 (1984); Ga. Dep't of Human Servs. v. Steiner, 303 Ga. 890, 815 S.E.2d 883 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Heating Energy Assistance Team funds.

- Department of Human Resources may utilize the local departments of family and children services to distribute Heating Energy Assistance Team (HEAT) funds to needy persons as contemplated by the HEAT program. 1983 Op. Att'y Gen. No. 83-8.

49-3-7. Removal of county director for falsification of qualifications.

The State Personnel Board and the Department of Administrative Services shall remove from office any county director who has falsified any statement relating to his or her education, social welfare service, or other qualification, in any particular, whether material or immaterial. The application of the county director for examination, on file with the Department of Administrative Services, shall not be allowed to be varied by other evidence offered by the county director; the application itself shall be the controlling factor in the determination of its truth or untruth.

(Ga. L. 1945, p. 689, §§ 1, 2; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-96/HB 642.)

The 2012 amendment, effective July 1, 2012, twice substituted "Department of Administrative Services" for "State Personnel Administration" in this Code section.

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

49-3-8. Destruction of county departmental records.

Any county department of family and children services, at the discretion of the county director, may destroy public assistance case records which have been inactive for three years or more, as well as related statistical and financial forms and reports. A record must be retained beyond the three-year period as long as a federal or state audit of that record is in progress, or if an audit's findings have not been resolved, or if the case in question is the subject of pending administrative or judicial litigation.

(Ga. L. 1953, p. 17, § 1; Ga. L. 1982, p. 881, §§ 1, 3.)

49-3-9. DFCS Regional Advisory Board established in each region; membership; purpose; meetings.

There is established in each region a DFCS Regional Advisory Board. Each regional advisory board shall be composed of at least five members and shall include the director and at least one board member of each county department of family and children services within the region as selected by the DFCS regional director. The DFCS regional director may appoint additional members who are representatives from the categories included in paragraphs (1) through (9) of subsection (a) of Code Section 49-3-2. The purpose of the regional advisory boards shall be to improve communication and coordination between the county departments of family and children services of the counties within the region, to improve and streamline service delivery by the county departments, and to provide for the consistent application of state policy of the Division of Family and Children Services of the department within the county departments within each DFCS region. Each regional advisory board shall meet at least quarterly.

(Code 1981, §49-3-9, enacted by Ga. L. 2015, p. 552, § 4/SB 138.)

Effective date.

- This Code section became effective July 1, 2015.

CHAPTER 4 PUBLIC ASSISTANCE

Article 1 General Provisions.
Article 2 Old-Age Assistance.
Article 3 Aid to the Blind.
Article 4 Aid to the Disabled.
Article 5 Aid to Families With Dependent Children.
Article 6 Medical Assistance for Aged.
Article 7 Medical Assistance Generally.
Article 7A Long-term Care Partnership Program.
Article 7B False Medicaid Claims.
Article 7C Therapy Services for Children with Disabilities.
Article 8 Personal Representative to Manage Assistance Payments.
Article 9 Temporary Assistance for Needy Families.
Cross references.

- Workers' compensation, T. 34, C. 9.

Assisting low or fixed income persons to pay gas and electric bills, § 46-1-5.

Powers and duties of Department of Human Services regarding federal government programs relating to the aging, § 49-6-1 et seq.

JUDICIAL DECISIONS

Coverage for nonresident patients.

- Owner/operator of a Georgia nursing home facility was entitled to medicaid reimbursement for nonresident long-term care patients who, after the termination of a reciprocal interstate agreement with South Carolina governing coverage for such patients, expressed in writing the patients' will and intent to be Georgia residents. State v. Stuckey Health Care, Inc., 189 Ga. App. 126, 375 S.E.2d 235, cert. denied, 189 Ga. App. 913, 375 S.E.2d 235 (1988).

RESEARCH REFERENCES

ALR.

- Eligibility for welfare benefits, under maximum-assets limitations, as affected by expenditures or disposal of assets, 19 A.L.R.4th 146.

Eligibility for welfare benefits as affected by claimant's status as trust beneficiary, 21 A.L.R.4th 729.

Propriety of telephone testimony or hearings in public welfare proceedings, 88 A.L.R.4th 1094.

ARTICLE 1 GENERAL PROVISIONS

49-4-1. Short title.

The short title of this article shall be "Georgia Public Assistance Act of 1965."

(Ga. L. 1965, p. 385, § 1.)

Law reviews.

- For note discussing the denial of social security benefits to dependent children pursuant to substitute father provisions as violative of due process, prior to the 1967 amendments to the Georgia Public Assistance Act (O.C.G.A. § 49-4-1 et seq.), see 15 J. of Pub. L. 349 (1966).

JUDICIAL DECISIONS

Cited in Howell v. Harden, 129 Ga. App. 200, 198 S.E.2d 890 (1973); Tellis v. Saucier, 133 Ga. App. 779, 213 S.E.2d 39 (1975); Dix v. State, 156 Ga. App. 868, 275 S.E.2d 807 (1981); So v. Ledbetter, 209 Ga. App. 666, 434 S.E.2d 517 (1993); Fedina v. Larichev, 322 Ga. App. 76, 744 S.E.2d 72 (2013).

49-4-2. Definitions.

As used in this article, the term:

  1. "Department" means the Department of Human Services and includes the county departments of family and children services and the agents, agencies, officers, and employees designated by the commissioner of human services to perform any function vested in the Department of Human Services by this article.
  2. "Public assistance" means payment in or by money, medical care, remedial care, goods, or services to or for the benefit of needy persons under any categories that may be established pursuant to this article.
  3. "Recipient" means a person to whom, or on whose behalf, public assistance is granted.

(Ga. L. 1965, p. 385, § 2; Ga. L. 1967, p. 878, § 1; Ga. L. 1977, p. 384, § 19; Ga. L. 2009, p. 453, § 2-2/HB 228.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, "commissioner of human services" was substituted for "commissioner of human resources" in paragraph (1).

JUDICIAL DECISIONS

Cited in Briarcliff Haven, Inc. v. Department of Human Resources, 403 F. Supp. 1355 (N.D. Ga. 1975).

OPINIONS OF THE ATTORNEY GENERAL

Limiting time for presentation of claims of Medicaid providers.

- Department of Human Resources as administrator of Georgia's Medicaid program (now administered by Department of Community Health) is not prohibited from limiting the time within which claims of providers of Medicaid services must be presented for payment. 1971 Op. Att'y Gen. No. 71-153.

County may donate funds to be used for child day care services as part of the state's Aid to Families with Dependent Children program. 1975 Op. Att'y Gen. No. U75-1.

Appropriation to private day care center not operated as service for eligible children.

- Since the Georgia Constitution limits county taxation and expenditures to welfare programs as provided by law, and the only welfare provided by law which may include day care services is the Aid to Families with Dependent Children program, there would be no authority for a county to appropriate money for the private day care center which is not operated as a service for eligible children. 1975 Op. Att'y Gen. No. U75-1.

49-4-3. Establishment of categories of public assistance; powers and duties in administration of article.

  1. The Department of Human Services is authorized to establish any of the following categories of public assistance and to adopt plans combining the administration of such categories of public assistance as the Department of Human Services may elect:
    1. Old-age assistance;
    2. Aid to the blind;
    3. Aid to the disabled;
    4. Temporary assistance for needy families; and
    5. Aid to the aged, blind, and adult disabled persons under a combined plan adopted pursuant to Title XX of the federal Social Security Act.
  2. This article shall be administered by the Department of Human Services, including the county departments of family and children services acting under the direction and supervision of the commissioner. In administering this article the department, including the county departments acting under the direction and supervision of the director of the Division of Family and Children Services, shall:
    1. Provide for maximum cooperation with other agencies, public and private, of this state, of other states, and of the federal government in rendering services to maintain and strengthen family life and to help applicants for public assistance and recipients to attain self-support or self-care;
    2. Establish and enforce such rules and regulations as may be necessary or desirable to carry out this article; provided, however, that the commissioner of the Department of Human Services may delegate to the director of the Division of Family and Children Services the responsibility for the development and issuance of procedural manuals;
    3. Cooperate in all necessary respects with agencies of the United States government in the administration of this article, and accept any funds, goods, or services available to the department for public assistance and for other welfare programs and projects;
    4. Enter into reciprocal and cooperative agreements with other agencies of this state and with agencies of any other state relative to the providing of assistance or service to residents and nonresidents; and
    5. Make reports at such times and in such form as may be required by agencies of the United States government.

(Ga. L. 1965, p. 385, § 3; Ga. L. 1967, p. 878, §§ 2, 3; Ga. L. 1982, p. 883, §§ 1, 2; Ga. L. 1984, p. 22, § 49; Ga. L. 1997, p. 1021, § 7; Ga. L. 2009, p. 453, § 2-2/HB 228.)

Cross references.

- Duty and authority of department to enforce support duty of parents whose children are receiving public assistance from department, § 19-11-1 et seq.

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

U.S. Code.

- Title XX of the federal Social Security Act, referred to in paragraph (a)(5) of this Code section, is codified at 42 U.S.C. § 1397 et seq.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997).

JUDICIAL DECISIONS

Qualified alien entitled to Medicaid.

- British citizen and a legal permanent resident of the US who had entered the US in 1991 and had lived in the US continuously since then was eligible to receive Medicaid benefits; the five-year waiting period provided in 8 U.S.C. § 1613(a) did not apply to the resident because the resident had entered the country prior to August 22, 1996. Crittenden v. White, 346 Ga. App. 179, 816 S.E.2d 308 (2018).

Cited in Cox v. Cox ex rel. State Dep't of Human Resources, 255 Ga. 6, 334 S.E.2d 683 (1985).

OPINIONS OF THE ATTORNEY GENERAL

Limiting time for presentation of claims of medicaid providers.

- Department of Human Resources as administrator of Georgia's Medicaid program (now administered by Department of Community Health) is not prohibited from limiting the time within which claims of providers of medicaid services must be presented for payment. 1971 Op. Att'y Gen. No. 71-153.

RESEARCH REFERENCES

ALR.

- Eligibility of strikers to obtain public assistance, 57 A.L.R.3d 1303.

49-4-4. Residence in state as affecting eligibility for public assistance.

Public assistance shall be awarded to, or on behalf of, any individual who is a resident of this state and is otherwise eligible therefor under one of the categories established pursuant to this article, as determined in accordance with the regulations of the board; provided, however, that residence in this state in excess of one year may not be required with respect to any individual under any category; and provided, further, that with respect to "medical assistance" no residence requirement which excludes any individual who resides in this state may be imposed.

(Ga. L. 1965, p. 385, § 4; Ga. L. 1967, p. 878, § 4.)

JUDICIAL DECISIONS

Cited in Stewart v. State, 246 Ga. 70, 268 S.E.2d 906 (1980).

RESEARCH REFERENCES

ALR.

- Social Security Acts: requisite of employment as affected by family relationship between alleged employer and employee, 8 A.L.R.3d 696.

Eligibility of strikers to obtain public assistance, 57 A.L.R.3d 1303.

49-4-5. Determining amount of public assistance.

The amount of public assistance which any person shall receive shall be determined in accordance with regulations approved by the board.

(Ga. L. 1965, p. 385, § 5.)

JUDICIAL DECISIONS

Cited in Health Facility Invs., Inc. v. Georgia Dep't of Human Resources, 238 Ga. 383, 233 S.E.2d 351 (1977); Stewart v. State, 246 Ga. 70, 268 S.E.2d 906 (1980).

49-4-6. Reserves, income, and resources to be disregarded.

  1. In determining eligibility for and the amount and kind of public assistance to be provided, the board shall prescribe by regulations reasonable emergency reserves and the income and resources which may be exempt and disregarded. With respect to any category of assistance, the income and resources to be disregarded shall not be in excess of the amounts and kinds authorized under the federal Social Security Act and shall not be less than the amounts and kinds of income and resources required to be disregarded by the federal Social Security Act and any other act of Congress relating to the assistance programs in which federal financial participation is authorized under Titles IV, XVI, XIX, and XX of the federal Social Security Act.
  2. Notwithstanding any other provision of this Code section, this chapter, or state law, to the extent that such disregard does not violate federal law or terminate or decrease the state's eligibility for federal funding for public assistance or for disabled persons, the Department of Human Services, the Department of Community Health, and their successors shall disregard for the purpose of eligibility for public assistance or assistance for disabled persons any funds or property held in trust for a disabled person by a community trust created and administered in accordance with Chapter 10 of Title 30, a trust for a person with one or more impairments with substantially similar provisions for distributions, or any noncash distributions from such trusts.

(Ga. L. 1965, p. 385, § 14; Ga. L. 1967, p. 878, § 5; Ga. L. 1982, p. 3, § 49; Ga. L. 1987, p. 1435, § 1; Ga. L. 1990, p. 45, § 1; Ga. L. 1996, p. 804, § 3; Ga. L. 1999, p. 296, § 24; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2015, p. 5, § 49/HB 90.)

The 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, deleted former subsection (b), which read: "For purposes of applying the $50.00 child support disregard provided for in Title IV of the federal Social Security Act, amounts paid by the Social Security Administration under the Old Age Survivors and Disability Insurance (OASDI) program, payments made by the United States Department of Veterans Affairs to the family, and any other benefits not assignable to the state pursuant to Title IV of the federal Social Security Act shall not be considered child support."; and redesignated former subsection (c) as present subsection (b).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, "community trust" was substituted for "Community Trust" in subsection (c).

Editor's notes.

- Ga. L. 1987, p. 1435, § 5(b), not codified by the General Assembly, provided: "Subsection (b) of Code Section 49-4-6, as amended by Section 1 of this Act, is repealed effective on the date on which the federal acts referenced herein or any federal regulations or interpretations of such act or regulations by the federal agency or a judicial decision binding on the State of Georgia are amended or changed to allow federal financial participation in AFDC payments which treat social security disability benefits or veterans' benefits in the same manner as other child support payments."

Those provisions of Title IV of the federal Social Security Act relating to the child support disregard (42 U.S.C. § 602(a)(8)(A)(vi)) were repealed by § 103 of P.L. 104-193, the "Personal Responsibility & Work Opportunity Reconciliation Act of 1996."

U.S. Code.

- Titles IV, XVI, XIX, and XX of the federal Social Security Act, referred to in this Code section, are codified at 42 U.S.C. §§ 601 et seq., 1381 et seq., 1396 et seq., 1397 et seq., respectively.

Law reviews.

- For article, "Special Needs Trusts: A Planning Tool with Promises," see 16 (No. 2) Ga. St. B.J. 18 (2010).

JUDICIAL DECISIONS

Validity of 1987 amendment.

- The 1987 amendment to O.C.G.A. § 49-4-6 was presumed valid notwithstanding a contention that the amendment was passed in violation of the Fiscal Note Act (O.C.G.A. § 28-5-42), which mandates that "any bill having a significant impact on the anticipated revenue or expenditure level of any state department ... or other state agency must be introduced no later than the twentieth day of any session." Wilson v. Ledbetter, 194 Ga. App. 32, 389 S.E.2d 771 (1989), rev'd on other grounds, 260 Ga. 180, 390 S.E.2d 846 (1990).

RESEARCH REFERENCES

ALR.

- Personal injury recovery as affecting eligibility for, or duty to reimburse, public welfare assistance, 80 A.L.R.3d 772.

Validity of statutes or regulations denying welfare benefits to claimants who transfer property for less than its full value, 24 A.L.R.4th 215.

49-4-7. Receipt of compensation for residence sold by government action not to affect eligibility.

Notwithstanding any other law, rule, or regulation to the contrary, an individual who is otherwise qualified to receive any public assistance administered by the department shall not become ineligible to continue to receive such benefits because of the receipt of compensation by such individual from the sale or acquisition of any real estate used as the residence of such individual as the result of displacement through the necessity of governmental action which directly or indirectly causes the sale or acquisition of such property. Such individual may receive such compensation; hold, invest, and reinvest the proceeds thereof in any manner whatsoever; and continue to receive such benefits if he shall remain otherwise qualified; provided, however, this article shall not become effective until approved by the United States Department of Health and Human Services.

(Ga. L. 1963, p. 616, § 1.)

49-4-8. Application for public assistance.

Applications for public assistance shall be submitted to and accepted by the county department of the county of the applicant's residence from or on behalf of any person who believes himself eligible for public assistance. Such applications shall be made in the manner and form prescribed by the Department of Human Services and shall contain such information as the department shall require.

(Ga. L. 1965, p. 385, § 6; Ga. L. 2009, p. 453, § 2-2/HB 228.)

49-4-9. Investigation and record concerning applicant.

Whenever a county department shall receive an application for public assistance, the county department shall promptly make an investigation and record of the circumstances of the applicant in order to ascertain the facts supporting the application and to obtain such other information as may be required by the Department of Human Services.

(Ga. L. 1965, p. 385, § 7; Ga. L. 2009, p. 453, § 2-2/HB 228.)

JUDICIAL DECISIONS

Cited in Stewart v. State, 246 Ga. 70, 268 S.E.2d 906 (1980).

49-4-10. Physical examination of applicant.

With respect to applicants for any category of public assistance authorized under Code Section 49-4-3, the department may require physical examinations of any applicant and may require the results thereof to be recorded by the examining physician on a form furnished by the department. Upon receipt of the form from the examining physician, the county department shall forward it to the department, whose duty it shall be to review the medical information contained thereon and determine therefrom whether the applicant meets the medical requirements for assistance under this article. When said decision has been made by the department, the county department will be notified and bound thereby.

(Ga. L. 1965, p. 385, § 18.)

49-4-11. Award and payment of public assistance.

  1. Upon the completion of the investigation under Code Section 49-4-9, the county department shall decide whether the applicant is eligible for assistance under this article and determine, in accordance with the rules and regulations of the Board of Human Services, the amount and kind of such assistance and the date on which such assistance shall begin. After a determination has been made as to the eligibility for and the type and amount of assistance to be provided, such assistance shall be furnished with reasonable promptness to all eligible persons in accordance with regulations of the board.
  2. Money payments of public assistance shall be made by check or electronic transfer in accordance with the regulations of the board.

(Ga. L. 1965, p. 385, § 8; Ga. L. 1997, p. 1021, § 1; Ga. L. 2009, p. 453, § 2-3/HB 228.)

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997).

JUDICIAL DECISIONS

Cited in Stewart v. State, 246 Ga. 70, 268 S.E.2d 906 (1980).

49-4-12. Periodic redetermination of award; reporting changes in recipient's circumstances; review by department.

  1. All public assistance grants made under this article shall be reconsidered by the county departments of family and children services as frequently as may be required by rules of the Board of Human Services; but in every case the county department shall make such reconsideration at least once each year. After such further investigation as the commissioner may deem necessary, the amount of public assistance may be changed or may be entirely withdrawn if it is found by the department that any such grant has been made erroneously or if it is found that the recipient's circumstances have altered sufficiently to warrant such action.
  2. If, at any time during the continuance of public assistance, the recipient thereof becomes possessed of income or resources in excess of the amount previously reported by him or if other changes shall occur in the circumstances previously reported by him which would alter either his need or his eligibility, it shall be his duty to notify the county department of such fact immediately on the receipt or possession of such additional income or resources or on the change of circumstances.
  3. The department may also, upon its own motion, review any decision of a county department and may consider any application upon which a decision has not been made by the county department within a reasonable time. Where the department, on its own motion, reviews a decision of a county department or considers applications upon which a decision has not been made, it may make such additional investigation as it may deem necessary; and it shall determine whether the applicant shall be granted assistance and the amount of such assistance and whether assistance being paid to a recipient shall be modified or canceled. Any applicant or recipient affected by such a decision of the department shall, upon request, be given reasonable notice and opportunity for a hearing by the department.

(Ga. L. 1965, p. 385, § 9; Ga. L. 2009, p. 453, § 2-3/HB 228.)

JUDICIAL DECISIONS

Cited in Cummings v. State, 143 Ga. App. 811, 240 S.E.2d 112 (1977).

RESEARCH REFERENCES

ALR.

- Personal injury recovery as affecting eligibility for, or duty to reimburse, public welfare assistance, 80 A.L.R.3d 772.

49-4-13. Hearings; appeal.

  1. Except as provided in subsection (b) of this Code section, an applicant for or recipient of public assistance who is aggrieved by the action or inaction of the department, including any county department of family and children services, shall be entitled to a hearing. Each applicant or recipient shall be notified of his or her right to a hearing. Upon request for such hearing, reasonable notice of the time and place thereof shall be given to such applicant or recipient. Such hearing shall be conducted by the Office of State Administrative Hearings in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," the rules and regulations of the Office of State Administrative Hearings, and the rules and regulations prescribed by the board. The decision of the commissioner on any appeal shall be final, subject to the right to judicial review of contested cases under Chapter 13 of Title 50.
  2. An applicant for or recipient of assistance under Article 9 of this chapter, the "Temporary Assistance for Needy Families Act," shall be authorized to request and receive a hearing to challenge any denial, reduction, or termination of assistance based upon any action by the department, including any county department of family and children services. Nothing contained in this subsection shall operate to create an entitlement to the receipt of assistance under the TANF program.

(Ga. L. 1965, p. 385, § 12; Ga. L. 1997, p. 1021, § 2.)

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 2804 (1997).

JUDICIAL DECISIONS

Language "shall be final" in Ga. L. 1965, p. 385, § 12 (see O.C.G.A. § 49-4-13) should not be read to foreclose review under the Georgia Administrative Procedure Act, Ga. L. 1965, p. 283, § 1 (see O.C.G.A. § 50-13-1). Department of Human Resources v. Williams, 130 Ga. App. 149, 202 S.E.2d 504 (1973).

Judicial review requirements met.

- All requirements of Ga. L. 1965, p. 283, § 1 (see O.C.G.A. § 50-13-1) for judicial review are met by decisions under Ga. L. 1965, p. 385, § 12 (see O.C.G.A. § 49-4-13). Department of Human Resources v. Williams, 130 Ga. App. 149, 202 S.E.2d 504 (1973).

Cited in Howell v. Harden, 129 Ga. App. 200, 198 S.E.2d 890 (1973); Ga. Dep't of Cmty. Health v. Medders, 292 Ga. App. 439, 664 S.E.2d 832 (2008).

49-4-14. Regulations as to records; use or disclosure of information; penalty.

  1. The board is directed to prescribe regulations governing the custody, use, and preservation of the records, papers, files, and communications of the Department of Human Services, including the county departments, relating to public assistance. Except as otherwise provided in this Code section, such regulations shall provide safeguards restricting the use or disclosure of information concerning applicants for or recipients of public assistance to purposes directly connected with the administration of public assistance. The board is authorized in its discretion to include in such regulations provision for the public to have access to the records of disbursement or payment of public assistance made after March 30, 1965.
  2. No person who obtains information by virtue of any regulation made pursuant to subsection (a) of this Code section shall use such information for commercial or political purposes.
  3. Any person violating subsection (b) of this Code section shall be guilty of a misdemeanor.

(Ga. L. 1965, p. 385, §§ 10, 11; Ga. L. 2009, p. 453, § 2-2/HB 228.)

49-4-15. Fraud in obtaining public assistance, food stamps, or Medicaid; penalties; recovery of overpayments.

  1. Any person who by means of a false statement, failure to disclose information, or impersonation, or by other fraudulent device, obtains or attempts to obtain, or any person who knowingly or intentionally aids or abets such person in the obtaining or attempting to obtain:
    1. Any grant or payment of public assistance, food stamps, or medical assistance (Medicaid) to which he or she is not entitled;
    2. A larger amount of public assistance, food stamp allotment, or medical assistance (Medicaid) than that to which he or she is entitled; or
    3. Payment of any forfeited grant of public assistance;

      or any person who, with intent to defraud the department, aids or abets in the buying or in any way disposing of the real property of a recipient of public assistance shall be guilty of a misdemeanor unless the total amount of the value of public assistance, food stamps, and medical assistance (Medicaid) so obtained exceeds $1,500.00, in which event such person shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years. In determining the amount of value of public assistance, food stamps, and medical assistance (Medicaid) obtained by false statement, failure to disclose information, or impersonation, or other fraudulent device, the total amount obtained during any uninterrupted period of time shall be treated as one continuing offense.

  2. It shall be a fraudulent device within the meaning of subsection (a) of this Code section, and punishable as therein provided, for any person:
    1. Knowingly to use, alter, or transfer food stamp coupons or authorizations to purchase food stamp coupons in any manner not authorized by law;
    2. Knowingly to possess food stamp coupons or authorizations to purchase food stamp coupons when he or she is not authorized by law to possess them;
    3. Knowingly to possess or redeem food stamp coupons or benefits when he or she is not authorized by law to possess or redeem them; or
    4. Knowingly to use or redeem food stamp coupons or benefits in any manner or for purposes not authorized by law.
    1. Any person who obtains any payment of public assistance to which he is not entitled or in excess of that to which he is entitled shall be liable to the state for the amount of such overpayment.
    2. Any person who intentionally, with knowledge of the fraud, aids or abets any recipient of public assistance in obtaining or attempting to obtain any payment of public assistance to which the recipient is not entitled or a payment in excess of that to which he is entitled shall also be liable to the state for the amount of such payment.
    3. Any person who receives any payment of public assistance to which he is not entitled or in excess of that to which he is entitled shall be liable to the state for the amount of such overpayment.
    4. Subject to the limitations provided in this paragraph, the amount of such overpayment may be recovered by civil action and, if the person receiving such overpayment continues on assistance, by proportionate reduction of future public assistance grants, in accordance with regulations of the board which shall conform to the federal Social Security Act and federal regulations promulgated pursuant thereto, until the excess amount has been paid. In any case in which, under this subsection, a person is liable to repay any sum, such sum may be collected without interest by civil action brought in the name of the department. Any repayment required by this subsection may be waived by the department, and the method of repayment, if any, including recoupments from current assistance grants, shall be determined by the department. Recoupment may be initiated without regard to whether the department has obtained a judgment in a civil action but shall not be initiated prior to notice and an opportunity for a hearing in accordance with this article. The department shall make such waivers and determinations of repayment and the manner of repayment in accordance with regulations of the board which shall conform to the federal Social Security Act and the federal regulations promulgated pursuant thereto.
  3. Any felony offense under this Code section may be prosecuted by accusation as provided in Code Section 17-7-70.1.
    1. Prior to the filing of an accusation or the return of an indictment, a prosecuting attorney may defer further prosecution of such accusation or indictment and shall have the authority to enter into a consent agreement with the individual in which such individual admits to any overpayment, consents to disqualification for such period of time as is or may hereafter be provided by law, and agrees to repay, as restitution, such overpayment. Such agreement may provide for a lump sum repayment, installment payments, formula reduction of benefits, or any combination thereof. Such agreement shall toll the running of the statute of limitations for such offense for the period of the agreement. A consent agreement entered into in accordance with this subsection shall not constitute a criminal charge.
    2. Any such agreement shall be filed in the criminal docket of the court having jurisdiction over the violation of this Code section without the necessity of the state filing an accusation or an indictment being returned by a grand jury. The clerk shall enter upon the docket "CONSENT AGREEMENT NOT A CRIMINAL CHARGE."
    3. Upon successful completion of the terms and conditions of the consent agreement, criminal prosecution of the individual for such offense shall be barred; provided, however, that nothing in this paragraph shall prohibit the state from introducing evidence of such offense as a similar transaction in any subsequent prosecution or for the purpose of impeachment. The successful completion of the terms and conditions of the agreement shall not be considered a criminal conviction.
    4. If the individual fails to comply with the terms of such consent agreement, the state may proceed with a criminal prosecution.

(Ga. L. 1965, p. 385, § 13; Ga. L. 1973, p. 183, § 1; Ga. L. 1975, p. 477, § 1; Ga. L. 1976, p. 1490, § 1; Ga. L. 1978, p. 994, § 1; Ga. L. 1978, p. 1964, § 1; Ga. L. 1989, p. 466, § 1; Ga. L. 1996, p. 1517, §§ 1, 1.2; Ga. L. 1997, p. 1021, § 3; Ga. L. 2015, p. 519, § 4-1/HB 328.)

The 2015 amendment, effective July 1, 2015, in subsection (a), substituted "he or she" for "he" in paragraphs (1) and (2), and, in the undesignated language at the end of subsection (a), substituted "$1,500.00" for "$500.00" and inserted the second occurrence of "(Medicaid)".

Cross references.

- Fraud and related offenses, T. 16, C. 9, A. 4.

Code Commission notes.

- Ga. L. 1996, p. 1517, §§ 1 and 1.2 both enacted a subsection (d). Pursuant to Code Section 28-9-5, the subsection (d) enacted by § 1.2 was redesignated as subsection (f). See the Editor's notes.

Editor's notes.

- Ga. L. 1996, p. 1517, § 1.1, not codified by the General Assembly, provided: "Section 1.2 [subsection (f)] of this Act shall be known and may be cited as the 'Two Strikes and You're Off Act.'" and § 2, not codified by the General Assembly, provided for severability.

Ga. L. 1996, p. 1517, § 3, not codified by the General Assembly, provided: "No later than July 1, 1996, the Department of Human Resources shall request from the appropriate federal agencies any waivers necessary to implement any part of this Act. Each portion of this Act for which such waiver is required shall become effective only if the waiver is obtained, and in that event shall become effective upon the ninetieth day following the receipt of such waiver. The remainder of this Act shall become effective July 1, 1996."

Pursuant to Ga. L. 1996, p. 1517, § 3, waivers were applied for regarding those provisions of subsection (f) relating to public assistance. However, passage of the federal "Personal Responsibility and Work Opportunity Reconciliation Act of 1996" eliminated the need for such waivers, effective July 1, 1997. The provisions of subsection (f) enacted by Ga. L. 1996, p. 1517, § 1.2 regarding medical assistance and food stamps did not become effective because the requisite federal waivers were not obtained.

Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

U.S. Code.

- The federal Social Security Act, referred to in paragraph (c)(4) of this Code section, is codified at 42 U.S.C. § 301 et seq.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997). For review of 1996 social services legislation, see 13 Ga. U. L. Rev. 310 (1996).

JUDICIAL DECISIONS

Constitutionality.

- This section is not unconstitutionally vague in that the statute makes it a crime to receive public assistance to which a person is "not entitled" without defining "entitlement" or referring to statutes, rules, or regulations pursuant to which entitlement is determined. Stewart v. State, 246 Ga. 70, 268 S.E.2d 906 (1980).

Construction of "may" in waiver clause.

- Word "may" in this section's waiver clause affects the rights of needy dependent children to receive financial assistance under the Georgia Aid to Families with Dependent Children; therefore, it is clear that the word "may" must be construed as mandatory rather than permissive. Holloway v. Parham, 340 F. Supp. 336 (N.D. Ga. 1972).

Commissioner required to exercise discretion before recouping overpayments.

- This section requires the director of the Department of Family and Children Services (now Commissioner of Human Resources) to exercise discretion by considering the need of dependent children before recouping overpayments in Aid to Families with Dependent Children. Holloway v. Parham, 340 F. Supp. 336 (N.D. Ga. 1972).

Effect of state's failure to offer certified copy of regulations.

- State fell short of the required proof for felony conviction by failing to offer in evidence a certified copy of the regulations of the Department of Human Resources. Dix v. State, 156 Ga. App. 868, 275 S.E.2d 807 (1981).

Guilty plea not bar to prosecution for subsequent fraud.

- Defendant's plea of guilty to fraudulently obtaining $3,796 in public assistance payments between March 1985 and March 1986, would not bar the state from prosecuting defendant for the subsequent fraudulent obtaining of $1,585 in public assistance payments between August 1987 and January 1988. Neal v. State, 198 Ga. App. 13, 400 S.E.2d 375 (1990).

Repayment by custodial parent excuses non-custodial's non-payment.

- Noncustodial father was held to be not liable for child support overpayments when the evidence demonstrated that the custodial parent, the mother, was in the process of making repayment. Johnson v. Department of Human Resources, 204 Ga. App. 23, 418 S.E.2d 401 (1992).

Sufficiency of evidence.

- Although the evidence was sufficient to prove that the defendant committed fraud that resulted in the defendant obtaining more public assistance than the defendant was entitled to receive under O.C.G.A. § 49-4-15(a), the state failed to prove that the amount exceeded $500. Ousley v. State, 296 Ga. App. 486, 675 S.E.2d 226 (2009).

Cited in Anderson v. Department of Family & Children Servs., 118 Ga. App. 318, 163 S.E.2d 328 (1968); Gill v. State, 141 Ga. App. 823, 234 S.E.2d 665 (1977); Moore v. State, 148 Ga. App. 14, 251 S.E.2d 17 (1978); State v. Germany, 245 Ga. 326, 265 S.E.2d 13 (1980); Graham v. State, 154 Ga. App. 198, 267 S.E.2d 842 (1980); In re Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Liability provided for in Ga. L. 1965, p. 385, § 13 (see O.C.G.A. § 49-4-15) survives the death of a recipient and constitutes a claim against the recipient's estate even if considered as a cause of action in tort rather than a cause of action in contract inasmuch as Ga. L. 1952, p. 224, § 1 (see O.C.G.A. § 9-2-41) provides that a cause of action in tort shall survive the death of the tortfeasor when the tortfeasor received a benefit from the tort. 1965-66 Op. Att'y Gen. No. 66-250.

RESEARCH REFERENCES

ALR.

- Reimbursement of public for financial assistance to aged persons, 29 A.L.R.2d 731.

Criminal liability for wrongfully obtaining unemployment benefits, 80 A.L.R.3d 1280.

Criminal liability in connection with application for, or receipt of, public relief or welfare payments, 22 A.L.R.4th 534.

Imposition of civil penalties, under state statute, upon medical practitioner for fraud in connection with claims under medicaid, medicare, or similar welfare programs for providing medical services, 32 A.L.R.4th 671.

Criminal liability of pharmacy or pharmacist for welfare fraud in connection with supplying prescription drugs, 16 A.L.R.5th 390.

Liability of state or federal government for losses associated with distribution of food stamps, 116 A.L.R. Fed. 457.

49-4-15.1. Examination of financial records in instances of alleged fraud.

The department may examine any books, papers, or memoranda reflecting the income of, or financial records bearing upon the determination of the eligibility of, recipients in instances of alleged fraud by recipients of food stamps and public assistance. This process may be implemented by means of a subpoena which may be issued by the commissioner of human services, upon the advice of the State Department of Law. In order to consider the issuance of such subpoenas, the director of the department's office of fraud and abuse must personally make application in writing to the commissioner of human services specifying why such information is necessary. If issued, such subpoenas shall compel the production of relevant documents. Subpoenas shall be served in the same manner as if issued by a superior court. If any person fails to obey a subpoena issued and served under this Code section with respect to any matter germane to the department's investigation, on application of the department, through the commissioner of human services or the commissioner's duly authorized representative, the superior court of the county in which the documents were required to be produced may issue an order requiring the person to comply with the subpoena and to produce the relevant documents.

(Code 1981, §49-4-15.1, enacted by Ga. L. 1987, p. 1435, § 2; Ga. L. 1997, p. 1021, § 4; Ga. L. 2009, p. 453, § 2-4/HB 228.)

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997).

49-4-16. Research, demonstration, and work experience programs; surplus food distribution.

  1. Except as modified by and pursuant to the provisions of this article the same provisions concerning eligibility for assistance as obtain with respect to old-age assistance, aid to the blind, temporary assistance for needy families, and aid to the totally and permanently disabled shall remain in force and effect.
  2. The department is authorized to enter into agreements with departments and agencies of the government of the United States for the purposes of accepting grants, providing matching funds, and administering of such grants and funds, in accordance with regulations to be promulgated, for research and demonstration projects under Title XI, Section 1115, of the federal Social Security Act, without regard to the factor of state wideness and such other factors as may be required to be waived by the terms of the federal grant. The department also shall be authorized to participate in work experience or any other projects authorized under Title V of the Economic Opportunity Act of 1964, P.L. 88-452, 78 Stat. 508, and in the distribution of surplus food through a food stamp program under 7 U.S.C., Section 2013.

(Ga. L. 1965, p. 385, § 15; Ga. L. 1994, p. 97, § 49; Ga. L. 1997, p. 1021, § 7.)

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

U.S. Code.

- Title XI, Section 1115 of the federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C. § 1315.

Title V of the federal Economic Opportunity Act of 1964, referred to in this Code section, was formerly codified at 42 U.S.C. § 2921 et seq. but was repealed by Pub. L. 97-35, Title VI, § 683 (a).

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997).

49-4-17. Funding costs of assistance and administration; county participation not required.

The cost of administration and the cost of public assistance provided under any of the categories of public assistance authorized under Code Section 49-4-3 shall be met from such funds as shall be made available therefor from state and federal appropriations. No county shall be required to participate in the cost of such public assistance or in the cost of the administration thereof.

(Ga. L. 1965, p. 385, § 17; Ga. L. 1970, p. 451, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

FICA contributions considered as costs of administration.

- For purposes of this section, social security (FICA) employer contributions can be considered as "costs of administration" of public assistance. 1971 Op. Att'y Gen. No. 71-36.

49-4-17.1. Establishment of pilot community work experience programs.

Repealed by Ga. L. 1986, p. 410, § 1, effective July 1, 1986.

Editor's notes.

- This Code section was based on Ga. L. 1982, p. 1281 and Ga. L. 1984, p. 22.

49-4-18. Article construed with federal Social Security Act; adoption of rules to comply with federal act.

It is the intention of the General Assembly that this article be construed consistent with the federal Social Security Act, and any provision of this article found to be in conflict with the federal Social Security Act shall be deemed to be void and of no effect. It is further the intention of the General Assembly, in view of the joint state and federal financial participation in the assistance programs, that the department shall be authorized to adopt such regulations as may be necessary to comply with the requirements of the federal Social Security Act.

(Ga. L. 1965, p. 385, § 16.)

U.S. Code.

- The federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C. § 301 et seq.

JUDICIAL DECISIONS

Cited in James v. Harden, 136 Ga. App. 207, 221 S.E.2d 67 (1975); Cox v. Dep't of Human Resources, 255 Ga. 6, 334 S.E.2d 683 (1985).

RESEARCH REFERENCES

ALR.

- Judicial questions regarding Federal Social Security Act and state legislation adopted in anticipation of or after the passage of that act, to set up "state plan" contemplated by it, 100 A.L.R. 697; 106 A.L.R. 243; 108 A.L.R. 613; 109 A.L.R. 1346; 118 A.L.R. 1220; 121 A.L.R. 1002.

Validity of statutes or regulations denying welfare benefits to claimants who transfer property for less than its full value, 24 A.L.R.4th 215.

49-4-19. Social assistance register.

It shall be the duty of the department to establish and maintain a social assistance register and to provide for the listing in such register of groups, associations, organizations, and individuals who notify the department or any county department of family and children services that they are willing to assist citizens who are receiving public assistance or who need aid to improve or ensure the quality of their lives. The department shall provide for the dissemination of the names of such entities and individuals to those in need of assistance. It shall be the further duty of the department to publicize the existence of the social assistance register and to inform the public of the opportunities which members of the public have to enrich the lives of others.

(Code 1981, §49-4-19, enacted by Ga. L. 1997, p. 1021, § 4A.)

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

Law reviews.

- For article commenting on the enactment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997).

49-4-20. Drug test required for applicants and recipients of certain government benefits; penalties for violation; reapplication; confidentiality of records.

  1. As used in this Code section, the term "established drug test" means the collection and testing of bodily fluids administered in a manner equivalent to that required by the Mandatory Guidelines for Federal Workplace Drug Testing Programs established by the United States Department of Health and Human Services or other professionally valid procedures approved by the department; provided, however, that where possible and practicable, a swab test shall be used in lieu of a urinalysis.
  2. The department shall adopt rules and regulations for an established drug test that includes the following:
    1. Which illegal drugs will be the subject of testing;
    2. Methods for assuring minimal privacy intrusions during collection of body fluid specimens for such testing;
    3. Methods for assuring proper storage, transportation, and handling of such specimens in order to ensure the integrity of the testing process;
    4. The identity of those persons entitled to the results of such tests and methods for ensuring that only authorized persons are given access to such results;
    5. A list of laboratories qualified to conduct established drug tests;
    6. A list of approved substance abuse treatment providers;
    7. Procedures for persons undergoing drug testing prior to the collection of body fluid specimens for such testing, so as to provide information regarding the use of any drug pursuant to a medical prescription or as otherwise authorized by law which may affect the results of such test; and
    8. A requirement that any applicant who demonstrates proof of active and current Medicaid benefits shall pay a drug screening application fee of no more than $17.00, and no authorized test examiner shall conduct a drug test if an applicant demonstrates active and current Medicaid benefits unless the applicant presents a receipt proving that he or she has paid the required drug screening application fee. Eligible applicants who do not have active and current Medicaid benefits shall be responsible for paying the full cost of administering the drug test upon presentation to an authorized examiner.
    1. The department shall require a drug test consistent with subsection (b) of this Code section to screen an applicant or recipient of food stamps at any time a reasonable suspicion exists that such applicant or recipient is using an illegal drug. The department may use any information obtained by the department to determine whether such reasonable suspicion exists, including, but not limited to:
      1. An applicant's or recipient's demeanor;
      2. Missed appointments and arrest or other police records;
      3. Previous employment or application for employment in an occupation or industry that regularly conducts drug screening; and
      4. Termination from previous employment due to unlawful use of a controlled substance or controlled substance analog or prior drug screening records of the applicant or recipient indicating unlawful use of a controlled substance or controlled substance analog.
    2. The cost of drug testing shall be the responsibility of the individual tested, provided that the individual does not submit proof of active and current Medicaid benefits to subsidize the cost of such drug testing pursuant to paragraph (8) of subsection (b) of this Code section. No assistance payment shall be delayed because of the requirements of this Code section, and any payments made prior to the department's receipt of a test result showing a failure shall be recoverable.
  3. Any recipient of food stamps who tests positive for controlled substances as a result of a drug test required under this Code section shall be ineligible to receive food stamps as follows:
    1. For a first positive result, the recipient shall be ineligible for food stamps for one month and until he or she tests negative in a retest;
    2. For a second positive result, the recipient shall be ineligible for food stamps for three months and until he or she tests negative in a retest; and
    3. For a third and each subsequent positive result, the recipient shall be ineligible for food stamps for one year and until he or she tests negative in a retest unless the individual meets the requirements of subsection (f) of this Code section.
  4. The department shall:
    1. Provide notice of possible drug testing based on reasonable suspicion to each individual at the time of application. Dependent children under the age of 18 shall be exempt from the drug testing requirement;
    2. Advise each individual to be tested, before the test is conducted, that he or she may, but is not required to, advise the agent administering the test of any prescription or over the counter medication he or she is taking;
    3. Require each individual to be tested to sign a written acknowledgment that he or she has received and understands the notice and advice provided under paragraphs (1) and (2) of this subsection;
    4. Assure each individual being tested a reasonable degree of dignity while producing and submitting a sample for drug testing, consistent with the state's need to ensure the reliability of the sample;
    5. Specify circumstances under which an individual who fails a drug test has the right to take one or more additional tests;
    6. Inform an individual who tests positive for a controlled substance and is deemed ineligible for food stamps for one year pursuant to paragraph (3) of subsection (d) of this Code section that the individual may reapply for food stamps six months after the date of the positive drug test if he or she meets the requirements of subsection (f) of this Code section; and
    7. Provide any individual who tests positive with a list of substance abuse treatment providers approved by the department which are available in the area in which he or she resides. Neither the department nor the state shall be responsible for providing or paying for substance abuse treatment.
  5. An individual who tests positive for an illegal drug and is denied food stamps for one year may reapply for food stamps after six months if the individual can document the successful completion of a substance abuse treatment program offered by a provider approved by the department. The cost of any drug testing provided under this Code section and substance abuse treatment shall be the responsibility of the individual being tested and receiving treatment. An individual who fails a drug test administered pursuant to subsection (c) of this Code section may reapply for food stamps under this subsection only once.
  6. If a parent is deemed ineligible for food stamps as a result of failing a drug test conducted under this Code section, the parent may choose to designate another individual to receive food stamps for the parent's minor child. The designated individual must be an immediate family member or, if an immediate family member is not available or the family member declines the option, another individual approved by the department. The designated individual shall be subject to possible drug testing based on a reasonable suspicion. If the designated individual tests positive for controlled substances, he or she shall be ineligible to receive benefits on behalf of the child.
  7. The results of any drug test performed according to this Code section shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50, relating to inspection of public records. Such results shall not be used as a part of a criminal investigation or criminal prosecution. Such results shall not be used in a civil action or otherwise disclosed to any person or entity without the express written consent of the person tested or his or her heirs or legal representative. All such records shall be destroyed and deleted five years after the date of the test.
  8. No testing shall be required by the provisions of this Code section for any person whom the department determines is significantly hindered, because of a physical or mental handicap or developmental disability, from doing so or for any person enrolled in an enhanced primary care case management program operated by the Department of Community Health, Division of Medical Assistance to serve frail elderly and disabled beneficiaries to improve the health outcomes of persons with chronic health conditions by linking primary medical care with home and community based services. In addition, no testing shall be required by the provisions of this Code section for any individuals receiving or on a waiting list for long-term services and supports through a non-Medicaid home and community based services program or for any individual residing in a facility such as a nursing home, personal care home, assisted living community, intermediate care facility for the intellectually or developmentally disabled, community living arrangement, or host home.
  9. The department shall adopt rules to implement this Code section.

(Code 1981, §49-4-20, enacted by Ga. L. 2014, p. 844, § 1/HB 772.)

Effective date.

- This Code section became effective July 1, 2014.

Cross references.

- Drug-free workplace programs, § 34-9-410 et seq.

Law reviews.

- For article on the 2014 enactment of this Code section, see 31 Ga. St. U. L. Rev. 205 (2014).

49-4-21. Photo requirement on electronic benefits transfer cards for food stamps.

  1. The department shall require that all electronic benefits transfer cards which include food stamp benefits contain a photograph of one or more members of a household who are authorized to use such food stamp benefits. The department is authorized to promulgate regulations necessary to implement the provisions of this Code section.
  2. This Code section shall become effective on January 1, 2016.

(Code 1981, §49-4-21, enacted by Ga. L. 2014, p. 844, § 1/HB 772.)

Effective date.

- This Code section became effective January 1, 2016.

Law reviews.

- For article on the 2014 enactment of this Code section, see 31 Ga. St. U. L. Rev. 205 (2014).

49-4-22. Eligibility for aid under federal Supplemental Nutrition Assistance Program.

  1. An individual who was convicted under any state or federal law of an offense which has as an element the possession, use, or distribution of a controlled substance, as such term is defined in Code Section 16-13-21, and which is or would be classified as a felony under the laws of this state shall not be eligible for the federal Supplemental Nutrition Assistance Program while he or she is serving any term of imprisonment. If such individual was not sentenced to imprisonment, he or she shall be eligible for such program, provided that he or she remains compliant with the applicable general and special conditions of probation imposed. If such individual is sentenced to a term of imprisonment, after release from confinement, he or she shall be eligible for such program, provided that he or she remains compliant with the applicable general and special conditions of probation or parole imposed. If such individual violates the terms of probation as determined by court order or violates the terms of parole as determined by an order of the State Board of Pardons and Paroles, he or she shall lose eligibility for such program. If such individual successfully completes the original sentence imposed, he or she shall remain eligible for such program.
  2. Any individual eligible for aid pursuant to this Code section shall be required to meet all other requirements for eligibility for such program.

(Code 1981, §49-4-22, enacted by Ga. L. 2016, p. 443, § 11-1/SB 367.)

Effective date.

- This Code section became effective July 1, 2016.

Law reviews.

- For article on the 2016 enactment of this Code section, see 33 Georgia St. U. L. Rev. 139 (2016).

ARTICLE 2 OLD-AGE ASSISTANCE

Cross references.

- Ombudsman program for elderly persons residing in long-term care facilities, § 31-8-50 et seq.

Reporting of abuse or exploitation of elderly persons residing in long-term care facilities, § 31-8-80 et seq.

49-4-30. Short title.

This article may be cited as the "Old-Age Assistance Act."

(Ga. L. 1937, p. 311, § 20; Ga. L. 1982, p. 3, § 49.)

49-4-31. Definitions.

As used in this article, the term:

  1. "Applicant" means a person who has applied for assistance under this article.
  2. "Assistance" means money payments to, medical care in behalf of, or any type of remedial care recognized under state law in behalf of needy individuals who are 65 years of age or older but shall not include any such payments to or care in behalf of any individual who is a patient in an institution for tuberculosis or mental health or developmental disability services.
  3. "Medical institution" means an institution that is organized to provide medical, nursing, or convalescent care.
  4. "Public institution" means an institution that is the responsibility of a governmental unit or over which a governmental unit exercises administrative control.
  5. "Recipient" means a person who has received assistance under this article.

(Ga. L. 1937, p. 311, § 1; Ga. L. 1957, p. 368, § 1; Ga. L. 1962, p. 683, § 1; Ga. L. 2009, p. 453, § 3-6/HB 228; Ga. L. 2018, p. 550, § 3-3/SB 407.)

The 2018 amendment, effective July 1, 2018, in paragraph (2), substituted "shall not include" for "does not include" near the middle, deleted "an inmate of a public institution (except as a patient in a medical institution) or any individual who is" following "individual who is" in the middle; added paragraphs (3) and (4); and redesignated former paragraph (3) as present paragraph (5).

49-4-32. Eligibility for assistance under this article.

  1. Assistance shall be granted under this article to any person who:
    1. Is 65 years of age or older;
    2. Does not have sufficient income or other resources to provide a reasonable subsistence compatible with decency and health;
    3. Has not made an assignment or transfer of property for the purpose of attaining eligibility for assistance under this article at any time within two years immediately prior to the filing of application for assistance pursuant to this article;
    4. Has been a bona fide resident of this state for not less than one year; and
    5. Is not receiving assistance under Article 3 of this chapter.
  2. No applicant shall be required to subscribe to a pauper's oath in order to be eligible for assistance under this article.
  3. Inmates of any public institution meeting the requirements of subsection (a) of this Code section may be granted assistance, provided such public institution has entered into an agreement with the Department of Community Health to determine an inmate's eligibility for assistance and services. Such agreement shall require the public institution or medical institution providing services to such inmate to provide the Department of Community Health with the required monetary payment to match the federal matching funds as set forth in federal law for the services received.

(Ga. L. 1937, p. 311, § 2; Ga. L. 2018, p. 550, § 3-4/SB 407.)

The 2018 amendment, effective July 1, 2018, deleted former paragraph (a)(3), which read: "Is not, at the time of receiving assistance, an inmate or patient of any public institution, except as a patient in a medical institution. An inmate or patient of such an institution may, however, make application for such assistance but the assistance, if granted, shall not begin until after he ceases to be an inmate;"; redesignated former paragraphs (a)(4) through (a)(6) as present paragraphs (a)(3) through (a)(5), respectively; substituted "attaining eligibility" for "rendering himself eligible" in present paragraph (a)(3); and substituted the present provisions of subsection (c) for the former provisions, which read: "Final conviction of a crime or criminal offense and detention of one so convicted either by this state or by any subdivision thereof shall constitute a forfeiture or suspension of all rights to assistance under this article but only during the period of actual confinement."

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

JUDICIAL DECISIONS

Cited in Bryson v. Burson, 308 F. Supp. 1170 (N.D. Ga. 1969).

OPINIONS OF THE ATTORNEY GENERAL

United States Supreme Court decisions control validity of residency statutes.

- Validity of the residency statutes concerning eligibility for public assistance would be held invalid by a court on the basis of United States Supreme Court decisions. 1969 Op. Att'y Gen. No. 69-238.

State employees not disqualified from receiving assistance.

- If an applicant for old age assistance is otherwise qualified, the fact that such applicant is employed by the state would not disqualify the applicant from receiving old age assistance to provide the applicant with a reasonable subsistence compatible with decency and health. 1945-47 Op. Att'y Gen. p. 645.

RESEARCH REFERENCES

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, §§ 77, 85.

ALR.

- Requisite residence for purposes of old age assistance, 43 A.L.R.2d 1427.

Social Security Acts: requisite of employment as affected by family relationship between alleged employer and employee, 8 A.L.R.3d 696.

Unemployment compensation: eligibility of employee laid off according to employer's mandatory retirement plan, 50 A.L.R.3d 880.

49-4-33. Duties of department under this article.

The department shall:

  1. Supervise the administration of assistance under this article by the county departments;
  2. Take such action as may be necessary or desirable for carrying out this article;
  3. Prescribe the form of and print and supply to the county departments such forms as it may deem necessary and advisable; and
  4. Publish in print or electronically an annual report and such interim reports as may be necessary.

(Ga. L. 1937, p. 311, § 4; Ga. L. 2010, p. 838, § 10/SB 388.)

RESEARCH REFERENCES

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, §§ 75, 76.

49-4-34. Duties of county departments under this article.

The county departments shall:

  1. Administer this article in their respective counties, subject to the rules and regulations prescribed by the board pursuant to this article;
  2. Report to the department at such times and in such manner and form as the department may from time to time direct; and
  3. Submit to the county commissioner or board of commissioners or the legally constituted fiscal or financial agent of the county, after approval by the department, a budget containing an estimate and supporting data setting forth the amount of money needed to carry out this article.

(Ga. L. 1937, p. 311, § 5.)

RESEARCH REFERENCES

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, §§ 75, 76.

49-4-35. Assistance is neither assignable nor subject to legal process or operation of bankruptcy law; payment of assistance check after death of recipient.

  1. Assistance granted under this article shall not be transferable or assignable at law or in equity; and none of the money paid or payable under this article shall be subject to execution, levy, attachment, garnishment, or other legal process or to the operation of any bankruptcy or insolvency law.
  2. Where a recipient dies after authorization of his assistance grant but before negotiation of his assistance check for the month in which his death occurs, endorsement of such check without recourse by the department to the spouse or nearest living relative of the recipient shall be sufficient authorization to the drawee bank to pay such check.

(Ga. L. 1937, p. 311, § 11; Ga. L. 1950, p. 316, § 1.)

49-4-36. Payment of assistance after recipient moves to another county.

Any recipient who moves to another county in this state shall be entitled, with the approval of the Department of Human Services, to receive assistance in the county to which he has moved; and the county department of the county from which he has moved shall transfer all necessary records relating to the recipient to the county department of the county to which he has moved. The county from which the recipient has moved shall pay the assistance for a period of two months, after which time the county to which he has moved shall pay the assistance, if he remains otherwise eligible.

(Ga. L. 1937, p. 311, § 16; Ga. L. 2009, p. 453, § 2-2/HB 228.)

49-4-37. Claims to assistance subject to amendments or repeals.

All assistance granted under this article shall be deemed to be granted and to be held subject to any amending or repealing Act that may hereafter be passed; and no recipient shall have any claim for compensation, or otherwise, by reason of his assistance being affected in any way by any amending or repealing Act.

(Ga. L. 1937, p. 311, § 19.)

49-4-38. Roll book of employees.

Each county board shall maintain for public information a roll book giving the name and address of and salary paid each employee of the county board in the county.

(Ga. L. 1937, p. 311, § 19A.)

ARTICLE 3 AID TO THE BLIND

Cross references.

- Georgia Industries for the Blind, T. 30, C. 2.

Blindness education, screening, and treatment program, § 31-1-23.

49-4-50. Short title.

This article may be cited as the "Aid to the Blind Act."

(Ga. L. 1937, p. 568, § 23.)

49-4-51. Definitions; when person considered blind.

  1. As used in this article, the term:
    1. "Applicant" means a person who has applied for assistance under this article.
    2. "Assistance" means money payments to or hospital care in behalf of needy blind individuals but shall not include any such payments to or care in behalf of any such individual who:
      1. Is a patient in an institution for tuberculosis or mental illness or developmental disability; or
      2. Has been diagnosed as having tuberculosis or being mentally ill or developmentally disabled and is a patient in a medical institution as a result thereof.
    3. "Medical institution" means an institution that is organized to provide medical, nursing, or convalescent care.
    4. "Ophthalmologist" means a physician who is licensed to practice medicine in this state and who is actively engaged in the treatment of diseases of the human eye.
    5. "Optometrist" means an individual who is licensed and registered to practice optometry in this state and who is actively engaged in the measurement of the powers of vision of the human eye.
    6. "Public institution" means an institution that is the responsibility of a governmental unit or over which a governmental unit exercises administrative control.
    7. "Recipient" means a person who has received assistance under this article.
    8. "Supplementary services" means services other than money payments to blind persons in need.
  2. A person shall be considered blind for the purposes of this article if his vision, with correcting glasses, is so defective as to prevent the performance of activities for which eyesight is essential. The department shall promulgate rules and regulations stating, in terms of ophthalmic measurements, the amount of visual acuity which an applicant may have and still be eligible for assistance under this article.

(Ga. L. 1937, p. 568, §§ 1, 2; Ga. L. 1952, p. 233, § 1; Ga. L. 1957, p. 368, § 4; Ga. L. 2009, p. 453, §§ 3-5, 3-6/HB 228; Ga. L. 2018, p. 550, § 3-5/SB 407.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of paragraph (a)(2) for the former provisions, which read: " 'Assistance' means money payments to or hospital care in behalf of needy blind individuals but does not include any such payments to or care in behalf of any such individual who is an inmate of a public institution (except as a patient in a medical institution) nor any individual who:"; added paragraph (a)(3); redesignated former paragraphs (a)(3) and (a)(4) as present paragraphs (a)(4) and (a)(5), respectively; added paragraph (a)(6); and redesignated former paragraphs (a)(5) and (a)(6) as present paragraphs (a)(7) and (a)(8), respectively.

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

49-4-52. Eligibility for assistance under this article.

  1. Assistance shall be granted under this article to any blind person who:
    1. Does not have sufficient income or other resources to provide a reasonable subsistence compatible with decency and health, except that, after March 1, 1961, in making such determination, the first $85.00 per month of earned income plus one-half of earned income in excess of $85.00 per month shall be disregarded;
    2. Has been a bona fide resident of the state for not less than one year;
    3. Is not receiving old-age assistance; and
    4. Is not publicly soliciting alms in any part of this state by the wearing, carrying, or exhibiting of signs denoting blindness, by the carrying of receptacles for the reception of alms, by the doing of such acts by proxy, or by begging from house to house.
  2. Inmates of any public institution meeting the requirements of subsection (a) of this Code section may be granted assistance, provided such public institution has entered into an agreement with the Department of Community Health to determine an inmate's eligibility for assistance and services. Such agreement shall require the public institution or medical institution providing services to such inmate to provide the Department of Community Health with the required monetary payment to match the federal matching funds as set forth in federal law for the services received.

(Ga. L. 1937, p. 568, § 3; Ga. L. 1952, p. 233, §§ 4, 6; Ga. L. 1961, p. 415, § 1; Ga. L. 1965, p. 385, § 19; Ga. L. 2018, p. 550, § 3-6/SB 407.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of subsection (b) for the former provisions, which read: "All assistance under this article shall be suspended in the event of and during the period of confinement in any public penal institution after final conviction of a crime against the laws of this state or any political subdivision thereof."

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

JUDICIAL DECISIONS

Cited in Bryson v. Burson, 308 F. Supp. 1170 (N.D. Ga. 1969).

OPINIONS OF THE ATTORNEY GENERAL

United States Supreme Court decisions control validity of residency statutes.

- Validity of the residency statutes concerning eligibility for public assistance would be held invalid by a court on the basis of United States Supreme Court decisions. 1969 Op. Att'y Gen. No. 69-238.

RESEARCH REFERENCES

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, § 188.

ALR.

- Status of one as poor person for purposes of statutes entitling him to relief or providing for compensation of persons who render services or aid, as affected by extent of his financial resources, 98 A.L.R. 870.

Social Security Acts: requisite of employment as affected by family relationship between alleged employer and employee, 8 A.L.R.3d 696.

Laws regulating begging, panhandling, or similar activity by poor or homeless persons, 7 A.L.R.5th 455.

49-4-53. Duties of department under this article.

The department shall:

  1. Supervise the administration of assistance under this article by the county departments;
  2. Make such rules and regulations and take such action as may be necessary or desirable for carrying out this article;
  3. Establish the procedure to be followed in securing a competent medical examination for the purpose of determining blindness in the individual applicant for assistance;
  4. Prescribe the form of and print and supply to the county departments such forms as it may deem necessary and advisable;
  5. Publish in print or electronically an annual report and such interim reports as may be necessary;
  6. Designate a suitable number of ophthalmologists and optometrists to examine applicants and recipients of assistance to the blind;
  7. Fix the fees to be paid to ophthalmologists and optometrists for examinations of applicants, such fees to be paid out of funds allocated to the department or to the county departments; and
  8. Initiate or cooperate with other agencies in developing measures for the prevention of blindness; the restoration of eyesight; the vocational adjustment of blind persons, including employment in regular industries, independent business, sheltered workshops, or home industry; and the instruction of the adult blind in their homes.

(Ga. L. 1937, p. 568, § 5; Ga. L. 1952, p. 233, § 2; Ga. L. 2010, p. 838, § 10/SB 388.)

RESEARCH REFERENCES

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, § 189 et seq.

49-4-54. Duties of county departments under this article.

The county departments shall:

  1. Administer this article in their respective counties, subject to the rules and regulations prescribed by the Board of Human Services pursuant to this article;
  2. Report to the Department of Human Services at such times and in such manner and form as the department may from time to time direct; and
  3. Submit to the county commissioner or board of commissioners or the legally constituted fiscal or financial agent of the county, after approval by the department, a budget containing an estimate and supporting data setting forth the amount of money needed to carry out this article.

(Ga. L. 1937, p. 568, § 6; Ga. L. 2009, p. 453, §§ 2-2, 2-3/HB 228.)

RESEARCH REFERENCES

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, § 189 et seq.

49-4-55. Examination of applicant by ophthalmologist or optometrist.

No application for assistance under this article shall be approved until the applicant has been examined by an ophthalmologist or optometrist designated or approved by the department to make such examinations. The examining ophthalmologist or optometrist shall certify the findings of the examination in writing upon forms provided by the department.

(Ga. L. 1937, p. 568, § 9; Ga. L. 1952, p. 233, § 3.)

Cross references.

- Licensing of optometrists generally, T. 43, C. 30.

49-4-56. Reexamination of recipient's eyesight; furnishing information.

A recipient shall submit to a reexamination as to his eyesight when required to do so by the county department or the Department of Human Services. He shall also furnish any information required by the county department or the Department of Human Services.

(Ga. L. 1937, p. 568, § 15; Ga. L. 1982, p. 3, § 49; Ga. L. 2009, p. 453, § 2-2/HB 228.)

49-4-57. Providing supplementary treatment services.

Supplementary services may be provided by a county department to any applicant or recipient who is in need of treatment either to prevent blindness or to restore his eyesight, whether or not he is blind as defined in subsection (b) of Code Section 49-4-51, if he is otherwise qualified for assistance under this article. The supplementary services may include necessary traveling and other expenses to receive treatment from a hospital or clinic designated by the department.

(Ga. L. 1937, p. 568, § 16.)

49-4-58. Assistance is neither assignable nor subject to legal process; payment of assistance check after death of recipient.

  1. Assistance granted under this article shall not be transferable or assignable at law or in equity; and none of the money paid or payable under this article shall be subject to execution, levy, attachment, garnishment, or other legal process or to the operation of any bankruptcy or insolvency law.
  2. Where a recipient dies after authorization of his assistance grant but before negotiation of his assistance check for the month in which his death occurs, endorsement of such check without recourse by the department to the spouse or nearest living relative of the recipient shall be sufficient authorization to the drawee bank to pay such check.

(Ga. L. 1937, p. 568, § 12; Ga. L. 1950, p. 287, § 1.)

RESEARCH REFERENCES

ALR.

- Voluntary or involuntary bankruptcy proceedings in case of incompetent or infant, 125 A.L.R. 1292.

49-4-59. Recovery of assistance payments from recipient's estate; federal share of amounts recovered.

  1. The total amount of assistance paid under this article shall be allowed as a claim against the estate of a deceased recipient after funeral expenses, not to exceed $75.00, and the expense of administering the estate have been paid; provided, however, that no claim shall be enforced against any real estate of a recipient while it is occupied by his or her surviving spouse or dependent.
  2. The federal government shall be entitled to a share of any amounts collected under subsection (a) of this Code section from recipients or from their estates, if required as a condition to federal financial participation in assistance under this article, equal to not more than one-half of the amount collected; and this amount shall be specified by the department. The amount due the United States shall be paid promptly to it by the department.

(Ga. L. 1937, p. 568, § 18.)

49-4-60. Payment of assistance after recipient moves to another county.

Any recipient who moves to another county in this state shall be entitled, with the approval of the Department of Human Services, to receive assistance in the county to which he has moved; and the county department of the county from which he has moved shall transfer all necessary records relating to the recipient to the county department of the county to which he has moved. The county from which the recipient has moved shall pay the assistance for a period of two months, after which time the county to which he has moved shall pay the assistance, if he remains otherwise eligible.

(Ga. L. 1937, p. 568, § 19; Ga. L. 2009, p. 453, § 2-2/HB 228.)

49-4-61. Claims to assistance subject to amendments or repeals.

All assistance granted under this article shall be deemed to be granted and to be held subject to any amending or repealing Act that may hereafter be passed; and no recipient shall have any claim for compensation, or otherwise, by reason of his assistance being affected in any way by any amending or repealing Act.

(Ga. L. 1937, p. 568, § 22.)

ARTICLE 4 AID TO THE DISABLED

49-4-80. Definitions.

As used in this article, the term:

  1. "Applicant" means a person who has applied for assistance under this article.
  2. "Assistance" means money payments to, or hospital care in behalf of, needy individuals who are totally and permanently disabled but does not include any individual:
    1. Who is a patient in an institution for tuberculosis or mental illness or developmental disability; or
    2. Who has been diagnosed as having tuberculosis or being mentally ill or developmentally disabled and is a patient in a medical institution as a result thereof.
  3. "Medical institution" means an institution that is organized to provide medical, nursing, or convalescent care.
  4. "Public institution" means an institution that is the responsibility of a governmental unit or over which a governmental unit exercises administrative control.
  5. "Recipient" means a person who has received assistance.
  6. "Totally and permanently disabled" means any person not less than 18 nor more than 65 years of age who has a medically demonstrable disability which is permanent and which renders him incapable of performing any gainful occupation within his competence.

(Ga. L. 1952, p. 15, § 1; Ga. L. 1957, p. 368, § 6; Ga. L. 2009, p. 453, §§ 3-5, 3-6/HB 228; Ga. L. 2018, p. 550, § 3-7/SB 407.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of paragraph (2) for the former provisions, which read: "'Assistance' means money payments to, or hospital care in behalf of, needy individuals who are totally and permanently disabled but does not include any such payments to or care in behalf of any such individual who is an inmate of a public institution (except as a patient in a medical institution) or any individual:"; added paragraphs (3) and (4); and redesignated former paragraphs (3) and (4) as present paragraphs (5) and (6), respectively.

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

JUDICIAL DECISIONS

Cited in Holloway v. Parham, 340 F. Supp. 336 (N.D. Ga. 1972); Howell v. Harden, 129 Ga. App. 200, 198 S.E.2d 890 (1973); Pugh v. Department of Human Resources, 132 Ga. App. 60, 207 S.E.2d 542 (1974); Turner v. Harden, 136 Ga. App. 842, 222 S.E.2d 621 (1975).

RESEARCH REFERENCES

ALR.

- Admissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers' compensation cases, 154 A.L.R. 427; 89 A.L.R.3d 783.

49-4-81. Eligibility for assistance under this article.

  1. Assistance is to be granted under this article to any person who:
    1. Is not less than 18 nor more than 65 years of age;
    2. Is totally and permanently disabled as that term is defined in Code Section 49-4-80;
    3. Does not have sufficient income or other resources to provide a subsistence compatible with decency and health;
    4. Has not made an assignment or transfer of property for the purpose of rendering himself eligible for assistance under this article at any time within two years immediately prior to the filing of application for assistance pursuant to this article;
    5. Has been a bona fide resident of the state for not less than one year; and
    6. Is not receiving old-age assistance, aid to the blind, or aid to dependent children.
  2. No applicant shall be required to subscribe to a pauper's oath in order to be eligible for assistance under this article.
  3. Inmates of any public institution meeting the requirements of subsection (a) of this Code section may be granted assistance, provided such public institution has entered into an agreement with the Department of Community Health to determine an inmate's eligibility for assistance and services. Such agreement shall require the public institution or medical institution providing services to such inmate to provide the Department of Community Health with the required monetary payment to match the federal matching funds as set forth in federal law for the services received.

(Ga. L. 1952, p. 15, § 2; Ga. L. 1964, p. 665, § 1; Ga. L. 2018, p. 550, § 3-8/SB 407.)

The 2018 amendment, effective July 1, 2018, added subsection (c).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1990, the subsection (a) designation was added.

Law reviews.

- For article, "Special Needs Trusts: A Planning Tool with Promises," see 16 (No. 2) Ga. St. B. J. 18 (2010). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

JUDICIAL DECISIONS

Cited in Bryson v. Burson, 308 F. Supp. 1170 (N.D. Ga. 1969); Holloway v. Parham, 340 F. Supp. 336 (N.D. Ga. 1972); James v. Harden, 136 Ga. App. 207, 221 S.E.2d 67 (1975); Turner v. Harden, 136 Ga. App. 842, 222 S.E.2d 621 (1975).

OPINIONS OF THE ATTORNEY GENERAL

United States Supreme Court decisions control validity of residency statutes.

- Validity of the residency statutes concerning eligibility for public assistance would be held invalid by a court on the basis of United States Supreme Court decisions. 1969 Op. Att'y Gen. No. 69-238.

RESEARCH REFERENCES

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, §§ 195, 197.

ALR.

- Social Security Acts: requisite of employment as affected by family relationship between alleged employer and employee, 8 A.L.R.3d 696.

Necessity and sufficiency of showing that "substantial and gainful activity" is available to disability claimant under Federal Social Security Act, 22 A.L.R.3d 440.

49-4-82. Duties of department under this article.

The department shall:

  1. Supervise the administration by the county departments of assistance to the needy totally and permanently disabled under this article;
  2. Make such rules and regulations and take such action as may be necessary or desirable for carrying out this article;
  3. Prescribe the form of and print and supply to the county department such forms as it may deem necessary and advisable; and
  4. Publish in print or electronically an annual report and such interim reports as may be necessary.

(Ga. L. 1952, p. 15, § 4; Ga. L. 2010, p. 838, § 10/SB 388.)

JUDICIAL DECISIONS

Cited in Gartrell v. McGahee, 216 Ga. 125, 114 S.E.2d 871 (1960).

RESEARCH REFERENCES

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, § 196.

49-4-83. Duties of county departments under this article.

The county departments shall:

  1. Administer this article in their respective counties, subject to the rules and regulations prescribed by the board pursuant to this article;
  2. Report to the department at such times and in such manner and form as the department may from time to time direct; and
  3. Submit to the county commissioner or board of commissioners or the legally constituted fiscal or financial agent of the county, after approval by the department, a budget containing an estimate and supporting data setting forth the amount of money needed to carry out this article.

(Ga. L. 1952, p. 15, § 5.)

49-4-84. Assistance is neither assignable nor subject to legal process or operation of bankruptcy law; payment of assistance check after death of recipient.

  1. Assistance granted under this article shall not be transferable or assignable at law or in equity; and none of the money paid or payable under this article shall be subject to execution, levy, attachment, garnishment, or other legal process or to the operation of any bankruptcy or insolvency law.
  2. Where a recipient dies after authorization of his assistance grant but before negotiation of his assistance check for the month in which his death occurs, endorsement of such check without recourse by the department to the spouse or nearest living relative of the recipient shall be sufficient authorization to the drawee bank to pay such check.

(Ga. L. 1952, p. 15, § 9.)

49-4-85. Payment of assistance after recipient moves to another county.

Any recipient who moves to another county in this state shall be entitled, with the approval of the Department of Human Services, to receive assistance in the county to which he has moved; and the county department of the county from which he has moved shall transfer all necessary records relating to the recipient to the county department of the county to which he has moved. The county from which the recipient has moved shall pay the assistance for a period of two months, after which time the county to which he has moved shall pay the assistance, if he remains otherwise eligible.

(Ga. L. 1952, p. 15, § 13; Ga. L. 2009, p. 453, § 2-2/HB 228.)

49-4-86. Claims to assistance subject to amendments or repeals.

All assistance granted under this article shall be deemed to be granted and to be held subject to any amending or repealing Act that may hereafter be passed; and no recipient shall have any claim for compensation, or otherwise, by reason of his assistance being affected in any way by any amending or repealing Act.

(Ga. L. 1952, p. 15, § 16.)

ARTICLE 5 AID TO FAMILIES WITH DEPENDENT CHILDREN

49-4-100 through 49-4-119.

Reserved. Repealed by Ga. L. 1997, p. 1021, § 5, effective April 22, 1997.

Editor's notes.

- Ga. L. 1997, p. 1021, § 5, effective April 22, 1997, repealed and reserved this article. This article was based on Ga. L. 1937, p. 630, §§ 1, 2, 4, 5, 11, 13, and 14; Ga. L. 1950, p. 307, § 1; Ga. L. 1952, p. 253, § 1; Ga. L. 1957, p. 368, § 5; Ga. L. 1963, p. 291, §§ 1 - 3; Ga. L. 1964, p. 125, § 1; Ga. L. 1982, p. 3, § 49; Ga. L. 1984, p. 1426, § 1; Ga. L. 1986, p. 410, § 2; Ga. L. 1986, p. 881, § 1; Ga. L. 1988, p. 1720, § 15; Ga. L. 1992, p. 6, § 49; Ga. L. 1992, p. 2772, § 2; Ga. L. 1992, p. 3044, §§ 1, 2; Ga. L. 1993, p. 1969, §§ 1, 2; Ga. L. 1994, p. 97, § 49; Ga. L. 1994, p. 765, §§ 1, 2; Ga. L. 1995, p. 1155, §§ 2, 2.1.

Code Sections 49-4-118 and 49-4-119, enacted by Ga. L. 1995, p. 1155, §§ 2 and 2.1, respectively, were repealed by Ga. L. 1997, p. 1021, § 5 prior to their effective dates.

ARTICLE 6 MEDICAL ASSISTANCE FOR AGED

49-4-120 through 49-4-128.

Reserved. Repealed by Ga. L. 1999, p. 296, § 16, effective July 1, 1999.

Editor's notes.

- Ga. L. 1999, p. 296, § 16, effective July 1, 1999, repealed and reserved this article. The former article, concerning "The Medical Assistance for the Aged Act", consisted of Code Sections 49-4-120 through 49-4-128 and was based on Ga. L. 1961, p. 170, §§ 1 through 6, and 8 through 10; Ga. L. 1982, p. 3, § 49; Ga. L. 1994, p. 97, § 49.

Code Section 49-4-121 was amended by Ga. L. 1999, p. 81, § 49. However, this amendment was not given effect due to the reserving of this article by Ga. L. 1999, p. 296, § 16.

ARTICLE 7 MEDICAL ASSISTANCE GENERALLY

Cross references.

- Hospital care for the indigent generally, § 31-8-1 et seq.

Determination of responsibility of parties to pay costs of treatment for mental illness, mental retardation, and alcoholism, §§ 37-3-121,37-4-81,37-7-121, T. 37, C. 9.

Administrative Rules and Regulations.

- Department of Medical Assistance, Official Compilation of the Rules and Regulations of the State of Georgia, Title 350.

Law reviews.

- For note, "Charting the Middle Course: An Argument for Robust But Well-Tailored Health Care Discrimination Protection for the Transgender Community," see 52 Ga. L. Rev. 225 (2017).

JUDICIAL DECISIONS

Authority of Department of Medical Assistance (now Department of Community Health) regarding branch offices of home health services.

- Failure of a provider under the Home Health Services Program of the Georgia Medicaid Program to satisfy Department of Medical Assistance (DMA) (now Department of Community Health) regulations governing the geographic location of branch facilities authorized the DMA to disallow reimbursement, even if the federal Health Care Financing Administration and the Department of Human Resources had approved the provider's branch organizational structure. ABC Home Health Servs., Inc. v. Georgia Dep't of Medical Assistance, 211 Ga. App. 496, 439 S.E.2d 696 (1993).

RESEARCH REFERENCES

ALR.

- Limitation on right of chiropractors and osteopathic physicians to participate in public medical welfare programs, 8 A.L.R.4th 1056.

Validity of state statutes and regulations limiting or restricting public funding for abortions sought by indigent women, 20 A.L.R.4th 1166.

49-4-140. Short title.

The short title for this article shall be the "Georgia Medical Assistance Act of 1977."

(Ga. L. 1977, p. 384, § 2.)

Law reviews.

- For article, "Privatization of Rural Public Hospitals: Implications for Access and Indigent Care," see 47 Mercer L. Rev. 991 (1996).

JUDICIAL DECISIONS

Cited in Feminist Women's Health Ctr. v. Burgess, 282 Ga. 433, 651 S.E.2d 36 (2007).

49-4-141. Definitions.

As used in this article, the term:

  1. "Applicant for medical assistance" means a person who has made application for certification as being eligible, generally, to have medical assistance paid in his or her behalf pursuant to the state plan and whose application has not been acted upon favorably.
  2. "Board" means the Board of Community Health established under Chapter 2 of Title 31.
  3. "Commissioner" means the commissioner of the department.
  4. "Department" means the Department of Community Health established under Chapter 2 of Title 31.
  5. "Medical assistance" means payment to a provider of a part or all of the cost of certain items of medical or remedial care or service rendered by the provider to a recipient of medical assistance, provided such items are rendered and received in accordance with such provisions of Title XIX of the federal Social Security Act of 1935, as amended, regulations promulgated pursuant thereto by the secretary of health and human services, all applicable laws of this state, the state plan, and regulations of the department which are in effect on the date on which the items are rendered.
  6. "Provider of medical assistance" means a person or institution, public or private, which possesses all licenses, permits, certificates, approvals, registrations, charters, and other forms of permission issued by entities other than the department, which forms of permission are required by law either to render care or to receive medical assistance in which federal financial participation is available and which meets the further requirements for participation prescribed by the department and which is enrolled, in the manner and according to the terms prescribed by the department, to participate in the state plan.
  7. "Recipient of medical assistance" means a person who has been certified eligible, pursuant to the state plan, to have medical assistance paid in his or her behalf.
  8. "State plan" means all documentation submitted by the commissioner in behalf of the department to and for approval by the secretary of health and human services, pursuant to Title XIX of the federal Social Security Act, as amended (Act of July 30, 1965, P.L. 89-97, Stat. 343, as amended).
  9. "Third party" means an individual, institution, corporation, or public or private agency, other than the department, that is legally liable to pay all or any part of the medical costs incurred by a recipient of medical assistance on account of any sickness, injury, disease, or disability to such a recipient.

(Ga. L. 1977, p. 384, § 3; Ga. L. 1979, p. 1293, § 1; Ga. L. 1994, p. 97, § 49; Ga. L. 1999, p. 296, § 17; Ga. L. 2009, p. 453, § 1-7/HB 228.)

U.S. Code.

- Title XIX of the federal Social Security Act of 1935, referred to in paragraphs (5) and (8) of this Code section, is codified at 42 U.S.C. § 1396 et seq.

JUDICIAL DECISIONS

Public agencies as third parties.

- When the Georgia Department of Community Health (DCH) filed a departmental lien against plaintiff recipient's settlement proceeds to recover Medicaid sums that it expended to pay providers for the recipient's treatment, and the recipient filed a declaratory judgment suit, seeking a declaration that the DCH's lien was invalid, the trial court properly granted the summary judgment motion of the defendant, the Commissioner of the DCH, as, contrary to the recipient's contentions, the DCH's lien under O.C.G.A. § 49-4-149(a) was not invalid even though the DCH was seeking to enforce the lien against another public agency (the board of regents of Georgia's university system, doing business as a medical college) because § 49-4-149(a) allowed the lien against moneys owed by a third party for its liability leading to the recipient's injury and, applying the definitions in O.C.G.A. § 49-4-141(4) and (9), third parties included other public agencies. Padgett v. Toal, 261 Ga. App. 154, 581 S.E.2d 744 (2003).

Cited in State v. Stuckey Health Care, Inc., 189 Ga. App. 126, 375 S.E.2d 235 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Limited use of state funds to pay for abortion.

- Georgia's statutory language that assures payment for items of care "rendered and received in accordance with" the Social Security Act indicates that state funds, like federal funds, should not be used to pay for any abortions except those in cases where the mother's life would be threatened if the fetus were carried to term. 1977 Op. Att'y Gen. No. 77-64.

RESEARCH REFERENCES

ALR.

- Transsexual surgery as covered operation under state medical assistance program, 2 A.L.R.4th 775.

49-4-142. Department of Community Health established; adoption, administration, and modification of state plan; drug application fees; personal needs allowance.

  1. The Department of Community Health established under Chapter 2 of Title 31 is authorized to adopt and administer a state plan for medical assistance in accordance with Title XIX of the federal Social Security Act, as amended (Act of July 30, 1965, P.L. 89-97, 79 Stat. 343, as amended), provided such state plan is administered within the appropriations made available to the department. The department is authorized to establish the amount, duration, scope, and terms and conditions of eligibility for and receipt of such medical assistance as it may elect to authorize pursuant to this article. Further, the department is authorized to establish such rules and regulations as may be necessary or desirable in order to execute the state plan and to receive the maximum amount of federal financial participation available in expenditures made pursuant to the state plan; provided, however, that the department shall establish reasonable procedures for notice to interested parties and an opportunity to be heard prior to the adoption, amendment, or repeal of any such rule or regulation. The department is authorized to enter into such reciprocal and cooperative arrangements with other states, persons, and institutions, public and private, as it may deem necessary or desirable in order to execute the state plan.
  2. The department shall, not later than June 1, 1986, implement a modification of the state plan for medical assistance or any affected rules or regulations of the department, which modification will allow supplementation by relatives or other persons for a private room or private sitter or both for a recipient of medical assistance in a nursing home. The modification to the plan or to any affected rules and regulations shall be effective unless and until federal authorities rule that such modification is out of compliance with federal regulations. Such modification of the state plan for medical assistance or rules and regulations:
    1. Shall provide that a provider of nursing home services in either a skilled care facility or an intermediate care facility shall be obligated to provide a recipient of medical assistance only semiprivate accommodations which meet the other requirements of appropriate regulations;
    2. Shall provide that at no time can more than 10 percent of a skilled care or intermediate care facility's rooms be used for Medicaid recipients for whom a private room supplementation has been made;
    3. Shall provide that payments made by relatives or other persons to a provider of medical assistance for the specific stated purpose of paying the additional costs for a private room or private sitter or both for a recipient of medical assistance in a skilled care facility or intermediate care facility shall not be considered as income when determining the amount of patient liability toward vendor payments; provided, however, that the department's entitlement to payments made by legally liable third parties shall not be diminished by this modification of the state plan;
    4. Shall provide that no provider of medical assistance shall discriminate against a recipient of medical assistance who does not have a relative or other person who is willing and able to provide supplementation; but the provision of a private room or private sitter to a recipient when supplementation is provided shall not constitute discrimination against other recipients;
    5. Shall provide that no recipient who is transferred to or admitted to a private room because of a shortage of beds in semiprivate rooms shall be discharged because the recipient does not have a relative or other person who is willing and able to provide supplementation; and
    6. May provide that the rate charged by the provider of medical assistance to the relative or other person providing supplementation for a private room for a recipient shall not exceed the difference between the maximum rate charged by the provider for a private room to or for a private pay patient and the amount which the provider receives or will receive from the department as reimbursement for otherwise providing for the recipient's care in a semiprivate room.
  3. The department is authorized to establish drug application fees which shall be equal to the department's cost of investigating and determining whether a new drug product should be included in the Controlled Medical Assistance Drug List.Such fees shall be adjusted annually and shall be paid by the drug manufacturers at the time of application.
  4. The department shall, upon state appropriations, implement a modification of the state plan for medical assistance or any affected rules or regulations of the department, which modification shall provide that, in determining the amount of a recipient's income that is to be applied to payment for the costs of care in a nursing home, there shall be deducted a personal needs allowance of not less than $70.00 per month which shall include the minimum amount required by 42 U.S.C. Section 1396a(q)(2).

(Ga. L. 1977, p. 384, § 4; Ga. L. 1984, p. 1647, § 1; Ga. L. 1985, p. 517, § 1; Ga. L. 1986, p. 486, § 1; Ga. L. 1990, p. 1808, § 1; Ga. L. 1994, p. 97, § 49; Ga. L. 1999, p. 296, § 18; Ga. L. 2009, p. 453, §§ 1-7, 1-52/HB 228; Ga. L. 2017, p. 219, § 3/HB 206; Ga. L. 2018, p. 1112, § 49/SB 365.)

The 2017 amendment, effective July 1, 2017, added subsection (d).

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "provided, however, that the department shall" for "provided, however, the department shall" in the proviso at the end of the third sentence of subsection (a).

Administrative Rules and Regulations.

- Administration and procedures for adoption, amendment, and repeal of rules and for public notice of changes in methods and standards for setting payment rates, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Medical Assistance, Chapter 350-1 et seq.

Indigent Care Trust Fund, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Medical Assistance, Chapter 111-3-6.

U.S. Code.

- Title XIX of the federal Social Security Act of 1935, referred to in this Code section, is codified at 42 U.S.C. § 1396 et seq.

JUDICIAL DECISIONS

Exhaustion of administrative remedies required.

- In an action involving a dispute over Medicaid reimbursement rates, the plaintiffs were not excused from the exhaustion of administrative remedies requirement because the plaintiffs were required to raise the plaintiffs' defective notice claims in the administrative review process in the first instance and O.C.G.A. § 49-4-153 governed that administrative review process. Ga. Dep't of Behavioral Health & Developmental Disabilities v. United Cerebral Palsy of Ga., Inc., 298 Ga. 779, 784 S.E.2d 781 (2016).

State's rules restricting reimbursement for abortions inconsistent with Social Security Act.

- Rules promulgated by Georgia's Department of Medical Assistance (now Department of Community Health) restricting reimbursement to Medicaid enrollees for medically necessary abortions are inconsistent with Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and because the plaintiff classes will suffer irreparable injury for which there is no adequate legal remedy, the defendants, the defendants' agents and employees, must be permanently enjoined from refusing to provide Medicaid reimbursement to the members of the plaintiff classes for the provision of all medically necessary abortions. Doe v. Busbee, 481 F. Supp. 46 (N.D. Ga. 1979).

Restrictive rules amounting to denial or reduction of required service.

- Restrictions on reimbursement for abortions contained in Georgia's rules amount to a denial or reduction of a required service to an otherwise eligible recipient solely because of that eligible recipient's condition, i.e., pregnancy, and furthermore, these restrictions are not based on medical necessity or utilization control procedures nor is any contention made by the defendants that the abortions sought by the plaintiffs were not medically necessary or presented utilization control problems; therefore, under 42 C.F.R. § 440.230(c), the Georgia Department of Medical Assistance (now Department of Community Health) must provide reimbursement for these medically necessary abortions. Doe v. Busbee, 481 F. Supp. 46 (N.D. Ga. 1979).

Plan administrator.

- In O.C.G.A. § 49-4-142(a), the General Assembly has designated the Georgia Department of Community Health as the agency authorized to adopt and administer the plan for medical assistance under the federal Medicaid program. Ga. Dep't of Cmty. Health v. Freels, 258 Ga. App. 446, 576 S.E.2d 2 (2002).

Minimum requirements that state's Medicaid plan must meet.

- As a participating state, Georgia's Medicaid plan must meet certain minimum requirements as set out in Title XIX of the Social Security Act. The following categories of services must be provided: (1) inpatient hospital services; (2) outpatient hospital services; (3) laboratory and x-ray services; (4)(A) skilled nursing facility services; (B) early and periodic screening and diagnosis for persons under 21 years of age; (C) family planning services and supplies; and (5) physicians' services, (whether furnished in the office, patient's home, a hospital, skilled nursing facility or elsewhere). Doe v. Busbee, 471 F. Supp. 1326 (N.D. Ga. 1979).

Effect of renunciation of inheritance on Medicaid benefits.

- While a Medicaid claimant was entitled under O.C.G.A. § 53-1-20 to renounce an inheritance under the will of the claimant's spouse, this did not insulate that choice from the application of Medicaid's eligibility regulations. Thus, the Georgia Department of Community Health properly denied Medicaid vendor benefits to the claimant. Ga. Dep't of Cmty. Health v. Medders, 292 Ga. App. 439, 664 S.E.2d 832 (2008).

Cited in Georgia Hosp. Ass'n v. Department of Medical Assistance, 528 F. Supp. 1348 (N.D. Ga. 1982); Brogdon v. National Healthcare Corp., 103 F. Supp. 2d 1322 (N.D. Ga. 2000); Crittenden v. White, 346 Ga. App. 179, 816 S.E.2d 308 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Limited use of state funds to pay for abortions.

- Statutory language which authorizes the Department of Medical Assistance (now Department of Community Health) "to establish such rules and regulations as may be necessary or desirable in order to . . . receive the maximum amount of federal financial participation as is available in expenditures made pursuant to the state plan . . ." indicates that state funds, like federal funds, should not be used to pay for any abortions except those in cases where the mother's life would be threatened if the fetus were carried to term. 1977 Op. Att'y Gen. No. 77-64.

Coverage for medically necessary abortions, reporting requirements.

- Georgia Department of Medical Assistance (now Department of Community Health) must provide coverage for medically necessary abortions and may impose reasonable reporting or documentation requirements for abortions resulting from rape or incest. 1994 Op. Att'y Gen. No. U94-6.

Limitation on nursing home charges for private rooms.

- Nursing home providers may not charge more than the difference between their usual private and semiprivate room rates to individuals who desire to provide private rooms for medical assistance recipients. 1985 Op. Att'y Gen. No. 85-60.

Department of Medical Assistance (now Department of Community Health) may not forbear collection of overpayments made to providers. 1980 Op. Att'y Gen. No. 80-89.

49-4-142.1. Legislative notification of request for waiver.

On and after May 3, 2006, neither the department, the board, nor any other representative of the state shall submit any request to the United States Department of Health and Human Services Centers for Medicare and Medicaid Services for a waiver pursuant to Section 1115 of the federal Social Security Act without legislative notification. This shall apply only to waivers that relate to Medicaid modernization, Medicaid transformation, or a Medicaid reform model that would affect 20,000 or more individuals in the Georgia Medicaid population. The legislative notification required under this Code section shall be by Act of the General Assembly or the adoption of a joint resolution of the General Assembly.

(Code 1981, §49-4-142.1, enacted by Ga. L. 2006, p. 775, § 1/SB 572; Ga. L. 2007, p. 47, § 49/SB 103.)

U.S. Code.

- Section 1115 of the federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C. § 1315.

49-4-142.2. Expansion of Medicaid eligibility through an increase in the income threshold.

On and after July 1, 2014, neither the department, the board, nor any other representative of the state shall expand Medicaid eligibility under this article through an increase in the income threshold without prior legislative approval; provided, however, that this shall not apply to any increase resulting from a cost-of-living increase in the federal poverty level. The legislative approval required under this Code section shall be by Act of the General Assembly or the adoption of a joint resolution of the General Assembly.

(Code 1981, §49-4-142.2, enacted by Ga. L. 2014, p. 293, § 2/HB 990.)

Effective date.

- This Code section became effective July 1, 2014.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2014, "July 1, 2014" was substituted for "the effective date of this Code section" at the beginning of the Code section.

Editor's notes.

- Ga. L. 2014, p. 293, § 1/HB 990, not codified by the General Assembly, provides that: "WHEREAS, the General Assembly is constitutionally mandated to balance the Georgia state budget through the annual appropriations process; and

"WHEREAS, the Medicaid program comprises one of the largest expenditures of state funds in the annual budget; and

"WHEREAS, any decision to increase the income threshold for eligibility for the Medicaid entitlement program in Georgia must be carefully considered within the context of the state's responsibility to fund other critical state services, including education, infrastructure, and public safety; and

"WHEREAS, Governor Nathan Deal has demonstrated fiscal responsibility throughout his first term in office; and

"WHEREAS, Governor Deal has recently declined to expand Medicaid eligibility through an increase in the income threshold in Georgia's Medicaid program despite efforts by the federal government to compel states to expand this entitlement program through provisions of the Affordable Care Act; and

"WHEREAS, expanding Medicaid eligibility by increasing the income threshold for the Medicaid entitlement program would dramatically increase the number of Georgians receiving public assistance that otherwise do not qualify for Medicaid benefits by meeting low income program requirements for aged, blind, and disabled individuals; for families or children age 18 and under; for aged, blind, and disabled individuals receiving nursing home care; for individuals receiving hospice care; for pregnant women; or for individuals with breast or cervical cancer; or by meeting other program requirements for children in foster care or adopted from foster care or for children with disabilities receiving services under a federal Deeming waiver; and

"WHEREAS, in support of Governor Deal's stance against this effort to oblige states to expand the income threshold for Medicaid benefits and, in an effort to assure any similar efforts by the federal government are seriously evaluated in the future, the General Assembly determines it is essential that a potential expansion of eligibility for Medicaid be thoroughly debated and voted upon by the legislature."

Law reviews.

- For article on the 2014 enactment of this Code section, see 31 Ga. St. U. L. Rev. 191 (2014).

49-4-142.3. Waiver request to federal government on income threshold for Medicare and Medicaid services.

The department shall be authorized to submit a waiver request, on or before June 30, 2020, to the United States Department of Health and Human Services Centers for Medicare and Medicaid Services pursuant to Section 1115 of the federal Social Security Act, which may include an increase in the income threshold up to a maximum of 100 percent of the federal poverty level.Further, upon approval of the waiver, the department shall be authorized to take all necessary steps to implement the terms and conditions of the waiver without any further legislative action.

(Code 1981, §49-4-142.3, enacted by Ga. L. 2019, p. 2, § 2-1/SB 106.)

Effective date.

- This Code section became effective March 27, 2019.

Editor's notes.

- Ga. L. 2019, p. 2, § 1-1/SB 106, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Patients First Act.'"

Ga. L. 2019, p. 2, § 3-1/SB 106, not codified by the General Assembly, provides: "The General Assembly finds that:

"(1) For Georgians in recent years, private sector health insurance choices have decreased and the costs of insurance coverage have increased;

"(2) Through the granting of Section 1332 innovation waivers, the federal government allows states to pursue innovative strategies for providing their residents with access to high quality, comprehensive, and affordable health insurance while retaining the basic protections for consumers; and

"(3) Such waivers may be narrowly tailored to address specific problems and may address, among other things, the creation of state reinsurance programs, high-risk health conditions, changes to premium tax credits and cost-sharing arrangements, consumer-driven health care accounts, the creation of new health insurance products, the implementation of health care delivery systems, or the redefinition of essential health benefits."

U.S. Code.

- Section 1115 of the federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C. § 1315.

Law reviews.

- For article on the 2019 enactment of this Code section, see 36 Ga. St. U.L. Rev. 207 (2019).

49-4-143. Power of Board of Community Health; Board of Medical Assistance abolished.

The Board of Community Health established under Chapter 2 of Title 31 is empowered to establish the general policy to be followed by the department. The Board of Medical Assistance which existed June 30, 1999, is abolished July 1, 1999, and no person shall be appointed to such board on or after July 1, 1999.

(Ga. L. 1977, p. 384, § 5; Ga. L. 1999, p. 296, § 19; Ga. L. 2009, p. 453, § 1-7/HB 228.)

JUDICIAL DECISIONS

Cited in Georgia Hosp. Ass'n v. Department of Medical Assistance, 528 F. Supp. 1348 (N.D. Ga. 1982).

49-4-144. Chief administrative officer; powers and duties.

The commissioner of community health established under Chapter 2 of Title 31 shall be the chief administrative officer of the department and, subject to the general policy established by the board, shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department.

(Ga. L. 1977, p. 384, § 6; Ga. L. 1981, p. 855, § 1; Ga. L. 1999, p. 296, § 19; Ga. L. 2009, p. 453, § 1-7/HB 228.)

49-4-145. Time limitations on claims for assistance; form of claims.

Claims for medical assistance must be submitted not more than six months after the month in which the service is rendered and shall be in the form prescribed by the commissioner, except that the commissioner may, where he finds that delay in submission of claims was caused by circumstances beyond the control of the provider, extend the period for submission of certain claims for a period not to exceed 12 months after the month in which the service was rendered; provided, however, that such limitations shall not apply to claims timely filed pursuant to Title XVIII of the federal Social Security Act of 1935, as amended, and reimbursements of such claims may be authorized by the department so long as federal financial participation in such reimbursements is available.

(Ga. L. 1977, p. 384, § 7; Ga. L. 1981, p. 1887, § 1.)

U.S. Code.

- Title XVIII of the federal Social Security Act of 1935, referred to in this Code section, is codified at 42 U.S.C. § 1395 et seq.

49-4-146. Time for action on claim.

The Department of Community Health, within three months of receiving a claim submitted on or after July 1, 1978, shall pay or deny the claim.

(Ga. L. 1977, p. 384, § 15A; Ga. L. 1999, p. 296, § 24.)

JUDICIAL DECISIONS

Restrictions on reimbursement for abortions as denial or reduction of required service.

- Restrictions on reimbursement for abortions contained in Georgia's rules amount to a denial or reduction of a required service to an otherwise eligible recipient solely because of that eligible recipient's condition, i.e., pregnancy, and furthermore, these restrictions are not based on medical necessity or utilization control procedures nor is any contention made by the defendants that the abortions sought by the plaintiffs were not medically necessary or presented utilization control problems; therefore, under 42 C.F.R. § 440.230(c) the Georgia Department of Medical Assistance (now Department of Community Health) must provide reimbursement for these medically necessary abortions. Doe v. Busbee, 481 F. Supp. 46 (N.D. Ga. 1979).

49-4-146.1. Unlawful acts; violations and penalties; recovery of excess amounts; termination and reinstatement of providers; duty of department to identify and investigate violations; notifications; authorization to obtain income eligibility verification.

  1. As used in this Code section, the term:
    1. "Agent" means any person who has been delegated the authority to obligate or act on behalf of a provider.
    2. "Convicted" means that a judgment of conviction has been entered by any federal, state, or other court, regardless of whether an appeal from that judgment is pending.
    3. "Indirect ownership interest" means any ownership interest in an entity that has an ownership interest in the provider entity. The term includes an ownership interest in any entity that has an indirect ownership interest in the provider entity.
    4. "Managing employee" means a general manager, business manager, administrator, director, or other individual who exercises operational or managerial control over, or who directly or indirectly conducts, the day-to-day operation of the institution, organization, or agency.
    5. "Payment" includes a payment or approval for payment, any portion of which is paid by the Georgia Medicaid program, or by a contractor, subcontractor, or agent for the Georgia Medicaid program pursuant to a managed care program operated, funded, or reimbursed by the Georgia Medicaid program.
    6. "Person" means any person, firm, corporation, partnership, or other entity.
    7. "Person with an ownership or control interest" means a person who:
      1. Has ownership interest totaling 5 percent or more in a provider;
      2. Has an indirect ownership interest equal to 5 percent or more in a provider;
      3. Has a combination of direct and indirect ownership interests equal to 5 percent or more in a provider;
      4. Owns an interest of 5 percent or more in any mortgage, deed of trust, note, or other obligation secured by the provider entity if that interest equals at least 5 percent of the value of the property or assets of the provider;
      5. Is an officer or director of a provider that is organized as a corporation; or
      6. Is a partner in a provider entity that is organized as a partnership.
    8. "Provider" means an actual or prospective provider of medical assistance under this chapter. The term "provider" shall also include any managed care organization providing services pursuant to a managed care program operated, funded, or reimbursed by the Georgia Medicaid program.
  2. It shall be unlawful:
    1. For any person or provider to obtain, attempt to obtain, or retain for himself, herself, or any other person any medical assistance or other benefits or payments under this article, or under a managed care program operated, funded, or reimbursed by the Georgia Medicaid program, to which the person or provider is not entitled, or in an amount greater than that to which the person or provider is entitled, when the assistance, benefit, or payment is obtained, attempted to be obtained, or retained, by:
      1. Knowingly and willfully making a false statement or false representation;
      2. Deliberate concealment of any material fact; or
      3. Any fraudulent scheme or device; or
    2. For any person or provider knowingly and willfully to accept medical assistance payments to which he or she is not entitled or in an amount greater than that to which he or she is entitled or knowingly and willfully to falsify any report or document required under this article.
  3. Any person violating paragraph (1) or (2) of subsection (b) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished for each offense by a fine of not more than $10,000.00, or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment. In any prosecution under this Code section, the state has the burden of proving beyond a reasonable doubt that the defendant intentionally committed the acts for which he or she is charged.
  4. In addition to any other penalties provided by law, each person violating subsection (b) of this Code section shall be liable to a civil penalty equal to the greater of (1) three times the amount of any such excess benefit or payment or (2) $1,000.00 for each excessive claim for assistance, benefit, or payment. Additionally, interest on the penalty shall be paid at the rate of 12 percent per annum from the date of payment of any such excessive amount, or from the date of receipt of any claim for an excessive amount when no payment has been made, until the date of payment of such penalty to the department.
    1. Whenever the commissioner proposes to recover an amount provided for in subsection (d) of this Code section, he shall give 30 days' written notice of his intended actions. The notice shall inform the person in violation of subsection (b) of this Code section of his right to a hearing, the method by which he may obtain a hearing, and that he may be represented by an authorized representative, such as legal counsel, relative, friend, or other spokesman, or that he may represent himself.
    2. All hearings held by virtue of this subsection shall be conducted in the same manner as any other contested case within the department and shall be subject to the rules and regulations regarding hearings within the department. As in all contested cases within the department, the person against whom the commissioner is proceeding under this subsection shall have the right to appeal any adverse administrative decision to the superior court of the county of his residence or to the Superior Court of Fulton County once he exhausts all administrative remedies within the department.
    3. If the person against whom the commissioner is proceeding under this subsection fails to request a hearing or fails to exhaust all administrative remedies within the department, then his case shall be treated as an unappealed administrative decision. In any unappealed administrative decision where the aggrieved party fails to request a hearing or fails to exhaust all administrative remedies, the commissioner shall issue an order to the person against whom the commissioner is proceeding, directing payment of any amount found to be due pursuant to subsection (d) of this Code section within ten days after service of the order. Upon failure to comply with the commissioner's order, the commissioner may issue a certificate to the clerk of the superior court of the county of residence of the person who is the subject of the order. A copy of such certificate shall be served upon the person against whom the order was entered. Thereupon, the clerk shall immediately enter upon his record of docketed judgments the name of the person so indebted, that the debt is owed to the state, a designation of the statute under which such amount is found to be due, the amount due, and the date of the certification. Such entry shall have the same force and effect as the entry of a docketed judgment in the superior court. Such entry on the docket by the commissioner shall be without prejudice to the right of the aggrieved party to contest such entry by affidavit of illegality or as otherwise provided by law.
  5. The department may refuse to accept a statement of participation, deny a request for reinstatement, refuse to exercise its option to renew a statement of participation, suspend or withhold those payments arising from fraud or willful misrepresentation under the Medicaid program, or terminate the participation of any provider other than a natural person if that provider or any person with an ownership or control interest or any agent or managing employee of such provider has been:
    1. Convicted of violating paragraph (1) or (2) of subsection (b) of this Code section;
    2. Convicted of committing any other criminal offense related to any program administered under Title XVIII, XIX, or XX of the Social Security Act of 1935, as amended; or
    3. Excluded or suspended from participation in the medicare program for fraud or abuse.

      In making a decision pursuant to this subsection, the department shall consider the facts and circumstances of the specific case, including but not limited to the nature and severity of the crime or violation and the extent to which it adversely affected medical assistance recipients and the program.

  6. The department shall refuse to accept a statement of participation, deny a request for reinstatement, refuse to exercise its option to renew a statement of participation, or terminate the participation of any provider who is a natural person if that provider or any agent or managing employee of such provider has been convicted of:
    1. Violating subsection (b) of this Code section; or
    2. Committing any other criminal offense related to any program administered under Title XVIII, XIX, or XX of the Social Security Act of 1935, as amended.
  7. The department shall reinstate a provider whose participation in the medical assistance program was terminated pursuant to subsection (f) or (g) of this Code section if the conviction upon which the termination was based is reversed or vacated or if the decision of the administrative law judge is reversed in accordance with the department's rules and regulations.
  8. It shall be the duty of the department to identify and investigate violations of this article and to turn over to the prosecuting attorney, for prosecution, any information concerning any recipient of medical assistance who violates this article.
  9. As necessary to enforce the provisions of this article, the department or its duly authorized agents may submit to the state revenue commissioner the names of applicants for medical assistance or other benefits or payments provided under this article, as well as the relevant income threshold specified therein. If the department elects to contract with the state revenue commissioner for such purposes, the state revenue commissioner and his or her agents or employees shall notify the department whether or not each submitted applicant's income exceeds the relevant income threshold provided. The department shall pay the state revenue commissioner for all costs incurred by the Department of Revenue pursuant to this subsection. No information shall be provided by the Department of Revenue to the department without an executed cooperative agreement between the two departments. Any tax information secured from the federal government by the Department of Revenue pursuant to express provisions of Section 6103 of the Internal Revenue Code may not be disclosed by the Department of Revenue pursuant to this subsection. Any person receiving any tax information under the authority of this subsection is subject to the provisions of Code Section 48-7-60 and to all penalties provided under Code Section 48-7-61 for unlawful divulging of confidential tax information.

(c.1) (1)Any person committing abuse shall be liable for a civil monetary penalty equal to two times the amount of any excess benefit or payment. This penalty shall be collected on the same terms as a penalty imposed pursuant to subsection (d) of this Code section, except as to the amount specified in items (1) and (2) of that subsection, but shall not be imposed cumulatively with a penalty under such subsection.

Abuse is defined as a provider knowingly obtaining or attempting to obtain medical assistance or other benefits or payments under this article to which the provider knows he or she is not entitled when the assistance, benefits, or payments are greater than an amount which would be paid in accordance with those provisions of the department's policies and procedures manual which are adopted pursuant to public notice, and the assistance, benefits, or payments directly or indirectly result in unnecessary costs to the medical assistance program. Isolated instances of unintentional errors in billing, coding, and costs reports shall not constitute abuse. Miscoding shall not constitute abuse if there is a good faith basis that the codes used were appropriate under the department's policies and procedures manual and there was no deceptive intent on the part of the provider.

(Ga. L. 1981, p. 962, § 1; Ga. L. 1985, p. 1395, §§ 1, 2; Ga. L. 1994, p. 97, § 49; Ga. L. 1997, p. 679, § 1; Ga. L. 1997, p. 1596, § 1; Ga. L. 1998, p. 128, § 49; Ga. L. 1998, p. 664, § 1; Ga. L. 2006, p. 775, § 2/SB 572; Ga. L. 2007, p. 47, § 49/SB 103; Ga. L. 2009, p. 63, § 1/SB 165.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, "Title" was substituted for "Titles" in paragraph (f)(2).

U.S. Code.

- Titles XVIII, XIX, and XX of the Social Security Act of 1935, referred to in this Code section, are codified at 42 U.S.C. §§ 1395 et seq., 1396 et seq., 1397 et seq., respectively.

Section 6103 of the Internal Revenue Code, referred to in subsection (j), is codified at 26 U.S.C. § 6103.

Law reviews.

- For article commenting on the enactment of this Code section, see 14 Ga. St. U. L. Rev. 276 (1997).

JUDICIAL DECISIONS

Statute not vague.

- O.C.G.A. § 49-4-146.1(b)(2), as applied, was not unconstitutionally vague as the procedures for which one would not be entitled to payment through the program were listed in the Medicaid manual, which, in conjunction with the statute, provided the defendant with appropriate notice as required by law. Malloy v. State, 293 Ga. 350, 744 S.E.2d 778 (2013). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003).

Venue for crime of report falsification.

- Crime of violating the Georgia Medical Assistance Act, O.C.G.A. § 49-4-140 et seq., by falsifying reports claiming reimbursement for prescriptions consisted of the act of "falsifying," rather than the act of "submitting" or "sending," and venue was proper in the county in which the reports were falsified, not in the county to which the reports were sent. State v. Barber, 193 Ga. App. 397, 388 S.E.2d 350 (1989).

Venue for Medicaid fraud.

- In a Medicaid fraud case committed by a fraudulent scheme or device under O.C.G.A. § 49-4-146.1(b)(1)(C) of the Georgia Medical Assistance Act, O.C.G.A. § 49-4-140 et seq., pursuant to Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2(a), venue is proper in any county where an act was committed in furtherance of the fraudulent transaction; defendants committed acts in furtherance of the fraud in counties in which the defendants were tried and convicted and, thus, venue in those counties was proper and the appellate court improperly reversed the defendants' convictions. State v. Kell, 276 Ga. 423, 577 S.E.2d 551 (2003).

Venue was proper in the county in which the defendant was tried for Medicaid fraud because it was the county in which the fraudulent scheme was hatched, acts in furtherance thereof were performed, and payment was received. Kell v. State, 262 Ga. App. 489, 585 S.E.2d 915 (2003).

Aiding and abetting commission of crime.

- Even assuming the defendant could not be considered a "provider," the wide range of activities performed, when combined with the defendant's supervisory role in the medical office, made the defendant a party to the crime of Medicaid fraud. Bullard v. State, 242 Ga. App. 843, 530 S.E.2d 265 (2000).

State's authority to prosecute

- Under O.C.G.A. § 49-4-146.1(c), the state has the authority to prosecute persons who violate § 49-4-146.1(b)(2), prohibiting a Medicaid provider's acceptance of payment to which the provider is not entitled, or falsifying a required report. Bixby v. State, 254 Ga. App. 212, 561 S.E.2d 870 (2002).

Indictment defective for failing to list specific dates.

- Trial court erred in overruling the defendant's special demurrer with regard to portions of the indictment that contended that the Medicaid fraud and theft by taking crimes were committed over a range of 38 months because the specific dates were known to the state and the indictment should have listed those dates due to the number of alleged acts. Cole v. State, 334 Ga. App. 752, 780 S.E.2d 406 (2015).

Fine for Medicaid fraud deemed proper.

- Defendant was properly fined $50,000 as a condition of defendant's 10 years' probation for Medicaid fraud because, although the maximum statutory fine for the crime was $10,000, the trial court could impose a fine up to $100,000 as a probation condition pursuant to O.C.G.A. § 17-10-8. Kell v. State, 262 Ga. App. 489, 585 S.E.2d 915 (2003).

Jury instructions.

- In defendant's trial for Medicaid fraud in violation of O.C.G.A. § 49-4-146.1(b)(1), the trial court did not err in reading the entire statute to the jury, although the defendant was only charged with fraud by engaging in a fraudulent scheme and device, because the indictment was read to the jury and sent out with the jury, and the trial court noted that the jury was limited to convicting the defendant if the defendant acted as charged. Wright v. State, 327 Ga. App. 451, 757 S.E.2d 890 (2014).

RESEARCH REFERENCES

Am. Jur. 2d.

- 37 Am. Jur. 2d, Fraud and Deceit, § 1 et seq.

C.J.S.

- 37 C.J.S., Fraud, § 1 et seq.

ALR.

- Criminal prosecution or disciplinary action against medical practitioner for fraud in connection with claims under medicaid, medicare, or similar welfare program for providing medical service, 50 A.L.R.3d 549; 70 A.L.R.4th 132.

Imposition of civil penalties, under state statute, upon medical practitioner for fraud in connection with claims under medicaid, medicare, or similar welfare programs for providing medical services, 32 A.L.R.4th 671.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

State criminal prosecution against medical practitioner for fraud in connection with claims under Medicaid, Medicare, or similar welfare program for providing medical services, 79 A.L.R.6th 125.

49-4-146.2. Requirements for voluntary termination of provider agreements by nursing facilities; adjustment of medical assistance rate; decertification.

  1. As used in this Code section, the term:
    1. "Assist" means that the provider will, at a minimum, do the following:
      1. Provide the resident, the resident's legal guardian, or the resident's representative with the names, addresses, phone numbers, and contact persons at other facilities appropriate to the needs of the resident;
      2. Contact the identified facilities initially in the resident's behalf;
      3. Develop a transfer plan for each resident that addresses the individual needs of the resident during the transfer;
      4. Make arrangements for the safe and orderly transfer of the resident; and
      5. Provide the resident, guardian, or representative with counseling regarding available community resources and informing the appropriate state or social service organizations, including, but not limited to, the community or state long-term care ombudsman and assisting in arranging for the transfer or discharge.
    2. "Decertification" means and refers to termination of a facility's limited provider agreement, at such time as no Medicaid eligible residents reside in the facility.
    3. "Limited provider agreement" means and refers to an agreement between a facility and the department whereby the facility agrees to provide nursing facility services to Medicaid eligible residents and the department agrees to pay medical assistance for services rendered to Medicaid eligible residents during the period of time from termination notice to decertification.
    4. "Medicaid eligible residents" means and refers to persons:
      1. Residing in the facility as of the effective date of termination; and
      2. Who are certified as recipients of medical assistance prior to the effective date of termination.
    5. "Termination" or "terminate" refers to voluntary termination by a nursing facility of its current provider agreement with the department.Upon termination, the facility must enter into a limited provider agreement.
  2. A nursing facility may voluntarily terminate upon 60 days' written notice to the department.Such notice shall include:
    1. The reason or reasons for termination of its current provider agreement;
    2. The names and Medicaid identification numbers of all Medicaid eligible residents;
    3. The names of residents with applications pending for Medicaid eligibility and the names of any representatives authorized to act for such residents in accordance with paragraph (4) of Code Section 31-8-102;
    4. Copies of notices which the facility intends to provide to residents and applicants pursuant to subsection (d) of this Code section; and
    5. Any other information reasonably deemed by the department to be necessary to process the termination.
  3. Any facility which voluntarily terminates its participation must do so in such a manner as to minimize the harm to current residents and applicants. In meeting this requirement, the facility shall:
    1. Enter into a limited provider agreement;
    2. Meet the requirements for nursing facilities enrolled as providers of medical assistance, except as otherwise set forth in the limited provider agreement and this Code section;
    3. Assist residents who desire to leave the facility in finding alternative placement; and
    4. With regard to residents who are not Medicaid eligible residents at the time of termination, but who subsequently become Medicaid eligible residents, comply with the applicable provisions of Code Section 31-8-116 (with the exception of the second sentence of paragraph (3) of subsection (a) of said Code section).
  4. The terminating facility must meet the following notice requirements. All notices required under this subsection must be approved by the department:
    1. The facility shall notify each Medicaid eligible resident that:
      1. The facility has elected to terminate its current provider agreement;
      2. The resident may continue to reside in the facility as long as he or she continues to be a recipient of medical assistance; and
      3. Should the resident wish to transfer to another facility, the terminating facility will provide orientation and preparation for transfer and assist the resident and the department in locating alternative placement;
    2. The facility shall notify all other residents:
      1. That the facility has elected to terminate its current provider agreement;
      2. That the resident will not be entitled to have medical assistance paid on his or her behalf if he or she becomes a Medicaid eligible resident on or after the effective date of termination; and
      3. Of his or her rights pursuant to Code Section 31-8-116; and
    3. The facility shall notify all applicants on the facility's waiting list that:
      1. The facility has elected to terminate its current provider agreement;
      2. No resident admitted to the facility after the effective date of termination shall be entitled to have his or her care at such facility covered by medical assistance;
      3. The legal rights and protections that apply to all residents (regardless of source of payment) in nursing facilities enrolled as providers of medical assistance will not be available on or after the effective date of decertification;
      4. The legal rights and protections under the Georgia Bill of Rights for Residents of Long-term Care Facilities and under other state laws will continue to be available after the effective date of decertification; and
      5. If such applicant desires to apply to other facilities, the terminating facility will assist the applicant in finding alternative placement.
  5. The terminating facility shall receive medical assistance at the per diem rate in effect at the time the facility notified the department of its intention to terminate until such time as rate adjustments are made under the state plan.At that time, the facility's medical assistance rate shall be adjusted to the state-wide average medical assistance rate paid to the class of facilities under the state plan to which the terminating facility belongs.
  6. The terminating facility shall be decertified and its limited provider agreement terminated at such time as no Medicaid eligible residents reside in the facility.
  7. A facility shall file a cost report with the department for the fiscal period ending with the effective date of termination in the manner prescribed by the department.

(Code 1981, §49-4-146.2, enacted by Ga. L. 1992, p. 1048, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, "Long-term" was substituted for "Long-Term" in subparagraph (d)(3)(D).

49-4-146.3. Civil forfeiture of property and proceeds obtained through Medicaid fraud.

  1. As used in this Code section, the term:
    1. "Civil forfeiture proceeding" shall have the same meaning as set forth in Code Section 9-16-2.
    2. "Medicaid fraud" means:
      1. A violation of Code Section 49-4-146.1; or
      2. A violation relating to the obtaining of medical assistance benefits or payments under this article of any provision of:
        1. Chapter 8 of Title 16, relating to offenses involving theft;
        2. Code Section 16-10-20, relating to false statements and writings, concealment of facts, and fraudulent documents in matters within jurisdiction of state or political subdivisions; or
        3. Code Section 16-10-21, relating to conspiracy to defraud the state or its political subdivisions.
    3. "Proceeds" shall have the same meaning as set forth in Code Section 9-16-2.
    4. "Property" shall have the same meaning as set forth in Code Section 9-16-2.
  2. Any property which is directly or indirectly obtained by a person or entity through or as a result of Medicaid fraud in the provision of services or equipment under this article and any proceeds shall be subject to civil forfeiture proceedings in accordance with Chapter 16 of Title 9. This Code section shall not apply to cases involving alleged fraud by Medicaid recipients in obtaining medical assistance benefits.

(Code 1981, §49-4-146.3, enacted by Ga. L. 1997, p. 1596, § 3; Ga. L. 1998, p. 128, § 49; Ga. L. 1998, p. 664, § 2; Ga. L. 1999, p. 296, § 24; Ga. L. 2000, p. 1225, § 7; Ga. L. 2000, p. 1589, § 3; Ga. L. 2001, p. 362, § 36; Ga. L. 2015, p. 693, § 3-29/HB 233.)

The 2015 amendment, effective July 1, 2015, rewrote this Code section. See Editor's notes for applicability.

Editor's notes.

- Ga. L. 1997, p. 1596, § 1.1, not codified by the General Assembly, provides: "Sections 2 and 3 of this Act shall be known and may be cited as the 'Medicaid Fraud Forfeiture Act of 1997."'

Ga. L. 1997, p. 1596, § 2, effective May 5, 1997, not codified by the General Assembly, provides: "The General Assembly finds that substantial financial losses to the state are being caused by acts of fraud directed at the Department of Medical Assistance and that there is a need to enhance the ability of the state to recover property and proceeds obtained through Medicaid fraud. It is the intent of this legislation to provide a legal mechanism for the seizure and forfeiture to the state of property and proceeds obtained through acts of fraud committed to obtain medical assistance benefits or payments under Article 7 of Chapter 4 of Title 49."

Ga. L. 2000, p. 1225, § 8, not codified by the General Assembly, provides that the amendment to this Code section is applicable to civil actions filed on or after July 1, 2000.

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

Law reviews.

- For article commenting on the enactment of this Code section, see 14 Ga. St. U. L. Rev. 276 (1997). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 1 (2015).

49-4-147. Enforcement of liens, claims, or offsets against assistance.

Medical assistance payable by virtue of this article shall be subject to any claim, lien, or offset of this state against the payee and to any claim of the United States of America made against the payee pursuant to a federal statute, but such moneys shall not otherwise be subject to execution, levy, garnishment, or any other legal process; and no transfer or assignment of such at law or in equity shall be enforceable against the State of Georgia, the Department of Community Health, or the commissioner of community health; but medical assistance moneys, having been paid, are subject to all such actions and process.

(Ga. L. 1977, p. 384, § 8; Ga. L. 1999, p. 296, § 24.)

JUDICIAL DECISIONS

Counterclaim in aid recipient's underlying tort suit not required to enforce lien.

- When the Georgia Department of Community Health (DCH) filed a departmental lien against plaintiff recipient's settlement proceeds to recover Medicaid sums that it expended to pay providers for the recipient's medical treatment, and the recipient filed a declaratory judgment suit, seeking a declaration that DCH's lien was invalid, the trial court properly granted the summary judgment motion of the defendant, the Commissioner of the DCH, as, contrary to the recipient's contention, the DCH was not required under O.C.G.A. § 49-4-147 or otherwise to file a counterclaim in the recipient's underlying tort suit in order to preserve its right to assert a lien under O.C.G.A. § 49-4-149(a) given that: (1) pursuant to 42 U.S.C. § 1396p(a)(1), no counterclaim was authorized against the recipient to recover for the medical assistance, but the lien against the money recovered from the third party was expressly authorized by O.C.G.A. § 49-4-149(a); and (2) the recipient was deemed under O.C.G.A. § 49-4-149(d) to have assigned to the DCH the recipient's rights of recovery against the third party that was liable for the recipient's injuries, such that the recipient was in no position to challenge the DCH's right to collect on that assignment from the settlement which the recipient received. Padgett v. Toal, 261 Ga. App. 154, 581 S.E.2d 744 (2003).

49-4-147.1. Claims by department against estate of Medicaid recipients.

  1. In accordance with applicable federal law and regulations, including those under Title XIX of the federal Social Security Act, the department may make claim against the estate of a Medicaid recipient for the amount of any medical assistance payments made on such person's behalf by the department. A claim shall be made against the estate of a deceased Medicaid recipient only if at the time of application for medical assistance the applicant received written notice that the medical assistance costs could be recovered from the applicant's estate and the applicant signed a written acknowledgment of receipt of such notice, the estate is otherwise subject to recovery, and if no hardship or other exemption exists. The commissioner shall waive such claim if he or she determines enforcement of the claim would result in substantial and unreasonable hardship to dependents of the individual against whose estate the claim exists.
  2. The estate recovery program established pursuant to this Code section shall not be effective any earlier than May 3, 2006. In no event shall the department make claims against the estate of a Medicaid recipient for the amount of any medical assistance payments made on such person's behalf prior to May 3, 2006.
  3. The commissioner shall delay execution of a claim against the estate where the dependents or heirs agree to pay the full amount of the claim in reasonable installments.
  4. To prevent substantial and unreasonable hardship, the commissioner shall waive any claim against the first $25,000.00 of any estate. No later than July 1, 2018, the department shall submit to the United States Department of Health and Human Services Centers for Medicare and Medicaid Services an amendment to the state plan reflecting the provisions of this subsection. In the event that such amendment to the state plan is not approved, this subsection shall stand repealed in its entirety.

(Ga. L. 1981, p. 917, § 1; Ga. L. 2006, p. 775, § 3/SB 572; Ga. L. 2018, p. 244, § 1/SB 370.)

The 2018 amendment, effective July 1, 2018, added subsection (d).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, "federal Social Security Act" was substituted for "Social Security Amendments of 1965".

Pursuant to Code Section 28-9-5, in 2006, "and" was inserted near the end of the second sentence of now subsection (a), and "May 3, 2006" was substituted for "the effective date of this subsection" in two places in subsection (b).

Editor's notes.

- Pursuant to the terms of subsection (d) of this Code section, the amendment was submitted and approved effective July 1, 2018.

U.S. Code.

- Title XIX of the federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C. § 1396 et seq.

Administrative Rules and Regulations.

- Estate recovery, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Medical Assistance, Chapter 111-3-8.

JUDICIAL DECISIONS

Recovery of Medicaid payments.

- Seeking to avoid the recovery of Medicaid payments from their mother's estate, when the daughters opted their mother out of Medicaid and planned to sell some of the mother's property, those decisions were properly held to not be in the mother's best interest and supported the appointment of the county conservator in that capacity. Cruver v. Mitchell, 289 Ga. App. 145, 656 S.E.2d 269 (2008).

Georgia Department of Community Health (DCH) erred by deeming recovery from a Medicaid claimant's estate appropriate under O.C.G.A. § 49-4-147.1(a) since the claimant was still alive. But nothing in O.C.G.A. § 50-13-19(h) authorized the trial court to bar DCH from ever pursuing the claimant's estate to recover Medicaid payments. Ga. Dep't of Cmty. Health v. Medders, 292 Ga. App. 439, 664 S.E.2d 832 (2008).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, § 33 et seq.

C.J.S.

- 8l C.J.S., Social Security, § 137.

49-4-147.2. Noneligibility of Department of Community Health to obtain nor be liable for interest on orders, judgments, and liquidated or unliquidated amounts; exemptions.

  1. Notwithstanding the provisions of Code Section 49-4-141, as used in this Code section the term "department" means the Department of Community Health or its officers, agents, or employees solely in their capacity as such officers, agents, or employees.
  2. Notwithstanding the provisions of Code Section 7-4-12, 7-4-15, 7-4-16, or 13-6-13, or any other statute or judicial construction thereof authorizing interest, the department shall not be eligible to obtain nor be liable for interest on orders, judgments, liquidated amounts, or unliquidated amounts unless such interest is:
    1. Required by federal law or regulations;
    2. Interest on penalties as required by Code Section 49-4-146.1;
    3. Interest as required by Code Section 49-4-148; or
    4. Incurred by a failure to pay the penalty which may be transferred to the Indigent Care Trust Fund under Code Section 31-8-153.1 within 30 days after the penalty is imposed, in which event interest shall be paid from the thirty-first day following such imposition at the same rate as interest on penalties under Code Section 49-4-146.1.

(Code 1981, §49-4-147.2, enacted by Ga. L. 1990, p. 161, § 1; Ga. L. 1999, p. 296, § 24; Ga. L. 2001, p. 1240, § 7.)

49-4-148. Recovery of assistance from third party liable for sickness, injury, disease, or disability; compromise or waiver of claim; compliance; effective date.

  1. Should medical assistance be paid in behalf of a recipient of medical assistance on account of any sickness, injury, disease, or disability for which another person is legally liable, the Department of Community Health may seek reimbursement for such medical assistance from such other person. The department shall be subrogated, but only to the extent of the reasonable value of the medical assistance paid and attributable to such sickness, injury, disease, or disability, to the rights of the recipient of medical assistance against the person so legally liable; the commissioner of community health may compromise, settle, and execute a release of any such claim or waive, expressly, any such claim, in whole or in part, for the convenience of the Department of Community Health. This Code section is cumulative of the remedies of the Department of Community Health which specifically include, but are not limited to, the use of hospital liens as provided in Code Sections 44-14-470 through 44-14-477; and further, the payment of medical assistance to a hospital provider shall in no way be construed to discharge the obligation of a third party to satisfy a hospital lien.
  2. All insurers, as defined in Code Section 33-24-57.1, including but not limited to group health plans as defined in Section 607(1) of the federal Employee Retirement Security Act of 1974, managed care entities as defined in Code Section 33-20A-3, which offer health benefit plans, as defined in Code Section 33-24-59.5, pharmacy benefit managers, as defined in Code Section 26-4-110.1, and any other parties that are, by statute, contract, or agreement, legally responsible for payment of a claim for a health care item or service shall comply with this subsection. Such entities set forth in this subsection shall:
    1. Cooperate with the department in determining whether a person who is a recipient of medical assistance may be covered under that entity's health benefit plan and eligible to receive benefits thereunder for the medical services for which that medical assistance was provided and respond to any inquiry from the state regarding a claim for payment for any health care item or service submitted not later than three years after such item or service was provided;
    2. Accept the department's authorization for the provision of medical services on behalf of a recipient of medical assistance as the entity's authorization for the provision of those services;
    3. Comply with the requirements of Code Section 33-24-59.5, regarding the timely payment of claims submitted by the department for medical services provided to a recipient of medical assistance and covered by the health benefit plan, subject to the payment to the department of interest as provided in that Code section for failure to comply;
    4. Provide the department, on a quarterly basis, eligibility and claims payment data regarding applicants for medical assistance or recipients for medical assistance;
    5. Accept the assignment to the department or a recipient of medical assistance or any other entity of any rights to any payments for such medical care from a third party; and
    6. Agree not to deny a claim submitted by the department solely on the basis of the date of submission of the claim, type or format of the claim, or a failure to present proper documentation at the point-of-sale which is the basis of the claim, if:
      1. The claim is submitted to the department within three years from when the item or service was furnished; and
      2. Any action by the department to enforce its rights with respect to such claim commenced within six years of the department's submission of the claim.

        The requirements of paragraphs (2) and (3) of this subsection shall only apply to a health benefit plan which is issued, issued for delivery, delivered, or renewed on or after April 28, 2001.

(Ga. L. 1977, p. 384, § 9; Ga. L. 1978, p. 1520, § 1; Ga. L. 1999, p. 296, § 24; Ga. L. 2001, p. 1240, § 8; Ga. L. 2007, p. 348, § 1/HB 505.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2001, "April 28, 2001" was substituted for "this subsection first becomes effective in 2001" at the end of the undesignated paragraph in subsection (b).

RESEARCH REFERENCES

ALR.

- Collateral source rule - Aid or gratuity, 77 A.L.R.3d 366.

Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care, 49 A.L.R.5th 685.

49-4-149. Lien of Department of Community Health against third parties; subrogation to recipients' insurance claims; assignment of recipients' claims.

  1. The Department of Community Health shall have a lien for the charges for medical care and treatment provided a medical assistance recipient upon any moneys or other property accruing to the recipient to whom such care was furnished or to his legal representatives as a result of sickness, injury, disease, disability, or death, due to the liability of a third party, which necessitated the medical care.
  2. The department may perfect and enforce any lien arising under subsection (a) of this Code section by following the procedures set forth for hospital liens in Code Sections 44-14-470 through 44-14-473; except that the department shall have one year from the date the last item of medical care was furnished to file its verified lien statement; and the statement shall be filed with the appropriate clerk of court in the county wherein the recipient resides and in Fulton County. The verified lien statement shall contain the following: the name and address of the person to whom medical care was furnished; the date of injury; the name and address of the provider or providers furnishing medical care; the dates of services; the amount claimed to be due for the care; and, to the best of the department's knowledge, the names and addresses of all persons, firms, or corporations claimed to be liable for damages arising from the injuries. This Code section shall not affect the priority of any attorney's lien.
  3. The department shall be subrogated, but only to the extent of the reasonable value of the medical assistance paid and attributable to any sickness, injury, disease, or disability, to the rights of medical assistance recipients to any benefits provided such recipients by virtue of private health care insurance contracts; provided, however, the right of subrogation does not attach to any recipient's rights to benefits paid or provided under private health care coverage prior to the receipt of written notice, by the carrier who issued the health care contract, of the exercise by the department of its subrogation rights.
  4. A recipient of medical assistance who receives medical care for which the department may be obligated to pay shall be deemed to have made assignment to the department of any rights of such person to any payments for such medical care from a third party, up to the amount of medical assistance actually paid by the department; provided, however, assignment does not attach to a recipient's right to any payments provided under private health care coverage prior to the receipt of written notice, by the carrier who issued the health care coverage, of the exercise by the department of its assignment. This subsection shall apply to a recipient only if notice of this subsection is given to the recipient at the time his application for medical assistance is filed. The assignment created by this subsection shall be effective until the recipient of medical assistance is no longer an eligible recipient for medical assistance.

(Ga. L. 1978, p. 1520, § 2; Ga. L. 1979, p. 1293, § 2; Ga. L. 1999, p. 296, § 24.)

JUDICIAL DECISIONS

"Complete compensation rule" only applies to the subrogation rights of an insurance carrier who has received compensation from an injured party and the rule does not apply to Medicaid liens; thus, when the Georgia Department of Community Health (DCH) had a departmental lien pursuant to O.C.G.A. § 49-4-149(a) against plaintiff recipient's settlement proceeds to recover Medicaid sums that the department expended to pay providers for the recipient's treatment, the DCH's lien was not precluded despite the recipient's claim that the recipient had not received full and complete compensation for the recipient's injuries. Padgett v. Toal, 261 Ga. App. 154, 581 S.E.2d 744 (2003).

Department did not take steps to recover funds.

- Summary judgment denying the claim of the Department of Medical Assistance (now Department of Community Health) was appropriate when the one-year statute of limitation for recovery on the lien had expired and there was no other viable cause of action made out by the department, when the only claim which the department could make to the money received by a recipient of medical care under the Medicaid program from the tortfeasors was that provided by the lien in O.C.G.A. § 49-4-149, and since the department took no steps to recover the funds as reimbursement from the tortfeasors. Department of Medical Assistance v. Hallman, 203 Ga. App. 615, 417 S.E.2d 218 (1992).

Lien valid against public agency as third party.

- When the Georgia Department of Community Health (DCH) filed a departmental lien against plaintiff recipient's settlement proceeds to recover Medicaid sums that the department expended to pay providers for the recipient's treatment, and the recipient filed a declaratory judgment suit seeking a declaration that DCH's lien was invalid, the trial court properly granted the summary judgment motion of defendant, the Commissioner of the DCH, as, contrary to the recipient's contentions, the DCH's lien under O.C.G.A. § 49-4-149(a) was not invalid even though the DCH was seeking to enforce the lien against another public agency (the board of regents of Georgia's university system, doing business as a medical college) because § 49-4-149(a) allowed the lien against moneys owed by a third party for its liability leading to the recipient's injury and, applying the definitions in O.C.G.A. § 49-4-141(4) and (9), third parties included other public agencies. Padgett v. Toal, 261 Ga. App. 154, 581 S.E.2d 744 (2003).

Payment of attorney's fees.

- When the Georgia Department of Community Health (DCH) filed a departmental lien pursuant to O.C.G.A. § 49-4-149(a) against plaintiff recipient's settlement proceeds to recover Medicaid sums that it expended to pay providers for the recipient's treatment, and the recipient filed a declaratory judgment suit, seeking a declaration that the DCH's lien was invalid, the lien was properly found to be valid and, since the settlement proceeds were sufficient to cover both the DCH's lien and the sum of 40 percent of the settlement proceeds which the recipient had agreed to pay the recipient's attorney as a fee, the DCH was not obligated to reduce DCH's lien to take into account the recipient's payment of attorney fees; such reductions only became an issue where the recipient's recovery was inadequate to cover both the DCH's lien and the attorney's lien, in which case lien priority would have been an issue, but it was not an issue in the recipient's case and so, like any other litigant, the recipient was obliged to bear the cost of the recipient's own attorney fees. Padgett v. Toal, 261 Ga. App. 154, 581 S.E.2d 744 (2003).

Priority of attorney's lien.

- Liens established by O.C.G.A. §§ 49-4-149 and44-14-470 are subject to attorney's lien. Holland v. State Farm Mut. Auto. Ins. Co., 236 Ga. App. 832, 513 S.E.2d 48 (1999).

Lien applies to all funds recovered in tort claim.

- Georgia Department of Community Health (DCH) lien for Medicaid payments made on behalf of recipients applied to all money recovered in the recipients' tort claims, not just the recovery denominated as the medical expense recovery, and DCH was not required to pay any part of the costs of collecting the reimbursement. Richards v. Ga. Dep't of Cmty. Health, 278 Ga. 757, 604 S.E.2d 815 (2004).

RESEARCH REFERENCES

ALR.

- Collateral source rule - Aid or gratuity, 77 A.L.R.3d 366.

49-4-149.1. Submission by department of plan for family supplementation of Medicaid payments upon federal removal of restrictions.

If the federal government removes restrictions upon family supplementation of Medicaid payments or approves a waiver allowing this supplementation, the Department of Community Health shall submit to the Health and Human Services Committee of the Senate and the Health and Human Services Committee of the House of Representatives a plan for this supplementation, which submission shall be made within 30 days after the earlier of the date the restrictions are removed or the date the waiver is approved.

(Ga. L. 1982, p. 824, § 1; Code 1981, §49-4-149.1, enacted by Ga. L. 1982, p. 824, § 2; Ga. L. 1992, p. 6, § 49; Ga. L. 1999, p. 296, § 24; Ga. L. 2005, p. 48, § 5/HB 309.)

49-4-150. Regulations as to maintenance and use of records; certificate as to use of information.

The Board of Community Health is directed to prescribe regulations governing the custody, use, and preservation of the records, papers, files, and communications of the Department of Community Health relating to applicants for and recipients of medical assistance. Except as otherwise provided in Code Section 49-4-151, such regulations shall provide safeguards restricting the use or disclosure of information concerning applicants for or recipients of medical assistance to purposes directly connected with the administration of the state plan. No person who obtains information by virtue of any such regulations shall use such information for commercial or political purposes, and any person seeking such information shall certify to the commissioner of community health, in writing, that the information obtained will not be used for commercial or political purposes.

(Ga. L. 1977, p. 384, § 10; Ga. L. 1999, p. 296, § 24.)

49-4-151. Obtaining information for investigations and audits.

  1. The commissioner, for the purposes of investigating the nature, amount, and extent of services provided to a recipient of medical assistance or auditing information submitted to the department concerning a provider's entitlement to an amount of medical assistance, is authorized, personally or by his duly authorized representative, to administer oaths and to examine and copy books, papers, records (medical, business, or otherwise), or memoranda of a provider or of any other person possessed of information relating to reimbursable costs claimed by a provider or otherwise relating to the amount of medical assistance to which a provider is entitled. The commissioner may compel such examinations by means of subpoenas issued to require the custodian of such items to produce them for examination. A subpoena may be served by any sheriff, by his deputy, or by any other person not less than 18 years of age. Proof may be shown by return of certificate endorsed on a copy of the subpoena. Subpoenas may also be served by registered or certified mail or statutory overnight delivery, and the return receipt shall constitute prima-facie proof of service. If any person shall fail to obey a subpoena issued and served under this subsection, then upon application of the commissioner, the superior court of the county in which such custodian was required to appear may issue an order requiring such custodian to comply with the subpoena and to produce the subpoenaed documentation. Furthermore, if any provider shall fail to obey a subpoena issued and served under this subsection with respect to any matter concerning a claim for medical assistance, that claim for medical assistance shall not be reimbursed by the Department of Community Health; and, if already reimbursed, the amount of medical assistance reimbursed shall be deducted from any amount of medical assistance which may then be or thereafter become payable to such provider.
  2. In the course of conducting investigations and audits, the Department of Community Health may request from any governmental department, board, commission, bureau, or agency information and assistance pertinent thereto. The Department of Community Health shall be entitled to have access to all such pertinent information which is within the custody of any governmental department, board, commission, bureau, or agency.

(Ga. L. 1977, p. 384, § 10; Ga. L. 1999, p. 296, § 24; Ga. L. 2000, p. 1589, § 3.)

49-4-151.1. Errors or omissions in reporting; right to hearing; exclusion.

  1. Any clerical or record-keeping error, including but not limited to a typographical error, scrivener's error, or computer error; any unintentional error or omission in billing, coding, or required documentation; or any isolated instances of incomplete documentation by a provider of medical assistance regarding reimbursement for medical assistance may not in and of itself constitute fraud or constitute a basis to recoup payment for medical assistance provided, so long as any such errors or instances do not result in an improper payment. An improper payment includes any payment that was made to an ineligible recipient, payment for noncovered services, duplicate payments, payments for services not received, payments that are for the incorrect amount, and instances when the department is unable to discern whether a payment was proper because of insufficient or lack of documentation. The department or its agents shall not recoup the cost of medical assistance if such error, omission, or incomplete documentation has been resolved in accordance with subsection (b) of this Code section; provided, however, that recoupment shall be allowed to the extent that the error, omission, or incomplete documentation resulted in an improper payment, though recoupment shall be limited to the amount improperly paid.
  2. A provider of medical assistance shall be allowed 30 calendar days following receipt by the provider of a preliminary audit review report in which to submit records or documents to correct an error or omission or to complete documentation identified in such review report; provided, however, that the department or its agents, in the discretion of the department, may reject the submission of a corrected record or document if the submission would result in an improper payment, or the provider demonstrates a pattern of repeated errors, omissions, or incomplete documentation. The department shall be authorized to establish rules and regulations delineating what constitutes a pattern of repeated errors, omissions, or incomplete documentation taking into consideration the type of provider; frequency of audits; volume of claims submitted by a provider; type of error, omission, or incomplete documentation; and other pertinent factors.
  3. A provider of medical assistance shall be afforded the right to a hearing in accordance with Code Section 49-4-153 for any attempted withholding of reimbursement or recoupment by the department or its agents relating to an error, omission, incomplete documentation, or improper payment relating to the provision of medical assistance.
  4. This Code section shall not apply to criminal or civil investigations which involve fraud, willful misrepresentation, reckless disregard, or abuse conducted by the Attorney General's Medicaid Fraud Control Unit or other law enforcement agencies.

(Code 1981, §49-4-151.1, enacted by Ga. L. 2017, p. 219, § 2/HB 206.)

Effective date.

- This Code section became effective July 1, 2017.

49-4-152. Research and demonstration projects; pilot projects to provide health care coverage and essential health care services; pharmacy assistance programs.

Subject to the availability of funds, the Department of Community Health is authorized to enter into agreements with and submit applications to departments and agencies of the government of the United States for purposes of accepting grants, receiving matching funds, and administering such grants and funds for research and demonstration projects pursuant to Title XI, XVIII, XIX, or XXI of the federal Social Security Act of 1935, as amended, or any other provision of federal law, without regard to the factor of state wideness and such other factors as may be required to be waived by the terms of the federal grant. Notwithstanding any other provision of law and subject to the availability of funds, the department is authorized to establish pilot projects to provide health care coverage and access to essential health care services or benefits to the uninsured and underinsured, including but not limited to pharmacy assistance programs.

(Ga. L. 1977, p. 384, § 11; Ga. L. 1999, p. 296, § 24; Ga. L. 2001, p. 1240, § 9.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, a hyphen between "state" and "wideness" was deleted in the first sentence.

Pursuant to Code Section 28-9-5, in 2001, "Title" was substituted for "Titles" in the first sentence of this Code section.

U.S. Code.

- Titles XI, XVIII, XIX, and XXI of the federal Social Security Act of 1935, referred to in this Code section, are codified at 42 U.S.C. §§ 1320d et seq., 42 U.S.C. § 1395, 42 U.S.C. § 1396 (XIX and XXI), respectively.

49-4-152.1. Medicaid Prescription Drug Bidding and Rebate Program.

  1. The General Assembly finds that the department frequently must pay more for prescription drugs furnished to recipients of medical assistance under this article than certain health care providers pay for the same products. In order to control more effectively the costs of such drugs, the department may establish a Medicaid Prescription Drug Bidding and Rebate Program as provided in this Code section.
  2. The department may request sealed bids from prescription drug manufacturers for both brand name and generic equivalent prescription drugs specified by the department. The bids shall be proposed agreements by these manufacturers to adjust prices of drugs specified by the department to a price designated as the bid price when those drugs are supplied to recipients of medical assistance under this article. If the department has accepted a bid for a drug under this Code section, the department may not reimburse a provider of such drug for any equivalent drug not so successfully bid during the term of the contract awarded with regard to the drug so bid. The department may elect not to reimburse for any multisource drugs of a drug manufacturer which does not participate in the bid process or which bids prices considered excessive by the department.
  3. All prescription drugs for which bids are submitted must meet applicable standards of the U.S. Pharmacopoeia, the State Board of Pharmacy, and be guaranteed as meeting all requirements, regulations, and comparison data under the Federal Food, Drug, and Cosmetic Act and the regulations thereunder. The manufacturer of a drug which is bid must have an FDA approved New Drug Application or an abbreviated New Drug Application and must have a product liability insurance policy extending to pharmacy providers under this article, but the policy may condition coverage thereunder upon the provider's complying with all applicable federal and state laws and regulations promulgated thereunder.
  4. Nothing in this Code section shall be construed to change the practice of pharmacies having provider agreements under this article with respect to their purchases and sales of and reimbursements for drugs furnished to recipients of medical assistance under this article. Adjustment rebates shall be made by the successfully bidding drug manufacturer to the department and be paid quarterly to the department.
  5. In the event no acceptable bids are received for a drug for which a request for bid was made, the department may select a single drug supplier for the drug or establish one price for such drug which the department will reimburse therefor, but this shall not restrict the department from establishing one price for any drug upon which the department does not request bids.
  6. Except when in conflict with this Code section, Article 3 of Chapter 5 of Title 50, relating to state purchases by the Department of Administrative Services, shall apply to bidding and purchasing of prescription drugs by the department pursuant to this Code section. The prohibitions against financial interest in Code Section 50-5-78 shall be applicable to the commissioner and other employees of the department and any violation thereof punishable as provided in subsection (d) of that Code section. Contracts for the purchase of prescription drugs made in violation of this Code section shall be void and of no effect and liability therefor shall be the same as that provided in Code Section 50-5-79.
  7. The department is authorized to accept rebates from any drug manufacturer for providing information to that manufacturer regarding utilization by Medicaid recipients of that manufacturer's drugs as long as the anonymity of the recipients is maintained. The department is further authorized to verify and audit claims for reimbursement for drugs successfully bid, provide the manufacturers thereof with the information so obtained, and to adjust the department's claim for rebates based upon that information.
  8. The provisions of this Code section shall be construed in conformity with Code Section 49-4-157.

(Code 1981, §49-4-152.1, enacted by Ga. L. 1989, p. 852, § 1.)

U.S. Code.

- The Federal Food, Drug, and Cosmetic Act, referred to in subsection (c) of this Code section, is codified at 21 U.S.C. § 301 et seq.

49-4-152.2. Rebates for sole-source and multiple-source drugs included in Controlled Medical Assistance Drug List.

  1. The department is authorized to negotiate and enter into agreements directly with manufacturers and distributors whose prescription drug products are sold in the state for sole-source and multiple-source drugs to be paid for under the state plan for eligible recipients under this article.Such agreements shall provide for a periodic rebate of a negotiated percentage of the total product cost to be paid by the manufacturer or distributor of a specific product covered under the state plan.
  2. Prescription drug products shall be included in the Controlled Medical Assistance Drug List only upon satisfaction and completion of the application and approval process established by the department.Those products for which a rebate has been successfully negotiated shall automatically be included in the Controlled Medical Assistance Drug List for a period of time conterminous with the negotiated rebate.
  3. If there has been a failure to negotiate or renew a rebate agreement for a specific prescription drug product, the pharmaceutical manufacturer or distributor of that product shall disclose to the department its most favorable pricing arrangements available to state and nonstate government purchasers of such products.If the department determines that the product needs to be included in the Controlled Medical Assistance Drug List, the department shall establish the amount of the rebate for such product based upon the price information provided by the manufacturer or distributor.The determination as to whether a product should be included in the Controlled Medical Assistance Drug List shall be based upon the product's efficacy, cost, medical necessity, and safety.
  4. The provisions of this Code section shall be construed in conformity with Code Section 49-4-157.

(Code 1981, §49-4-152.2, enacted by Ga. L. 1990, p. 1808, § 2; Ga. L. 2013, p. 141, § 49/HB 79.)

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, revised language in the last sentence of subsection (b).

49-4-152.3. Reuse of unit dosage drugs.

  1. As used in this Code section, the term:
    1. "Long-term care facility" or "facility" means an intermediate care home, skilled nursing home, or intermingled home subject to regulation as such by the Department of Community Health.
    2. "Unit dosage drug" means any dangerous drug regulated under Chapter 13 of Title 16 which is individually packaged to contain only one dosage of such drug and which includes on such packaging the brand or generic name, strength, lot number, and expiration date of such drug.
  2. Unit dosage drugs may be returned to the dispensing pharmacy for reuse. The department and the State Board of Pharmacy shall promulgate regulations which permit the reuse of prescribed but unused unit dosage drugs for a resident of a long-term care facility other than the resident for whom the drug was originally prescribed, but only when:
    1. The cost of those drugs has been paid for or reimbursed under this article; and
    2. The drugs are unused because the resident for whom the drugs were originally prescribed:
      1. Has died;
      2. Has had such resident's prescription changed so as no longer to require those drugs; or
      3. Otherwise no longer needs those drugs.

        The consent of the resident for whom the unused drugs were originally prescribed shall not be required for such reuse of prescribed unit doses. Such reuse shall only be authorized by a resident of a long-term care facility for whom the specific dosage of that unused drug has been prescribed when payment or reimbursement for that drug for that resident is otherwise permitted under this article. Nothing in this Code section shall require a pharmaceutical manufacturer to provide a rebate based on the reuse of any unused unit dosage drug.

(Code 1981, §49-4-152.3, enacted by Ga. L. 1997, p. 939, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228.)

49-4-152.4. Department contracts to require refund of prescription drug rebates.

The department shall provide that any department contract with a provider of medical assistance which is renewed or executed on or after July 1, 1997, shall require a refund to the department of any prescription drug rebate, as established in this article or in federal law in Section 1927 of Title XIX of the Social Security Act, as amended, obtained by the provider for prescription drugs furnished to recipients of medical assistance pursuant to that contract.

(Code 1981, §49-4-152.4, enacted by Ga. L. 1997, p. 1385, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1997, this Code section, enacted as Code Section 49-4-152.3, was redesignated as Code Section 49-4-152.4.

U.S. Code.

- Section 1927 of Title XIX of the Social Security Act, referred to in this Code section, is codified at 42 U.S.C. § 1396r-8.

49-4-152.5. Restocking fees.

In the provision of medical assistance pursuant to this article, the department shall allow for the payment and coverage of appropriate restocking fees incurred by a pharmacy which receives and dispenses unused over-the-counter and prescription drugs pursuant to Article 10 of Chapter 8 of Title 31.

(Code 1981, §49-4-152.5, enacted by Ga. L. 2006, p. 152, § 2/HB 1178; Ga. L. 2009, p. 8, § 49/SB 46; Ga. L. 2016, p. 524, § 3/HB 897.)

The 2016 amendment, effective July 1, 2016, substituted "unused over- the-counter and prescription drugs pursuant to Article 10 of Chapter 8 of Title 31" for "prescription drugs pursuant to Article 11 of Chapter 4 of Title 26, the 'Utilization of Unused Prescription Drugs Act'" at the end of this Code section.

Law reviews.

- For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 197 (2006).

49-4-153. Administrative hearings and appeals; judicial review; contested cases involving imposition of remedial or punitive measure against nursing facility.

  1. The Board of Community Health is authorized to establish regulations regarding the manner in which the appeals set forth in subsection (b) of this Code section shall be conducted.
    1. Any applicant for medical assistance whose application is denied or is not acted upon with reasonable promptness and any recipient of medical assistance aggrieved by the action or inaction of the Department of Community Health as to any medical or remedial care or service which such recipient alleges should be reimbursed under the terms of the state plan which was in effect on the date on which such care or service was rendered or is sought to be rendered shall be entitled to a hearing upon his or her request for such in writing and in accordance with the applicable rules and regulations of the department and the Office of State Administrative Hearings. As a result of the written request for hearing, a written recommendation shall be rendered in writing by the administrative law judge assigned to hear the matter. Should a decision be adverse to a party and should a party desire to appeal that decision, the party must file a request in writing to the commissioner or the commissioner's designated representative within 30 days of his or her receipt of the hearing decision. The commissioner, or the commissioner's designated representative, has 30 days from the receipt of the request for appeal to affirm, modify, or reverse the decision appealed from. A final decision or order adverse to a party, other than the agency, in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated, and the effective date of the decision or order. Findings of fact shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Each agency shall maintain a properly indexed file of all decisions in contested cases, which file shall be open for public inspection except those expressly made confidential or privileged by statute. If the commissioner fails to issue a decision, the initial recommended decision shall become the final administrative decision of the commissioner.
      1. A provider of medical assistance may request a hearing on a decision of the Department of Community Health with respect to a denial or nonpayment of or the determination of the amount of reimbursement paid or payable to such provider on a certain item of medical or remedial care of service rendered by such provider by filing a written request for a hearing in accordance with Code Sections 50-13-13 and 50-13-15 with the Department of Community Health. The Department of Community Health shall, within 15 business days of receiving the request for hearing from the provider, transmit a copy of the provider's request for hearing to the Office of State Administrative Hearings. The provider's request for hearing shall identify the issues under appeal and specify the relief requested by the provider. The request for hearing shall be filed no later than 15 business days after the provider of medical assistance receives the decision of the Department of Community Health which is the basis for the appeal.
      2. The Office of State Administrative Hearings shall assign an administrative law judge to hear the dispute within 15 days after receiving the request. The hearing is required to commence no later than 90 days after the assignment of the case to an administrative law judge, and the administrative law judge shall issue a written decision on the matter no later than 30 days after the close of the record except when it is determined that the complexity of the issues and the length of the record require an extension of these periods and an order is issued by an administrative law judge so providing, but no longer than 30 days. Such time requirements can be extended by written consent of all the parties. Failure of the administrative law judge to comply with the above time deadlines shall not render the case moot.
      3. A request for hearing by a nursing home provider shall stay any recovery or recoupment action.
      4. Should the decision of the administrative law judge be adverse to a party and should a party desire to appeal that decision, the party must file a request therefor, in writing, with the commissioner within ten days of his or her receipt of the hearing decision. Such a request must enumerate all factual and legal errors alleged by the party. The commissioner, or the commissioner's designated representative, may affirm, modify, or reverse the decision appealed from.
    2. A person or institution who either has been refused enrollment as a provider in the state plan or has been terminated as a provider by the Department of Community Health shall be entitled to a hearing; provided, however, that no entitlement to a hearing before the department shall lie for refusals or terminations based on the want of any license, permit, certificate, approval, registration, charter, or other form of permission issued by an entity other than the Department of Community Health, which form of permission is required by law either to render care or to receive medical assistance in which federal financial participation is available. The final determination (subject to judicial review, if any) of such an entity denying issuance of such a form of permission shall be binding on and unreviewable by the Department of Community Health. In cases where an entitlement to a hearing before the Department of Community Health, pursuant to this paragraph, lies, the Department of Community Health shall give written notice of either the denial of enrollment or termination from enrollment to the affected person or institution; and such notice shall include the reasons of the Department of Community Health for denial or termination. Should such a person or institution desire to contest the initial decision of the Department of Community Health, he or she must give written notice of his or her appeal to the commissioner of community health within ten days after the date on which the notice of denial or notice of termination was transmitted to him or her. A hearing shall be scheduled and commenced within 20 days after the date on which the commissioner receives the notice of appeal; and the commissioner or his or her designee or designees shall render a final administrative decision as soon as practicable thereafter.
  2. If any aggrieved party exhausts all the administrative remedies provided in this Code section, judicial review of the final decision of the commissioner may be obtained by filing a petition within 30 days after the service of the final decision of the commissioner or, if a rehearing is requested, within 30 days after the decision thereon. The petition may be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. When the petitioner is a corporation, the action may be brought in the Superior Court of Fulton County or in the superior court of the county where the petitioner maintains its principal place of doing business in this state. Copies of the petition shall be served upon the commissioner and all parties of record. The petition shall state the nature of the petitioner's interest, the facts showing that the petitioner is aggrieved by the decision, and any grounds upon which the petitioner contends that the decision should be reversed or modified. Judicial review of the commissioner's decision may be obtained in the same manner and under the same standards as are applicable to those contested cases which are reviewable pursuant to Code Section 50-13-19; provided, however, that no other provision of Chapter 13 of Title 50 shall be applicable to the department with the exception of Code Sections 50-13-13 and 50-13-15. Notwithstanding any other provision of law, a stay of the commissioner's final decision may be granted by a reviewing court to a provider of medical assistance only on condition that such provider posts bond with the commissioner in favor of the state, with good and sufficient surety thereon by a surety company licensed to do business in this state, in an amount determined by the commissioner to be sufficient to recompense the state for all medical assistance which otherwise would not be paid to the provider but for the granting of such a stay. A stay may be granted and renewed for time intervals up to three months, so long as bond is posted for every interval of time in which the stay is in effect.
  3. All contested cases involving the imposition of a remedial or punitive measure against a nursing facility by the Department of Community Health shall be conducted in the manner provided for in subsection (l) of Code Section 31-2-8, but only if such remedial or punitive measure is based upon findings made by the Department of Community Health in its capacity as the state survey agency for the Georgia Medicaid program.
    1. A dentist acting pursuant to subsection (b) of Code Section 33-21A-8 or a provider of medical assistance may request a hearing on a decision of a care management organization with respect to the provisions set forth in subsection (b) of Code Section 33-21A-8 or with respect to a denial or nonpayment of or the determination of the amount of reimbursement paid or payable to such provider on a certain item of medical or remedial care of service rendered by such provider by filing a written request for a hearing in accordance with Code Sections 50-13-13 and 50-13-15 with the Department of Community Health. The Department of Community Health shall, within 15 business days of receiving the request for hearing from the provider, transmit a copy of the provider's request for hearing to the Office of State Administrative Hearings but shall not be a party to the proceedings. The provider's request for hearing shall identify the care management organization with which the provider has a dispute, the issues under appeal, and specify the relief requested by the provider. The request for hearing shall be filed no later than 15 business days after the provider of medical assistance receives the decision of the care management organization which is the basis for the appeal. Notwithstanding any other provision of this title, an administrative law judge appointed pursuant to paragraph (2) of this subsection shall be authorized to allow a provider of medical assistance to consolidate pending complaints or claims against a care management organization that are based on the same or similar payment or coverage issues, as determined by such administrative law judge. Such consolidation shall include disposition of the same or similar claims through a single hearing that adjudicates the total amount of such consolidated claims.
    2. The Office of State Administrative Hearings shall assign an administrative law judge to hear the dispute within 15 days after receiving the request. The hearing is required to commence no later than 90 days after the assignment of the case to an administrative law judge, and the administrative law judge shall issue a written decision on the matter no later than 30 days after the close of the record except when it is determined that the complexity of the issues and the length of the record require an extension of these periods and an order is issued by an administrative law judge so providing, but no longer than 30 days. Such time requirements can be extended by written consent of all the parties. Failure of the administrative law judge to comply with the above time deadlines shall not render the case moot.
    3. The decision of the administrative law judge shall be the final administrative remedy available to the provider. Review thereafter shall proceed in accordance with Code Section 50-13-19. The fees and expenses of the Office of State Administrative Hearings may, at the administrative law judge's discretion, be assessed against the party against whom the administrative law judge enters his or her order.

(Ga. L. 1977, p. 384, § 12; Ga. L. 1988, p. 288, § 1; Ga. L. 1993, p. 1290, § 3; Ga. L. 1994, p. 1856, § 2; Ga. L. 1997, p. 679, § 2; Ga. L. 1998, p. 576, § 1; Ga. L. 1999, p. 296, § 24; Ga. L. 2006, p. 775, §§ 4, 5/SB 572; Ga. L. 2008, p. 704, § 2/HB 1234; Ga. L. 2009, p. 453, § 1-53/HB 228; Ga. L. 2011, p. 705, § 4-7/HB 214.)

The 2011 amendment, effective July 1, 2011, substituted "Code Section 31-2-8" for "Code Section 31-2-11" in the middle of subsection (d).

Law reviews.

- For annual survey on administrative law, see 61 Mercer L. Rev. 1 (2009). For survey article on administrative law, see 59 Mercer L. Rev. 1 (2007).

Editor's notes.

- Ga. L. 1994, p. 1856, § 5, not codified by the General Assembly, provides: "This Act shall become effective July 1, 1994, for purposes of commencing transfer of positions, independent hearing officers, employees, and equipment and for general administrative purposes. The Office of State Administrative Hearings may commence the performance of its duties on and after July 1, 1994, and shall assume full responsibility for the performance of its duties on and after April 1, 1995. The Office of State Administrative Hearings shall, where necessary for any class of hearings, promulgate rules and regulations in order to comply with all federal and state procedural requirements. During the period between July 1, 1994, and April 1, 1995, covered agencies may continue to conduct covered administrative hearings as provided by prior law; but on and after April 1, 1995, all such hearings in new and, where practical, in pending proceedings shall be conducted as provided in this Act."

JUDICIAL DECISIONS

Service.

- Based on use of the term "service" for purposes of O.C.G.A. § 49-4-153(c) with respect to timing for filing the petition for judicial review, as opposed to use of the word "receipt" when discussing timing issues under § 49-4-153(b)(2)(D) and (b)(1), the timing provision in § 49-4-153(c) has been construed to require that a petition for judicial review was to be filed within 30 days after the date on which the final decision was mailed by the Commissioner for the Department of Family and Children Services. Gladowski v. Dep't of Family & Children Servs., 281 Ga. App. 299, 635 S.E.2d 886 (2006).

Agency interpretation not entitled to judicial deference.

- Decision of the department of community health (DCH) interpreting the phrase "last approved cost report" as used in the DCH's policies and procedures manual for purposes of computing an owner's reimbursement rate was not entitled to judicial deference because the phrase was not used in a statute, rule, or regulation, but rather in the manual, the terms of which had not undergone the scrutiny afforded a statute during the legislative process or the adoption process. Pruitt Corp. v. Ga. Dep't of Cmty. Health, 284 Ga. 158, 664 S.E.2d 223 (2008).

Exhaustion of administrative remedies. Commissioner of the Department of Community Health, members of the board of that Department, and the Director of the Department's Division of Medical Assistance could not avoid judicial review for want of exhaustion of administrative remedies when the very rules of the department precluded both hearing and a remedy sought by a Medicaid-eligible woman; moreover, no adequate administrative remedy existed which the woman could have exhausted. Feminist Women's Health Ctr. v. Burgess, 282 Ga. 433, 651 S.E.2d 36 (2007).

In an action involving a dispute over Medicaid reimbursement rates, the plaintiffs were not excused from the exhaustion of administrative remedies requirement because the plaintiffs were required to raise the plaintiffs' defective notice claims in the administrative review process in the first instance and O.C.G.A. § 49-4-153 governed that administrative review process. Ga. Dep't of Behavioral Health & Developmental Disabilities v. United Cerebral Palsy of Ga., Inc., 298 Ga. 779, 784 S.E.2d 781 (2016).

Untimely petition.

- Georgia Civil Practice Act's three-day rule under O.C.G.A. § 9-11-6(e) was inapplicable to a determination of timeliness with respect to a petition for judicial review of a Medicaid applicant's claim for benefits pursuant to O.C.G.A. § 50-13-19; similarly, the certified mail rule under O.C.G.A. § 50-13-23 was expressly deemed inapplicable pursuant to O.C.G.A. § 49-4-153(c), and, accordingly, the applicant's petition was properly denied as untimely. Gladowski v. Dep't of Family & Children Servs., 281 Ga. App. 299, 635 S.E.2d 886 (2006).

Applicable standard of review.

- Trial court erred by failing to apply the proper standard of review to a decision of the Georgia Department of Community Health that terminated a claimant's medical assistance under a Medicaid waiver program available to qualifying children. The appellate court directed that the standard of review set forth in O.C.G.A. § 49-4-153(c) was applicable to the case, which called for application of the substantial evidence standard set forth in the Administrative Procedure Act, O.C.G.A. § 50-13-19. Greene v. Dep't of Cmty. Health, 293 Ga. App. 201, 666 S.E.2d 590 (2008).

Cited in Hodges v. Smith, 910 F. Supp. 646 (N.D. Ga. 1995); Ga. Dep't of Cmty. Health v. Medders, 292 Ga. App. 439, 664 S.E.2d 832 (2008); Cazier v. Georgia Power Company, 339 Ga. App. 506, 793 S.E.2d 668 (2016), aff'd, 303 Ga. 820, 815 S.E.2d 922 (2018).

49-4-154. Powers and duties retained by Department of Human Resources (Department of Community Health).

  1. The status, position, and rights of persons transferred from the Department of Human Resources (now known as the Department of Community Health for these purposes) to the Department of Medical Assistance pursuant to Ga. L. 1977, p. 384 shall not be affected by the transfer, in and of itself; and such persons shall retain, inter alia, all rights of rank or grade; rights to vacation, sick pay, and leave; rights under any retirement plan; and any other rights under any law or administrative policy.
  2. The Department of Human Resources (now known as the Department of Community Health for these purposes) shall retain, in accordance with terms of the state plan, the functions, and all tangible things and employees relating thereto, of:
    1. Establishing and maintaining certain standards for certain institutions and agencies seeking to become or remain providers and shall finally determine and certify whether such institutions and agencies meet such standards;
    2. Determining and certifying the eligibility of certain applicants for and recipients of medical assistance; and
    3. Prescribing regulations to require that applicants for medical assistance be given clear and easily understandable notice that all books, papers, records, and memoranda of the provider relating to the provision of medical assistance to the applicant will be made available, upon request, to the commissioner of medical assistance or his representative and that, by accepting medical assistance, the applicant thereby consents to the providing of such books, papers, records, and memoranda to the commissioner of medical assistance or his representative.

(Ga. L. 1977, p. 384, § 13; Ga. L. 1994, p. 97, § 49; Ga. L. 2009, p. 453, § 1-54/HB 228.)

49-4-155. Department of Community Health to succeed to existing rules, regulations, policies, procedures, and administrative orders.

The Department of Community Health shall succeed to all the rules, regulations, policies, procedures, and administrative orders of the Department of Human Resources (now known as the Department of Human Services) transferred to the Department of Medical Assistance pursuant to the previously existing provisions of this Code section and that are in effect on June 30, 1999, and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources (now known as the Department of Human Services) that are in effect on June 30, 1999, to which the Department of Medical Assistance succeeded pursuant to the previously existing provisions of Code Section 49-4-156.

(Ga. L. 1977, p. 384, § 14; Ga. L. 1999, p. 296, § 20; Ga. L. 2009, p. 453, § 1-55/HB 228.)

49-4-156. Tax exemption for health maintenance organizations with respect to contracts pursuant to this article.

Reserved. Repealed by Ga. L. 2010, p. 125, § 1, effective July 1, 2010.

Editor's notes.

- This Code section was based on Code 1981, § 49-4-156, enacted by Ga. L. 2005, p. 1438, § 3/SB 140.

49-4-156.1. Reimbursement for services rendered under Article 5 of Chapter 6 of this title.

It is the intention of the General Assembly that the Department of Community Health be authorized to take those actions necessary to provide reimbursement under this article for services rendered under Article 5 of Chapter 6 of this title, relating to community care for the elderly.

(Ga. L. 1982, p. 2248, § 2; Code 1981, §49-4-156.1, enacted by Ga. L. 1982, p. 2248, § 3; Ga. L. 1999, p. 296, § 24.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, "this title" was substituted for "Title 49".

49-4-157. Construction of this article with federal act.

It is the intention of the General Assembly that this article be construed consistently with Title XIX of the federal Social Security Act of 1935, as amended, and so as to authorize the Department of Community Health, within the appropriations provided to it, to administer the state plan in a manner so as to receive the maximum amount of federal financial participation available in expenditures made under the state plan.

(Ga. L. 1977, p. 384, § 16; Ga. L. 1999, p. 296, § 24.)

U.S. Code.

- Title XIX of the federal Social Security Act of 1935, referred to in this Code section, is codified at 42 U.S.C. § 1396 et seq.

JUDICIAL DECISIONS

State's rules restricting reimbursement for abortions inconsistent with Social Security Act.

- Rules promulgated by Georgia's Department of Medical Assistance (now Department of Community Health) restricting reimbursement to Medicaid enrollees for medically necessary abortions are inconsistent with Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and because the plaintiff classes will suffer irreparable injury for which there is no adequate legal remedy, the defendants, the defendants' agents and employees, must be permanently enjoined from refusing to provide Medicaid reimbursement to the members of the plaintiff classes for the provision of all medically necessary abortions. Doe v. Busbee, 481 F. Supp. 46 (N.D. Ga. 1979).

Exhaustion of administrative remedies.

- Commissioner of the Department of Community Health, members of the board of that Department, and the Director of the Department's Division of Medical Assistance could not avoid judicial review for want of exhaustion of administrative remedies when the very rules of the department precluded both hearing and a remedy sought by a Medicaid-eligible woman; moreover, no adequate administrative remedy existed which the woman could have exhausted. Feminist Women's Health Ctr. v. Burgess, 282 Ga. 433, 651 S.E.2d 36 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Limited use of state funds to pay for abortions to assure maximum federal financial participation.

- State funds may not be expended for any abortions except those in pregnancies wherein the life of the mother would be endangered if the fetus were carried to term, especially given the fact that it is the intention of the General Assembly that Ga. L. 1977, p. 384, § 1 et seq. (see O.C.G.A. § 49-4-140 et seq.) be construed so as to accomplish maximum federal financial participation. If the state plan were to be administered so as to assure payment for abortions other than those where the life of the mother would be threatened if the fetus were carried to term, no federal funds would be available for that purpose. 1977 Op. Att'y Gen. No. 77-64.

49-4-158. Certain dependents of military service members to maintain eligibility and priority for certain medical assistance and developmental disability services under certain conditions; waiver to implement such provision; compliance with certain federal laws, rules, and regulations; definitions.

  1. As used in this Code section, the term:
    1. "Dependent" means a spouse, birth child, adopted child, or stepchild of a military service member.
    2. "Legal resident" means a person who maintains Georgia as his or her principal establishment, home of record, or permanent home and to where, whenever absent due to military obligation, he or she intends to return.
    3. "Military service" means service in the armed forces or armed forces reserves of the United States, or membership in the Georgia National Guard.
    4. "Military service member" means a person who is currently in military service or who has separated from military service in the previous 18 months through either retirement or military separation.
  2. The department shall allow legal residents who are dependents of a military service member and who are absent from this state due to the member's military service to be added to a data base to indicate the need for medical assistance upon return to this state. Should a dependent in such a situation be selected from a data base to receive medical assistance, the dependent shall have six months from the date of the selection notification to apply for such assistance and another six months to commence using such assistance. In the event a dependent is receiving medical assistance funded by the department and the medical assistance is disrupted due to the military service member's need for the dependent to leave Georgia because of such military service member's military service, the medical assistance shall be resumed upon the dependent's return to Georgia if the dependent is otherwise eligible. In no case shall payment be made for home and community based services provided outside this state. A dependent of a military service member shall be required to provide the department with:
    1. A copy of the military service member's DD-214 or other equivalent discharge paperwork; and
    2. Proof of the military service member's legal residence in this state, as prescribed by the department.
  3. A dependent who is a legal resident of this state, having previously been determined to be eligible for developmental disability services provided by the department, including waiver services provided under the home and community based services programs authorized under Section 1915(c) of the Social Security Act, shall retain eligibility for those developmental disability services as long as he or she remains a legal resident of this state, regardless of having left this state due to the military service member's military assignment outside this state, as long as he or she is otherwise eligible for such services.
  4. The department shall permit a dependent who resides outside this state to be placed on a waiting list for developmental disability services if the dependent left this state due to the military service member's military assignment outside this state, is otherwise eligible for those services, and furnishes:
    1. A copy of the military service member's DD-214 or other equivalent discharge paperwork; and
    2. Proof of the military service member's legal residence in this state, as prescribed by the department.
  5. For dependents who received developmental disability services and who left this state due to the military service member's military assignment outside this state, upon the dependent's return to this state and when a request for services is made, the department shall:
    1. Determine the dependent's eligibility for services, which may include a request for waiver services provided under the home and community based services programs authorized under Section 1915(c) of the Social Security Act;
    2. Provide to the dependent notification of the determination of eligibility for services, which includes notification of a denial of services if applicable;
    3. Provide the dependent an opportunity to contest the department's determination through the appeals processes established by the department; and
    4. Resume services if the dependent remains eligible.
  6. As a condition of continued eligibility for services under subsection (e) of this Code section, a dependent must inform the department of his or her current address and provide updates as requested by the department.
  7. No payment pursuant to this Code section shall be made for developmental disability services authorized under this chapter and provided outside this state unless those services satisfy the conditions specified in 42 CFR 431.52. No payment pursuant to this Code section shall be made for home and community based services provided outside this state.
  8. The department shall request a waiver from the appropriate federal agency if a waiver is necessary to implement the provisions of this Code section.
  9. The department may adopt rules and regulations necessary to implement the provisions of this Code section.
  10. This Code section shall only apply to the fullest extent permissible for Georgia to remain in compliance with all federal laws, rules, and regulations associated with the services provided in this chapter.

(Code 1981, §49-4-158, enacted by Ga. L. 2016, p. 337, § 3-1/HB 962; Ga. L. 2018, p. 1112, § 49/SB 365.)

Effective date.

- This Code section became effective July 1, 2016.

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "developmental disability" for "developmental disabilities" in subsection (d).

ARTICLE 7A LONG-TERM CARE PARTNERSHIP PROGRAM

49-4-160. Short title.

This article shall be known and may be cited as the "Georgia Long-term Care Partnership Program Act."

(Code 1981, §49-4-160, enacted by Ga. L. 2005, p. 823, § 1/HB 643; Ga. L. 2006, p. 72, § 49/SB 465.)

Cross references.

- Long-term care insurance, § 33-42-1 et seq.

RESEARCH REFERENCES

C.J.S.

- 67 C.J.S., Officers and Public Employees, § 423.

49-4-161. Definitions.

As used in this article, the term:

  1. "Asset disregard" means, with regard to state Medicaid benefits, the disregard of any assets or resources in an amount equal to the insurance benefit payments that are made to or on behalf of an individual who is a beneficiary under a qualified long-term care insurance partnership policy.
  2. "Commissioner" means the Commissioner of Insurance.
  3. "Department" means the Department of Community Health.
  4. "Georgia Qualified Long-term Care Partnership Program approved policy" means a long-term care insurance policy that meets the model regulations and requirements of the National Association of Insurance Commissioners' long-term care insurance model regulation and long-term care insurance model act as specified in 42 U.S.C. Section 1917(b) and Section 6021 of the Federal Deficit Reduction Act of 2005 and the Commissioner certifies such policy as meeting these requirements.
  5. "State Medicaid program" means the medical assistance program established in this state under Title XIX of the federal Social Security Act.
  6. "State plan amendment" means a state Medicaid plan amendment made to the federal Department of Health and Human Services that provides for the disregard of any assets or resources in an amount equal to the insurance benefit payments that are made to or on behalf of an individual who is a beneficiary under a qualified long-term care insurance partnership policy.

(Code 1981, §49-4-161, enacted by Ga. L. 2005, p. 823, § 1/HB 643; Ga. L. 2006, p. 72, § 49/SB 465; Ga. L. 2006, p. 185, § 1/HB 1451; Ga. L. 2009, p. 8, § 49/SB 46.)

Code Commission notes.

- The amendment of this Code section by Ga. L. 2006, p. 72, § 49, irreconcilably conflicted with and was treated as superseded by Ga. L. 2006, p. 185, § 1. See County of Butts v. Strahan, 151 Ga. 417 (1921).

49-4-162. Program established; purposes; assets to be disregarded with respect to Medicaid eligibility or payment or recovery by the state of payments for medical services.

  1. In accordance with Section 6021 of the Federal Deficit Reduction Act of 2005, there is established the Georgia Qualified Long-term Care Partnership Program which shall be administered by the Department of Community Health, with the assistance of the Commissioner and the Department of Human Services, and which shall be for the following purposes:
    1. To provide incentives for individuals to insure against the costs of providing for their long-term care needs;
    2. To provide a mechanism for individuals to qualify for coverage of the cost of their long-term care needs under the state Medicaid program without first being required to substantially exhaust their resources;
    3. To provide counseling services through the Division of Aging Services of the Department of Human Services to individuals in planning of their long-term care needs; and
    4. To alleviate the financial burden on the state's Medicaid program by encouraging the pursuit of private initiatives.
  2. Upon the exhaustion of benefits or upon the diminishment of assets below the anticipated remaining benefits under a Georgia Qualified Long-term Care Partnership Program approved policy, certain assets of an individual, as provided in subsection (c) of this Code section, shall not be considered when determining any of the following:
    1. Medicaid eligibility;
    2. The amount of any Medicaid payment; and
    3. Any subsequent recovery by the state of a payment for medical services.
  3. The department shall:
    1. Not later than November 15, 2006, make application to the federal Department of Health and Human Services for a state plan amendment to establish that the assets an individual owns and may retain under Medicaid and still qualify for benefits under Medicaid at the time the individual applies for benefits is increased dollar for dollar for each dollar paid out under the individual's long-term care insurance policy if the individual is the beneficiary of a qualified long-term care insurance partnership policy purchased through the Georgia Qualified Long-term Care Partnership Program; and
    2. Provide information and technical assistance to the Commissioner to assure that any individual who sells a qualified long-term care insurance partnership policy receives training and demonstrates evidence of an understanding of such policies and how they relate to other public and private coverage of long-term care.

(Code 1981, §49-4-162, enacted by Ga. L. 2005, p. 823, § 1/HB 643; Ga. L. 2006, p. 72, § 49/SB 465; Ga. L. 2006, p. 185, § 2/HB 1451; Ga. L. 2009, p. 453, § 2-2/HB 228.)

Code Commission notes.

- The amendment of this Code section by Ga. L. 2006, p. 72, § 49/SB 465, irreconcilably conflicted with and was treated as superseded by Ga. L. 2006, p. 185, § 2/HB 1451. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Pursuant to Code Section 28-9-5, in 2006, "Georgia Qualified Long-term Care Partnership Program" was substituted for "Georgia Long-term Care Partnership Program" in subsection (a) and paragraph (c)(1), and "Not later than November 15, 2006" was substituted for "Within 180 days of the effective date of this Code section" at the beginning of paragraph (c)(1).

Pursuant to Code Section 28-9-5, in 2009, "of Insurance" was deleted following "Commissioner" in the introductory language of subsection (a).

49-4-163. Eligibility for asset disregard; reciprocal agreements with other states to extend asset disregard mutually.

  1. An individual who is a beneficiary of a Georgia Qualified Long-term Care Partnership Program approved policy is eligible for assistance under the state Medicaid program using asset disregard pursuant to the provisions of subsection (c) of Code Section 49-4-162.
  2. If the Georgia Qualified Long-term Care Partnership Program is discontinued, an individual who purchased a Georgia Qualified Long-term Care Partnership Program approved policy prior to the date the program was discontinued shall be eligible to receive asset disregard if allowed as provided by Title VI, Section 6021 of the Federal Deficit Reduction Act of 2005.
  3. The department may enter into reciprocal agreements with other states to extend the asset disregard to residents of the state who purchase long-term care policies in another state which has asset disregard provisions as established under this article as provided by Title VI, Section 6021 of the Federal Deficit Reduction Act of 2005.

(Code 1981, §49-4-163, enacted by Ga. L. 2005, p. 823, § 1/HB 643; Ga. L. 2006, p. 72, § 49/SB 465; Ga. L. 2006, p. 185, § 3/HB 1451.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2006, "Georgia Qualified Long-term Care Partnership Program" was substituted for "'Georgia Long-term Care Partnership Program" near the beginning of subsection (b).

49-4-164. Requirements for selling qualified long-term care insurance partnership policies; rules and regulations; reports.

  1. The Commissioner shall:
    1. Develop requirements to ensure that any individual who sells a qualified long-term care insurance partnership policy receives training and demonstrates evidence of an understanding of such policies and how they relate to other public and private coverage of long-term care; and
    2. Not impose any requirement affecting the terms or benefits of qualified long-term care partnership policies unless the Commissioner imposes such a requirement on all long-term care policies sold in this state without regard to whether the policy is covered under the partnership or is offered in connection with such partnership.
  2. The department and the Commissioner are authorized to promulgate rules and regulations to implement and administer the provisions of this article.
  3. The issuers of qualified long-term care partnership policies in this state shall provide regular reports to both the secretary of the United States Department of Health and Human Services in accordance with federal law and regulations and to the department and the Commissioner as provided in Section 6021 of the Federal Deficit Reduction Act of 2005.

(Code 1981, §49-4-164, enacted by Ga. L. 2005, p. 823, § 1/HB 643; Ga. L. 2006, p. 185, § 4/HB 1451.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, "secretary of the United States" was substituted for "Secretary of the" in subsection (c).

49-4-165. Notice to consumers.

  1. A qualified long-term care insurance partnership policy shall contain a summary notice to the consumer in plain language on the current law pertaining to asset disregard and asset tests.
  2. The notice to the consumer under subsection (a) of this Code section shall be developed by the Commissioner of Insurance.

(Code 1981, §49-4-165, enacted by Ga. L. 2005, p. 823, § 1/HB 643; Ga. L. 2006, p. 185, § 5/HB 1451.)

49-4-166. Effective date.

Repealed by Ga. L. 2006, p. 185 § 6/HB 1451, effective April 19, 2006.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2006, the reservation of this Code section designation was deleted.

Editor's notes.

- This Code section was based on Code 1981, § 49-4-166, enacted by Ga. L. 2005, p. 823, § 1/HB 643.

ARTICLE 7B FALSE MEDICAID CLAIMS

Editor's notes.

- Ga. L. 2007, p. 355, § 1/HB 551, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'State False Medicaid Claims Act.'"

Ga. L. 2007, p. 355, § 2/HB 551, not codified by the General Assembly, provides: "The General Assembly recognizes that the submission of false or fraudulent claims to the Georgia Medicaid program can and does cause the state treasury to incur serious financial losses which results in direct harm to the taxpayers of this state. This Act is intended to provide a partial remedy for this problem by providing specific procedures whereby this state, and private citizens acting for and on behalf of this state, may bring civil actions against persons and entities who have obtained state funds through the submission of false or fraudulent claims to state agencies. This Act, in its provision for double and sometimes treble damages, is remedial in purpose, and is intended not to punish, but insofar as possible to make the state treasury whole for both the direct and indirect losses caused by the submission of false or fraudulent claims resulting in payments by this state or state agencies. By receiving a portion of the recovery in civil actions brought under this article, 'whistle blowers' are encouraged to come forward when they have information about the submission of false claims to the Georgia Medicaid program, and rewarded when their initiative results in civil recoveries for this state."

49-4-168. Definitions.

As used in this article, the term:

  1. "Claim" includes any request or demand, whether under a contract or otherwise, for money or property, whether or not the Georgia Medicaid program or this state has title to such money or property, which is made to the Georgia Medicaid program, to any officer, employee, fiscal intermediary, grantee, agent, or contractor of the Georgia Medicaid program, or to other persons or entities if it results in payments by the Georgia Medicaid program, if the Georgia Medicaid program provides, has provided, or will provide any portion of the money or property requested or demanded; if the Georgia Medicaid program will reimburse the contractor, grantee, or other recipient for any portion of the money or property requested or demanded; or if the money or property is to be spent or used on behalf of or to advance the Georgia Medicaid program. A claim includes a request or demand made orally, in writing, electronically, or magnetically. Each claim may be treated as a separate claim.
  2. "Knowing" and "knowingly" require no proof of specific intent to defraud and mean that a person, with respect to information:
    1. Has actual knowledge of the information;
    2. Acts in deliberate ignorance of the truth or falsity of the information; or
    3. Acts in reckless disregard of the truth or falsity of the information.
  3. "Material" means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.
  4. "Obligation" means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee based or similar relationship, from statute or regulation, or from retention of any overpayment.
  5. "Person" means any natural person, corporation, company, association, firm, partnership, society, joint-stock company, or any other entity with capacity to sue or be sued.

(Code 1981, §49-4-168, enacted by Ga. L. 2007, p. 355, § 3/HB 551; Ga. L. 2012, p. 127, § 2-1/HB 822; Ga. L. 2013, p. 141, § 49/HB 79.)

The 2012 amendment, effective July 1, 2012, in the first sentence of paragraph (1), substituted "money or property, whether or not the Georgia Medicaid program or this state has title to such money or property" for "money, property, or services", deleted "or" following "Georgia Medicaid program,", inserted ", agent," inserted ", has provided,", substituted "demanded; if" for "demanded, or if", and added "; or if the money or property is to be spent or used on behalf of or to advance the Georgia Medicaid program" at the end; substituted "requires no proof of specific intent to defraud and means" for "mean" in the introductory paragraph of paragraph (2); deleted the former second sentence of subparagraph (2)(C), which read: "No proof of specific intent to defraud is required."; added paragraphs (3) and (4); and redesignated former paragraph (3) as present paragraph (5).

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, revised language in paragraph (2).

Cross references.

- Georgia Taxpayer Protection False Claims Act, § 23-3-120 et seq.

Law reviews.

- For article, "A 'False Claims Act' Is Finally Enacted in Georgia: What Georgia Lawyers Should Know About the 'State False Medicaid Claims Act'," see 13 Ga. St. B.J. 12 (2007).

JUDICIAL DECISIONS

Suit barred by res judicata.

- Dismissal of the plaintiffs' suit brought under the Georgia False Medicaid Claims Act, O.C.G.A. § 49-4-168 et seq., was affirmed because the suit was barred by res judicta based on an earlier-filed federal suit against the same pharmaceutical companies for similar claims. Jordan v. State of Ga., 336 Ga. App. 345, 785 S.E.2d 27 (2016).

Failure to state claim based on billing of patients.

- In the plaintiff's second amended complaint alleging four schemes that resulted in the presentation of false or fraudulent claims for payment to Medicaid and PeachCare in violation of the Georgia False Medicaid Claims Act (GFMCA), O.C.G.A. § 49-4-168 et seq., the complaint failed to state a claim with regard to balance billing because that scheme related to the billing of patients, not the billing of the Georgia Medicaid program as required to state a claim under the GFMCA; and the GFMCA did not provide civil liability for claims submitted to anyone other than the Georgia Medicaid program. Hill v. Bd. of Regents of the Univ. Sys. of Ga., 351 Ga. App. 455, 829 S.E.2d 193 (2019), cert. denied, 2020 Ga. LEXIS 164 (Ga. 2020).

49-4-168.1. Civil penalties for false or fraudulent Medicaid claims.

  1. Any person who:
    1. Knowingly presents or causes to be presented to the Georgia Medicaid program a false or fraudulent claim for payment or approval;
    2. Knowingly makes, uses, or causes to be made or used a false record or statement material to a false or fraudulent claim;
    3. Conspires to commit a violation of paragraph (1), (2), (4), (5), (6), or (7) of this subsection;
    4. Has possession, custody, or control of property or money used or to be used by the Georgia Medicaid program and knowingly delivers, or causes to be delivered, less than all of such property or money;
    5. Is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Georgia Medicaid program and, intending to defraud the Georgia Medicaid program, makes or delivers the receipt without completely knowing that the information on the receipt is true;
    6. Knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Georgia Medicaid program who lawfully may not sell or pledge the property; or
    7. Knowingly makes, uses, or causes to be made or used a false record or statement material to an obligation to pay or transmit property or money to the Georgia Medicaid program, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit property or money to the Georgia Medicaid program,

      shall be liable to the State of Georgia for a civil penalty consistent with the civil penalties provision of the federal False Claims Act, 31 U.S.C. 3729(a), as adjusted by the federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461; Public Law 101-410), and as further amended by the federal Civil Penalties Inflation Adjustment Improvements Act of 2015 (Sec. 701 of Public Law 114-74), plus three times the amount of damages which the Georgia Medicaid program sustains because of the act of such person.

  2. The provisions of subsection (a) of this Code section notwithstanding, if the court finds that:
    1. The person committing the violation of this subsection furnished officials of the Georgia Medicaid program with all information known to such person about the violation within 30 days after the date on which the defendant first obtained the information;
    2. Such person fully cooperated with any government investigation of such violation; and
    3. At the time such person furnished the Georgia Medicaid program with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced under this article with respect to such violation, and the person did not have actual knowledge of the existence of an investigation into such violation,

      the court may assess not more than two times the amount of the actual damages which the Georgia Medicaid program sustained because of the act of such person.

  3. A person violating any provision of subsection (a) of this Code section shall also be liable to this state for all costs of any civil action brought to recover the damages and penalties provided under this article.
  4. As used in this Code section, the term "Georgia Medicaid program" includes any contractor, subcontractor, or agent for the Georgia Medicaid program, including, but not limited to, a managed care program operated, funded, or reimbursed by the Georgia Medicaid program.

(Code 1981, §49-4-168.1, enacted by Ga. L. 2007, p. 355, § 3/HB 551; Ga. L. 2009, p. 8, § 49/SB 46; Ga. L. 2012, p. 127, § 2-1/HB 822; Ga. L. 2014, p. 77, § 1/HB 973; Ga. L. 2018, p. 240, § 1/SB 321.)

The 2012 amendment, effective July 1, 2012, substituted "material to a false or fraudulent claim" for "to get a false or fraudulent claim paid or approved by the Georgia Medicaid program" in paragraph (a)(2); substituted "knowingly delivers, or causes to be delivered, less than all of such property or money" for ", intending to defraud the Georgia Medicaid program or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate of receipt" in paragraph (a)(4); substituted "Is" for "Being" at the beginning of paragraph (a)(5); and substituted the present provisions of paragraph (a)(7) for the former provisions, which read: "Knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay, repay, or transmit money or property to the State of Georgia."

The 2014 amendment, effective April 15, 2014, substituted the present provisions of paragraph (a)(3) for the former provisions, which read: "Conspires to defraud the Georgia Medicaid program by getting a false or fraudulent claim allowed or paid" and added subsection (d).

The 2018 amendment, effective May 3, 2018, substituted the present provisions of the ending undesignated language of subsection (a) for the former provisions, which read: "shall be liable to the State of Georgia for a civil penalty of not less than $5,500.00 and not more than $11,000.00 for each false or fraudulent claim, plus three times the amount of damages which the Georgia Medicaid program sustains because of the act of such person."

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2007, "subsection (a) of this Code section" was substituted for "this subsection" in subsection (c).

JUDICIAL DECISIONS

Failure to state claim for reverse false claims.

- In the plaintiff's second amended complaint alleging four schemes that resulted in the presentation of false or fraudulent claims for payment to Medicaid and PeachCare in violation of the Georgia False Medicaid Claims Act, O.C.G.A. § 49-4-168 et seq., the complaint failed to state any cause of action for reverse false claims because the defendants did not owe money to the Georgia Medicaid program as the defendants did not submit any claims to the Georgia Medicaid program that resulted in overpayment. Hill v. Bd. of Regents of the Univ. Sys. of Ga., 351 Ga. App. 455, 829 S.E.2d 193 (2019), cert. denied, 2020 Ga. LEXIS 164 (Ga. 2020).

No civil liability for claims when not submitted to Georgia Medicaid program.

- In the plaintiff's second amended complaint alleging four schemes that resulted in the presentation of false or fraudulent claims for payment to Medicaid and PeachCare in violation of the Georgia False Medicaid Claims Act (GFMCA), O.C.G.A. § 49-4-168 et seq., the complaint failed to state a claim with regard to balance billing because that scheme related to the billing of patients, not the billing of the Georgia Medicaid program as required to state a claim under the GFMCA; and the GFMCA did not provide civil liability for claims submitted to anyone other than the Georgia Medicaid program. Hill v. Bd. of Regents of the Univ. Sys. of Ga., 351 Ga. App. 455, 829 S.E.2d 193 (2019), cert. denied, 2020 Ga. LEXIS 164 (Ga. 2020).

Failure to state claim for implied false certification.

- In the plaintiff's second amended complaint alleging four schemes that resulted in the presentation of false or fraudulent claims for payment to Medicaid and PeachCare in violation of the Georgia False Medicaid Claims Act, O.C.G.A. § 49-4-168 et seq., the complaint failed to state a claim for implied false certification as written informed consent for the claims submitted by the defendants was not required, and the defendants did not violate any requirement with regard to plans of care. Hill v. Bd. of Regents of the Univ. Sys. of Ga., 351 Ga. App. 455, 829 S.E.2d 193 (2019), cert. denied, 2020 Ga. LEXIS 164 (Ga. 2020).

49-4-168.2. Role of Attorney General in pursuing cases; civil actions by private persons; special procedures for civil actions by private persons; limitation on participation; stay of discovery; receipt of proceeds.

  1. The Attorney General shall be authorized to investigate suspected, alleged, and reported violations of this article. If the Attorney General finds that a person has violated or is violating this article, then the Attorney General may bring a civil action against such person under this article.
  2. Subject to the exclusions set forth in this Code section, a civil action under this article may also be brought by a private person. A civil action shall be brought in the name of the State of Georgia. The civil action may be dismissed only if the court and the Attorney General give written consent to the dismissal and state the reasons for consenting to such dismissal.
  3. Where a private person brings a civil action under this article, such person shall follow the following special procedures:
    1. A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Attorney General;
    2. The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders. The purpose of the period under seal shall be to allow the Attorney General to investigate the allegations of the complaint. The Attorney General may elect to intervene and proceed with the civil action within 60 days after it receives both the complaint and the material evidence and information;
    3. The Attorney General may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal under paragraph (2) of this subsection. Any such motions may be supported by affidavits or other submissions in camera;
    4. Before the expiration of the 60 day period or any extensions obtained under paragraph (3) of this subsection, the Attorney General shall:
      1. Proceed with the civil action, in which case the civil action shall be conducted by the Attorney General; or
      2. Notify the court that it declines to take over the civil action, in which case the person bringing the civil action shall have the right to proceed with the civil action;
    5. The defendant shall not be required to respond to any complaint filed under this Code section until 30 days after the complaint is unsealed and served upon the defendant; and
    6. When a person brings a civil action under this subsection, no person other than the Attorney General may intervene or bring a related civil action based on the facts underlying the pending civil action.
    1. If the Attorney General elects to intervene and proceed with the civil action, he or she shall have the primary responsibility for prosecuting the civil action and shall not be bound by an act of the person bringing such civil action. Such person shall have the right to continue as a party to the civil action, subject to the limitations set forth in this subsection.
    2. The Attorney General may dismiss the civil action, notwithstanding the objections of the person initiating the civil action, if the person has been notified by the Attorney General of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.
    3. The Attorney General may settle the civil action with the defendant notwithstanding the objections of the person initiating the civil action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera.
    4. Upon a showing by the Attorney General that unrestricted participation during the course of the litigation by the person initiating the civil action would interfere with or unduly delay the Attorney General's litigation of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person's participation, such as:
      1. Limiting the number of witnesses the person may call;
      2. Limiting the length of the testimony of such witnesses;
      3. Limiting the person's cross-examination of witnesses; or
      4. Otherwise limiting the participation by the person in the litigation.
  4. Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the civil action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.
  5. If the Attorney General elects not to proceed with the civil action, the person who initiated the civil action shall have the right to conduct the civil action. If the Attorney General so requests, he or she shall be served with copies of all pleadings filed in the civil action and shall be supplied with copies of all deposition transcripts. When a person proceeds with the civil action, the court may nevertheless permit the Attorney General to intervene at a later date for any purpose, including, but not limited to, dismissal of the civil action notwithstanding the objections of the person initiating the civil action if such person has been notified by the Attorney General of the filing of such motion and the court has provided such person with an opportunity for a hearing on such motion.
  6. Whether or not the Attorney General proceeds with the civil action, upon a showing by the Attorney General that certain actions of discovery by the person initiating the civil action would interfere with the Attorney General's investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than 60 days. Such a showing shall be conducted in camera. The court may extend the 60 day period upon a further showing in camera that the Attorney General has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.
  7. Notwithstanding subsections (b) and (c) of this Code section, the Attorney General may elect to pursue this state's claim through any alternate remedy available to the Attorney General, including any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the civil action shall have the same rights in such proceeding as such person would have had if the civil action had continued under this Code section. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to a civil action under this Code section. For purposes of this subsection, a finding or conclusion is final if it has been finally determined on appeal to the appropriate court of the State of Georgia, if all time for filing such an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review.
    1. If the Attorney General proceeds with a civil action brought by a private person under subsection (b) of this Code section, such person shall, subject to the second sentence of this paragraph, receive at least 15 percent but not more than 25 percent of the proceeds of the civil action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the civil action. Where the civil action is one which the court finds to be based primarily on disclosures of specific information, other than information provided by the person bringing the civil action, relating to allegations or transactions in a criminal, civil, or administrative hearing, in a legislative, administrative, or Attorney General hearing, audit, or investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than 10 percent of the proceeds, taking into account the significance of the information and the role of the person bringing such civil action in advancing the case to litigation. Any payment to a person under the first or second sentence of this paragraph shall be made from the proceeds. The remaining proceeds shall be payable to the State of Georgia, by and through the Department of Community Health, for the purposes of operating, sustaining, protecting, and administering the Georgia Medicaid program. Any such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorney's fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
    2. If the Attorney General does not proceed with a civil action under this Code section, the person bringing the civil action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. Such amount shall be not less than 25 percent and not more than 30 percent of the proceeds of the civil action or settlement and shall be paid out of such proceeds. The remaining proceeds shall be payable to the State of Georgia, by and through the Department of Community Health, for the purposes of operating, sustaining, protecting, and administering the Georgia Medicaid program. Such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorney's fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
    3. Whether or not the Attorney General proceeds with the civil action, if the court finds that the civil action was brought by a person who planned and initiated the violation of Code Section 49-4-168.1 upon which the civil action was brought, then the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the civil action which the person would otherwise receive under paragraph (1) or (2) of this subsection, taking into account the role of that person in advancing the case to litigation and any relevant circumstances pertaining to the violation. If the person bringing the civil action is convicted of criminal conduct arising from his or her role in the violation of Code Section 49-4-168.1, such person shall be dismissed from the civil action and shall not receive any share of the proceeds of the civil action. Such dismissal shall not prejudice the right of the State of Georgia to continue the civil action, represented by the Attorney General.
    4. If the Attorney General does not proceed with the civil action and the person bringing the civil action conducts the civil action, the court may award to the defendant its reasonable attorney's fees and expenses against the person bringing the civil action if the defendant prevails in the civil action and the court finds that the claim of the person bringing the civil action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.
    5. The State of Georgia shall not be liable for expenses which a private person incurs in bringing a civil action under this article.
  8. In no event may a person bring a civil action under this article which is based upon allegations or transactions which are the subject of a civil or administrative proceeding to which the State of Georgia is already party.
  9. No civil action may be brought under this article with respect to any claim relating to the assessment, payment, nonpayment, refund, or collection of taxes pursuant to any provisions of Title 48.
    1. As used in this subsection, the term "original source" means an individual who:
      1. Prior to public disclosure, has voluntarily disclosed to the Attorney General the information on which allegations or transactions in a claim are based; or
      2. Has knowledge that is independent of and materially adds to publicly disclosed allegations or transactions and who has voluntarily provided such information to the Attorney General before filing a civil action under this Code section.
    2. The court shall dismiss a civil action or claim under this Code section, unless opposed by the Attorney General, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed:
      1. In any criminal, civil, or administrative hearing in which the State of Georgia or its employee, agent, or contractor is a party;
      2. In a legislative or other Georgia report, hearing, audit, or investigation; or
      3. From the news media,

        unless the civil action is brought by the Attorney General or the person bringing the civil action is an original source of the information.

(Code 1981, §49-4-168.2, enacted by Ga. L. 2007, p. 355, § 3/HB 551; Ga. L. 2009, p. 8, § 49/SB 46; Ga. L. 2012, p. 127, § 2-1/HB 822; Ga. L. 2013, p. 141, § 49/HB 79; Ga. L. 2014, p. 77, § 2/HB 973.)

The 2012 amendment, effective July 1, 2012, substituted "State of Georgia, by and through the Georgia Department of Community Health, for the purposes of operating, sustaining, protecting, and administering the Georgia Medicaid program" for "Indigent Care Trust Fund to be used for the purposes set forth in Code Section 31-8-154" in the fourth sentence of paragraph (i)(1) and in the third sentence of paragraph (i)(2); in subsection (j), deleted the introductory language and paragraphs (j)(1) and (j)(2), relating to certain civil actions and redesignated former paragraphs (j)(3) and (j)(4) as present subsections (j) and (k), respectively; inserted a comma following "refund" in subsection (k); and added subsection (l).

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "the Department of Community Health" for "the Georgia Department of Community Health" in the fourth sentence of paragraph (i)(1) and in the second sentence of paragraph (i)(2).

The 2014 amendment, effective April 15, 2014, substituted "legislative or other Georgia" for "congressional, legislative, or other state or federal" in subparagraph (l)(2)(B).

JUDICIAL DECISIONS

Suit barred by res judicata.

- Dismissal of the plaintiffs' suit brought under the Georgia False Medicaid Claims Act, O.C.G.A. § 49-4-168 et seq., was affirmed because the suit was barred by res judicta based on an earlier-filed federal suit against the same pharmaceutical companies for similar claims. Jordan v. State of Ga., 336 Ga. App. 345, 785 S.E.2d 27 (2016).

49-4-168.3. Standard of proof; procedure; intervention by Attorney General.

  1. In any civil action brought under this article, the State of Georgia or person bringing the civil action shall be required to prove all essential elements of the cause of civil action, including damages, by a preponderance of the evidence.
  2. Except as otherwise provided in this article, all civil actions brought under this article shall be governed by the provisions of Chapter 11 of Title 9, the "Georgia Civil Practice Act."
  3. If the Attorney General elects to intervene and proceed with a civil action brought pursuant to this article, the Attorney General may file his or her own complaint or amend the complaint of a person who has brought a civil action under this article to clarify or add detail to the claims in which the Attorney General is intervening and to add any additional claims with respect to which the State of Georgia contends it is entitled to relief. For purposes of the statute of limitations, any such pleading by the Attorney General shall relate back to the filing date of the complaint of the person who originally brought the civil action, to the extent that the claim of the State of Georgia arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in the original complaint by such person.

(Code 1981, §49-4-168.3, enacted by Ga. L. 2007, p. 355, § 3/HB 551; Ga. L. 2012, p. 127, § 2-1/HB 822.)

The 2012 amendment, effective July 1, 2012, added subsection (c).

49-4-168.4. Protection of employees from discrimination; relief; statute of limitations.

  1. Any employee, contractor, or agent shall be entitled to all relief necessary to make such employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by such employee, contractor, agent or associated others in furtherance of a civil action under this Code section or other efforts to stop one or more violations of this article.
  2. Relief under subsection (a) of this Code section shall include reinstatement with the same seniority status that such employee, contractor, or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney's fees. A civil action under this subsection may be brought in an appropriate court of this state for the relief provided in this Code section.
  3. Notwithstanding Code Section 49-4-168.5, a civil action under this Code section may not be brought more than three years after the date when the discrimination occurred.

(Code 1981, §49-4-168.4, enacted by Ga. L. 2007, p. 355, § 3/HB 551; Ga. L. 2012, p. 127, § 2-1/HB 822.)

The 2012 amendment, effective July 1, 2012, substituted the present provisions of this Code section for the former provisions, which read: "Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee, on behalf of the employee or others, in furtherance of a civil action under this article, including investigation for, initiation of, testimony for, or assistance in a civil action filed or to be filed under this article, shall be entitled to all relief necessary to make the employee whole. Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay award, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney's fees. An employee may bring a civil action in an appropriate court of the State of Georgia for the relief provided in this Code section."

JUDICIAL DECISIONS

Failure to show that individual responsible for termination knew of plaintiff's claim.

- Summary judgment was properly granted to all the defendants on the plaintiff's retaliation claim under the Georgia False Medicaid Claim Act, O.C.G.A. § 49-4-168, et seq., because the plaintiff failed to show that the CEO of a physicians services group and a hospital was aware of the plaintiff's complaint under the Stark Act, 42 U.S.C. § 1395nn, at the time the CEO decided to terminate the plaintiff as the plaintiff did not make the plaintiff's Stark Act complaint directly to the CEO; the administrative manager for the physician services group did not testify that the manager advised the CEO about the plaintiff's complaint of a potential Stark Act violation; and the CEO never stated in the CEO's deposition that the CEO was aware of the plaintiff's complaint. Murray v. Cmty. Health Sys. Prof'l Corp., 345 Ga. App. 279, 811 S.E.2d 531 (2018), cert. denied, 2018 Ga. LEXIS 697 (Ga. 2018).

Retaliation claim improperly dismissed.

- Trial court erred in dismissing the plaintiff's retaliation claim under the Georgia False Medicaid Claims Act, O.C.G.A. § 49-4-168 et seq., because the allegation in the plaintiff's prior complaint that contained a judicial admission that precluded the plaintiff from alleging that the Faculty Practice was the plaintiff's employer was no longer binding after the plaintiff filed the second amended complaint. Hill v. Bd. of Regents of the Univ. Sys. of Ga., 351 Ga. App. 455, 829 S.E.2d 193 (2019), cert. denied, 2020 Ga. LEXIS 164 (Ga. 2020).

49-4-168.5. Statute of limitations.

All civil actions under this article shall be filed pursuant to Code Section 49-4-168.2 within six years after the date the violation was committed, or four years after the date when facts material to the right of civil action are known or reasonably should have been known by the state official charged with the responsibility to act in the circumstances, whichever occurs last; provided, however, that in no event shall any civil action be filed more than ten years after the date upon which the violation was committed.

(Code 1981, §49-4-168.5, enacted by Ga. L. 2007, p. 355, § 3/HB 551; Ga. L. 2012, p. 127, § 2-1/HB 822.)

The 2012 amendment, effective July 1, 2012, substituted "four years" for "three years" near the middle of this Code section.

49-4-168.6. Venue.

All civil actions brought against natural persons under this article shall be brought in the county where the defendant or, in the case of multiple defendants or of defendants who are not residents of the State of Georgia, in any county where any one defendant resides, can be found, transacts business, or commits an act in furtherance of the submittal of a false or fraudulent claim to the Georgia Medicaid program.

(Code 1981, §49-4-168.6, enacted by Ga. L. 2007, p. 355, § 3/HB 551; Ga. L. 2009, p. 8, § 49/SB 46; Ga. L. 2012, p. 127, § 2-1/HB 822.)

Editor's notes.

- Ga. L. 2012, p. 127, § 2-1, effective July 1, 2012, reenacted this Code section without change.

ARTICLE 7C THERAPY SERVICES FOR CHILDREN WITH DISABILITIES

49-4-169. Legislative findings and intent.

The General Assembly finds that changes in the approval process of certain health care programs have made it difficult for children with disabilities who are eligible for medical assistance pursuant to Article 7 of this chapter to receive the services to which they are entitled with the frequency and within the time periods which are appropriate. Separate administration of the categorically needy and the medically fragile programs should not result in any variation in the amount, duration, and scope of services. Redundant paperwork requirements have hampered service approvals and delivery and reduced the number of providers serving children. It is the intent of this article to ensure that children with disabilities receive the medically necessary therapy services to which they are entitled under the Medicaid Early Periodic Screening, Diagnostic, and Treatment Program and that categorically needy and medically fragile children have available to them the same scope, duration, and amount of services. It is also the intent of this article to simplify the process and paperwork by which occupational, speech, and physical therapy services are applied for and received by eligible recipients.

(Code 1981, §49-4-169, enacted by Ga. L. 2008, p. 743, § 1/SB 507.)

49-4-169.1. Definitions.

As used in this article, the term:

  1. "Correct or ameliorate" means to improve or maintain a child's health in the best condition possible, compensate for a health problem, prevent it from worsening, prevent the development of additional health problems, or improve or maintain a child's overall health, even if treatment or services will not cure the recipient's overall health.
  2. "Department" means the Department of Community Health.
  3. "EPSDT Program" means the federal Medicaid Early Periodic Screening, Diagnostic, and Treatment Program contained at 42 U.S.C.A. Sections 1396a and 1396d.
  4. "Medically necessary services" means services or treatments that are prescribed by a physician or other licensed practitioner, and which, pursuant to the EPSDT Program, diagnose or correct or ameliorate defects, physical and mental illnesses, and health conditions, whether or not such services are in the state plan.
  5. "Therapy services" means occupational therapy, speech therapy, physical therapy, or other services provided pursuant to the EPSDT Program to an eligible Medicaid beneficiary 21 years of age or younger and which are recommended as medically necessary by a physician.

(Code 1981, §49-4-169.1, enacted by Ga. L. 2008, p. 743, § 1/SB 507.)

49-4-169.2. Services and treatment for categorically needy and medically fragile children.

All persons who are 21 years of age or younger who are eligible for services under the EPSDT Program shall receive therapy services in accordance with the provisions of this article, whether they are categorically needy children enrolled in the low income Medicaid program or medically fragile children enrolled in the aged, blind, and disabled Medicaid program.

(Code 1981, §49-4-169.2, enacted by Ga. L. 2008, p. 743, § 1/SB 507.)

49-4-169.3. Requirements relating to administrative prior approval for services and appeals; statutory construction.

  1. The department shall develop and implement for itself, the care management organizations with which it enters into contracts, and its utilization review vendors consistent requirements, paperwork, and procedures for utilization review and prior approval of physical, occupational, or speech language pathologist services prescribed for children. Prior approval for therapy services shall be for a period of up to six months as consistent with the needs of the individual recipient.
  2. The department, its utilization review vendors, or the care management organizations with which it contracts shall give notice to affected Medicaid recipients of the following information in cases where prior approval is denied:
    1. The medical procedure or service for which such entity is refusing to grant prior approval;
    2. Any additional information needed from the recipient's medical provider which could change the decision of such entity; and
    3. The specific reason used by the entity to determine that the procedure is not medically necessary to the Medicaid recipient, including facts pertinent to the individual case.
  3. Notwithstanding any other provision of law, the department, its utilization review vendors, or its care management organizations shall grant prior approval for requests for therapy services when the recipient is eligible for Medicaid services and the services prescribed are medically necessary.
  4. In cases where prior approval is required under this article, it shall be decided with reasonable promptness, not to exceed 15 business days, and may not be denied until it has been evaluated under the EPSDT Program.
  5. Prescriptions and prior approval for services shall be for general areas of treatment, treatment goals, or ranges of specific treatments or processing codes. Clinical coverage criteria or guidelines, including restrictions such as location of service and prohibitions on multiple services on the same day or at the same time, shall not be the sole determinant used by the department, its utilization vendors, or its care management organizations to limit the EPSDT standards or its medically necessary definition in this article. Any such restrictions shall be waived under the EPSDT Program or this article if the prescribed services are medically necessary.
  6. Nothing in this article shall be construed to prohibit the department, its utilization review vendors, or its care management organizations from performing utilization reviews of the diagnosis or treatment of a child receiving therapy services pursuant to the EPSDT Program, the amount, duration, or scope or the actual performance or delivery of such services by providers, so long as such utilization review does not unreasonably deny or unreasonably delay the provision of medically necessary services to the recipient.
  7. Nothing in this article shall be deemed to prohibit or restrict the department, its utilization review vendors, or its care management organizations from denying claims or prosecuting or pursuing beneficiaries or providers who submit false or fraudulent prescriptions, forms required to implement this article, or claims for services or whose eligibility as a beneficiary or a participating provider has been based on intentionally false information.

(Code 1981, §49-4-169.3, enacted by Ga. L. 2008, p. 743, § 1/SB 507.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, a comma was inserted following "physical" in the first sentence of subsection (a).

ARTICLE 8 PERSONAL REPRESENTATIVE TO MANAGE ASSISTANCE PAYMENTS

49-4-170. Grounds for appointing personal representative; petition by county or district director.

When any otherwise qualified applicant for or recipient of assistance under this chapter or payee, in the case of temporary assistance for needy families, is or shall become unable to manage the assistance payments or otherwise fails so to manage, to the extent that deprivation or hazard to himself or others results, or when, in the case of temporary assistance for needy families, the payment is not being used for the benefit of the children, a petition may be filed by the county or district director of family and children services before the probate court of the county in which the applicant resides or the county in which the recipient receives his check, in the form of a verified written application for the appointment of a personal representative for the purpose of receiving and managing public assistance payments for any such recipient or payee, which application shall allege one or more of the above grounds for the legal appointment of such personal representative.

(Ga. L. 1964, p. 200, § 1; Ga. L. 1997, p. 1021, § 7.)

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997).

49-4-171. Hearing on petition; appointment, duties, and removal of representative; court costs waived.

The court shall summarily order a hearing on the petition and shall cause the applicant or recipient to be served personally with a copy of the petition and order at least five days in advance of the time and place for the hearing. Findings of fact shall be made by the court without a jury; and if the court shall find that the applicant for or recipient of assistance under this chapter or the payee, in the case of temporary assistance for needy families, is unable to manage the assistance payments or otherwise fails so to manage to the extent that deprivation or hazard to himself or others results or, in the case of temporary assistance for needy families, the payment is not being used for the benefit of the children, the court may thereupon enter an order embracing such findings and appointing some responsible person as a personal representative of the applicant or recipient or of the payee, in the case of temporary assistance for needy families, for the purposes set forth in this article; provided, however, that no employee of the Department of Human Services shall be eligible to hold such appointment. The personal representative so appointed shall serve without bond and without compensation. He will be responsible for receiving the monthly assistance payment and using the proceeds of such payment for the benefit of the recipient of assistance under this chapter or, in the case of temporary assistance for needy families, for the application of the payment to the best interest of the children. Such personal representative shall be responsible to the court for the faithful discharge of the duties of his trust. The court may consider the recommendation of the county director of family and children services in the selection of a suitable person for appointment as personal representative for the limited purposes of this Code section. The personal representative so appointed may be removed by the court and the proceedings dismissed or another suitable personal representative appointed. All costs of court with respect to any such proceeding shall be waived.

(Ga. L. 1964, p. 200, § 2; Ga. L. 1997, p. 1021, § 7; Ga. L. 2009, p. 453, § 2-2/HB 228.)

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997).

49-4-172. Appeal from order of appointment or removal.

Except as otherwise provided in Article 6 of Chapter 9 of Title 15, from the order of the court appointing or removing such personal representative, an appeal may be had to the judge of the superior court, who shall hear the matter de novo without a jury.

(Ga. L. 1964, p. 200, § 3; Ga. L. 1986, p. 982, § 17.)

Editor's notes.

- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.

49-4-173. Maintenance of records by county or district director; use of facts and findings in other proceedings.

The court may, for the purposes of this Code section, direct the county or district director of family and children services to maintain records pertaining to all aspects of any personal representative proceedings, which records the court may adopt as the court's record and in lieu of maintenance of separate records by the court. The facts arrived at by the county or district director pursuant to this Code section and the findings of the court pursuant to this Code section shall not be competent as evidence in other proceedings dealing with any subject matter other than as provided in this article.

(Ga. L. 1964, p. 200, § 4.)

ARTICLE 9 TEMPORARY ASSISTANCE FOR NEEDY FAMILIES

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

Law reviews.

- For article commenting on the enactment of this article, see 14 Ga. St. U.L. Rev. 284 (1997). For article, "Child Welfare and Future Persons," see 43 Ga. L. Rev. 367 (2009).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, §§ 8, 10, 73 et seq.

C.J.S.

- 81 C.J.S., Social Security, §§ 183 et seq., 206.

49-4-180. Short title.

This article shall be known and may be cited as the "Temporary Assistance for Needy Families Act."

(Code 1981, §49-4-180, enacted by Ga. L. 1997, p. 1021, § 6.)

49-4-181. Definitions.

As used in this article, the term:

  1. "Applicant" means a person who applies for assistance under the state plan.
  2. "Assistance" means the temporary assistance provided to needy families with children in accordance with Part A of Title IV of the federal Social Security Act, as amended, regulations promulgated pursuant thereto by the secretary of health and human services, all applicable laws of this state, the state plan, and regulations of the Board of Human Services.
  3. "Board" means the Board of Human Services.
  4. "Cash assistance" means the money payment component of TANF assistance.
  5. "Department" means the Department of Human Services.
  6. "Family" means one or more children living with a responsible parent, both parents, or other caretaker relative or legal guardian.
  7. "Recipient" means a person who receives assistance pursuant to the state plan.
  8. "State plan" means the plan submitted by the State of Georgia to the secretary of health and human services, pursuant to Part A of Title IV of the federal Social Security Act, as amended, particularly by the Act of August 22, 1996, Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, as amended.
  9. "TANF" means temporary assistance for needy families.
  10. "Work activity" means a work activity as defined by Part A of Title IV of the federal Social Security Act, as amended. The term currently includes any of the following:
    1. Unsubsidized employment;
    2. Subsidized private sector employment;
    3. Subsidized public sector employment;
    4. Work experience, including work associated with the refurbishing of publicly assisted housing, if sufficient private sector employment is not available;
    5. On-the-job training;
    6. Job search and job readiness assistance, but such activity by a recipient shall be limited to no more than six weeks, only four weeks of which may be consecutive, unless the state's unemployment rate is 50 percent above the national average, in which case such activity shall be limited to no more than 12 weeks, only four weeks of which may be consecutive;
    7. Community service programs;
    8. Vocational educational training, not to exceed 12 months with respect to any individual;
    9. Job skills training directly related to employment;
    10. Education directly related to employment, in the case of a recipient who has not received a high school diploma or a certificate of high school equivalency;
    11. Satisfactory attendance at secondary school or in a course of study leading to a certificate of general equivalence, in the case of a recipient who has not completed secondary school or received such a certificate of high school equivalency; and
    12. The provision of child care services to an individual who is participating in a community service program.

      Provided, however, that the work participation rates reflected in this paragraph may be adjusted due to caseload reductions in accordance with Part A of Title IV of the federal Social Security Act, as amended.

In the event the definition of work activities in Part A of Title IV of the federal Social Security Act is amended to delete from or add to the list of activities contained in this paragraph, any such change or changes shall be incorporated into this paragraph. The minimum average number of hours per week of such work activity for not less than the percentage of recipients comprising the minimum work participation rate in a given federal fiscal year shall be as follows:

The minimum average If the month is in number of hours per federal fiscal year week is: 1997 ......................................................................20 1998 ......................................................................20 1999 ......................................................................25 2000 or thereafter ........................................................30

(11) "Work participation rate" means the percentage of TANF recipients who are required to engage in a work activity in accordance with Part A of Title IV of the federal Social Security Act, as amended. The minimum work participation rate with respect to all families receiving assistance under the Georgia TANF Program shall be, in accordance with current federal law, as follows:

The minimum If the federal participation fiscal year is: rate is: 1997 .....................................................................25% 1998 .....................................................................30% 1999 .....................................................................35% 2000 .....................................................................40% 2001 .....................................................................45% 2002 or thereafter .......................................................50%

The minimum work participation rate with respect to two-parent families receiving assistance under the Georgia TANF Program shall be, in accordance with current federal law, as follows:

The minimum If the federal participation fiscal year is: rate is: 1997 .....................................................................75% 1998 .....................................................................75% 1999 or thereafter ......................................................90%

(Code 1981, §49-4-181, enacted by Ga. L. 1997, p. 1021, § 6; Ga. L. 1998, p. 128, § 49; Ga. L. 2009, p. 453, §§ 2-2, 2-3/HB 228.)

U.S. Code.

- Part A of Title IV of the federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C. § 601 et seq.

49-4-182. Temporary Assistance for Needy Families Program created.

  1. There is created the Georgia Temporary Assistance for Needy Families Program, which shall be known as the "Georgia TANF Program." The purpose of such program is to provide necessary assistance to needy families with children on a temporary basis and to provide parents, legal guardians, or other caretaker relatives of children with the necessary support services to enable such parents, legal guardians, or caretaker relatives to become self-sufficient and leave the program as soon as possible. After an initial assessment and once the state determines an applicant is ready for work, applicants for assistance shall be required to engage in a work activity in accordance with Part A of Title IV of the federal Social Security Act, as amended, and the state plan as soon as possible after making application for assistance, but in any event no later than 24 months after first receiving cash assistance.
  2. Assistance shall be provided in accordance with the state plan and any future amendments thereto. Cash assistance to a recipient who is not a minor child and who is a head of a household or married to the head of a household shall be limited to a lifetime maximum of 48 months, whether or not consecutive, beginning January 1, 1997.
  3. Nothing in this article, the state plan, or any rules or regulations adopted pursuant to this article shall be interpreted to entitle any individual or any family to assistance under the Georgia TANF Program.

(Code 1981, §49-4-182, enacted by Ga. L. 1997, p. 1021, § 6.)

U.S. Code.

- Part A of Title IV of the federal Social Security Act, referred to in subsection (a) of this Code section, is codified at 42 U.S.C. § 601 et seq.

49-4-183. Administration of article by department; promulgation of rules and regulations by board; duties of department.

  1. This article shall be administered by the Department of Human Services. The Board of Human Services shall issue such rules and regulations as may be necessary to administer this article properly and to comply with the requirements of Part A of Title IV of the federal Social Security Act, as amended, the state plan, and any future amendments to such Act or plan. The initial rules and regulations for the Georgia TANF Program shall be promulgated by the board pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and specifically Code Section 50-13-4 no later than July 1, 1997.
  2. The board shall ensure that such rules and regulations provide for:
    1. Methods of administration necessary for the proper and efficient operation of the state plan for implementation of this article;
    2. Reasonable standards for determining eligibility and the extent of assistance available for recipients;
    3. Consideration of the income and resources of an applicant for assistance in determining eligibility;
    4. Personal responsibility obligations and work activity requirements consistent with Part A of Title IV of the federal Social Security Act, as amended, and the state plan, provided that programs included in the personal responsibility obligations established by the board shall include counseling on abstinence until marriage;
    5. Criteria which make an applicant ineligible to receive benefits under the Georgia TANF Program, including but not limited to those specified in Code Section 49-4-184;
    6. Specific conduct which would authorize the reduction or termination of assistance to a recipient, including but not limited to that specified in Code Section 49-4-185;
    7. Standards whereby certain obligations, requirements, and criteria will be waived for specific applicants or recipients based on hardship;
    8. An administrative hearing process with hearings to be conducted by the Office of State Administrative Hearings in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and subsection (b) of Code Section 49-4-13;
    9. Safeguards which restrict the use and disclosure of information concerning applicants for and recipients of assistance under this article and in accordance with Code Section 49-4-14 and Part A of Title IV of the federal Social Security Act, as amended;
    10. Immunizations for specified diseases for preschool age children as a condition of assistance being provided for such children, and the schedule of and standards for administering such immunizations, including the presentation of a certificate of immunization, unless:
      1. There is appropriate evidence from the local health department or a physician that an immunization sequence has been started and can be completed within a period of up to 180 days, in which case a waiver of the immunization requirement for up to 180 days shall be granted;
      2. After examination by the local board of health or a physician, any preschool age child is found to have a physical disability which may make vaccination undesirable, in which case a certificate to that effect issued by the local board of health or the physician may be accepted in lieu of a certificate of immunization and shall exempt the child from obtaining a certificate of immunization until the disability is relieved;
      3. The parent or legal guardian furnishes an affidavit swearing or affirming that the immunization conflicts with the religious beliefs of the parent or legal guardian; or
      4. The implementation of such an immunization requirement violates any federal law or regulations or would result in the loss of any federal funds to this state; and
    11. The establishment and maintenance of individual development accounts. The funds in such accounts may be used for postsecondary educational expenses, the purchase of a first home, or business capitalization. The funds in such accounts shall not be considered in determining eligibility for cash assistance pursuant to 42 U.S.C. Section 604(h).
  3. The department shall:
    1. Supervise the administration of assistance pursuant to the Georgia TANF Program by the division of family and children services;
    2. Prescribe necessary forms and procedures to carry out the Georgia TANF Program, subject to the rules and regulations prescribed by the board pursuant to this article;
    3. Publish in print or electronically an annual report and such interim reports as may be necessary. The annual report and such interim reports shall be provided to the Governor and members of the General Assembly.The department shall not be required to distribute copies of the annual report or the interim reports to the members of the General Assembly but shall notify the members of the availability of the reports in the manner which it deems to be most effective and efficient. The annual report and interim reports shall contain the following:
      1. The total TANF caseload count;
      2. Quarterly and annual TANF reports, in full, prepared for submission to the federal government;
      3. The percentage of the TANF caseload and the number of individuals given a hardship exemption from the lifetime limit on cash assistance and a categorization of the reasons for such exemptions;
      4. The number of individuals who received transportation assistance and the cost of such assistance;
      5. The number of individuals who received diversionary assistance in order to prevent their requiring TANF assistance and the categories and cost of such diversionary assistance, and job acceptance and retention statistics;
      6. The number of individuals denied assistance due to a serious violent felony conviction;
      7. The number of mothers under 19 years of age who received assistance and their percentage of the total TANF caseload;
      8. The number of children receiving subsidized child care and the total and average per recipient cost of child care provided to TANF recipients;
      9. Data on teen pregnancy prevention;
      10. The number of families sanctioned;
      11. The number of legal immigrants receiving TANF benefits by category of immigration status;
      12. The number of families no longer eligible because of time limits;
      13. Follow-up information on job retention and earnings; and
      14. An evaluation of the effect of Code Section 49-4-186 on the number of births to TANF recipient families.

        The information required under this paragraph shall be provided on a county-by-county basis where feasible; and

    4. Develop a plan, on or before January 1, 1998, to provide incentives for employers to hire those TANF recipients who have difficulty in finding employment.

(Code 1981, §49-4-183, enacted by Ga. L. 1997, p. 1021, § 6; Ga. L. 1998, p. 128, § 49; Ga. L. 2005, p. 1036, § 39/SB 49; Ga. L. 2009, p. 453, §§ 2-2, 2-3/HB 228; Ga. L. 2010, p. 838, § 10/SB 388.)

U.S. Code.

- Part A of Title IV of the federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C. § 601 et seq.

JUDICIAL DECISIONS

Right to object to immunization on religious grounds not found.

- Right to lodge religious objection to a child's immunization pursuant to O.C.G.A. § 20-2-771(e), O.C.G.A. § 31-12-3(b) or O.C.G.A. § 49-4-183(b)(10)(C) was not a residual right of the child's parents under O.C.G.A. § 15-11-13; thus, the mother of a child found to be deprived could not object to the immunization of the child on religious grounds. In the Interest of C.R., 257 Ga. App. 159, 570 S.E.2d 609 (2002).

49-4-184. Eligibility for assistance.

  1. An applicant is not eligible for assistance under this article and a recipient shall no longer be eligible for assistance under this article if:
    1. The applicant's or recipient's family does not include a minor child;
    2. The applicant or recipient does not cooperate with the department in establishing paternity, in providing assistance in a fraud and abuse investigation, or in establishing, modifying, or enforcing a support order with respect to a child of the applicant or recipient, and the applicant or recipient does not qualify for any good cause exception which may be established by the board;
    3. The applicant or recipient fails to assign to the department any rights that applicant or recipient may have to support from any other person, not exceeding the total amount of assistance so provided to the family which accrues or has accrued before the date the recipient family leaves the program, in accordance with the provisions of Part A of Title IV of the federal Social Security Act, as amended;
    4. The applicant or recipient is convicted of a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1 on or after January 1, 1997;
    5. The applicant or recipient is convicted of any felony under Article 2 of Chapter 13 of Title 16, the "Georgia Controlled Substances Act," on or after January 1, 1997;
    6. The applicant or recipient is under 18 years of age, is not married, has a minor child at least 12 weeks of age in his or her care, and has not completed a high school education or its equivalent, unless the applicant or recipient participates and obtains passing grades in:
      1. Educational activities directed toward the attainment of a high school diploma or its equivalent; or
      2. An alternative educational or training program that has been approved by the department;
    7. The applicant or recipient is under 18 years of age, has never married, and is either pregnant or has a minor child in his or her care, unless:
      1. The applicant or recipient and the child or children live in a place of residence maintained by the applicant's or recipient's parent, legal guardian, or other adult relative of the applicant or recipient as such parent's, legal guardian's, or other adult relative's own home; or
      2. The applicant or recipient lives in a foster home, maternity home, or other supportive living arrangement supervised by an adult;
    8. The applicant or recipient is fleeing to avoid prosecution or custody or confinement after conviction of a felony under the laws of the place from which the applicant or recipient is a fugitive;
    9. The applicant or recipient violates a condition of probation or parole imposed under state or federal law; or
    10. The recipient is pregnant and fails to participate actively in prenatal care arranged by the department at a level defined by the department.
  2. Paragraphs (6) and (7) of subsection (a) of this Code section shall not apply if the applicant or recipient has no parent or legal guardian whose whereabouts are known, no parent or legal guardian of the applicant or recipient allows the applicant or recipient to live in the home of that parent or legal guardian, or the department otherwise determines that there is good cause not to apply the prohibitions contained in said paragraphs.

(Code 1981, §49-4-184, enacted by Ga. L. 1997, p. 1021, § 6; Ga. L. 1998, p. 128, § 49.)

U.S. Code.

- Part A of Title IV of the federal Social Security Act, referred to in paragraph (a)(3) of this Code section, is codified at 42 U.S.C. § 601 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, § 56 et seq.

49-4-185. Sanctions against recipient for failure to comply.

  1. As used in this Code section, the term "sanction" means a 25 percent reduction of any cash assistance provided to a family for a time period established by the board for the first material violation and termination of any cash assistance provided to the family for any subsequent material violation within a time period established by the board; provided, however, that the department determine that there is good cause not to apply such a sanction in specific circumstances.
  2. A recipient shall be subject to sanction for failing to comply with the state plan if the recipient:
    1. Fails to report that a child is absent from home for a period of 45 consecutive days or, in the case of a child who is a recipient, being absent from home for a period of 45 consecutive days; provided, however, that a child who is a recipient shall not be sanctioned if the department determines there is good cause not to sanction the child under such circumstances;
    2. Violates any personal responsibility or work participation requirement; provided, however, that a single custodial parent with a child under 12 months of age may be exempt from any work participation requirement until adequate child care is available; or
    3. Except for violations of subsection (a) of Code Section 49-4-184 which result in the recipient no longer being eligible for assistance, violates any other term or condition specified in the federal Social Security Act, as amended, the state plan, or the rules and regulations of the board.

(Code 1981, §49-4-185, enacted by Ga. L. 1997, p. 1021, § 6; Ga. L. 2000, p. 1137, § 8.)

U.S. Code.

- The federal Social Security Act, referred to in paragraph (b)(3) of this Code section, is codified at 42 U.S.C. § 301 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, § 79 et seq.

49-4-186. Schedule of assistance to eliminate increment in benefits under TANF program as result of child birth during eligibility period.

The schedule of assistance to be paid to a recipient family under this article shall eliminate the increment in benefits under the Georgia TANF Program as a result of the birth of a child during the period in which the family is eligible for TANF assistance or during a temporary period in which the family or recipient is ineligible for TANF assistance pursuant to a sanction imposed for failure to comply with eligibility requirements, subsequent to which the family or recipient is again eligible for assistance. The recipient family in which the recipient parent gives birth to an additional child during the recipient's period of eligibility for TANF assistance, or during a temporary period of ineligibility for assistance, may not receive additional assistance, except in the case of a general increase in the amount of TANF assistance which is provided to all program recipients. This provision shall only apply to recipient families who have been in receipt of cash assistance under this article for a total of ten months after May 1, 1997. Nothing in this Code section shall be considered to disqualify a recipient family from an incremental increase in assistance in cases in which the birth of a child is the result of a verifiable rape or incest.

(Code 1981, §49-4-186, enacted by Ga. L. 1997, p. 1021, § 6.)

49-4-187. Assistance for applicants moving into state after receiving assistance from another state.

An applicant who moves into this state after receiving assistance from another state under Part A of Title IV of the federal Social Security Act, as amended, if otherwise eligible to receive assistance under the Georgia TANF Program, shall receive the same level of assistance for the same period of time under the same requirements and restrictions as a resident of this state; provided, however, that for a period not to exceed 12 months, such applicant shall receive the same amount of cash assistance as that applicant received in his or her previous state of residence, if such amount is lower than the amount of cash assistance paid to a comparable family unit in this state; provided, further, that an applicant who moves into this state shall be eligible to receive cash assistance for the same time period for which he or she would have been eligible in his or her previous state of residence, if such time period is shorter than the maximum time period permitted for receipt of assistance in this state.

(Code 1981, §49-4-187, enacted by Ga. L. 1997, p. 1021, § 6.)

U.S. Code.

- Part A of Title IV of the federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C. § 601 et seq.

49-4-188. Assistance for qualified aliens.

  1. As used in this Code section, the term "qualified alien" means a qualified alien as defined in Section 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, as amended, Public Law 104-193.
  2. Qualified aliens will be eligible for assistance under the Georgia TANF Program upon meeting the same qualifications and conditions as other applicants.

(Code 1981, §49-4-188, enacted by Ga. L. 1997, p. 1021, § 6; Ga. L. 1998, p. 850, § 1; Ga. L. 1999, p. 845, § 1; Ga. L. 2001, p. 790, § 1.)

U.S. Code.

- Section 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, referred to in subsection (a) of this Code section, is codified at 8 U.S.C. § 1641.

Law reviews.

- For review of 1998 legislation relating to social services, see 15 Ga. St. U.L. Rev. 232 (1998).

49-4-189. [Reserved].

Reserved.

Editor's notes.

- This Code section was reserved by Ga. L. 1997, p. 1021, § 6, effective April 22, 1997.

49-4-190. Construction of article.

It is the intention of the General Assembly that this article be construed consistently with Part A of Title IV of the federal Social Security Act, as amended, and so as to authorize the Department of Human Services, within the appropriations provided to it, to administer the state plan in a manner so as to receive the maximum amount of the federal block grant available for expenditures made under the state plan. Nothing in this article shall be construed to impose requirements which conflict with such federal law or regulations promulgated thereunder so as to result in a loss of federal funding to this state under that law.

(Code 1981, §49-4-190, enacted by Ga. L. 1997, p. 1021, § 6; Ga. L. 2009, p. 453, § 2-2/HB 228.)

U.S. Code.

- Part A of Title IV of the federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C. § 601 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, §§ 8, 10.

49-4-191. Establishment and enforcement of standards and procedures by department.

The department shall establish and enforce standards and procedures to:

  1. Screen and identify recipients of TANF assistance with a history of being victims of domestic violence, while protecting the confidentiality of any such recipients;
  2. Refer any such recipients to counseling and supportive services; and
  3. Waive, pursuant to a determination of good cause, other program requirements for any such recipients of TANF assistance, such as time limits, for so long as necessary, residency requirements, child support cooperation requirements, and family cap provisions, in cases where compliance with such requirements would make it more difficult for individuals receiving TANF assistance to escape domestic violence or unfairly penalize such recipients who are or have been victimized by such violence, or individuals who are at risk of further domestic violence.

(Code 1981, §49-4-191, enacted by Ga. L. 1997, p. 1021, § 6.)

49-4-192. Establishment of pilot LEARNFARE program.

  1. As used in this Code section, the term:
    1. "Program" means the LEARNFARE program established in this Code section.
    2. "Teen-ager" means a person at least 13 years of age but not more than 16 years of age who is included in a grant of TANF assistance, who is residing with a parent or guardian, and who has not graduated from high school or received a certificate of high school equivalency (GED).
  2. The purpose of this Code section is to establish a pilot LEARNFARE program that requires school attendance of all teen-agers.
  3. The department shall establish in not less than ten counties in this state a pilot LEARNFARE program. Such program shall require school attendance of all teen-agers.
  4. A teen-ager who is required to attend school to meet LEARNFARE participation requirements under this Code section shall comply except when there is good cause shown, as defined by the department.
  5. Upon determination that a teen-ager has failed without good cause to attend school as required, the teen-ager will be removed from the TANF grant for the next possible payment month.
  6. A sanction applied under this program shall be effective for one month for each month that the teen-ager failed to meet the monthly attendance requirement, as established by the department. In the case of a teen-ager who drops out of school, the sanction shall remain in force until the teen-ager provides written proof from the school system that the teen-ager has re-enrolled and has met the monthly attendance requirement for one calendar month.
  7. The department shall adopt not later than July 1, 1997, such rules and regulations as may be necessary to implement this program. The department shall establish by appropriate rules and regulations the eligibility and participation guidelines for such program.
  8. The department shall further provide, no later than January 1, 1999, a written report to the General Assembly which shall describe all actions taken to implement this program and the results and findings derived therefrom.

(Code 1981, §49-4-192, enacted by Ga. L. 1997, p. 1021, § 7.1.)

49-4-193. Drug test required for certain TANF applicants or recipients; ineligibility for benefits based upon positive tests; drug treatment; impact of drug use by parents on children; confidentiality; exceptions.

  1. As used in this Code section, the term "established drug test" means the collection and testing of bodily fluids administered in a manner equivalent to that required by the Mandatory Guidelines for Federal Workplace Drug Testing Programs established by the United States Department of Health and Human Services or other professionally valid procedures approved by the department; provided, however, that where possible and practicable, a swab test shall be used in lieu of a urinalysis.
  2. The department shall adopt rules and regulations for an established drug test which shall include the following:
    1. Which illegal drugs will be the subject of testing;
    2. Methods for assuring minimal privacy intrusions during collection of body fluid specimens for such testing;
    3. Methods for assuring proper storage, transportation, and handling of such specimens in order to ensure the integrity of the testing process;
    4. The identity of those persons entitled to the results of such tests and methods for ensuring that only authorized persons are given access to such results;
    5. A list of laboratories qualified to conduct established drug tests;
    6. A list of approved substance abuse treatment providers;
    7. Procedures for persons undergoing drug testing, prior to the collection of body fluid specimens for such testing, to provide information regarding use of any drug pursuant to a medical prescription or as otherwise authorized by law which may affect the results of such test; and
    8. A requirement that any applicant who demonstrates proof of active and current Medicaid benefits shall pay a drug screening application fee of no more than $17.00, and no authorized test examiner shall conduct a drug test if an applicant demonstrates active and current Medicaid benefits unless the applicant presents a receipt proving that he or she has paid the required drug screening application fee. Eligible applicants who do not have active and current Medicaid benefits shall be responsible for paying the full cost of administering the drug test upon presentation to an authorized examiner.
    1. The department shall require a drug test consistent with subsection (b) of this Code section to screen an applicant or recipient at any time a reasonable suspicion exists that such applicant or recipient is using an illegal drug. The department may use any information obtained by the department to determine whether such reasonable suspicion exists, including, but not limited to:
      1. An applicant's or recipient's demeanor;
      2. Missed appointments and arrest or other police records;
      3. Previous employment or application for employment in an occupation or industry that regularly conducts drug screening; and
      4. Termination from previous employment due to unlawful use of a controlled substance or controlled substance analog or prior drug screening records of the applicant or recipient indicating unlawful use of a controlled substance or controlled substance analog.
    2. The cost of drug testing shall be the responsibility of the individual tested, provided that the individual does not submit proof of active and current Medicaid benefits to subsidize the cost of such drug testing pursuant to paragraph (8) of subsection (b) of this Code section. No assistance payment shall be delayed because of the requirements of this Code section, and any payments made prior to the department's receipt of a test result showing a failure shall be recoverable.
  3. Any recipient of cash assistance under this article who tests positive for controlled substances as a result of a drug test required under this Code section shall be ineligible to receive TANF benefits as follows:
    1. For a first positive result, the recipient shall be ineligible for TANF benefits for one month and until he or she tests negative in a retest;
    2. For a second positive result, the recipient shall be ineligible for TANF benefits for three months and until he or she tests negative in a retest; and
    3. For a third and each subsequent positive result, the recipient shall be ineligible for TANF benefits for one year and until he or she tests negative in a retest unless the individual meets the requirements of subsection (f) of this Code section.
  4. The department shall:
    1. Provide notice of possible drug testing based on reasonable suspicion to each individual at the time of application. Dependent children under the age of 18 are exempt from the drug testing requirement;
    2. Advise each individual to be tested, before the test is conducted, that he or she may, but is not required to, advise the agent administering the test of any prescription or over the counter medication he or she is taking;
    3. Require each individual to be tested to sign a written acknowledgment that he or she has received and understood the notice and advice provided under paragraphs (1) and (2) of this subsection;
    4. Assure each individual being tested a reasonable degree of dignity while producing and submitting a sample for drug testing, consistent with the state's need to ensure the reliability of the sample;
    5. Specify circumstances under which an individual who fails a drug test has the right to take one or more additional tests;
    6. Inform an individual who tests positive for a controlled substance and is deemed ineligible for TANF benefits for one year pursuant to paragraph (3) of subsection (d) of this Code section that the individual may reapply for those benefits six months after the date of the positive drug test if he or she meets the requirements of subsection (f) of this Code section; and
    7. Provide any individual who tests positive with a list of substance abuse treatment providers approved by the department which are available in the area in which he or she resides. Neither the department nor the state shall be responsible for providing or paying for substance abuse treatment.
  5. An individual who tests positive for an illegal drug and is denied TANF benefits for one year may reapply for TANF benefits after six months if the individual can document the successful completion of a substance abuse treatment program offered by a provider approved by the department. The cost of any drug testing provided under this Code section and substance abuse treatment shall be the responsibility of the individual being tested and receiving treatment. An individual who fails the drug test required under subsection (c) of this Code section may reapply for TANF benefits under this subsection only once.
  6. If a parent is deemed ineligible for TANF benefits as a result of failing a drug test conducted under this Code section:
    1. The dependent child's eligibility for TANF benefits shall not be affected;
    2. An appropriate protective payee shall be designated to receive benefits on behalf of the child; and
    3. The parent may choose to designate another individual to receive benefits for the parent's minor child. The designated individual must be an immediate family member or, if an immediate family member is not available or the family member declines the option, another individual approved by the department. The designated individual shall be subject to possible drug testing based on a reasonable suspicion. If the designated individual tests positive for controlled substances, he or she shall be ineligible to receive benefits on behalf of the child.
  7. The results of any drug test done according to this Code section shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50, relating to inspection of public records. Such results shall not be used as a part of a criminal investigation or criminal prosecution. Such results shall not be used in a civil action or otherwise disclosed to any person or entity without the express written consent of the person tested or his or her heirs or legal representative. All such records shall be destroyed and deleted five years after the date of the test.
  8. No testing shall be required by the provisions of this Code section for any person whom the department determines is significantly hindered, because of a physical or mental handicap or developmental disability, from doing so or for any person enrolled in an enhanced primary care case management program operated by the Department of Community Health, Division of Medical Assistance to serve frail elderly and disabled beneficiaries to improve the health outcomes of persons with chronic health conditions by linking primary medical care with home and community based services. In addition, no testing shall be required by the provisions of this Code section for any individuals receiving or on a waiting list for long-term services and supports through a non-Medicaid home and community based services program or for any individual residing in a facility such as a nursing home, personal care home, assisted living community, intermediate care facility for the intellectually or developmentally disabled, community living arrangement, or host home.
  9. The department shall adopt rules to implement this Code section.

(Code 1981, §49-4-193, enacted by Ga. L. 2012, p. 91, § 3/HB 861; Ga. L. 2014, p. 844, § 2/HB 772; Ga. L. 2014, p. 866, § 49/SB 340; Ga. L. 2015, p. 385, § 4-13/HB 252.)

Effective date.

- This Code section became effective July 1, 2012.

The 2014 amendments. The first 2014 amendment, effective July 1, 2014, substituted "established by the United States Department of Health and Human Services" for "(53 C.F.R. 11979, et seq., as amended)" in the middle of subsection (a); rewrote subsections (b), (c), and (e); deleted the former second and third sentences of subsection (f), which read: "An individual who has met the requirements of this subsection and reapplies for TANF benefits shall also pass an initial drug test and meet the requirements of subsection (c) of this Code section. Any drug test conducted while the individual is undergoing substance abuse treatment shall meet the requirements of subsection (b) of this Code section."; and substituted "shall be subject to possible drug testing based on a reasonable suspicion" for "shall also undergo drug testing before being approved to receive benefits on behalf of the child" in the third sentence of paragraph (g)(3). The second 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, substituted "Mandatory Guidelines for Federal Workplace Drug Testing Programs" for "Mandatory Guidelines for Federal Workplace Drug Testing Programs (53 C.F.R. 11979, et seq., as amended)" in subsection (a).

The 2015 amendment, effective July 1, 2015, substituted "intellectually or developmentally disabled" for "mentally retarded" in subsection (i).

Cross references.

- Drug-free workplace programs, T. 34, C. 9, A. 11.

Random drug testing of employees in high risk jobs, T. 45, C. 20, A. 5.

Drug testing for state employment, T. 45, C. 20, A. 6.

Editor's notes.

- Ga. L. 2012, p. 91, § 1/HB 861, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Social Responsibility and Accountability Act.'"

Ga. L. 2012, p. 91, § 2/HB 861, not codified by the General Assembly, provides that: "It is the intent of the General Assembly to:

"(1) Ensure that TANF funds are ultimately utilized for the intended purpose of alleviating the effects of poverty and are not diverted to illicit drug use;

"(2) Protect children of poverty by ensuring such funds strengthen family life and reduce the danger that illicit drugs will be introduced into the home environment;

"(3) Assist adults addicted to drugs to avoid the temptation and restructure their lives by focusing on employment and becoming better parents; and

"(4) Ensure that the government does not subsidize the public health risk posed by drug use and the associated criminal activities."

Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

Law reviews.

- For article on the 2012 enactment of this Code section, see 29 Ga. St. U. L. Rev. 224 (2012). For article on the 2014 amendment of this Code section, see 31 Ga. St. U. L. Rev. 205 (2014).

CHAPTER 4A DEPARTMENT OF JUVENILE JUSTICE

Administrative Rules and Regulations.

- Rules of general applicability, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Juvenile Justice, Chapter 97-1.

Administrative revocations of juvenile community placement, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Juvenile Justice, Chapter 97-2.

49-4A-1. Definitions.

As used in this chapter, the term:

  1. "Board" means the Board of Juvenile Justice.
  2. "Child in need of services" means any child so adjudged under Article 5 of Chapter 11 of Title 15.
  3. "Commissioner" means the commissioner of juvenile justice.
  4. "Delinquent child" means any child so adjudged under Article 6 of Chapter 11 of Title 15.
  5. "Department" means the Department of Juvenile Justice.
  6. "Detention assessment" means an actuarial tool, approved by the board and validated on a targeted population, used to make detention decisions and that identifies and calculates specific factors that are likely to indicate a child's risk to public safety pending adjudication and the likelihood that such child will appear for juvenile proceedings for the act causing the detention decision to be made.
  7. "Evidence based programs or practices" means programs, practices, procedures, and policies that scientific research demonstrates a likelihood to prevent or reduce juvenile delinquency or recidivism.
  8. "Juvenile detention facility" means hardware secure residential institutions or community residential locations operated by or on behalf of the department and may include youth development centers, regional youth detention centers, group homes, emergency shelters, wilderness or outdoor therapeutic programs, or other facilities that provide 24 hour care in a residential setting.
  9. "Recidivism" means a conviction or adjudication of delinquency for an offense or crime committed within three years of being placed on probation or being discharged or released from a juvenile detention facility.
  10. "Risk and needs assessment" means an actuarial tool, approved by the board and validated on a targeted population, that identifies and calculates specific factors that predict a child's likelihood of recidivating and identifies criminal risk factors that, when properly addressed, can reduce such child's likelihood of recidivating.
  11. "Risk assessment" means an actuarial tool, approved by the board and validated on a targeted population, that identifies and calculates specific factors that predict a child's likelihood of recidivating.

(Code 1981, §49-4A-1, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1997, p. 1453, § 4; Ga. L. 2013, p. 294, § 3-1/HB 242.)

The 2013 amendment, effective January 1, 2014, added paragraph (2); redesignated former paragraphs (2) through (4) as present paragraphs (3) through (5), respectively; substituted "'Delinquent child' means any child so adjudged under Article 6" for "'Delinquent or unruly child or youth' means any person so adjudged under Article 1" in paragraph (4); and added paragraphs (6) through (11). See editor's note for applicability.

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

49-4A-2. Board of Juvenile Justice created; appointments; terms; vacancies; chairperson; per diem and expenses; responsibilities and duties.

    1. There is created a Board of Juvenile Justice which shall establish the general policy to be followed by the Department of Juvenile Justice created in this chapter. The Board of Juvenile Justice shall be the successor entity to the Board of Children and Youth Services and the change is intended to be one of name only. The board shall consist of 15 members, with at least one but not more than two from each congressional district in the state, appointed by the Governor and confirmed by the Senate. The Governor shall make such appointments with a view toward achieving minority representation, representation of women, and equitable geographic representation on the board.
    2. The Governor shall designate the initial terms of the members of the board as follows: three members shall be appointed for one year; three members shall be appointed for two years; three members shall be appointed for three years; three members shall be appointed for four years; and three members shall be appointed for five years. Thereafter, all succeeding appointments shall be for five-year terms from the expiration of the previous term.
    3. Vacancies in office shall be filled by appointment by the Governor in the same manner as the appointment to the position on the board which becomes vacant, and the appointment shall be submitted to the Senate for confirmation at the next session of the General Assembly. An appointment to fill a vacancy, other than by expiration of a term of office, shall be for the balance of the unexpired term.
    4. There shall be a chairperson of the board, elected by and from the membership of the board, who shall be the presiding officer of the board.
    5. The members of the board shall receive per diem and expenses as shall be set and approved by the Office of Planning and Budget and in conformance with rates and allowances set for members of other state boards.
  1. The board shall:
    1. Provide leadership in developing programs to successfully rehabilitate delinquent children committed to the state's custody;
    2. Provide technical assistance to private and public entities for prevention programs for children at risk;
    3. Ensure that detention assessment, risk assessment, and risk and needs assessment instruments that are utilized by intake personnel and courts are developed in consultation with the Governor's Office for Children and Families, the Criminal Justice Coordinating Council, and the Council of Juvenile Court Judges and ensure that such instruments are validated at least every five years;
    4. Adopt rules and regulations governing the management and treatment of children committed to the department to ensure that evidence based programs or practices, including the use of a risk and needs assessment and any other method the board deems appropriate, guide decisions related to placing a committed child in a facility or into the community, preparing a child's release into the community, and managing children probationers in the community;
    5. Require the department to collect and analyze data and performance outcomes, including, but not limited to, data collected and maintained pursuant to subsection (n) of Code Section 49-4A-8 and prepare an annual report regarding such information which shall be submitted to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons of the House Committee on Judiciary Non-civil and the Senate Judiciary Committee; and
    6. Adopt rules and regulations governing the transfer of children who are at least 17 years of age and are released from restrictive custody due to an adjudication for a Class A designated felony act or Class B designated felony act, as such terms are defined in Code Section 15-11-2, to the Department of Community Supervision to ensure balanced attention to the protection of the community, the imposition of accountability, and the development of competencies to enable each child to become a responsible and productive member of the community, taking into consideration a child's level of participation in the department's educational, vocational, and other services prior to such release.
  2. The board shall perform duties required of it by this chapter and shall, in addition thereto, be responsible for promulgation of all rules and regulations not in conflict with this chapter that may be necessary and appropriate to the administration of the department, to the accomplishment of the purposes of this chapter, and to the performance of the duties and functions of the department as set forth in this chapter.
  3. The board shall establish rules and regulations for the government, operation, and maintenance of all training schools, facilities, and institutions now or hereafter under the jurisdiction and control of the department, bearing in mind at all times that the purpose for existence and operation of such schools, facilities, and institutions and all activities carried on therein shall be to carry out the rehabilitative program provided for by this chapter and to restore and build up the self-respect and self-reliance of children and youths lodged therein so as to qualify and equip them for good citizenship and honorable employment.

(Code 1981, §49-4A-2, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1997, p. 1453, § 5; Ga. L. 2013, p. 294, § 3-2/HB 242; Ga. L. 2014, p. 866, § 49/SB 340; Ga. L. 2015, p. 890, § 6/HB 263; Ga. L. 2016, p. 443, § 12-1/SB 367.)

The 2013 amendment, effective January 1, 2014, rewrote subsection (b). See editor's note for applicability.

The 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, substituted "Senate Judiciary Committee" for "Senate State Judiciary Committee" at the end of paragraph (b)(5).

The 2015 amendment, effective July 1, 2015, inserted ", the Criminal Justice Coordinating Council," in paragraph (b)(3).

The 2016 amendment, effective July 1, 2016, in subsection (b), deleted "and" at the end of paragraph (b)(4), substituted "; and" for a period at the end of paragraph (b)(5), and added paragraph (b)(6).

Code Commission notes.

- As enacted by Ga. L. 1992, p. 1983, § 24, this Code section did not contain a subsection (b). Pursuant to Code Section 28-9-5, in 1992, subsections (c), (d), and (e) were redesignated as present subsections (b), (c), and (d), respectively.

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 139 (2016).

49-4A-3. Department of Juvenile Justice created; commissioner of juvenile justice; organization and operation of department.

  1. There is created the Department of Juvenile Justice and the position of commissioner of juvenile justice. The commissioner shall be the chief administrative officer of the department and shall be both appointed and removed by the board, subject to the approval of the Governor. The commissioner of human services shall not also serve as the commissioner of juvenile justice. Subject to the general policy and rules and regulations of the board, the commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions of the department.
  2. The department shall provide for supervision, detention, and rehabilitation of delinquent children committed to the state's custody. The department shall also be authorized to operate prevention programs and to provide assistance to local public and private entities with prevention programs for children at risk. In lieu of commitment, the department shall be authorized to provide for specialized treatment for children adjudicated for delinquent acts involving sexual offenses or controlled substances and who may have behavior disorders. The department's organization, operation, and implementation shall be based on the following:
    1. Development of a comprehensive continuum of service options using evidence based programs or practices through flexible funding to allow providers to respond to the unique needs and capabilities of individual children and families;
    2. Services implemented so that each child and family served can have a personal relationship with staff, providers, and workers, which staff, providers, and workers shall be trained and treated as professionals, have a range of multidisciplinary skills, and have manageable caseloads;
    3. Services shall be based on evidence based programs or practices and be community centered and responsive to local needs with state and local and public and private entities forming cooperative partnerships that enhance informal support systems for families;
    4. Systems that are accountable, with desired outcomes specified, results measured and evaluated, and cost-efficient options maximized;
    5. Intersystem communication and collaboration that are encouraged and facilitated through coordination of systems so that gaps and unnecessary duplications in planning, funding, and providing services are eliminated;
    6. Being consumer driven and responsive to the changing needs of individual communities; and
    7. Encouraging the central location of various services whenever possible.

(Code 1981, §49-4A-3, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1997, p. 1453, § 6; Ga. L. 2009, p. 453, § 2-4/HB 228; Ga. L. 2013, p. 294, § 3-3/HB 242.)

The 2013 amendment, effective January 1, 2014, in subsection (a), deleted the former second sentence, which read: "The Department of Juvenile Justice shall be the successor entity to the Department of Children and Youth Services and the change is intended to be one of name only; and the commissioner of juvenile justice shall be the successor to the commissioner of children and youth services and the change is intended to be one of name only.", substituted "department" for "Department of Juvenile Justice" in the second and last sentences, substituted "shall not" for "may not" in the third sentence, and deleted "of juvenile justice" following "the commissioner" in the last sentence; in subsection (b), in the introductory paragraph, substituted "delinquent children" for "juvenile delinquents" in the first sentence, substituted "children" for "juveniles" in the second sentence, and rewrote the third sentence, which read: "Additionally, the department will be authorized to provide for specialized treatment for juvenile offenders, in lieu of commitment, who have been found to be sex offenders or drug abusers and who may have behavior disorders"; inserted "using evidence based programs or practices" in paragraph (b)(1); inserted "based on evidence based programs or practices and be" in paragraph (b)(3); substituted "Being consumer driven" for "The department shall be consumer driven" in paragraph (b)(6); and substituted "Encouraging" for "The department shall encourage" in paragraph (b)(7). See editor's note for applicability.

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

49-4A-4. Purpose of chapter.

It is the purpose of this chapter to establish the department as the agency to administer, supervise, and manage juvenile detention facilities.

(Code 1981, §49-4A-4, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1997, p. 1453, § 7; Ga. L. 2013, p. 294, § 3-4/HB 242.)

The 2013 amendment, effective January 1, 2014, deleted the former second sentence, which read: "Except for the purposes of administration, supervision, and management as provided in this chapter, juvenile detention facilities shall continue to be detention care facilities for delinquent and unruly children and youth for the purposes of Article 1 of Chapter 11 of Title 15, relating to juvenile courts and juvenile proceedings." See editor's note for applicability.

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

49-4A-5. Transfer of functions and employees of Division of Youth Services; personnel administration.

  1. The department shall carry out all functions and exercise all powers relating to the administration, supervision, and management of juvenile detention facilities, and jurisdiction over such juvenile detention facilities is vested in the department.
  2. Any employees of the Department of Juvenile Justice who became so employed by virtue of their transfer from the Division of Youth Services of the Department of Human Resources (now known as the Department of Human Services) on June 30, 1992, shall retain their compensation and benefits and such may not be reduced. Transferred employees who were subject to the state system of personnel administration provided for by Chapter 20 of Title 45 will lose no rights granted under such system as a result of such transfer. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on July 1, 1992, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 1992. Accrued annual and sick leave possessed by said employees on June 30, 1992, shall be retained by said employees as employees of the department.
    1. The department shall conform to federal standards for a merit system of personnel administration in the respects necessary for receiving federal grants and the board is authorized and empowered to effect such changes as may, from time to time, be necessary in order to comply with such standards.
    2. The department is authorized to employ, on a full-time or part-time basis, such medical, psychiatric, social work, supervisory, institutional, and other professional personnel and such clerical and other employees as may be necessary to discharge the duties of the department under this chapter. The department is also authorized to contract for such professional services as may be necessary.
    3. Classified employees of the department under this chapter shall in all instances be employed and dismissed in accordance with rules and regulations of the State Personnel Board.
    4. All personnel of the department are authorized to be members of the Employees' Retirement System of Georgia created in Chapter 2 of Title 47. All rights, credits, and funds in that retirement system which are possessed by state personnel transferred by provisions of this chapter to the department, or otherwise had by persons at the time of employment with the department, are continued and preserved, it being the intention of the General Assembly that such persons shall not lose any rights, credits, or funds to which they may be entitled prior to becoming employees of the department.

(Code 1981, §49-4A-5, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1997, p. 1453, § 8; Ga. L. 1998, p. 128, § 49; Ga. L. 2009, p. 453, § 2-22/HB 228; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-97/HB 642; Ga. L. 2013, p. 294, § 3-5/HB 242.)

The 2012 amendment, effective July 1, 2012, substituted "state system of personnel administration provided for by Chapter 20 of Title 45 will lose no rights granted under such system as a result of such transfer" for "State Personnel Administration shall retain all existing rights under the State Personnel Administration" in the second sentence of subsection (b); and substituted "State Personnel Board" for "State Personnel Administration" in paragraph (c)(3).

The 2013 amendment, effective January 1, 2014, substituted "and jurisdiction over such" for "including youth development centers, and jurisdiction over said youth development centers and other" in subsection (a). See editor's note for applicability.

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Administrative Rules and Regulations.

- Request for information, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Juvenile Justice, Rules of General Applicability, § 97-1-.06.

49-4A-6. Rules and regulations.

  1. The board shall adopt rules and regulations for the government, operation, administration, and maintenance of juvenile detention facilities and may also adopt such other rules and regulations for the government and operation of the department as the board may deem necessary consistent with the provisions of this chapter.
  2. Rules and regulations adopted by the board under subsection (a) of this Code section shall recognize that a primary purpose of juvenile detention facilities is to carry out rehabilitative programs using evidence based programs or practices to the end that children housed in such facilities develop self-respect and self-reliance and acquire the necessary knowledge and skills to become good citizens who are qualified for honorable employment.

(Code 1981, §49-4A-6, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 2013, p. 294, § 3-6/HB 242.)

The 2013 amendment, effective January 1, 2014, in the middle of subsection (a), deleted "youth development centers and other" following "maintenance of" and deleted "by the department" following "facilities"; and, in subsection (b), deleted "youth development centers and other" following "purpose of", inserted "using evidence based programs or practices" near the middle, and substituted "children housed in such facilities develop self-respect" for "children and youth housed in said centers shall develop their self-respect". See editor's note for applicability.

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

49-4A-7. Powers and duties of department.

  1. The department shall be authorized to:
    1. Accept for detention in a juvenile detention facility any child who is committed to the department under Article 6 of Chapter 11 of Title 15;
    2. Provide probation and other court services for children pursuant to a request from a court under Article 6 of Chapter 11 of Title 15;
    3. Provide casework services and care or payment of maintenance costs for children who have run away from their home communities within this state or from their home communities in this state to another state or from their home communities in another state to this state; pay the costs of returning such runaway children to their home communities; and provide such services, care, or costs for runaway children as may be required under Chapter 4B of Title 49;
    4. Enter into contracts and cooperative agreements with federal, state, county, and municipal governments and their agencies and departments; enter into contracts with public and private institutions and agencies of this and other states; enter into leases with private vendors selected to operate programs on behalf of the department which shall run concurrently with the department's service contracts; provided, however, that any such lease shall provide that if the property which is the subject of the lease is sold and conveyed during the term of the lease, such lease shall expire by operation of law 90 days after the closing of such sale and conveyance; and enter into contracts with individuals, as may be necessary or desirable in effectuating the purposes of this chapter; and
    5. Solicit and accept donations, contributions, and gifts and receive, hold, and use grants, devises, and bequests of real, personal, and mixed property on behalf of the state to enable the department to carry out its functions and purposes.
  2. When given legal custody over a child for detention in a juvenile detention facility under court order under Article 6 of Chapter 11 of Title 15, the department shall have:
    1. The right of physical possession of such child;
    2. The right and duty to protect, train, and discipline such child;
    3. The responsibility to provide such child with food, clothing, shelter, and education;
    4. The right to determine in which facility such child shall live and to transfer such child as provided in subsection (b) of Code Section 42-5-52; and
    5. The right and duty to provide or obtain for such child medical, hospital, psychiatric, surgical, or dental care or services as may be considered appropriate and necessary by competent medical authority without securing prior consent of parents or legal guardians.
  3. The board may authorize the commissioner to enter into contracts and agreements provided for in this Code section subject to the approval of the board or may, through appropriate action of the board, delegate such authority to the commissioner; provided, however, that any contract or agreement that provides services to delinquent children shall be a performance based contract that includes financial incentives or consequences based on the results achieved by the contractor as measured by output, quality, or outcome measures.

(Code 1981, §49-4A-7, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1994, p. 304, § 1; Ga. L. 1995, p. 955, § 1; Ga. L. 1997, p. 1414, § 1; Ga. L. 1998, p. 128, § 49; Ga. L. 2013, p. 294, § 3-7/HB 242; Ga. L. 2014, p. 763, § 3-2/HB 898.)

The 2013 amendment, effective January 1, 2014, substituted "Article 6" for "Article 1" throughout this Code section; in paragraph (a)(1), deleted "youth development center or other" preceding "juvenile detention"; in paragraph (a)(2), deleted "and parole" following "probation", and deleted "and youth" following "children"; in paragraph (a)(3), deleted "and youths" following "children" three times; in paragraph (a)(4), deleted "leases" following "department which" near the middle; in subsection (b), in the introductory paragraph, deleted "or youth" following "a child", substituted "juvenile detention" for "youth development center or other"; in paragraphs (b)(1) through (b)(4), substituted "such child" for "the child or youth" ; in paragraph (b)(4), inserted "and to transfer such child as provided in subsection (b) of Code Section 42-5-52"; in paragraph (b)(5), substituted "such child" for "a child or youth" ; and added the proviso at the end of subsection (c). See editor's note for applicability.

The 2014 amendment, effective July 1, 2014, substituted "Chapter 4B of Title 49" for "Chapter 3 of Title 39" at the end of paragraph (a)(3).

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Law reviews.

- For annual survey on administrative law, see 66 Mercer L. Rev. 1 (2014).

JUDICIAL DECISIONS

Medical care.

- State had a duty to provide youth in their custody with medical care and treatment, but the details of that care were discretionary and therefore subject to immunity under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq. Edwards v. Department of Children & Youth Servs., 236 Ga. App. 696, 512 S.E.2d 339 (1999).

OPINIONS OF THE ATTORNEY GENERAL

All costs related to subsistence and detention, including emergency medical costs, incurred on behalf of juveniles held in the Department of Juvenile Justice facilities prior to a formal commitment to the department are properly assessed to the counties. 2002 Op. Att'y Gen. No. 2002-6.

49-4A-8. Commitment of delinquent children; procedure; cost; return of mentally ill or developmentally disabled children; escapees; discharge; evidence of commitment; records; restitution.

  1. When the court does not release a delinquent child unconditionally or place him or her on probation or in a suitable public or private institution or agency, the court may commit such child to the department as provided in Article 6 of Chapter 11 of Title 15; provided, however, that no delinquent child shall be committed to the department until the department certifies to the Governor that it has facilities available and personnel ready to assume responsibility for delinquent children.
  2. When the court commits a delinquent child to the department, it may order such child conveyed forthwith to any facility designated by the department or direct that such child be left at liberty until otherwise ordered by the department under such conditions as will ensure his or her availability and submission to any orders of the department. If such delinquent child is ordered conveyed to the department, the court shall assign an officer or other suitable person to convey such child to any facility designated by the department, provided that the person assigned to convey a girl must be female. The cost of conveying such child committed to the department to the facility designated by the department shall be paid by the county from which such child is committed, provided that no compensation shall be allowed beyond the actual and necessary expenses of the party conveying and the child conveyed.
  3. When a court commits a delinquent child to the department, the court shall at once electronically submit a certified copy of the order of commitment to the department, and the court, the juvenile probation officer, the community supervision officer, the prosecuting and police authorities, the school authorities, and other public officials shall make available to the department all pertinent information in their possession pertaining to the case, including, but not limited to, any predisposition investigation report as set forth in Code Section 15-11-590 and any risk assessment. Such reports shall, if the department so requests, be made upon forms furnished by the department or according to an outline provided by the department.
    1. When a delinquent child has been committed to the department, the department shall, under rules and regulations established by the board, forthwith examine and study such child and investigate all pertinent circumstances of his or her life and behavior. The department shall make periodic reexaminations of all such children within its control, except those on release under supervision of the department. Such reexaminations may be made as frequently as the department considers desirable, and every such child shall be reexamined at intervals not exceeding one year. Failure of the department to examine such a child committed to it or to reexamine him or her within one year of a previous examination shall not of itself entitle such child to discharge from control of the department but shall entitle such child to petition the committing court for an order of discharge; and the court shall discharge him or her unless the department, upon due notice, satisfies the court of the necessity of further control.
    2. The department shall keep written records of all examinations and reexaminations, of conclusions based thereon, and of all orders concerning the disposition or treatment of every delinquent child subject to its control. Records maintained by the department pertaining to a delinquent child committed to the department shall not be public records but shall be privileged records and may be disclosed by direction of the commissioner pursuant to federal law regarding disseminating juvenile criminal history records only to those persons having a legitimate interest therein; provided, however, that the commissioner shall permit the Council of Juvenile Court Judges to inspect and copy such records for the purposes of obtaining statistics on juveniles.
  4. Except as provided by subsection (e.1) of this Code section and subsection (c) or (d) of Code Section 15-11-602, when a delinquent child has been committed to the department for detention and a diagnostic study for the purpose of determining the most satisfactory plan for such child's care and treatment has been completed, the department may:
    1. Permit such child liberty under supervision and upon such conditions as the department may believe conducive to acceptable behavior;
    2. Order such child's confinement under such conditions as the department may believe best designed to serve such child's welfare and as may be in the best interest of the public;
    3. Order reconfinement or renewed release as often as conditions indicate to be desirable;
    4. Revoke or modify any order of the department affecting such child, except an order of final discharge, as often as conditions indicate to be desirable; or
    5. Discharge such child from control of the department pursuant to Code Section 15-11-32 and subsection (c) of Code Section 15-11-607 when it is satisfied that such discharge will best serve such child's welfare and the protection of the public.
  5. As a means of correcting the socially harmful tendencies of a delinquent child committed to it, the department may:
    1. Require participation by such child in moral, academic, vocational, physical, and correctional training and activities, and provide such child the opportunity for religious activities where practicable in the institutions under the control and supervision of the department;
    2. Require such modes of life and conduct as may seem best adapted to fit and equip him or her for return to full liberty without danger to the public;
    3. Provide such medical, psychiatric, or casework treatment as is necessary; or
    4. Place him or her, if physically fit, in a park, maintenance camp, or forestry camp or on a ranch owned by the state or by the United States and require any child so housed to perform suitable conservation and maintenance work, provided that the children shall not be exploited and that the dominant purpose of such activities shall be to benefit and rehabilitate the children rather than to make the camps self-sustaining.
  6. When funds are available, the department may:
    1. Establish and operate places for detention and diagnosis of all delinquent children committed to it;
    2. Establish and operate additional treatment and training facilities, including parks, forestry camps, maintenance camps, ranches, and group residences necessary to classify and handle juvenile delinquents of different ages and habits and different mental and physical conditions, according to their needs; and
    3. Establish aftercare supervision to aid children given conditional release to find homes and employment and otherwise to assist them to become reestablished in the community and to lead socially acceptable lives.
  7. Whenever the department finds that any child committed to the department is mentally ill or has a developmental disability, as defined in Code Section 15-11-2, the department shall have the power to return such child to the court of original jurisdiction for appropriate disposition by that court or may, if it so desires, request the court having jurisdiction in the county in which the juvenile detention facility is located to take such action as the condition of the child may require.
    1. A child who has been committed to the department for detention in a juvenile detention facility or who has been otherwise taken into custody and who has escaped therefrom or who has been placed under supervision and broken the conditions thereof may be taken into custody without a warrant by a sheriff, deputy sheriff, constable, police officer, probation officer, or any other officer of this state authorized to serve criminal process upon a written request made by an employee of the department having knowledge of the escape or of the violation of conditions of supervision. Before a child may be taken into custody for violation of the conditions of supervision, such written request shall be reviewed by the commissioner or his or her designee. If the commissioner or his or her designee finds that probable cause exists to believe that such child has violated his or her conditions of supervision, he or she may issue an order directing that such child be picked up and returned to custody.
    2. The commissioner may designate as a peace officer who is authorized to exercise the power of arrest any employee of the department whose full-time duties include the preservation of public order, the protection of life and property, the detection of crime, or the supervision of delinquent children or children in need of services in its institutions, facilities, or programs, the supervision of delinquent children or children in need of services under intensive supervision in the community, or any employee who is a line supervisor of any such employee. The commissioner also may designate as a peace officer who is authorized to exercise the power of arrest any employee of a person or organization which contracts with the department pertaining to the management, custody, care, and control of delinquent children or children in need of services retained by the person or organization if that employee's full-time duties include the preservation of public order, the protection of life and property, the detection of crime, or the supervision of delinquent children in the department's institutions, facilities, or programs, or any employee who is a line supervisor of such employee. The commissioner may designate one or more employees of the department to investigate and apprehend children who have escaped from a juvenile detention facility or who have broken the conditions of supervision; provided, however, that the employees so designated shall only be those with primary responsibility for the security functions of such facilities or whose primary duty consists of the apprehension of youths who have escaped from such facilities or who have broken the conditions of supervision. An employee of the department so designated shall have the police power to investigate, to apprehend such children, and to arrest any person physically interfering with the proper apprehension of such children. An employee of the department so designated in the investigative section of the department shall have the power to obtain a search warrant for the purpose of locating and apprehending such children. Additionally, such employee, while on the grounds or in the buildings of the department's institutions or facilities, shall have the same law enforcement powers, including the power of arrest, as a law enforcement officer of the local government with police jurisdiction over such institutions or facilities. Such employee shall be authorized to carry weapons, upon written approval of the commissioner, notwithstanding Code Sections 16-11-126 and 16-11-129. The commissioner shall also be authorized to designate any person or organization with whom the department contracts for services pertaining to the management, custody, care, and control of delinquent children or children in need of services detained by the person or organization as a law enforcement unit under paragraph (7) of Code Section 35-8-2. Any employee or person designated under this subsection shall be considered to be a peace officer within the meaning of Chapter 8 of Title 35 and shall be certified under that chapter.
    3. For the purposes of investigation of children who have escaped from juvenile detention facilities of the department or of children who are alleged to have broken the conditions of supervision, the department is empowered and authorized to request and receive from the Georgia Crime Information Center any information in the files of the Georgia Crime Information Center which will aid in the apprehension of such children.
    4. An employee designated pursuant to paragraph (2) of this subsection may take a child into custody without a warrant upon personal knowledge or written request of a person having knowledge of the escape or violation of conditions of supervision, or a child may be taken into custody pursuant to Code Section 15-11-501. When taking a child into custody pursuant to this paragraph, a designated employee of the department shall have the power to use all force reasonably necessary to take such child into custody.
    5. The child shall be kept in custody in a suitable place designated by the department and there detained until such child may be returned to the custody of the department.
    6. Such taking into custody shall not be termed an arrest; provided, however, that any person taking a child into custody pursuant to this subsection shall have the same immunity from civil and criminal liability as a peace officer making an arrest pursuant to a valid warrant.
  8. The department shall ensure that each child it releases under supervision or otherwise has suitable clothing, transportation to his or her home or to the county in which a suitable home or employment has been found for him or her, and such an amount of money as the rules and regulations of the board may authorize. The expenditure for clothing and for transportation and the payment of money to such child released may be made from funds for support and maintenance appropriated by the General Assembly to the department or to the institution from which such child is released or from local funds.
  9. Every child committed to the department, if not already discharged, shall be discharged from custody of the department when he or she reaches his or her twenty-first birthday.
  10. Commitment of a child to the custody of the department shall not operate to disqualify such child in any future examination, appointment, or application for public service under the government either of the state or of any political subdivision thereof.
  11. A commitment to the department shall not be received in evidence or used in any way in any proceedings in any court, except in subsequent proceedings for delinquency or being in need of services involving the same child and except in imposing sentence in any criminal proceeding against the same person.
    1. The department shall conduct a continuing inquiry into the effectiveness of treatment methods it employs in seeking the rehabilitation of maladjusted children. To this end, the department shall maintain a statistical record of arrests and commitments of its wards subsequent to their discharge from the jurisdiction and control of the department and shall tabulate, analyze, and publish in print or electronically annually these data so that they may be used to evaluate the relative merits of methods of treatment. The department shall cooperate and coordinate with courts, juvenile court clerks, the Governor's Office for Children and Families, the Criminal Justice Coordinating Council, and public and private agencies in the collection of statistics and information regarding:
      1. Juvenile delinquency;
      2. Arrests made;
      3. Detentions made, the offense for which such detention was authorized, and the reason for each detention;
      4. Complaints filed;
      5. Informations filed;
      6. Petitions filed;
      7. The results of complaints, informations, and petitions, including whether such filings were dismissed, diverted, or adjudicated;
      8. Commitments to the department, the length of such commitment, and releases from the department;
      9. The department's placement decisions for commitments;
      10. Placement decisions to institutions, camps, or other facilities for delinquent children operated under the direction of courts or other local public authorities;
      11. Community programs utilized and completion data for such programs;
      12. Recidivism;
      13. Data collected by juvenile court clerks pursuant to Code Section 15-11-64; and
      14. Other information useful in determining the amount and causes of juvenile delinquency in this state.
    2. In order to facilitate the collection of the information required by paragraph (1) of this subsection, the department shall be authorized to inspect and copy all records of the court and law enforcement agencies pertaining to juveniles and collect data from juvenile court clerks.
  12. When a child committed to the department is under court order to make certain restitution as a part of his or her treatment by the court, the requirement that the restitution be paid in full shall not cease with the order of commitment. The provision of the order requiring restitution shall remain in force and effect during the period of commitment, and the department is empowered to enforce such restitution requirement and to direct that payment of funds or notification of service completed be made to the clerk of the juvenile court or another employee of that court designated by the judge.

(e.1) (1)When a child who has been adjudicated for the commission of a class A designated felony act or class B designated felony act as defined in Code Section 15-11-2 is released from confinement or custody of the department, it shall be the responsibility of the department to provide notice to any person who was the victim of such child's acts that such child is being released from confinement or custody.

The department and employees of the department shall not be liable for damages incurred by reason of the department's failure to provide the notice required by paragraph (1) of this subsection.

When a child convicted of a felony offense in a superior court is released from confinement or custody of the department, the department shall provide written notice, including the delinquent act or class A designated felony act or class B designated felony act committed, to the superintendent of the school system in which such child was enrolled or, if the information is known, the school in which such child was enrolled or plans to be enrolled.

The department and employees of the department shall not be liable for damages incurred by reason of the department's failure to provide notice required by paragraph (3) of this subsection.

(Code 1981, §49-4A-8, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1993, p. 313, § 1; Ga. L. 1995, p. 619, § 8; Ga. L. 1996, p. 1016, §§ 1, 2; Ga. L. 1997, p. 582, § 3; Ga. L. 2000, p. 20, § 26; Ga. L. 2006, p. 293, § 4/HB 1145; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2010, p. 963, § 2-20/SB 308; Ga. L. 2013, p. 141, § 49/HB 79; Ga. L. 2013, p. 294, § 3-8/HB 242; Ga. L. 2014, p. 382, § 4/SB 324; Ga. L. 2015, p. 422, § 5-101/HB 310; Ga. L. 2015, p. 890, § 7/HB 263.)

The 2013 amendments. The first 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, revised language in this Code section. See Editor's notes for extent of application. The second 2013 amendment, effective January 1, 2014, rewrote this Code section. See Editor's notes for applicability.

The 2014 amendment, effective July 1, 2014, inserted "the supervision of delinquent children or children in need of services under intensive supervision in the community," near the end of the first sentence of paragraph (i)(2).

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, substituted "the juvenile probation officer, the community supervision officer, the prosecuting and police authorities" for "the probation officer, the prosecuting and police authorities" in subsection (c). See Editor's notes for applicability. The second 2015 amendment, effective July 1, 2015, inserted ", the Criminal Justice Coordinating Council," near the end of the introductory language of paragraph (n)(1).

Editor's notes.

- Ga. L. 2006, p. 293, Part II, § 2/HB 1145, not codified by the General Assembly, provided that the changes made by Part II of that Act shall be known and may be cited as "Amy's Law". Part II of Ga. L. 2006, p. 293 amended Code Sections 15-11-70 and 49-4A-8.

Ga. L. 2010, p. 963, § 3-1/SB 308, not codified by the General Assembly, provides, in part, that the amendment of this Code section shall apply to all offenses committed on and after June 4, 2010 and shall not affect any prosecutions for acts occurring before June 4, 2010 and shall not act as an abatement of any such prosecution.

Ga. L. 2013, p. 141, § 54(f)/HB79, not codified by the General Assembly, provides that: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2013 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendments to subsection (e.1) and paragraph (i)(1) of this Code section by Ga. L. 2013, p. 141, § 49/HB79 will not be given effect in this Code section effective January 1, 2014.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides, in part, that the amendment by this Act shall apply to sentences entered on or after July 1, 2015.

Law reviews.

- For article, "Crimes and Offenses," see 27 Ga. St. U. L. Rev. 131 (2011). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For note on the 1995 amendment of this Code section and O.C.G.A. § 49-4A-9, see 12 Ga. St. U. L. Rev. 80 (1995).

JUDICIAL DECISIONS

Transfer to youth development center without hearing.

- Juvenile's constitutional rights were not violated when a probation officer made the decision to transport the juvenile to a regional youth development center without a hearing. Sawyer v. Coleman, 245 Ga. App. 49, 537 S.E.2d 179 (2000).

Pursuit of escaped juvenile.

- Probation officer did not violate O.C.G.A. § 49-4A-8(i)(1) when the officer personally pursued a juvenile after the juvenile ran away while the officer was attempting to transport the juvenile to a regional youth development center. Sawyer v. Coleman, 245 Ga. App. 49, 537 S.E.2d 179 (2000).

Cited in In the Interest of B. Q. L. E., 297 Ga. App. 273, 676 S.E.2d 742 (2009).

OPINIONS OF THE ATTORNEY GENERAL

Responsibility for providing education.

- When a student is committed to the department, the educational agency responsible for providing a free and appropriate public education under the federal Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) is either the department or the local school district in which the student resides. 1995 Op. Att'y Gen. No. 95-6.

All costs related to subsistence and detention, including emergency medical costs, incurred on behalf of juveniles held in Department of Juvenile Justice facilities prior to a formal commitment to the department are properly assessed to the counties. 2002 Op. Att'y Gen. No. 2002-6.

49-4A-9. Sentence of youthful offenders; modification of order; review; participation in programs.

  1. Any child who has previously been adjudged to have committed an act which is a felony if tried in a superior court and who, on a second or subsequent occasion, is convicted of a felony in a superior court may, in the discretion of the court, be sentenced into the custody of the department as otherwise provided by law or be committed as a youthful offender as authorized in Chapter 7 of Title 42; provided, further, that any child convicted of a felony punishable by death or by confinement for life shall only be sentenced into the custody of the Department of Corrections.
  2. Any final order of judgment by the court in the case of any such child shall be subject to such modification from time to time as the court may consider to be for the welfare of such child. No commitment of any child to any institution or other custodial agency shall deprive the court of jurisdiction to change the form of the commitment or transfer the custody of the child to some other institution or agency on such conditions as the court may see fit to impose, the duty being constant upon the court to give to all children subject to its jurisdiction such oversight and control in the premises as will be conducive to the welfare of the child and the best interests of the state; provided, however, that the release of any child committed to the department for detention in any of its institutions under the terms of this chapter during the period of one year from the date of commitment shall be had only with the concurrence and recommendation of the commissioner or the commissioner's designated representative; provided, further, that upon releasing any child adjudicated for committing a delinquent act for the commission of a class A designated felony act or class B designated felony act as defined in Code Section 15-11-2 and committed to the department for detention in any of its institutions under the terms of this chapter, the department shall provide notice to any person who was the victim of the child's delinquent acts that the child is being released. So long as a good faith attempt to comply with the notice requirement of this subsection has been made, the department and employees of the department shall not be liable for damages incurred by reason of the department's failure to provide the notice required by this subsection.
  3. After the expiration of one year from the date of commitment, the committing court shall review the case and make such order with respect to the continued confinement or release of the child back to the committing court for further disposition as the court deems proper.
  4. In the event adequate facilities are not available, the department shall have the right to transfer youths committed to the department under this Code section to the Department of Corrections for incarceration in an appropriate facility designated by the Department of Corrections.
  5. Any child under 17 years of age who is sentenced in the superior court and committed to the department may be eligible to participate in all juvenile detention facility programs and services including community work programs, sheltered workshops, special state sponsored programs for evaluation and services under the Georgia Vocational Rehabilitation Agency and the Department of Behavioral Health and Developmental Disabilities, and under the general supervision of juvenile detention facility staff at special planned activities outside of the juvenile detention facility. When such a child sentenced in the superior court is approaching his or her seventeenth birthday, the department shall notify the court that a further disposition of the child is necessary. The department shall provide the court with information concerning the participation and progress of the child in programs described in this subsection. The court shall review the case and determine if the child, upon becoming 17 years of age, should be placed on probation, have his or her sentence reduced, be transferred to the Department of Corrections for the remainder of the original sentence, or be subject to any other determination authorized by law.

(Code 1981, §49-4A-9, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1995, p. 619, § 9; Ga. L. 2000, p. 20, § 27; Ga. L. 2000, p. 1137, § 2; Ga. L. 2002, p. 1324, § 1-22; Ga. L. 2009, p. 453, § 3-4/HB 228; Ga. L. 2012, p. 303, § 3/HB 1146; Ga. L. 2013, p. 294, § 3-9/HB 242.)

JUDICIAL DECISIONS

Probation for remainder of sentence permitted.

- In light of the express authority provided to review the defendant juvenile's sentence before the defendant turned 17, the superior court was authorized to place the defendant on probation for the remainder of the defendant's sentence based on the court's finding of the defendant's rehabilitation, which finding was supported by the record.

The 2012 amendment, effective July 1, 2012, substituted "Georgia Vocational Rehabilitation Agency" for "Division of Rehabilitation Services of the Department of Labor" in the first sentence of subsection (e).

The 2013 amendment, effective January 1, 2014, in subsection (b), in the second sentence, deleted "or parole" preceding "of any child" in the first proviso, in the second proviso, deleted "or paroling" following "upon releasing", substituted "for committing a delinquent act" for "delinquent", inserted "class A designated felony act or class B", substituted "Code Section 15-11-2" for "Code Section 15-11-63", and deleted "or paroled" following "released" at the end, and, in the last sentence, substituted "So long as" for "As long as" at the beginning; and, in subsection (e), substituted "juvenile detention facility" for "youth development center" three times in the first sentence. See editor's note for applicability.

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Administrative Rules and Regulations.

- Administrative revocations of juvenile community placement, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Juvenile Justice, Chapter 97-2.

Custody of juvenile until 21 years.

- Ordering that the juvenile remain in the Department of Juvenile Justice custody until the juvenile reaches 21 years of age is neither authorized by O.C.G.A. § 49-4A-9(e) or any other provision of Georgia law. Ga. Dep't of Juvenile Justice v. Eller, 338 Ga. App. 247, 789 S.E.2d 412 (2016).

While O.C.G.A. § 49-4A-9(b) provides the superior court broad discretion to modify the court's orders for the welfare of any child subject to the court's jurisdiction, the plain language of subsection (e) of O.C.G.A. § 49-4A-9 limits that discretion once that child becomes 17 years of age. Ga. Dep't of Juvenile Justice v. Eller, 338 Ga. App. 247, 789 S.E.2d 412 (2016).

Judgment of the trial court directing the Department of Juvenile Justice (DJJ) to hold in the Department's custody a criminal defendant prosecuted as an adult for a crime committed as a juvenile, until the defendant turned 21 years old, was reversed because ordering that the defendant remain in DJJ custody until reaching 21 years of age was neither authorized by O.C.G.A. § 49-4A-9(e) or any other provision of Georgia law. Ga. Dep't of Juvenile Justice v. Eller, 338 Ga. App. 247, 789 S.E.2d 412 (2016).

Discretion is limited by mandatory minimum sentencing.

- Discretion given to sentencing courts for reviewing the sentences of juveniles turning 17 in O.C.G.A. § 49-4A-9(e) was limited by the mandatory minimum sentence requirements of O.C.G.A. § 17-10-6.1; therefore, in reviewing a juvenile's prison sentence for armed robbery, the superior court erred by reducing the juvenile's original five-year prison sentence to which the state had agreed. State v. Hudson, 303 Ga. 348, 812 S.E.2d 270 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Application to juveniles prosecuted as adults.

- O.C.G.A. § 49-4A-9(e) applies to all juveniles convicted of a felony in superior court, except those for which potential punishments include the death penalty or life imprisonment. 1996 Op. Att'y Gen. No. U96-5.

RESEARCH REFERENCES

ALR.

- State statutes or ordinances requiring persons previously convicted of crime to register with authorities as applied to juvenile offenders - Constitutional issues, 37 A.L.R.6th 55.

State statutes or ordinances requiring persons previously convicted of crime to register with authorities as applied to juvenile offenders - duty to register, requirements for registration, and procedural matters, 38 A.L.R.6th 1.

State statutes or ordinances requiring persons previously convicted of crime to register with authorities as applied to juvenile offenders - expungement, stay or deferral, exceptions, exemptions, and waiver, 39 A.L.R.6th 577.

49-4A-10. Escape from juvenile detention facility; petition; commitment.

Whenever any child shall escape from any juvenile detention facility, the department shall file a petition in the court having jurisdiction and, upon conviction, he or she shall be committed for an additional 12 months in a juvenile detention facility under the jurisdiction of the department or to another institution under the Department of Corrections.

(Code 1981, §49-4A-10, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 2013, p. 294, § 3-10/HB 242.)

The 2013 amendment, effective January 1, 2014, substituted "juvenile detention facility" for "youth development center" twice. See editor's note for applicability.

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

49-4A-11. Aiding or encouraging child to escape; hindering apprehension of child.

  1. Any person who shall knowingly aid, assist, or encourage any child who has been committed to the department to escape or to attempt to escape its control or custody shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.
  2. Any person who shall knowingly harbor or shelter any child who has escaped the lawful custody or control of the department shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.
  3. Any person who shall knowingly hinder the apprehension of any child under the supervision of the Department of Community Supervision or the lawful control or custody of the department who has been placed by the department in one of its institutions or facilities and who has escaped therefrom or who has been placed under supervision and is alleged to have broken the conditions thereof shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.

(Code 1981, §49-4A-11, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1996, p. 988, § 3; Ga. L. 2012, p. 1339, § 1A/SB 366; Ga. L. 2013, p. 294, § 3-11/HB 242; Ga. L. 2015, p. 422, § 5-102/HB 310.)

The 2012 amendment, effective July 1, 2012, substituted "punished by imprisonment" for "imprisoned" near the end of subsections (a) through (c); and deleted former subsections (d) and (e),which read: "(d) Any person who shall knowingly provide to any child under the lawful control or custody of the department a gun, pistol, or any other weapon, any intoxicating liquor, any controlled substance listed in Code Section 16-13-27 as a Schedule III controlled substance, listed in Code Section 16-13-28 as a Schedule IV controlled substance, or listed in Code Section 16-13-29 as a Schedule V controlled substance, or an immediate precursor of any such controlled substance, or any dangerous drug as defined by Code Section 16-13-71, regardless of the amount, or any other harmful, hazardous, or illegal article or item which may be injurious to department personnel without the consent of the director of the institution providing care and supervision to the child shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years.

"(e) Any child who shall knowingly possess a gun, pistol, or any other weapon, any intoxicating liquor, any controlled substance listed in Code Section 16-13-27 as a Schedule III controlled substance, listed in Code Section 16-13-28 as a Schedule IV controlled substance, or listed in Code Section 16-13-29 as a Schedule V controlled substance, or an immediate precursor of any such controlled substance, or any dangerous drug as defined by Code Section 16-13-71, regardless of the amount, or any other harmful, hazardous, or illegal article or item which may be injurious to department personnel given to said child in violation of subsection (d) of this Code section while under the lawful custody or control of the department shall cause the department to file a delinquency petition in the court having jurisdiction; provided, however, if such person is 17 or older and is under the lawful custody or control of the department, such person shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years." See Editor's notes for applicability.

The 2013 amendment, effective January 1, 2014, deleted "or youth" following "child" near the beginning of subsections (a) and (b). See Editor's notes for applicability.

The 2015 amendment, effective July 1, 2015, inserted "supervision of the Department of Community Supervision or the" in subsection (c). See Editor's notes for applicability.

Editor's notes.

- Ga. L. 1996, p. 988, § 3, not codified by the General Assembly, makes this Code section applicable to offenses committed on or after July 1, 1996.

Ga. L. 2012, p. 1339, § 3/SB 366, not codified by the General Assembly, provides, in part, that the amendment of this Code section shall apply to offenses committed on or after July 1, 2012.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides, in part, that the amendment by this Act shall apply to sentences entered on or after July 1, 2015.

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For review of 1996 children and youth services legislation, see 13 Ga. U. L. Rev. 314 (1996).

49-4A-12. Special school district.

  1. The Department of Juvenile Justice shall be a special school district which shall be given the same funding consideration for federal funds that school districts within this state are given.
    1. Except as otherwise provided in paragraph (2) of this subsection, the schools within the department shall be under the control of the commissioner who shall serve as the superintendent of schools for such district. The Board of Juvenile Justice shall serve as the board of education for such district.
    2. Any school within the department that is operated by a state charter school pursuant to a contract entered into in accordance with Code Section 20-2-2084.1 shall be under the control of the State Charter Schools Commission and the governing board of the state charter school, subject to any conditions in the contract. Any such school shall not be considered a part of the special school district established pursuant to this Code section.
    1. The schools shall meet the requirements of the law for public schools and rules and regulations of the State Board of Education. It is the intent of this Code section to fund educational services and programs in this special school district so that youth served therein shall receive the same quality and content of educational services as provided to youth in school districts within this state.
    2. The State School Superintendent may grant waivers for such provisions of the laws and regulations with which the schools cannot comply because of their functioning on an annual basis and in response to the commissioner or the commissioner's designee's written request and justification. Such exceptions shall be in writing.
    1. Each teacher in the special school district shall receive annual compensation at the rate specified for the type of certificate held by such teacher based on the appropriate teacher salary schedules established pursuant to Code Section 20-2-212.
    2. This provision shall not act to reduce the compensation currently paid any teacher in the special school district.
    3. To the extent such resources are available, federal funding resources shall be utilized to meet increased costs resulting from implementation of this subsection.
  2. The commissioner shall develop and implement a plan whereby there shall be sufficient substitute teachers available for temporary service as needed for each school composing the special school district.
    1. Nothing in the language of this Code section shall be construed as prohibiting any local school district from issuing a diploma to a youth in the custody of the department, upon certification of the principal of a departmental school.
    2. School records of any juvenile in the department's programs who is issued a diploma by a local school district shall be maintained by such local school district, provided that all references to the juvenile's commitment to and treatment by the department are expunged.
  3. The special school district under the department shall have the powers, privileges, and authority exercised or capable of exercise by any other school district.
  4. The effect of this Code section shall not be to provide state funds to the special school district under the department through Part 4 of Article 6 of Chapter 2 of Title 20, except as otherwise provided in Code Section 20-2-2084.1.

(Code 1981, §49-4A-12, enacted by Ga. L. 1992, p. 1983, § 24; Ga. L. 1997, p. 1453, §§ 1, 3; Ga. L. 2016, p. 443, § 2-6/SB 367.)

The 2016 amendment, effective July 1, 2016, near the end of subsection (a), substituted "within this state" for "within the state"; designated the existing provisions of subsection (b) as paragraph (b)(1), and, in paragraph (b)(1), substituted "Except as otherwise provided in paragraph (2) of this subsection, the" for "The" at the beginning of the first sentence; added paragraph (b)(2); substituted "within this state" for "within the state" near the end of the second sentence of paragraph (c)(1); and added ", except as otherwise provided in Code Section 20-2-2084.1" at the end of subsection (h).

Administrative Rules and Regulations.

- Transfer of student records, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Education, Regional Educational Services, § 160-5-1-.14.

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 139 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Responsibility for providing education.

- When a student is committed to the department, the educational agency responsible for providing a free and appropriate public education under the federal Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) is either the department or the local school district in which the student resides. 1995 Op. Att'y Gen. No. 95-6.

Eligibility of department to receive tuition grants.

- Department is eligible to receive tuition grants for disabled students whose federal Individualized Education Programs (20 U.S.C. § 1400 et seq.) place those students in private residential programs for educational reasons. 1995 Op. Att'y Gen. No. 95-6.

49-4A-13. Family attention home; assessment of risk and plan of care.

As used in this Code section, the term "family attention home" means a private family home that has contracted with the Department of Juvenile Justice to provide 24 hour, short-term care for youth in the custody of the department and placed by the department in the home.Said youth are either awaiting a juvenile court hearing or have been temporarily removed from their homes for other reasons. Prior to a youth being placed in a private family attention home, an assessment of the youth's risk to the public will be completed by the department, and based on that assessment a plan of care for each youth will be developed within 72 hours after placement. This plan shall detail the youth's need for adult supervision, the youth's need for structured after-school activities, the need for electronic monitoring, if appropriate, and any other additional treatment needs while the youth is in the home. This plan of care shall be developed and implemented to ensure the safety of the children and youth in each private family attention home and the residents of the communities in which the private family attention homes are located.

(Code 1981, §49-4A-13, enacted by Ga. L. 1994, p. 495, § 1; Ga. L. 1997, p. 1453, § 1.)

49-4A-14. Compensation for damage to apparel by youth under custody.

  1. As used in this Code section, the term "apparel" includes eyeglasses, hearing aids, clothing, and similar items worn on the person of the employee.
  2. When action by a youth under the control and custody of the department results in damage to an item of apparel, the department shall compensate the employee for the loss in the amount of either the repair cost, the replacement value, or the actual cost of the item of wearing apparel, whichever is less. Such loss shall be compensated only in accordance with procedures to be established by the department, and no compensation shall be made by the department in excess of $500.00 per incident.

(Code 1981, §49-4A-14, enacted by Ga. L. 1997, p. 563, § 1.)

49-4A-15. Guard lines.

Guard lines shall be established by the commissioner or his or her designated representative in charge at the various juvenile detention centers and youth development centers in the same manner that land lines are established, except that, at each corner of the lines, signs must be used on which shall be plainly stamped or written: "Guard line of __________." Signs shall also be placed at all entrances and exits for vehicles and pedestrians at the institutions and at such intervals along the guard lines as will reasonably place all persons approaching the guard lines on notice of the location of the institutions.

(Code 1981, §49-4A-15, enacted by Ga. L. 2012, p. 1339, § 2/SB 366.)

Effective date.

- This Code section became effective July 1, 2012. See editor's note for applicability.

Editor's notes.

- Ga. L. 2012, p. 1339, § 3/SB 366, not codified by the General Assembly, provides, in part, that this Code section shall apply to offenses committed on or after July 1, 2012.

49-4A-16. Unlawful crossing or passage of certain items across guard lines; penalty.

  1. As used in this Code section, the term "guard lines" means the lines established pursuant to Code Section 49-4A-15.
  2. It shall be unlawful for any person to cause to be introduced across guard lines or to come inside such guard lines with:
    1. A gun, pistol, knife, or any other weapon or a bullet, ammunition, or explosive device; or
    2. Any intoxicating liquor, amphetamines, marijuana, or any other hallucinogenic or other drugs.
  3. The provisions of this Code section shall not apply when the commissioner or director of the juvenile detention facility has provided authorization for the introduction of the items listed in subsection (b) of this Code section into such facility.
  4. Any person who violates this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than four years.

(Code 1981, §49-4A-16, enacted by Ga. L. 2012, p. 1339, § 2/SB 366; Ga. L. 2013, p. 294, § 3-12/HB 242.)

Effective date.

- This Code section became effective July 1, 2012. See editor's note for applicability.

The 2013 amendment, effective January 1, 2014, in subsection (c), substituted "detention facility" for "detention center or youth development center" near the middle, and substituted "facility" for "center" at the end. See editor's note for applicability.

Editor's notes.

- Ga. L. 2012, p. 1339, § 3/SB 366, not codified by the General Assembly, provides, in part, that this Code section shall apply to offenses committed on or after July 1, 2012.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

49-4A-17. Introduction of certain items into juvenile detention facility prohibited; commerce with incarcerated youth.

    1. Without the knowledge and consent of the commissioner or the director in charge of any juvenile detention facility, it shall be unlawful for any person to take into or cause to be introduced into such facility any item which such person has been directed not to take into such center:
      1. Verbally by a staff member of such facility;
      2. In writing by a staff member of such facility; or
      3. As directed by the rules, regulations, or policies of such facility.
    2. Any item taken into a facility in violation of this subsection shall be deemed contraband and shall be subject to being confiscated and retained as property of the department.
    3. Any person who violates this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than four years.
  1. It shall be unlawful for any person to trade or traffic with, buy from, or sell any article to a child assigned to a juvenile detention facility without the knowledge and consent of the commissioner or the director in charge of such facility. Any person who violates this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than four years.

(Code 1981, §49-4A-17, enacted by Ga. L. 2012, p. 1339, § 2/SB 366; Ga. L. 2013, p. 294, § 3-13/HB 242.)

Effective date.

- This Code section became effective July 1, 2012. See editor's note for applicability.

The 2013 amendment, effective January 1, 2014, substituted "facility" for "center" throughout this Code section; substituted "detention facility" for "detention center or youth development center" in paragraph (a)(1) and subsection (b); and, in subsection (b), substituted "child" for "youth" in the first sentence. See editor's note for applicability.

Editor's notes.

- Ga. L. 2012, p. 1339, § 3/SB 366, not codified by the General Assembly, provides, in part, that this Code section shall apply to offenses committed on or after July 1, 2012.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

49-4A-18. Prohibited possession of certain goods by youth.

  1. As used in this Code section, the term:
    1. "Director" means the commissioner or any director of a juvenile detention center or his or her designee, or any other person who is responsible for the overall management and operation of a center.
    2. "Juvenile detention center" means a regional youth detention center or youth development center operated by or on behalf of the department.
    3. "Telecommunications device" means a device, an apparatus associated with a device, or a component of a device that enables, or may be used to enable, communication with a person outside a place of incarceration, including, but not limited to, a telephone, cellular telephone, personal digital assistant, transmitting radio, or computer connected or capable of being connected to a computer network, by wireless or other technology, or otherwise capable of communicating with a person or device outside of a place of incarceration.
    4. "Youth" means an offender assigned to a juvenile detention center.
  2. Without the authorization of the director, it shall be unlawful for any person to obtain for, to procure for, or to give to a youth a gun, pistol, knife, or any other weapon; a bullet, ammunition, or any other explosive device; tobacco products; intoxicating liquor; marijuana, amphetamines, or any other hallucinogenic drugs or other drugs, regardless of the amount; any telecommunications device; or any other article or item.
  3. Without the authorization of the director, it shall be unlawful for a youth to possess a gun, pistol, knife, or any other weapon; a bullet, ammunition, or any other explosive device; tobacco products; intoxicating liquor; marijuana, amphetamines, or any other hallucinogenic drugs or other drugs, regardless of the amount; any telecommunications device; or any other article or item.
  4. Any person who violates this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than four years.

(Code 1981, §49-4A-18, enacted by Ga. L. 2012, p. 1339, § 2/SB 366.)

Effective date.

- This Code section became effective July 1, 2012. See editor's note for applicability.

Editor's notes.

- Ga. L. 2012, p. 1339, § 3/SB 366, not codified by the General Assembly, provides, in part, that this Code section shall apply to offenses committed on or after July 1, 2012.

CHAPTER 4B INTERSTATE COMPACT FOR JUVENILES

Effective date.

- This chapter became effective July 1, 2014.

Cross references.

- Juvenile Code, T. 15, C. 11.

49-4B-1. Short title.

This chapter shall be known and may be cited as the "Interstate Compact for Juveniles."

(Code 1981, §49-4B-1, enacted by Ga. L. 2014, p. 763, § 2-1/HB 898.)

49-4B-2. Compact.

The Governor of this state is authorized and directed to execute a compact on behalf of the State of Georgia with any of the United States legally joining therein in the form substantially as follows:

ARTICLE I. PURPOSE.

The compacting states to this Interstate Compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents and status offenders who are on probation or parole and who have absconded, escaped or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. Section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime. It is the purpose of this compact, through means of joint and cooperative action among the compacting states to:

Ensure that the adjudicated juveniles and status offenders subject to this compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state;

Ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected;

Return juveniles who have run away, absconded or escaped from supervision or control or have been accused of an offense to the state requesting their return;

Make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services;

Provide for the effective tracking and supervision of juveniles;

Equitably allocate the costs, benefits and obligations of the compacting states;

Establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments, or any other criminal or juvenile justice agency which has jurisdiction over juvenile offenders;

Insure immediate notice to jurisdictions where defined offenders are authorized to travel or to relocate across state lines;

Establish procedures to resolve pending charges (detainers) against juvenile offenders prior to transfer or release to the community under the terms of this compact;

Establish a system of uniform data collection on information pertaining to juveniles subject to this compact that allows access by authorized juvenile justice and criminal justice officials, and regular reporting of Compact activities to heads of state executive, judicial, and legislative branches and juvenile and criminal justice administrators;

Monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance;

Coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in such activity; and

Coordinate the implementation and operation of the compact with the Interstate Compact on the Placement of Children, the Interstate Compact for Adult Offender Supervision and other compacts affecting juveniles particularly in those cases where concurrent or overlapping supervision issues arise. It is the policy of the compacting states that the activities conducted by the Interstate Commission created herein are the formation of public policies and therefore are public business. Furthermore, the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this compact. The provisions of this compact shall be reasonably and liberally construed to accomplish the purposes and policies of the compact.

ARTICLE II. DEFINITIONS.

As used in this compact, unless the context clearly requires a different construction:

"By-laws" means those by-laws established by the Interstate Commission for its governance, or for directing or controlling its actions or conduct.

"Compact Administrator" means the individual in each compacting state appointed pursuant to the terms of this compact, responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the State Council under this compact.

"Compacting State" means any state which has enacted the enabling legislation for this compact.

"Commissioner" means the voting representative of each compacting state appointed pursuant to Article III of this compact.

"Court" means any court having jurisdiction over delinquent, neglected, or dependent children.

"Deputy Compact Administrator" means the individual, if any, in each compacting state appointed to act on behalf of a Compact Administrator pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the State Council under this compact.

"Interstate Commission" means the Interstate Commission for Juveniles created by Article III of this compact.

"Juvenile" means any person defined as a juvenile in any member state or by the rules of the Interstate Commission, including:

  1. Accused Delinquent - a person charged with an offense that, if committed by an adult, would be a criminal offense;
  2. Adjudicated Delinquent - a person found to have committed an offense that, if committed by an adult, would be a criminal offense;
  3. Accused Status Offender - a person charged with an offense that would not be a criminal offense if committed by an adult;
  4. Adjudicated Status Offender - a person found to have committed an offense that would not be a criminal offense if committed by an adult; and
  5. Non-Offender - a person in need of supervision who has not been accused or adjudicated a status offender or delinquent.
    1. "Non-Compacting state" means any state which has not enacted the enabling legislation for this compact.
    2. "Probation or Parole" means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states.
    3. "Rule" means a written statement by the Interstate Commission promulgated pursuant to Article VI of this compact that is of general applicability, implements, interprets or prescribes a policy or provision of the Compact, or an organizational, procedural, or practice requirement of the Commission, and has the force and effect of statutory law in a compacting state, and includes the amendment, repeal, or suspension of an existing rule.
    4. "State" means a state of the United States, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands.
    5. The compacting states hereby create the "Interstate Commission for Juveniles." The commission shall be a body corporate and joint agency of the compacting states. The commission shall have all the responsibilities, powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
    6. The Interstate Commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state and in consultation with the State Council for Interstate Juvenile Supervision created hereunder. The commissioner shall be the compact administrator, deputy compact administrator or designee from that state who shall serve on the Interstate Commission in such capacity under or pursuant to the applicable law of the compacting state.
    7. In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners, but who are members of interested organizations. Such non-commissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general, Interstate Compact for Adult Offender Supervision, Interstate Compact for the Placement of Children, juvenile justice and juvenile corrections officials, and crime victims. All non-commissioner members of the Interstate Commission shall be ex-officio (non-voting) members. The Interstate Commission may provide in its by-laws for such additional ex-officio (non-voting) members, including members of other national organizations, in such numbers as shall be determined by the commission.
    8. Each compacting state represented at any meeting of the commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the by-laws of the Interstate Commission.
    9. The commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.
    10. The Interstate Commission shall establish an executive committee, which shall include commission officers, members, and others as determined by the by-laws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rulemaking and/or amendment to the compact. The executive committee shall oversee the day-to-day activities of the administration of the compact managed by an executive director and Interstate Commission staff; administers enforcement and compliance with the provisions of the compact, its by-laws and rules, and performs such other duties as directed by the Interstate Commission or set forth in the by-laws.
    11. Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner, in consultation with the state council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting. The by-laws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication.
    12. The Interstate Commission's by-laws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.
    13. Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the Rules or as otherwise provided in the Compact. The Interstate Commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to:

      Relate solely to the Interstate Commission's internal personnel practices and procedures;

      Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

      Involve accusing any person of a crime, or formally censuring any person;

      Disclose trade secrets or commercial or financial information which is privileged or confidential;

      Disclose matters specifically exempted from disclosure by statute;

  6. Disclose investigative records compiled for law enforcement purposes;
  7. Disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of, the Interstate Commission with respect to a regulated person or entity for the purpose of regulation or supervision of such person or entity;
  8. Disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or
  9. Specifically relate to the Interstate Commission's issuance of a subpoena, or its participation in a civil action or other legal proceeding.
    1. For every meeting closed pursuant to this provision, the Interstate Commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefore, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.
    2. The Interstate Commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules which shall specify the data to be collected, the means of collection and data exchange and reporting requirements. Such methods of data collection, exchange and reporting shall insofar as is reasonably possible conform to up-to-date technology and coordinate its information functions with the appropriate repository of records.

      The commission shall have the following powers and duties:

      To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties and determine their qualifications; and to establish the Interstate Commission's personnel policies and programs relating to, inter alia, conflicts of interest, rates of compensation, and qualifications of personnel.

      To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by Article III which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder.

      To borrow, accept, hire or contract for services of personnel.

      To purchase and maintain insurance and bonds.

      To establish and maintain offices which shall be located within one or more of the compacting states.

      To enforce compliance with the compact provisions, the rules promulgated by the Interstate Commission, and the by-laws, using all necessary and proper means, including but not limited to the use of judicial process.

      To oversee, supervise, and coordinate the interstate movement of juveniles subject to the terms of this compact and any by-laws adopted and rules promulgated by the Interstate Commission.

      To promulgate rules to effect the purposes and obligations as enumerated in this compact, which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact.

      To provide for dispute resolution among compacting states.

  10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of it.
  11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal, or mixed.
  12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal or mixed.
  13. To establish a budget and make expenditures and levy dues as provided in Article VIII of this compact.
  14. To sue and be sued.
  15. To adopt a seal and by-laws governing the management and operation of the Interstate Commission.
  16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.
  17. To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission.
  18. To coordinate education, training and public awareness regarding the interstate movement of juveniles for officials involved in such activity.
  19. To establish uniform standards of the reporting, collecting and exchanging of data.
  20. The Interstate Commission shall maintain its corporate books and records in accordance with the By-laws.
ARTICLE III. INTERSTATE COMMISSION FOR JUVENILES.
ARTICLE IV. POWERS AND DUTIES OF THE INTERSTATE COMMISSION.
ARTICLE V. ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION.
Section A. By-laws 1) The Interstate Commission shall, by a majority of the members present and voting, within twelve months after the first Interstate Commission meeting, adopt by-laws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:
  1. Establishing the fiscal year of the Interstate Commission;
  2. Establishing an executive committee and such other committees as may be necessary;
  3. Provide for the establishment of committees governing any general or specific delegation of any authority or function of the Interstate Commission;
  4. Providing reasonable procedures for calling and conducting meetings of the Interstate Commission, and ensuring reasonable notice of each such meeting;
  5. Establishing the titles and responsibilities of the officers of the Interstate Commission;
  6. Providing a mechanism for concluding the operations of the Interstate Commission and the return of any surplus funds that may exist upon the termination of the Compact after the payment and/or reserving of all of its debts and obligations.
  7. Providing "start-up" rules for initial administration of the compact; and
  8. Establishing standards and procedures for compliance and technical assistance in carrying out the compact.
    1. Publish the proposed rule's entire text stating the reasons for that proposed rule;
    2. Allow and invite any and all persons to submit written data, facts, opinions and arguments, which information shall be added to the record, and be made publicly available;
    3. Provide an opportunity for an informal hearing if petitioned by ten or more persons; and
    4. Promulgate a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties.
      1. Allow, not later than 60 days after a rule is promulgated, any interested person to file a petition in the United States District Court for the District of Columbia or in the Federal District Court where the Interstate Commission's principal office is located for judicial review of such rule. If the court finds that the Interstate Commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedures Act.
      2. If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that such rule shall have no further force and effect in any compacting state.
      3. The existing rules governing the operation of The Interstate Compact on Juveniles superseded by this act shall be null and void 12 months after the first meeting of the Interstate Commission created hereunder.
      4. Upon determination by the Interstate Commission that a state-of-emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, but no later than ninety (90) days after the effective date of the emergency rule.

        The Interstate Commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor such activities being administered in non-compacting states which may significantly affect compacting states.

        The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any or all means set forth in Article XI of this compact.

        The Interstate Commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and between compacting and non-compacting states. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.

        The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the authorized statute and administrative rules. All courts shall take judicial notice of the compact and the rules. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the Interstate Commission, it shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.

      5. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities.
      6. The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state and shall promulgate a rule binding upon all compacting states which governs said assessment.
      7. The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
      8. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its by-laws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.

        Each member state shall create a State Council for Interstate Juvenile Supervision. While each state may determine the membership of its own state council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and the compact administrator, deputy compact administrator or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each state council will advise and may exercise oversight and advocacy concerning that state's participation in Interstate Commission activities and other duties as may be determined by that state, including but not limited to, development of policy concerning operations and procedures of the compact within that state.

      9. Any state, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands as defined in Article II of this compact is eligible to become a compacting state.
      10. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than 35 of the states. The initial effective date shall be the later of July 1, 2004 or upon enactment into law by the 35th jurisdiction. Thereafter it shall become effective and binding as to any other compacting state upon enactment of the compact into law by that state. The governors of non-member states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.
      11. The Interstate Commission may propose amendments to the compact for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

        The effective date of withdrawal is the effective date of the repeal.

        The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.

        The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty days of its receipt thereof.

    5. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.
      1. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
      2. The provisions of this compact shall be liberally construed to effectuate its purposes.

        All compacting states' laws other than state Constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict.

        In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective and such obligations, duties, powers or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers or jurisdiction are delegated by law in effect at the time this compact becomes effective.

        Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation.

        All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.

Section B. Officers and Staff 1) The Interstate Commission shall, by a majority of the members, elect annually from among its members a chairperson and a vice chairperson, each of whom shall have such authority and duties as may be specified in the by-laws. The chairperson or, in the chairperson's absence or disability, the vice-chairperson shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.

The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, but shall not be a Member and shall hire and supervise such other staff as may be authorized by the Interstate Commission.

Section C. Qualified Immunity, Defense and Indemnification 1) The Commission's executive director and employees shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities; provided, that any such person shall not be protected from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.

The liability of any commissioner, or the employee or agent of a commissioner, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state may not exceed the limits of liability set forth under the Constitution and laws of that state for state officials, employees, and agents. Nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.

The Interstate Commission shall defend the executive director or the employees or representatives of the Interstate Commission and, subject to the approval of the Attorney General of the state represented by any commissioner of a compacting state, shall defend such commissioner or the commissioner's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.

The Interstate Commission shall indemnify and hold the commissioner of a compacting state, or the commissioner's representatives or employees, or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

ARTICLE VI. RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION.

The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.

Rulemaking shall occur pursuant to the criteria set forth in this article and the by-laws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the "Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated, Vol. 15, p.1 (2000), or such other administrative procedures act, as the Interstate Commission deems appropriate consistent with due process requirements under the U.S. Constitution as now or hereafter interpreted by the U.S. Supreme Court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the Commission.

When promulgating a rule, the Interstate Commission shall, at a minimum:

ARTICLE VII. OVERSIGHT, ENFORCEMENT AND DISPUTE RESOLUTION
BY THE INTERSTATE COMMISSION. Section A. Oversight
Section B. Dispute Resolution 1) The compacting states shall report to the Interstate Commission on all issues and activities necessary for the administration of the compact as well as issues and activities pertaining to compliance with the provisions of the compact and its bylaws and rules.
ARTICLE VIII. FINANCE.
ARTICLE IX. THE STATE COUNCIL.
ARTICLE X. COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT.
ARTICLE XI. WITHDRAWAL, DEFAULT, TERMINATION AND JUDICIAL ENFORCEMENT.
Section A. Withdrawal 1) Once effective, the compact shall continue in force and remain binding upon each and every compacting state; provided that a compacting state may withdraw from the compact by specifically repealing the statute which enacted the compact into law.
Section B. Technical Assistance, Fines, Suspension, Termination and Default 1) If the Interstate Commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, or the by-laws or duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:

Remedial training and technical assistance as directed by the Interstate Commission;

Alternative Dispute Resolution;

Fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission; and

Suspension or termination of membership in the compact, which shall be imposed only after all other reasonable means of securing compliance under the by-laws and rules have been exhausted and the Interstate Commission has therefore determined that the offending state is in default. Immediate notice of suspension shall be given by the Interstate Commission to the Governor, the Chief Justice or the Chief Judicial Officer of the state, the majority and minority leaders of the defaulting state's legislature, and the state council. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, the by-laws, or duly promulgated rules and any other grounds designated in commission by-laws and rules. The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission and of the default pending a cure of the default. The commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the commission, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of termination.

Within 60 days of the effective date of termination of a defaulting state, the Commission shall notify the Governor, the Chief Justice or Chief Judicial Officer, the Majority and Minority Leaders of the defaulting state's legislature, and the state council of such termination.

The defaulting state is responsible for all assessments, obligations and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.

The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.

Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.

Section C. Judicial Enforcement The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its offices, to enforce compliance with the provisions of the compact, its duly promulgated rules and by-laws, against any compacting state in default. In the event judicial enforcement is necessary the prevailing party shall be awarded all costs of such litigation including reasonable attorneys fees.
Section D. Dissolution of Compact 1) The compact dissolves effective upon the date of the withdrawal or default of the compacting state, which reduces membership in the compact to one compacting state.

Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and any surplus funds shall be distributed in accordance with the by-laws.

ARTICLE XII. SEVERABILITY AND CONSTRUCTION.
ARTICLE XIII. BINDING EFFECT OF COMPACT AND OTHER LAWS.
Section A. Other Laws 1) Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.
Section B. Binding Effect of the Compact 1) All lawful actions of the Interstate Commission, including all rules and by-laws promulgated by the Interstate Commission, are binding upon the compacting states.

(Code 1981, §49-4B-2, enacted by Ga. L. 2014, p. 763, § 2-1/HB 898.)

49-4B-3. (For effective date, see note.) Role of Governor in implementation of compact; promulgation of rules and regulations by board.

With respect to the Interstate Compact for Juveniles set out in Code Section 49-4B-2:

  1. The Governor shall by executive order establish the initial composition, terms, and compensation of the Georgia State Council for Interstate Juvenile Supervision required by Article IX of that compact, with the Governor making the appointments to those positions; except that any appointment to a position representing the legislative branch shall be made jointly by the Speaker of the House of Representatives and the President of the Senate and any appointment to a position representing the judicial branch shall be made by the Chief Justice of the Supreme Court;
  2. The Governor shall by executive order establish the qualifications, term, and compensation of the compact administrator required by Article III of that compact, with the state council making the appointment of the compact administrator;
  3. The Governor shall by executive order provide for any other matters necessary for implementation of the compact at the time that it becomes effective; and
  4. Except as otherwise provided for in this Code section, the board may promulgate rules or regulations necessary to implement and administer the compact, subject to the provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

(Code 1981, §49-4B-3, enacted by Ga. L. 2014, p. 763, § 2-1/HB 898.)

Delayed effective date.

- Ga. L. 2018, p. 201, § 2/HB 670, provides that the 2018 amendment becomes effective if a legislative branch representative is appointed and serving on the Georgia State Council for Interstate Juvenile Supervision on June 30, 2018, then the amendment shall become effective upon the termination of his or her term of service. Furthermore, if a legislative branch representative has not been appointed and is not serving on such council on June 30, 2018, then the amendment shall become effective on July 1, 2018. This Code section, as set out above, does not reflect the amendment by that Act owing to the delayed effective date. As of May 2018, this contingency had not been met. After the contingency is met, paragraph (1) will read as follows: "(1) The Governor shall by executive order establish the initial composition, terms, and compensation of the Georgia State Council for Interstate Juvenile Supervision required by Article IX of that compact, with the Governor making the appointments to those positions; provided, however, that there shall be two representatives from the legislative branch of government and one representative from the judicial branch of government who shall be appointed as follows:

"(A) The Speaker of the House of Representatives shall make one appointment of a legislative branch representative;

"(B) The President of the Senate shall make one appointment of a legislative branch representative; and

"(C) The Chief Justice of the Supreme Court shall make one appointment of a judicial branch representative;".

The 2018 amendment, rewrote paragraph (1). For effective date, see the delayed effective date note.

CHAPTER 5 PROGRAMS AND PROTECTION FOR CHILDREN AND YOUTH

Article 1 Children and Youth Services.
Article 2 Child Abuse Records.
Article 3 Employees' Records Checks for Child Welfare Agencies.
Article 4 Emergency Protection of Children in Certain Institutions.
Article 5 Records Checks for Persons Supervising Children.
Article 6 Programs and Protection for Children.
Part 1 GOVERNOR'S OFFICE FOR CHILDREN AND FAMILIES.
Part 2 DELINQUENCY PREVENTION AND COMMUNITY BASED SERVICES.
Part 3 MENTORING ACT OF 2000.
Article 7 Registration of Organizations Providing Services to Runaway and Homeless Youth.
Article 8 Central Child Abuse Registry.
Article 9 Family Preservation and Child Protection [Repealed].
Article 10 Children and Adolescents with Severe Emotional Problems.
Article 11 Child Care Council.
Article 12 Policy Council for Children and Families [Repealed].
Article 13 PeachCare for Kids.
Article 14 Foster Parents Bill of Rights.
Cross references.

- Juvenile justice system, T. 15, C. 11.

Editor's notes.

- By resolution (Ga. L. 1986, p. 1204), the General Assembly urged certain public organizations and state agencies to develop programs for the education and training of social services and criminal justice professionals in the areas of child abuse, sexual abuse, and sexual exploitation.

Administrative Rules and Regulations.

- Bright from the Start, Georgia Department of Early Care and Learning, Official Compilation of the Rules and Regulations of the State of Georgia, Title 591.

Law reviews.

- For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For case comment, "Taylor v. Ledbetter: Vindicating the Constitutional Rights of Foster Children to Adequate Care and Protection," see 22 Ga. L. Rev. 1187 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Construction.

- Ga. L. 1963, p. 81 et seq. and Ga. L. 1971, p. 709 et seq. (see O.C.G.A. Ch. 5, T. 49 and Ch. 11, T. 15) should be read in pari materia. 1980 Op. Att'y Gen. No. 80-53.

RESEARCH REFERENCES

ALR.

- Tort liability of public authority for failure to remove parentally abused or neglected children from parents' custody, 60 A.L.R.4th 942.

ARTICLE 1 CHILDREN AND YOUTH SERVICES

Cross references.

- Extended care youth services, § 15-11-340 et seq.

Distribution of prostitution proceeds following forfeiture to programs serving child victims, § 16-6-13.3.

Commencement of juvenile court proceeding for child on aftercare to Division of Youth Services, Uniform Rules for the Juvenile Courts of Georgia, Rule 4.6.

Commitment of child to Division of Youth Services by juvenile court, Uniform Rules for the Juvenile Courts of Georgia, Rule 15.2.

Commitment of child to Division of Youth Services by juvenile court, Uniform Rules for the Juvenile Courts of Georgia, Rule 15.2.

49-5-1. Short title.

This article shall be known and may be cited as the "Children and Youth Act."

(Ga. L. 1963, p. 81, § 1; Ga. L. 2013, p. 141, § 49/HB 79.)

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "This article shall be known and may be cited as" for "The short title of this article shall be" at the beginning of this Code section.

Cross references.

- Probation officers, Uniform Rules for the Juvenile Courts of Georgia, Rule 2.4.

Administrative Rules and Regulations.

- Recovery and administration of child support, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Office of Child Support Recovery, Chapter 290-7-1.

JUDICIAL DECISIONS

Custody and control exclusively in department.

- Ga. L. 1963, p. 81 et seq. and Ga. L. 1971, p. 709 et seq. (see O.C.G.A. Ch. 11, T. 15 and Ch. 5, T. 49) when construed in pari materia, evidence a legislative intent that, once the juvenile court judge in the exercise of judicial discretion commits a juvenile to the Division for Children and Youth (now Department of Children and Youth Services) custody and control of the juvenile is thereby and thereafter exclusively in the division (now department). In re R.D., 141 Ga. App. 843, 234 S.E.2d 680 (1977); In re R.L.M., 171 Ga. App. 940, 321 S.E.2d 435 (1984).

Cited in Brown v. Holloway, 112 Ga. App. 539, 145 S.E.2d 600 (1965); Carrindine v. Ricketts, 236 Ga. 283, 223 S.E.2d 627 (1976); In re A.S., 140 Ga. App. 865, 232 S.E.2d 145 (1977); Ellis v. State, 289 Ga. App. 452, 657 S.E.2d 562 (2008).

49-5-2. Purpose of article.

The purpose of this article is to promote, safeguard, and protect the well-being and general welfare of children and youth of this state through a comprehensive and coordinated program of public child welfare and youth services, providing for:

  1. Social services and facilities for children and youths who require care, control, protection, treatment, or rehabilitation and for the parents of such children;
  2. Setting of standards for social services and facilities for children and youths;
  3. Cooperation with public and voluntary agencies, organizations, and citizen groups in the development and coordination of programs and activities in behalf of children and youth; and
  4. Promotion of community conditions and resources that help parents to discharge their responsibilities for the care, development, and well-being of their children.

    It is the further purpose of this article to provide for a qualified group of citizens and leading professionals who will identify and study the problems of youth, recommend and effect possible solutions, and work actively for state and local action to prevent children and youths from becoming inmates of our prisons, patients in our mental hospitals, and persons dependent upon public assistance programs.

(Ga. L. 1963, p. 81, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Fire safety standards for day care centers.

- Board of Human Resources had lawful authority to adopt the 1973 Life Safety Code (National Fire Protection Association standard 101), a comprehensive set of standards that deals with preventing and controlling losses from fire, as part of the rules and regulations for day care centers, and the Department of Human Resources has lawful authority to enforce compliance with code standards. 1976 Op. Att'y Gen. No. U76-6.

Contracting with private institution for provision of day care.

- Department may contract with a private institution for the purpose of providing day care and other specialized services for mentally retarded children, assign responsibility for the supervision of this contract to the Division for Children and Youth (now Department of Children and Youth Services) and use funds allocated from the Governor's Emergency Fund for these purposes, provided that the contracts do not create a continuing obligation for the state. 1970 Op. Att'y Gen. No. 70-96.

RESEARCH REFERENCES

ALR.

- Parent's obligation to support unmarried minor child who refuses to live with parent, 98 A.L.R.3d 334.

49-5-3. Definitions.

As used in this article, the term:

  1. "Age or developmentally appropriate" means activities or items that are generally accepted as suitable for children of the same chronological age or level of maturity or that are determined to be developmentally-appropriate for a child, based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for an age or age group. In the case of a specific child, such term also includes activities or items that are suitable for the child based on the developmental stages attained by the child with respect to the cognitive, emotional, physical, and behavioral capacities of the child.
  2. "Caregiver" means a foster parent with whom a child in foster care has been placed or a designated official for a child care institution in which a child in foster care has been placed.
  3. "Child-caring institution" means any institution, society, agency, or facility, whether incorporated or not, which either primarily or incidentally provides full-time care for children through 18 years of age outside of their own homes, subject to such exceptions as may be provided in rules and regulations of the board.
  4. "Child-placing agency" means any institution, society, agency, or facility, whether incorporated or not, which places children in foster homes for temporary care or for adoption.
  5. "Child welfare and youth services" means duties and functions authorized or required by this article to be provided by the department with respect to:
    1. Establishment and enforcement of standards for social services and facilities for children and youths which supplement or substitute for parental care and supervision for the purpose of preventing or remedying or assisting in the solution of problems which may result in neglect, abuse, exploitation, or delinquency of children and youths;
    2. Protecting and caring for dependent children and youths;
    3. Protecting and promoting the welfare of children of working mothers;
    4. Providing social services to children and youths and their parents and care for children and youths born out of wedlock and their mothers;
    5. Promotion of coordination and cooperation among organizations, agencies, and citizen groups in community planning, organization, development, and implementation of such services; and
    6. Otherwise protecting and promoting the welfare of children and youths, including the strengthening of their homes where possible or, where needed, the provision of adequate care of children and youths away from their homes in foster family homes or day-care or other child care facilities.
  6. "Children's transition care center" means a transition center which provides a temporary, home-like environment for medically fragile children, technology dependent children, and children with special health care needs, up to 21 years of age, who are deemed clinically stable by a physician but dependent on life-sustaining medications, treatments, and equipment and who require assistance with activities of daily living to facilitate transitions from a hospital or other facility to a home or other appropriate setting. Such centers are designated sites that provide child placing services and nursing care, clinical support services, and therapies for short-term stays of one to 14 days and for longer stays of up to 90 days to facilitate transitions of children to homes or other appropriate settings. Extended stays of up to 12 months may be approved by the department by waiver.
  7. "Dependent child or youth" means any person so adjudged under Chapter 11 of Title 15.
  8. "Group-care facility" means a place providing care for groups of children and youths, other than a foster family home.
  9. "Homemaker service" means a service provided by a woman selected for her skills in the care of children and home management and placed in a home to help maintain and preserve the family life during the absence or incapacity of the mother.
  10. "In loco parentis" means a quasi-parental relationship inferred from and implied by the fact that a child or youth has been taken into a family and treated like any other member thereof, unless an express contract exists to the contrary.
  11. "Legal custody" means a legal status created by court order embodying the following rights and responsibilities:
    1. The right to have the physical possession of the child;
    2. The right and the duty to protect, train, and discipline the child;
    3. The responsibility to provide the child with food, clothing, shelter, education, and ordinary medical care; and
    4. The right to determine where and with whom the child shall live,

      provided that these rights and responsibilities shall be exercised subject to the powers, rights, duties, and responsibilities of the guardian of the person of the child and subject to any residual parental rights and responsibilities. These rights shall be subject to judicial oversight and review pursuant to Code Section 15-11-212.

  12. "Maintenance" means all general expenses for care such as board; shelter; clothing; medical, dental, and hospital care; transportation; and other necessary or incidental expenses.
  13. "Maternity home" means any place in which any person, society, agency, corporation, or facility receives, treats, or cares for, within any six-month period, more than one pregnant woman whose child is to be born out of wedlock, either before, during, or within two weeks after childbirth. This definition shall not include women who receive maternity care in the home of a relative or in general or special hospitals, licensed according to law, in which maternity treatment and care is part of the medical services performed and the care of children is only brief and incidental.
  14. "Probation" means a legal status created by court order following adjudication in a delinquency case, whereby a child or youth is permitted to remain in the community, subject to supervision by the court or an agency designated by the court and subject to being returned to court at any time during the period of probation.
  15. "Protective supervision" means a legal status created by court order following adjudication in a dependency case, whereby a child's place of abode is not changed but assistance directed at correcting the dependency is provided through the court or an agency designated by the court.
  16. "Reasonable and prudent parent standard" means the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the department to participate in extracurricular, enrichment, cultural, and social activities.
  17. "Shelter" or "shelter care" means temporary care in a nonsecurity or open type of facility.

(Ga. L. 1963, p. 81, § 3; Ga. L. 1982, p. 706, §§ 2, 6-8; Ga. L. 1988, p. 1720, § 16; Ga. L. 1991, p. 408, § 1; Ga. L. 1992, p. 1983, § 25; Ga. L. 1994, p. 97, § 49; Ga. L. 2004, p. 645, § 7; Ga. L. 2007, p. 590, § 3/HB 153; Ga. L. 2008, p. 1145, § 1/HB 984; Ga. L. 2013, p. 294, § 4-54/HB 242; Ga. L. 2015, p. 552, § 5/SB 138.)

The 2013 amendment, effective January 1, 2014, substituted "dependent children" for "deprived children" in subparagraph (3)(B); substituted "'Dependent child or youth'" for "'Deprived child or youth'" in paragraph (5); substituted "Code Section 15-11-212" for "Code Section 15-11-55" in the last sentence of paragraph (12); and substituted "dependency" for "deprivation" twice in paragraph (16). See editor's note for applicability.

The 2015 amendment, effective July 1, 2015, added paragraphs (1) and (2); redesignated former paragraphs (1) through (5) as present paragraphs (3) through (7), respectively; deleted former paragraphs (6), (7), and (8), each of which read "Reserved."; redesignated former paragraph (9) as present paragraph (8); deleted former paragraph (9.1), which read "Reserved."; redesignated former paragraphs (10) through (16) as present paragraphs (9) through (15), respectively; and added paragraph (16).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1991, a hyphen was deleted from the phrase "child care" in subparagraph (3)(F).

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

JUDICIAL DECISIONS

"Legal custody."

- Visitation rights of a parent of a child in the custody of the Department of Family and Children Services are a residual "parental tie" which is not severed by the mere placement of the child in the temporary custody of the department without a specific finding as to that right. In re K.B., 188 Ga. App. 199, 372 S.E.2d 476 (1988).

Once temporary legal custody of a child was placed in the department under a shelter care order, the sole right to determine where and with whom the child would live vested with the department; the direction of the trial court to remove the child from the father's home was not binding, and the trial court's later contempt finding based on this order was improper. In re Tidwell, 279 Ga. App. 734, 632 S.E.2d 690 (2006).

Impact of 2003 amendment to O.C.G.A.

§ 15-11-55. - Juvenile court erred in awarding legal custody of two children to the Department of Family and Children Services (DFACS) and then ordering that physical custody be given to the maternal grandparents as: (1) once legal custody of a deprived child has been granted to DFACS, the juvenile court cannot dictate physical custody; (2) nothing in O.C.G.A. § 15-11-55(a)(2) allowed any redefinition of legal custody as defined in O.C.G.A. § 49-5-3(12); (3) using the rules of construction, § 15-11-55(a)(2) followed the statutory and legal precedent that the grant of legal custody to DFACS included the right to determine physical custody; and (4) the 2003 amendment to § 15-11-55 did not reject the statutory definition of legal custody. In the Interest of A.N., 281 Ga. 58, 636 S.E.2d 496 (2006).

Nothing in O.C.G.A. § 15-11-55(a)(2) allows any redefinition of legal custody as defined in O.C.G.A. § 49-5-3(12). Instead, § 15-11-55(a)(2) follows the statutory and legal precedent that the grant of legal custody to the Department of Family and Children Services includes the right to determine physical custody; the 2003 amendment to § 15-11-55 does not reject the statutory definition of legal custody. In the Interest of A.N., 281 Ga. 58, 636 S.E.2d 496 (2006).

Joint legal and physical custody.

- Juvenile court exceeded the court's authority when the court awarded joint legal and physical custody of a deprived child jointly with the Department of Human Resources (DHR) and unrelated third parties when the DHR objected to such arrangement. In re J.N.T., 212 Ga. App. 498, 441 S.E.2d 918 (1994).

Authority to determine physical placement of children.

- Trial court erred in ordering the Department of Family and Children's Services (DFACS) to remove a foster child from the care of the child's foster parent because the order improperly infringed upon the authority of DFACS to determine the physical placement of children within the department's custody; DFACS had legal custody of the child since the child was born, and DFACS, as legal custodian, stood in loco parentis and had all legal rights of a natural parent, including the benefit of a prima facie right to custody. In re Goudeau, 305 Ga. App. 718, 700 S.E.2d 688 (2010).

Cited in Frances Wood Wilson Found., Inc. v. Bell, 223 Ga. 588, 157 S.E.2d 287 (1967); In re R.D., 141 Ga. App. 843, 234 S.E.2d 680 (1977); W.F. v. State, 144 Ga. App. 523, 241 S.E.2d 631 (1978); In re M.A.F., 254 Ga. 748, 334 S.E.2d 668 (1985); Brown v. Phillips, 178 Ga. App. 316, 342 S.E.2d 786 (1986); Ledford v. State Farm Mut. Auto. Ins. Co., 189 Ga. App. 866, 377 S.E.2d 693 (1989).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 20 et seq. 79 Am. Jur. 2d, Welfare Laws, §§ 19, 20.

C.J.S.

- 43 C.J.S., Infants, § 15.

49-5-4. Other state departments, agencies, officers, and employees to assist department.

It shall be the duty of all other state departments, agencies, officers, and employees to assure the most effective coordination and use of state resources, personnel, and facilities for the benefit of children and youths and to assist the Department of Human Services in effectuating the purposes of this article by making available to the department, upon request of the board or the commissioner and to the extent permissible by law, the services, resources, personnel, and facilities of their respective departments and agencies.

(Ga. L. 1963, p. 81, § 4; Ga. L. 1982, p. 3, § 49; Ga. L. 2009, p. 453, § 2-2/HB 228.)

JUDICIAL DECISIONS

Cited in A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974); In re R.D., 141 Ga. App. 843, 234 S.E.2d 680 (1977).

49-5-4.1. Child welfare agency public scorecard established.

  1. As used in this Code section, the term:
    1. "Affected agency" means any state agency, department, division, or office which requires a license or commission from the department for child welfare agencies, including, but not limited to, the Division of Family and Children Services, Department of Human Services, Department of Juvenile Justice, Department of Behavioral Health and Developmental Disabilities, or Department of Community Health.
    2. "Child welfare agency" means any child-caring institution, child-placing agency, children's transition care center, or maternity home.
    3. "Services" means direct care, treatment, custodial responsibilities, or any combination thereof provided for children.
  2. The Department of Human Services, in conjunction with other affected agencies and representatives of child welfare agencies, shall establish a child welfare agency public scorecard to score child welfare agencies. Affected agencies shall cooperate with the department to develop and establish the child welfare agency public scorecard.
  3. The public scorecard for child welfare agencies and any explanation for the basis of any score on the scorecard shall be published in a single location on a website for public review. Such website shall provide scores for each child welfare agency by the affected agency that is responsible for the regulation of or contracting with each particular child welfare agency. The score shall be posted within 30 days of the completion of an inspection, or if appealed pursuant to subsection (e) of this Code section, the revised score, if any, shall be posted within 30 days of the conclusion of the appeal.
  4. The scores shall be based on an established published formula with weight appropriately given for each agency's compliance or noncompliance with applicable laws; rules; contracts; court orders; measures of treatment; behavioral, vocational, and educational outcomes for persons receiving services; and other pertinent information, based on empirical evidence to the greatest extent possible.
  5. The department shall provide child welfare agencies with advanced written notice of the scores to be posted. A child welfare agency may contest a score in accordance with department rules by filing a written appeal with the department within ten days from receipt of such notice. If a child welfare agency contests such score, the department shall note on the website that the score is under appeal, until such appeal is concluded. Within ten days of receipt of a child welfare agency's written contest of a score, the department shall hold a meeting with the child welfare agency and any affected agency whose score is contested. The meeting shall be for the parties to discuss the score and basis for the score. Within 30 days after the meeting, the commissioner's designee shall issue written notice confirming or revising the score. After issuance of such written notice, the child welfare agency may contest the score as a contested case under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," except that hearings held relating to such action by the department may be closed to the public if the hearing officer determines that an open hearing would be detrimental to the physical or mental health of any child who will testify at such hearing.
  6. In consultation with other affected agencies, the department shall promulgate rules and regulations consistent with this Code section, including establishing criteria which must be met in order for a child welfare agency to contest or appeal a score.
  7. Nothing in this Code section shall be construed to affect the ability of any affected agency, in its sole discretion, to contract with any child welfare agency or to exercise the rights of the affected agency under the terms and conditions of any existing contract with a child welfare agency.

(Code 1981, §49-5-4.1, enacted by Ga. L. 2016, p. 773, § 5/HB 905; Ga. L. 2017, p. 774, § 49/HB 323.)

Effective date.

- This Code section became effective March 1, 2017.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (c).

49-5-5. Powers and duties of board; rules and regulations for training schools and other facilities.

  1. The board shall perform duties required of it by this article and shall, in addition thereto, be responsible for adoption of all policies and promulgation of all rules and regulations not in conflict with this article that may be necessary and appropriate to the administration of the department, to the accomplishment of the purposes of this article, and to the performance of the duties and functions of the department as set forth in this article.
  2. The board shall establish rules and regulations for the government, operation, and maintenance of all training schools, facilities, and institutions now or hereafter under the jurisdiction and control of the department, bearing in mind at all times that the purpose for existence and operation of such schools, facilities, and institutions and all activities carried on therein shall be to carry out the rehabilitative program provided for by this article and to restore and build up the self-respect and self-reliance of children and youths lodged therein so as to qualify and equip them for good citizenship and honorable employment.

(Ga. L. 1963, p. 81, § 6.)

JUDICIAL DECISIONS

Cited in Jones v. State, 134 Ga. App. 611, 215 S.E.2d 483 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Authority over training schools, institutions, and detention centers.

- Based upon the fact that O.C.G.A. § 49-5-5 expressly extends the rule-making power of the Board of Human Resources not only to the operation and maintenance of training schools but also to any facility or institution under the jurisdiction and control of the Division for Children and Youth (now Division of Family and Children Services of the Department of Human Resources), the admission procedures and policies pertaining to regional detention centers are likewise within the discretion of the department. 1971 Op. Att'y Gen. No. 71-161.

Acceptance of children from federal institutions and provision of services.

- State Department of Family and Children Services (now Division of Family and Children Services of the Department of Human Resources) is authorized to enter into agreements to accept children and youth from the federal penal and corrective institutions and agencies and to provide the children and youth with the services extended by the facilities of the department to those children taken pursuant to Georgia court orders; the conditions and circumstances under which such agreements should be effectuated is a matter within the administrative powers of the board pursuant to this section and can be effectuated by the adoption of such appropriate rules and regulations as the board deems necessary. Adequate compensation for the costs thereof may be collected by the department from the agency transferring the children or youth to the Georgia facilities. 1968 Op. Att'y Gen. No. 68-191.

Fire safety standards for day care centers.

- Board of Human Resources had lawful authority to adopt the 1973 Life Safety Code (National Fire Protection Association standard 101), a comprehensive set of standards that deals with preventing and controlling losses from fire, as part of the rules and regulations for day care centers, and the department has lawful authority to enforce compliance with code standards. 1976 Op. Att'y Gen. No. U76-6.

Formula for determining allocation of funds to counties.

- State Board for Children and Youth (now Board of Human Resources) has the authority to provide a formula for determining the funds to be allocated and distributed to the counties. 1968 Op. Att'y Gen. No. 68-419.

Limits on amount spent by counties for detention purposes.

- State Board for Children and Youth (now Board of Human Resources) has the power to incorporate in a formula a provision that the funds disbursed for county-owned detention purposes will not exceed the total funds spent by the various counties for detention purposes during the fiscal year involved. 1968 Op. Att'y Gen. No. 68-419.

Imposition of limits on spending based on amount spent in preceding year.

- State Board for Children and Youth (now Board of Human Resources) does not have the authority to provide in a formula that the funds allocated and distributed to a county in one fiscal year will not be in excess of the total funds spent by the county for detention purposes during the preceding year. 1968 Op. Att'y Gen. No. 68-419.

RESEARCH REFERENCES

C.J.S.

- 43 C.J.S., Infants, §§ 12, 13.

49-5-6. Merit system to conform to federal standards; power to employ and contract for professional services; employment and dismissal procedures; membership in state retirement system.

  1. The department shall conform to federal standards for a merit system of personnel administration in the respects necessary for receiving federal grants and the board is authorized and empowered to effect such changes as may, from time to time, be necessary in order to comply with such standards.
  2. The department is authorized to employ, on a full or part-time basis, such medical, psychiatric, social work, supervisory, institutional, and other professional personnel and such clerical and other employees as may be necessary to discharge the duties of the department under this chapter. The department is also authorized to contract for such professional services as may be necessary.
  3. Superintendents of training schools and other facilities and institutions now or hereafter under the jurisdiction and control of the department shall be employed and dismissed for cause by the board on the recommendation of the commissioner. Professional personnel and other employees of such training schools, facilities, and institutions shall be employed and dismissed for cause by the commissioner on the recommendation of the superintendent. All other professional personnel and all other employees of the department under this article shall be employed and dismissed for cause by the commissioner in accordance with such rules and regulations as may be promulgated by the board in regard thereto. Employees of the department under this article shall in all instances be employed and dismissed in accordance with rules and regulations of the State Personnel Board.
  4. All personnel of the Division of Family and Children Services are authorized to be members of the Employees' Retirement System of Georgia, Chapter 2 of Title 47. All rights, credits, and funds in that retirement system which are possessed by state personnel transferred by provisions of this article to the division, or otherwise had by persons at the time of employment with the division, are continued and preserved, it being the intention of the General Assembly that such persons shall not lose any rights, credits, or funds to which they may be entitled prior to becoming employees of the division.

(Ga. L. 1963, p. 81, § 8; Ga. L. 1992, p. 1983, § 26; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-98/HB 642.)

The 2012 amendment, effective July 1, 2012, substituted "State Personnel Board" for "State Personnel Administration" at the end of subsection (c).

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

49-5-7. Development and administration of public child welfare and youth services.

  1. The department is designated the exclusive state agency:
    1. For development and administration of a comprehensive state plan and program providing public child welfare and youth services provided for in Title IV, Part B, of the federal Social Security Act;
    2. For administering, supervising, and discharging all duties required by any other act of Congress and any amendments thereto that may now or hereafter allot federal funds for public child welfare and youth services coming within the scope of this article;
    3. For administering and supervising local administration of public child welfare and youth services provided for in this article; and
    4. For receiving and expending on behalf of the state all funds which now or hereafter may become available or allotted to this state by virtue of any appropriation or act of Congress or regulation of the federal government, its agencies, and instrumentalities or be appropriated by the General Assembly for public child welfare and youth services to be administered by the department as provided for in this article. The department is authorized to use so much of funds as may be appropriated by the General Assembly for the purpose of matching federal grants for public child welfare and youth services provided for in this article as may be necessary to secure such grants, derive full advantage to the state of benefits contemplated under the terms of such grants, and comply with the terms of such grants.
  2. County or district departments are designated the local public agencies to administer locally the state plan and program for public child welfare and youth services to be developed in accordance with paragraph (1) of subsection (a) of this Code section and other public child welfare and youth services provided for in this article and shall administer them in accordance with rules and regulations to be established by the board. The department shall aid, assist, supervise, coordinate, and direct the administering of such public child welfare and youth services by county or district departments and enforce the rules and regulations of the board in regard thereto.
  3. The cost of all child welfare benefits and services and the cost of administration thereof, authorized by this article, shall be met from such funds as shall be made available therefor from federal and state appropriations. No county shall hereafter be required to participate in the cost of any child welfare benefit or service or in the cost of administration thereof. For the purpose of this subsection, "cost of administration" means salaries and traveling expenses of the county or district director and other employees of the staff of the county or district department engaged in the performance of child welfare and youth services provided for under this article.
  4. Public child welfare and youth services similar to those to be provided by the department under this article and pursuant to Title IV, Part B, of the federal Social Security Act shall, by cooperative agreement or contract by and between the Department of Human Services and county or district departments of family and children services be made available to recipients of and persons who have been or are likely to become recipients of assistance under the temporary assistance for needy families program provided for in Article 5 of Chapter 4 of this title and related federal laws, to include foster home care and other child care referred to in Section 408 of Title IV of the federal Social Security Act. The department is designated the "state public welfare agency" referred to in Sections 408(a) and (f) and 421 of Title IV of the federal Social Security Act.
  5. The commissioner shall, in developing and administering the state plans and programs referred to in paragraph (1) of subsection (a) and in subsection (d) of this Code section, provide by cooperative agreement and contract where necessary for coordination of such plans and programs with a view toward providing welfare and related services on a comprehensive basis that will best promote the welfare of children and youths and their families and best effectuate and coordinate effective implementation and administration of both such plans and programs at the local level of administration.
  6. Nothing in this article is intended to conflict with any federal law or result in loss of eligibility of the department or any other department of state government to any federal funds. In case such a conflict or loss of federal funds should occur by virtue of enactment of any portion of this article, then such portion of this article in conflict with such federal law or otherwise causing loss of such funds is declared to be of no effect and void. The board is authorized and empowered in such event to take such action as may be necessary and to effect such changes within the department as may be necessary to prevent loss of such funds to the department or any other department of state government affected and to secure to the same the full benefit of the federal laws.

(Ga. L. 1963, p. 81, § 9; Ga. L. 1969, p. 996, §§ 1, 3; Ga. L. 1970, p. 451, § 3; Ga. L. 1972, p. 1251, § 1; Ga. L. 1973, p. 563, § 1; Ga. L. 1974, p. 1455, § 1; Ga. L. 1982, p. 3, § 49; Ga. L. 1985, p. 283, § 1; Ga. L. 1986, p. 277, § 2; Ga. L. 1987, p. 3, § 49; Ga. L. 1992, p. 1983, § 27; Ga. L. 1993, p. 91, § 49; Ga. L. 1997, p. 1021, § 7; Ga. L. 2009, p. 453, § 2-2/HB 228.)

Editor's notes.

- Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.

U.S. Code.

- Title IV, Part B of the federal Social Security Act, referred to in paragraph (a)(1) and subsection (d) of this Code section, is codified at 42 U.S.C. §§ 620 through 626. Sections 408 and 421 of Title IV of the federal Social Security Act, referred to in subsection (d) of this Code section, are codified at 42 U.S.C. §§ 608 and 621, respectively.

Law reviews.

- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article discussing venue problems in juvenile court practice and suggesting solutions, see 23 Mercer L. Rev. 341 (1972). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997).

JUDICIAL DECISIONS

Applicability of section to convicted felons under 18.

- This section was not intended to exclude probationary sentences for convicted felons under 18 years of age. Lockett v. State, 143 Ga. App. 629, 239 S.E.2d 238 (1977).

Department of Human Resources (now Children and Youth Services) loses the right to custody at age 17, when a juvenile is convicted of a felony in the superior court. W.F. v. State, 144 Ga. App. 523, 241 S.E.2d 631 (1978).

Cited in Mathis v. State, 231 Ga. 401, 202 S.E.2d 73 (1973); Brown v. State, 235 Ga. 353, 219 S.E.2d 419 (1975); Carrindine v. Ricketts, 236 Ga. 283, 223 S.E.2d 627 (1976); Allen v. Ricketts, 236 Ga. 294, 223 S.E.2d 633 (1976); In re R.D., 141 Ga. App. 843, 234 S.E.2d 680 (1977).

OPINIONS OF THE ATTORNEY GENERAL

General Consideration

Payment of travel expenses authorized.

- Inasmuch as the creation of an advisory council was within the scope of Ga. L. 1937, p. 355 (see O.C.G.A. §§ 49-2-1,49-2-7), it follows that the payment of the out-of-pocket travel expenses to enable the council to function efficiently and thus assist in the accomplishment of the department's express statutory duties as set forth in Ga. L. 1963, p. 81, §§ 9 and 24 (see O.C.G.A. §§ 49-2-6 and49-5-7 et seq.) must also be an implied power, such disbursement being incidental to and reasonably necessary to the accomplishment of the department's purpose, duties, and responsibilities. 1963-65 Op. Att'y Gen. p. 320.

Effect on power of superior court.

- Ga. L. 1972, p. 1251, § 11 (see O.C.G.A. § 49-5-7) sets apart a defined class of offenders and directs how those offenders shall be punished for the offense; in doing this, the power of any superior court to try an individual under the age of 17 for any given crime is in no way affected; that section is like, in this respect, Ga. L. 1972, p. 582, § 1 (see O.C.G.A. § 42-5-51) which provides that the commissioner of corrections and not the sentencing court designates the place of confinement of any individual within the court's jurisdiction. 1972 Op. Att'y Gen. No. 72-3.

Legislature dictates manner in which youthful convicts will be punished.

- This section treats individuals who have already been convicted by a court of a particular crime and concerns only the manner in which these particular convicts shall be punished; as to the particular punishment which may be imposed following conviction of a crime, the matter is not within the province of the judiciary, rather the legislature has exclusive jurisdiction in the matter of dictating how crimes shall be punished. 1972 Op. Att'y Gen. No. 72-3.

Parole power of State Board of Pardons and Paroles.

- Within the one-year period from the original date of commitment, the trial court has the authority, under former subparagraph (a)(5)(B) of this section, to modify the court's original sentence, but the State Board of Pardons and Paroles also has the authority, subject to the board's own guidelines, to parole persons incarcerated pursuant to former subparagraph (a)(5)(A) of this section. 1980 Op. Att'y Gen. No. 80-142.

State Board of Pardons and Paroles need not have the concurrence and recommendation of the director of the Division for Children and Youth before the board can consider persons incarcerated under former subparagraph (a)(5)(A) of this section for parole. 1980 Op. Att'y Gen. No. 80-142.

Word "parole" in former subparagraph (a)(5)(B) of this section does not relate to performance by State Board of Pardons and Paroles of the board's duties but rather relates to the modification of the sentence by the committing court so as to "release or parole" those persons incarcerated pursuant to former subparagraph (a)(5)(A) of this section. 1980 Op. Att'y Gen. No. 80-142.

Court Jurisdiction and Responsibilities

Except in the case of capital crimes, juvenile courts generally have exclusive, original jurisdiction of children and may not transfer those children to other courts for criminal proceedings unless the child is 15 or older; a person will not come to the Department of Offender Rehabilitation (now Department of Corrections) under the exceptions of former subparagraph (a)(5)(A) of this section, unless the person is less than 17, and unless the person is at least 13 in the case of a capital crime or is at least 15 in the case of other crimes. 1974 Op. Att'y Gen. No. 74-88.

Commitment to the Department of Offender Rehabilitation (now Department of Corrections) is mandatory if the child is convicted of a capital crime under Ga. L. 1974, p. 1455, § 1 (see O.C.G.A. § 49-5-7); it is a discretionary decision for the court in the other two situations under which Ga. L. 1974, p. 1455, § 1 (see O.C.G.A. §§ 49-5-7 and former49-5-11) authorize commitment to the department. 1974 Op. Att'y Gen. No. 74-88.

Determination of previous adjudications required under section is judicial function.

- Different ages referred to in former subparagraph (a)(5)(A) of Ga. L. 1973, p. 563, § 1 and Ga. L. 1971, p. 709, § 1 (see O.C.G.A. §§ 49-5-7 and15-11-39) are not in conflict with one another, and the determination of previous adjudications required in one aspect of former subparagraph (a)(5)(A) is a judicial function rather than an administrative function. 1974 Op. Att'y Gen. No. 74-88.

Department should notify committing court of court's responsibility for one-year case review.

- Primary responsibility for a one-year case review under this section rests with the committing court; as a practical matter, the Division for Children and Youth (now Department of Children and Youth Services) should notify the committing court of this responsibility. 1970 Op. Att'y Gen. No. 70-65.

Department's Custody and Responsibilities

Custody provision not unconstitutional.

- Former provision in this section providing for the custody of convicted misdemeanants and felons under the age of 17 was not unconstitutional. 1972 Op. Att'y Gen. No. 72-3.

Exclusive state agency for acceptance and incarceration of misdemeanants and noncapital felons under age 17.

- As a general rule, the legislature has designated the Board of Offender Rehabilitation (now Department of Corrections) as the sole agency for the reception and assignment of all convicted misdemeanants and felons. A notable exception to this general provision provides that the Division for Children and Youth (now Department of Children and Youth Services) is designated the exclusive state agency for the acceptance and incarceration of all misdemeanants and felons under the age of 17 years; provided, however, that those felons convicted of a capital felony shall only be sentenced into the custody of the Department of Offender Rehabilitation (now Department of Corrections). 1972 Op. Att'y Gen. No. 72-3.

Responsibility for children convicted of noncapital crimes ends at age 17.

- Department of Human Resources' (now Department of Children and Youth Services') legal responsibility for children under the age of 17 who have been convicted of noncapital crimes ends when the children reach the age of 17 at which time the children must either be released or transferred to the Department of Offender Rehabilitation (now Department of Corrections) in accordance with the court's order. 1974 Op. Att'y Gen. No. 74-139.

Notification of sentencing court prior to child's seventeenth birthday.

- Even if the child is committed to the Department of Human Resources (now Department of Children and Youth Services) before the child's seventeenth birthday, the department cannot confine the child beyond that date and the department's legal responsibility for the child terminates on that day; prior to a committed child's seventeenth birthday the department should notify the sentencing court that a further disposition or a release must be made. 1974 Op. Att'y Gen. No. 74-139.

Transfer of youth to Department of Corrections.

- A 16-year old originally committed to the department may be transferred on the child's seventeenth birthday to the Department of Offender Rehabilitation (now Department of Corrections) by order of the committing court under the provisions of Ga. L. 1972, p. 592, § 1 (see O.C.G.A. Ch. 7, T. 42); the offender's term of custody should be computed from the date of original conviction. 1975 Op. Att'y Gen. No. 75-47.

Effect of criminal sentence imposed subsequent to unexpired commitment order.

- Department of Offender Rehabilitation (now Department of Corrections) properly has custody of an individual under provisions of criminal sentence which was imposed subsequent to unexpired order of commitment; at the expiration of the criminal sentence, alternative arrangements for custody should be made for the remainder of the term of commitment. 1975 Op. Att'y Gen. No. 75-20.

Crimes by children punishable by life imprisonment or death.

- Kidnapping, not being punishable by death or imprisonment for life, is not an offense which requires the offender under 17 years of age to be placed in the sole custody of the Department of Offender Rehabilitation (now Department of Corrections); when the offender under 17 years of age is convicted of kidnapping for ransom or kidnapping in which the victim receives bodily injury, both being offenses punishable by life imprisonment or death, the offender shall be sentenced only into the custody of the Department of Offender Rehabilitation (now Department of Corrections). 1975 Op. Att'y Gen. No. 75-73.

Parole Eligibility

Youth's sentence begins to run when placed under custody of department.

- When custody of a felon 16 years of age is transferred by court order from the department to the Department of Offender Rehabilitation (now Department of Corrections), the sentence begins to run when the youth is placed under the custody of the Department of Human Resources. 1975 Op. Att'y Gen. No. 75-78.

Parole eligibility includes time spent in custody of department.

- Because a sentence begins running from the time of incarceration under the department, the prisoner must serve one-third of the time to which the prisoner has been sentenced, including the time the prisoner has spent in the custody of the department before becoming eligible for parole. 1975 Op. Att'y Gen. No. 75-78.

Good-time computations should not include time spent incarcerated under department.

- Time spent by a felon incarcerated under the department is not to be considered by the Board of Corrections when computing good-time allowances; rather, good-time should be computed from the date the felon is received by an institution under the board's jurisdiction. 1975 Op. Att'y Gen. No. 75-78.

Loss of Civil Rights

Child convicted of crime involving moral turpitude.

- Person convicted of a crime before reaching the age of 17 loses the right to vote if convicted of a crime involving moral turpitude even though the person is committed to the department, rather than sentenced to the Board of Corrections; the right to vote and other civil and political rights, however, may be restored by the Board of Pardons and Paroles. 1975 Op. Att'y Gen. No. 75-17.

Youth loses voting right if crime committed is punishable by imprisonment.

- When a youth has not been imprisoned in a penitentiary but has been committed to the department, the constitutional disqualification of the right to vote attaches if the crime committed is punishable by imprisonment. 1975 Op. Att'y Gen. No. 75-17.

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, § 8 et seq.

C.J.S.

- 43 C.J.S., Infants, § 8.

ALR.

- Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568.

Parent's obligation to support unmarried minor child who refuses to live with parent, 98 A.L.R.3d 334.

Actions under 42 U.S.C.S. § 1983 for violations of Adoption Assistance and Child Welfare Act (42 U.S.C.S. §§ 620 et seq. and 670 et seq.), 93 A.L.R. Fed. 314.

49-5-8. Powers and duties of department.

  1. The Department of Human Services is authorized and empowered, through its own programs and the programs of county or district departments of family and children services, to establish, maintain, extend, and improve throughout the state, within the limits of funds appropriated therefor, programs that will provide:
    1. Preventive services as follows:
      1. Collecting and disseminating information about the problems of children and youths and providing consultative assistance to groups, public and private, interested in developing programs and services for the prevention, control, and treatment of dependency and delinquency among the children of this state; and
      2. Research and demonstration projects designed to add to the store of information about the social and emotional problems of children and youths and improve the methods for dealing with these problems;
    2. Child welfare services as follows:
      1. Casework services for children and youths and for mothers bearing children out of wedlock, whether living in their own homes or elsewhere, to help overcome problems that result in dependency or delinquency;
      2. Protective services that will investigate complaints of abuse or abandonment of children and youths by parents, guardians, custodians, or persons serving in loco parentis and, on the basis of the findings of such investigation, offer social services to such parents, guardians, custodians, or persons serving in loco parentis in relation to the problem or bring the situation to the attention of a law enforcement agency, an appropriate court, or another community agency;
      3. Supervising and providing required services and care involved in the interstate placement of children;
      4. Homemaker service, or payment of the cost of such service, when needed due to the absence or incapacity of the mother;
      5. Boarding care, or payment of maintenance costs, in foster family homes or in group-care facilities for children and youths who cannot be adequately cared for in their own homes;
      6. Boarding care or payment of maintenance costs for mothers bearing children out of wedlock prior to, during, and for a reasonable period after childbirth;
      7. Day-care services for the care and protection of children whose parents are absent from the home or unable for other reasons to provide parental supervision; and
      8. Casework services and care to all children and youths where the parent, custodian, or guardian has placed such children in the custody of the department by voluntary agreement, until such agreement is revoked by the parent, custodian, or guardian upon request that such children be returned to the parent, custodian, or guardian or to another relative or the voluntary agreement expires; provided, however, that nothing in this subparagraph shall prohibit the department from obtaining an order placing such children in its custody in accordance with Article 3 of Chapter 11 of Title 15;
    3. Services to courts, upon their request, as follows:
      1. Accepting for casework services and care all children and youths whose legal custody is vested in the department by the court;
      2. Providing shelter or custodial care for children prior to examination and study or pending court hearing;
      3. Making social studies and reports to the court with respect to children and youths as to whom petitions have been filed; and
      4. Providing casework services and care or payment of maintenance costs for children and youths who have run away from their home communities within this state, or from their home communities in this state to another state, or from their home communities in another state to this state; paying the costs of returning such runaway children and youths to their home communities; and providing such services, care, or costs for runaway children and youths as may be required under Chapter 4B of this title;
    4. Regional group-care facilities for the purpose of:
      1. Providing local authorities an alternative to placing any child in a common jail;
      2. Shelter care prior to examination and study or pending a hearing before juvenile court;
      3. Detention prior to examination and study or pending a hearing before juvenile court; and
      4. Study and diagnosis pending determination of treatment or a hearing before juvenile court;
    5. Facilities designed to afford specialized and diversified programs, such as forestry camps, ranches, and group residences, for the care, treatment, and training of children and youths of different ages and different emotional, mental, and physical conditions;
    6. Regulation of child-placing agencies, child-caring institutions, and maternity homes by:
      1. Establishing rules and regulations for and providing consultation on such rules and regulations for all such agencies, institutions, and homes; and
      2. Licensing and inspecting periodically all such agencies, institutions, and homes to ensure their adherence to established standards as prescribed by the department;
    7. Adoption services, as follows:
      1. Supervising the work of all child-placing agencies when funds are made available;
      2. Providing services to parents desiring to surrender children for adoption as provided for in adoption statutes;
      3. Providing care or payment of maintenance costs for mothers bearing children out of wedlock and children being considered for adoption;
      4. Inquiring into the character and reputation of persons making application for the adoption of children;
      5. Placing children for adoption;
      6. Providing financial assistance to families adopting children once the child has been placed for adoption, determined eligible for assistance, and the adoption assistance agreement has been signed prior to the finalization of the adoption by all parties. Financial assistance may only be granted for hard-to-place children with physical, mental, or emotional disabilities or with other problems for whom it is difficult to find a permanent home. Financial assistance may not exceed 100 percent of the amount that would have been paid for boarding such child in a family foster home and for special services such as medical care not available through insurance or public facilities. Such supplements shall only be available to families who could not provide for the child adequately without continued financial assistance. The department may review the supplements paid at any time but shall review them at least annually to determine the need for continued assistance;
      7. Providing payment to a licensed child-placing agency which places a child with special needs who is under the jurisdiction of the department for adoption. Payment may not exceed $5,000.00 for each such adoption arranged by an agency. The board shall define the special needs child. One-half of such payment shall be made at the time of placement and the remaining amount shall be paid when the adoption is finalized. If the adoption disrupts prior to finalization, the state shall be reimbursed by the child-placing agency in an amount calculated on a prorated basis based on length of time the child was in the home and the services provided; and
      8. Providing payment to an agency which recruits, educates, or trains potential adoptive or foster parents for preparation in anticipation of adopting or fostering a special needs child. The board shall define the special needs child and set the payment amount by rule and regulation. Upon appropriate documentation of these preplacement services in a timely manner, payments as set by the board shall be made upon enrollment of each potential adoptive or foster parent for such services;
    8. Staff development and recruitment programs through in-service training and educational scholarships for personnel as may be necessary to assure efficient and effective administration of the services and care for children and youths authorized in this article. The department is authorized to disburse state funds to match federal funds in order to provide qualified employees with graduate or postgraduate educational scholarships in accordance with rules and regulations adopted by the board pursuant to Article VIII, Section VII, Paragraph I of the Constitution of Georgia;
    9. Miscellaneous services, such as providing all medical, hospital, psychiatric, surgical, or dental services or payment of the costs of such services as may be considered appropriate and necessary by competent medical authority to those children subject to the supervision and control of the department without securing prior consent of parents or legal guardians;
    10. Preparation, education, and training for foster parents which will provide them with the appropriate knowledge and skills to provide for the needs of foster children, including knowledge and skills relating to the reasonable and prudent parent standard for the participation of the child in age or developmentally appropriate activities, and continue such preparation, as necessary, after the placement of the children;
    11. Each youth who is leaving foster care by reason of having attained 18 years of age, unless the child has been in foster care for less than six months, with, if the child is eligible to receive such document, an official or certified copy of the United States birth certificate of the child, a social security card issued by the Commissioner of Social Security, health insurance information, a copy of the child's medical records, a driver's license or identification card issued by a state in accordance with the requirements of Section 202 of the REAL ID Act of 2005, and any official documentation necessary to prove that the child was previously in foster care. Provision of records in accordance with this paragraph shall not be considered a violation of subsection (b) of Code Section 49-5-40; and
    12. Extended care youth services for youths between 18 and 21 years of age as set forth in Article 4A of Chapter 11 of Title 15 and to receive federal reimbursement for providing such services in accordance with 42 U.S.C. Section 675, as it existed on February 1, 2018.
  2. The department is authorized to perform such other duties as may be required under related statutes.
    1. As used in paragraph (2) of this subsection, the term "state" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, or any territory or possession of or territory or possession administered by the United States.
    2. The Department of Human Services is authorized to enter into interstate compacts, on behalf of this state, with other states to provide for the reciprocal provision of adoption assistance services.
    3. The purpose of paragraphs (1) and (2) of this subsection is to comply with the requirements of the Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272) and Part E of Title IV of the Social Security Act and to assure that recipients of adoption assistance in Georgia who change their residences to other states receive adoption assistance services, other than adoption assistance payments, from their new states of residence.
    1. As used in this subsection, the term "sexually exploited child" shall have the same meaning as set forth in Code Section 15-21-201.
    2. The department, in consultation with the Office of the Child Advocate for the Protection of Children, the Criminal Justice Coordinating Council, and law enforcement officials, shall develop a plan for the delivery of services to sexually exploited children, victims of trafficking of persons for labor servitude, and such children and persons who are at risk of becoming victims of such offenses. In developing such plan, the department shall work with state and federal agencies, public and private entities, and other stakeholders as it deems appropriate and shall periodically review such plans to ensure appropriate services are being delivered. Such plan shall include:
      1. Identifying children who need services;
      2. Providing assistance with applications for federal and state benefits, compensation, and services;
      3. Coordinating the delivery of physical and mental health, housing, education, job training, child care, legal, and other services;
      4. Preparing and disseminating educational and training materials to increase awareness of available services;
      5. Developing and maintaining community based services;
      6. Providing assistance with family reunification or repatriation to a country of origin; and
      7. Providing law enforcement officials assistance in identifying children in need of such services.

(Ga. L. 1963, p. 81, § 11; Ga. L. 1969, p. 939, § 1; Ga. L. 1971, p. 351, § 1; Ga. L. 1973, p. 946, § 1; Ga. L. 1982, p. 3, § 49; Ga. L. 1983, p. 3, § 65; Ga. L. 1984, p. 22, § 49; Ga. L. 1985, p. 518, § 1; Ga. L. 1988, p. 1945, § 1; Ga. L. 1990, p. 8, § 49; Ga. L. 1992, p. 1983, § 28; Ga. L. 1993, p. 1969, § 3; Ga. L. 1994, p. 409, § 1; Ga. L. 1995, p. 1302, § 13; Ga. L. 1997, p. 1697, § 1; Ga. L. 2004, p. 645, § 8; Ga. L. 2009, p. 100, § 1/HB 237; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2013, p. 294, § 4-55/HB 242; Ga. L. 2014, p. 763, § 3-3/HB 898; Ga. L. 2015, p. 552, § 6/SB 138; Ga. L. 2015, p. 675, § 4-3/SB 8; Ga. L. 2016, p. 864, § 49/HB 737; Ga. L. 2018, p. 927, § 2-1/HB 906; Ga. L. 2019, p. 893, § 10/SB 225.)

The 2013 amendment, effective January 1, 2014, deleted ", deprivation," following "dependency" in subparagraphs (a)(1)(A) and (a)(2)(A), and substituted "complaints of abuse or abandonment" for "complaints of deprivation, abuse, or abandonment" near the beginning of subparagraph (a)(2)(B). See editor's note for applicability.

The 2014 amendment, effective July 1, 2014, substituted "Chapter 4B of Title 49" for "Chapter 3 of Title 39" at the end of subparagraph (a)(3)(D).

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, in paragraph (a)(2), deleted "and" at the end of subparagraph (F), added "and" at the end of subparagraph (G), and added subparagraph (H); deleted "and" at the end of paragraph (a)(8), substituted a semicolon for the period at the end of subparagraph (a)(9), and added paragraphs (a)(10) and (a)(11). The second 2015 amendment, effective July 1, 2015, added subsection (d).

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "Chapter 4B of this title" for "Chapter 4B of Title 49" at the end of subparagraph (a)(3)(D).

The 2018 amendment, effective July 1, 2018, deleted "and" at the end of paragraph (a)(10), substituted "; and" for the period at the end of paragraph (a)(11), and added paragraph (a)(12).

The 2019 amendment, effective May 7, 2019, in paragraph (a)(11), in the first sentence, substituted "a driver's license" for "and driver's license" near the end and added ", and any official documentation necessary to prove that the child was previously in foster care" at the end.

Cross references.

- Interstate Compact on the Placement of Children, T. 39, C. 4.

Powers and duties of Department of Early Care and Learning including requiring notice of absence of liability insurance coverage, § 20-1A-4.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1985, in paragraph (c)(3) a repetitive "96-" was deleted preceding "96-272".

Pursuant to Code Section 28-9-5, in 1990, "Part E of Title IV" was substituted for "Title IVE" in paragraph (c)(3).

Pursuant to Code Section 28-9-5, in 2019, in paragraph (a)(11), "Social Security card" was substituted for "Social Security care" and "identification card issued" was substituted for "identification card issues".

Editor's notes.

- Ga. L. 1993, p. 1969, contains two sections numbered as "1". The language quoted below is from the first Section 1 of that Act.

Ga. L. 1993, p. 1969, § 1, not codified by the General Assembly, provides: "The General Assembly estimates that up to $6 million will be saved on an annual basis when the provisions of Code Sections 49-4-112, 49-4-113, and 49-4-115 are fully implemented for complete fiscal years. It is the intent of the General Assembly that such cost savings realized by the implementation of these three Code sections be redirected into the Aid to Families with Dependent Children program in the following priorities:

"(1) Extension of transitional Medicaid for up to 24 months provided a federal waiver is obtained;

"(2) Expansion of PEACH program slots; and

"(3) Child care assistance for low-income working families."

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Ga. L. 2015, p. 675, § 1-1/SB 8, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Safe Harbor/Rachel's Law Act.' "

Ga. L. 2015, p. 675, § 1-2/SB 8, not codified by the General Assembly, provides: "(a) The General Assembly finds that arresting, prosecuting, and incarcerating victimized children serves to retraumatize children and increases their feelings of low self-esteem, making the process of recovery more difficult. The General Assembly acknowledges that both federal and state laws recognize that sexually exploited children are the victims of crime and should be treated as victims. The General Assembly finds that sexually exploited children deserve the protection of child welfare services, including family support, crisis intervention, counseling, and emergency housing services. The General Assembly finds that it is necessary and appropriate to adopt uniform and reasonable assessments and regulations to help address the deleterious secondary effects, including but not limited to, prostitution and sexual exploitation of children, associated with adult entertainment establishments that allow the sale, possession, or consumption of alcohol on premises and that provide to their patrons performances and interaction involving various forms of nudity. The General Assembly finds that a correlation exists between adult live entertainment establishments and the sexual exploitation of children. The General Assembly finds that adult live entertainment establishments present a point of access for children to come into contact with individuals seeking to sexually exploit children. The General Assembly further finds that individuals seeking to exploit children utilize adult live entertainment establishments as a means of locating children for the purpose of sexual exploitation. The General Assembly acknowledges that many local governments in this state and in other states found deleterious secondary effects of adult entertainment establishments are exacerbated by the sale, possession, or consumption of alcohol in such establishments.

"(b) The purpose of this Act is to protect a child from further victimization after he or she is discovered to be a sexually exploited child by ensuring that a child protective response is in place in this state. The purpose and intended effect of this Act in imposing assessments and regulations on adult entertainment establishments is not to impose a restriction on the content or reasonable access to any materials or performances protected by the First Amendment of the United States Constitution or Article I, Section I, Paragraph V of the Constitution of this state."

Code Section 15-21-201, referenced in paragraph (d)(1), was enacted by Ga. L. 2015, p. 675, § 3-1/SB 8. Ga. L. 2015, p. 675, § 6-1(b)/SB 8, not codified by the General Assembly, provides that this article "shall become effective on January 1, 2017, provided that a constitutional amendment is passed by the General Assembly and is ratified by the voters in the November, 2016, General Election amending the Constitution of Georgia to authorize the General Assembly to provide specific funding to the Safe Harbor for Sexually Exploited Children Fund. If such an amendment to the Constitution of Georgia is not so ratified, then Part 3 of this Act shall not become effective and shall stand repealed by operation of law on January 1, 2017." The constitutional amendment was approved by the voters in November, 2016.

U.S. Code.

- The federal Adoption Assistance and Child Welfare Act of 1980, referred to in this Code section, is codified principally at 42 U.S.C. § 602 et seq.

Part E of Title IV of the federal Social Security Act, referred to in this Code section, is codified at 42 U.S.C. 670 et seq.

Administrative Rules and Regulations.

- Rules and regulations for child-placing agencies, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Office of Regulatory Services, Chapter 290-9-2.

Law reviews.

- For article criticizing parental rights doctrine and advocating best interests of child doctrine in parent-third party custody disputes, see 27 Emory L.J. 209 (1978). For annual survey on administrative law, see 66 Mercer L. Rev. 1 (2014). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 43 (2015). For note on the 1994 amendment of this Code section, see 11 Ga. St. U. L. Rev. 258 (1994). For note, "The Georgia Tort Claims Act: A License for Negligence in Child Deprivation Cases?," see 18 Ga. St. U. L. Rev. 795 (2002).

JUDICIAL DECISIONS

Regional youth development centers.

- Department has the authority and responsibility to establish policies and standards governing regional youth development centers. Jones v. State, 134 Ga. App. 611, 215 S.E.2d 483 (1975).

Juvenile courts are not to determine whether a Department of Human Resources facility is up to standard. Jones v. State, 134 Ga. App. 611, 215 S.E.2d 483 (1975).

DFCS investigator's determination of child abuse registry listing did not violate separation of powers.

- Under the Child Protective Services Information System, O.C.G.A. § 49-5-180 et seq., an alleged child abuser has the right to a hearing before an administrative law judge, who makes the final agency decision after hearing evidence and argument from the alleged abuser and from DFCS. The role of the abuse investigator in the determination of whether an incident should be in the child abuse registry does not violate the constitutional principle of separation of powers. Ga. Dep't of Human Servs. v. Steiner, 303 Ga. 890, 815 S.E.2d 883 (2018).

Cited in Sanchez v. Walker County Dep't of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976); Department of Human Resources v. Ledbetter, 153 Ga. App. 416, 265 S.E.2d 337 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Payment of travel expenses authorized.

- Inasmuch as the creation of an advisory council was within the scope of Ga. L. 1937, p. 355 (see O.C.G.A. §§ 49-2-1 and49-2-7), it follows that the payment of the out-of-pocket travel expenses to enable the council to function efficiently and thus assist in the accomplishment of the department's express statutory duties as set forth in Ga. L. 1963, p. 81, §§ 9 and 24 (see O.C.G.A. §§ 49-2-6 and49-5-7 et seq.) must also be an implied power, such disbursement being incidental to and reasonably necessary to the accomplishment of the department's purpose, duties, and responsibilities. 1963-65 Op. Att'y Gen. p. 320.

School official not liable for good faith involvement.

- School official would not be held liable in a legal action founded upon the official's good faith reference of a child neglect, abuse, or abandonment situation to a county department of family and children services for investigation, or, upon the official's assistance in such investigation by permitting the child to be interviewed at the school or in the offices of the county department during school hours. 1963-65 Op. Att'y Gen. p. 746.

Establishment of admission or discharge policies which negate court detention orders.

- Department does not have the authority to establish policies for admission to or discharge from regional youth development centers which negate detention orders of the juvenile court or superior court; however, the department does have the authority to establish standards and policies supplementary to the detention orders. 1974 Op. Att'y Gen. No. 74-139.

County departments to provide medical services.

- This section authorizing the Division for Children and Youth (now Division of Family and Children Services of the Department of Human Resources) to provide medical services, or the cost of such services, to children subject to the department's "supervision and control," would apply to children in the custody of county departments of family and children services. 1971 Op. Att'y Gen. No. 71-138.

"Supervision and control" over children committed to county departments.

- Any child committed to the custody of a county department of family and children services is under the "supervision and control" of the Division for Children and Youth (now Department of Children and Youth Services). 1971 Op. Att'y Gen. No. 71-138.

Responsibility of department to transport juveniles to departmental facilities.

- It is the responsibility, including the payment of the cost therefor, of the department to transport juveniles, which have been adjudged to be delinquent and committed to the department, from regional youth development centers to state centers inasmuch as both regional and state centers are part of the total facilities of the department which have been established for the care, treatment, and rehabilitation of juveniles committed to the custody of the department. 1969 Op. Att'y Gen. No. 69-360.

Department authorized to contract with counties for land purchases or transfers.

- Division for Children and Youth (now Department of Children and Youth Services) is authorized to contract with a county for the purchase or transfer of land to be used for a maximum security child detention center. 1970 Op. Att'y Gen. No. 70-104; 1970 Op. Att'y Gen. No. 70-187.

Department may contract with a county to construct and equip a temporary care facility for youths, pending juvenile delinquency proceedings, provided that funds appropriated from the Governor's Emergency Fund do not create a continuing obligation for the state. 1970 Op. Att'y Gen. No. 70-119.

Parents' consent to placement of children without legal action.

- Department may request that parents consent to placement of their children outside the family home without the department instituting legal action as long as the requirements for voluntary placement are met. 1996 Op. Att'y Gen. No. U96-6.

RESEARCH REFERENCES

Am. Jur. 2d.

- 2 Am. Jur. 2d, Adoption, § 31. 23 Am. Jur. 2d, Desertion and Nonsupport, § 29 et seq. 41 Am. Jur. 2d, Illegitimate Children, § 1. 42 Am. Jur. 2d, Infants, § 15 et seq.

C.J.S.

- 2 C.J.S., Adoption, §§ 1 et seq., 49. 43 C.J.S., Infants, §§ 4, 5, 16 et seq. 67A C.J.S., Parent and Child, § 359 et seq.

ALR.

- Construction and application of agreement by medical or social work student to work in the particular position or at particular location in exchange for financial aid in meeting costs of education, 83 A.L.R.3d 1273.

Parent's obligation to support unmarried minor child who refuses to live with parent, 98 A.L.R.3d 334.

49-5-9. Use of public and private institutions and agencies; inspections; examination and control of children not in department's facilities.

  1. The department is authorized to make use of law enforcement detention, supervisory, medical, educational, and other public or private facilities, institutions, and agencies within the state for the purposes of this article; provided, however, that this shall not give the department authority to transfer any child or youth under its custody and control to any penal institution in the state without due process of law. When funds are available, the department may enter into agreements with appropriate private or public officials of private or public institutions and agencies for separate care and special treatment of children and youths subject to the control of the department.
  2. The department is given the right and is required to inspect periodically all public and private institutions and agencies whose facilities it is using. Every institution and agency, whether public or private, is required to afford the department reasonable opportunity to examine or consult with children and youths committed to the department who are for the time being in the custody of the institution or agency.
  3. Placement of a child or youth by the department in any institution or agency not operated by the department or the release of such child or youth from such an institution or agency shall not terminate the control of the department over such child or youth. No child or youth placed in such institution or under such an agency may be released by the institution or agency without the approval of the department.

(Ga. L. 1963, p. 81, § 12.)

JUDICIAL DECISIONS

Cited in In re R.D., 141 Ga. App. 843, 234 S.E.2d 680 (1977).

OPINIONS OF THE ATTORNEY GENERAL

Payment of travel expenses authorized.

- Inasmuch as the creation of an advisory council was within the scope of Ga. L. 1937, p. 355 (see O.C.G.A. §§ 49-2-1 and49-2-7), it follows that the payment of the out-of-pocket travel expenses to enable the council to function efficiently and thus assist in the accomplishment of the department's express statutory duties as set forth in Ga. L. 1963, p. 81, §§ 1, 9 and 24 (see O.C.G.A. §§ 49-2-6,49-5-7,49-5-9 and49-5-10 [repealed](now see §§ 49-4A-8 and49-5-1), must also be an implied power, such disbursement being incidental to and reasonably necessary to the accomplishment of the department's purpose, duties, and responsibilities. 1963-65 Op. Att'y Gen. p. 320.

RESEARCH REFERENCES

C.J.S.

- 78 C.J.S., Schools and School Districts, § 507 et seq.

49-5-10. Commitment of delinquent or unruly children to department; procedures; handling and treatment; escape and apprehension; release; termination of control.

Reserved. Repealed by Ga. L. 1992, p. 1983, § 29, effective July 1, 1992.

Editor's notes.

- This Code section was based on Ga. L. 1963, p. 81, § 13; Ga. L. 1976, p. 1066, § 1; Ga. L. 1978, p. 1510, §§ 1, 2; Ga. L. 1980, p. 1046, § 1; Ga. L. 1981, Ex. Sess., p. 8; Ga. L. 1982, p. 3, § 49; Ga. L. 1983, p. 538, § 1; Ga. L. 1983, p. 539, § 2; Ga. L. 1984, p. 22, § 49; Ga. L. 1990, p. 540, § 3; and Ga. L. 1990, p. 1930, § 8.

49-5-10.1. Temporary transfer of at-risk unruly or delinquent children to Department of Corrections; procedure; review; discharge.

Repealed by Ga. L. 1997, p. 559, § 1, effective July 1, 1997.

Editor's notes.

- Ga. L. 1997, p. 1453, §§ 1 and 3 purported to make editorial changes to this Code section.

This Code section was based on Code 1981, § 49-5-10.1, enacted by Ga. L. 1990, p. 1930, § 9; Ga. L. 1992, p. 1983, § 30.

49-5-11. Escape from a youth detention center.

Reserved. Repealed by Ga. L. 1992, p. 1983, § 31, effective July 1, 1992.

Editor's notes.

- This Code section was based on Ga. L. 1969, p. 996, § 1; Ga. L. 1972, p. 1251, § 1; Ga. L. 1973, p. 563, § 1; Ga. L. 1974, p. 1455, § 1; Ga. L. 1981, Ex. Sess., p. 8; and Ga. L. 1985, p. 283, § 1.

49-5-12. Licensing and inspection of child welfare agencies; standards; revocation or refusal of license; penalties; violations.

  1. As used in this Code section, the term "child welfare agency" means any child-caring institution, child-placing agency, children's transition care center, or maternity home.
  2. All child welfare agencies shall be licensed or commissioned annually by the department in accordance with procedures, standards, rules, and regulations to be established by the board. The board shall develop and publish in print or electronically rules and regulations for licensing or commissioning of child welfare agencies. Child welfare agencies electing to be commissioned rather than licensed shall operate in accordance with the same procedures, standards, rules, and regulations for licensing of child welfare agencies. A license issued to a child-placing agency shall be deemed approval of all foster family homes approved, supervised, and used by the licensed child-placing agency as a part of its work, subject to this article and rules and regulations of the board.
  3. The department shall assist applicants or licensees or persons holding commissions in meeting rules and regulations of the department for child welfare agencies and, if a licensee or person holding a commission is, for any reason, denied renewal of a license or commission or if a license or commission is revoked or if any applicant for a license or commission cannot meet department rules and regulations for child welfare agencies, the department shall assist in planning the placement of children, if any, in the custody of such child welfare agency in some other licensed or commissioned child welfare agency or assist in returning them to their own homes or in making any other plans or provisions as may be necessary and advisable to meet the particular needs of the children involved.
  4. Application for a license or commission shall be made to the department upon forms furnished by the department. Upon receipt of an application for a license or commission and upon presentation by the applicant of evidence that the child welfare agency meets the rules and regulations prescribed by the department, the department shall issue such child welfare agency a license or commission for no more than one year.
  5. If the department finds that any child welfare agency 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 welfare agency, but such temporary license or commission shall not be issued for more than a one-year period. Upon presentation of satisfactory evidence that such agency 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. 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.
  6. The department shall refuse a license or commission upon a showing of:
    1. Noncompliance with the rules and regulations for child welfare agencies as adopted by the Board of Human Services which are designated in writing to the facilities as being related to children's health and safety;
    2. Flagrant and continued operation of an unlicensed or uncommissioned facility in contravention of the law; or
    3. Prior license or commission denial or revocation within one year of application.
  7. All licensed or commissioned child welfare agencies shall prominently display the license or commission issued to such agency by the department at some point near the entrance of the premises of such agency that is open to view by the public.
  8. The department's action revoking or refusing to renew or issue a license or commission required by this Code section shall be preceded by notice and opportunity for a hearing and shall constitute a contested case within the meaning of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," except that only 30 days' notice in writing from the commissioner's designee shall be required prior to license or commission revocation and except that hearings held relating to such action by the department may be closed to the public if the hearing officer determines that an open hearing would be detrimental to the physical or mental health of any child who will testify at that hearing.
  9. Child-caring institutions and child-placing agencies, when licensed in accordance with this Code section, may receive needy or dependent children from their parents, guardians, custodians, or persons serving in loco parentis for special, temporary, or continued care. Parents, guardians, custodians, or persons serving in loco parentis to such children may sign releases or agreements giving to such institutions or agencies custody and control over such children during the period of care. Children's transition care centers may receive medically fragile children from their parents, guardians, custodians, or persons serving in loco parentis for special, temporary, or continued care to facilitate transitions from a hospital or other facility to a home or other appropriate setting.
  10. Child-placing agencies, in placing children in foster family homes, shall safeguard the welfare of such children by thoroughly investigating each such home and the character and reputation of the persons residing therein and shall adequately supervise each home during the period of care. All children placed in foster family homes shall, as far as is practicable, be placed with persons of the same religious faith as the children themselves or the children's parents.
  11. It shall be the duty of the department to inspect at regular intervals all licensed or commissioned child welfare agencies within the state, including foster family homes used by such child-placing agencies. The department shall have right of entrance, privilege of inspection, and right of access to all children under the care and control of the licensee or commissionee.
  12. If any flagrant abuses, derelictions, or deficiencies are made known to the department or its duly authorized agents during their inspection of any child welfare agency or if, at any time, such are reported to the department, the department shall immediately investigate such matters and take such action as conditions may require.
  13. If abuses, derelictions, or deficiencies are found in the operation and management of any child welfare agency, they shall be brought immediately to the attention of the management of such agency; and if correctable, but not corrected within a reasonable time, the department shall revoke the license or commission of such agency in the manner prescribed in this Code section.
  14. The department may require periodic reports from child welfare agencies in such forms and at such times as the department may prescribe.
  15. 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 shall not be subject to licensure under this Code section, but the department may, through its authorized agents, make periodic inspections of such agencies, facilities, and institutions. Reports of such inspections shall be made privately to the proper authorities in charge of such agencies, facilities, or institutions. The department shall cooperate with such authorities in the development of standards that will adequately protect the health and well-being of all children and youths detained in such agencies, facilities, and institutions or provided care by them. The department may recommend changes in programs and policies and if, within a reasonable time, the standards established by the department and the recommendations of the department are not met, it shall be the duty of the commissioner to make public in the community in which such agency, facility, or institution is located the report of the above-mentioned inspection and the changes recommended by the department. If any serious abuses, derelictions, or deficiencies are found and are not corrected within a reasonable time, the commissioner shall report them in writing to the Governor.
  16. Any child welfare agency that shall operate without a license or commission issued by the department shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $500.00 nor more than $1,000.00 for each such offense. Each day of operation without a license or commission shall constitute a separate offense.
  17. No person, official, agency, hospital, maternity home, or institution, public or private, in this state shall receive or accept a child under 17 years of age for placement or adoption or place such a child, either temporarily or permanently, in a home other than the home of the child's relatives without having been licensed or commissioned by the department. Notwithstanding the provisions of Code Section 49-5-12.1, violation of this subsection shall be punishable by a fine of not less than $500.00 nor exceeding $1,000.00 for each offense. Nothing in this Code section shall be construed to prohibit a properly licensed attorney at law from providing necessary legal services and counsel to parties engaged in or contemplating adoption proceedings. Nothing in this Code section shall be construed to prohibit an individual seeking to:
    1. Adopt a child or children from receiving or accepting a child or children in the individual's home in anticipation of filing a petition for adoption under Article 1 of Chapter 8 of Title 19; or
    2. Have that individual's child or children placed for adoption from placing that individual's child or children in the home of an individual who is not related to the child or children in anticipation of the individual's initiation of adoption proceedings pursuant to Article 1 of Chapter 8 of Title 19.
  18. The department may, without regard to the availability of other remedies, including administrative remedies, seek an injunction against the continued operation of a child welfare agency without a license or commission or the continued operation of a child welfare agency in willful violation of this article or of any regulation of the department or in violation of any order of the board.
  19. The term "licensed child welfare agency" shall include a commissioned child welfare agency and any references in this Code to a licensed child welfare agency, including criminal, administrative, and civil provisions applicable to licensed child welfare agencies, shall include and apply to commissioned child welfare agencies unless otherwise provided in this article.

(i.1)A children's transition care center shall serve no more than six children per residence or 16 children per campus at a time. Children's transition care center services shall be available to all families in this state, including those whose care is paid for through the Department of Community Health or the Department of Human Services or by insurance companies that cover home health care services or private duty nursing care in the home. Each children's transition care center location shall be physically separate and apart from any other facility licensed by the Department of Human Services under this chapter and shall provide one or more of the following services: respite care, registered nursing or licensed practical nursing care, transitional care for the facilitation of transitions to a home or other appropriate setting and reunion of families, medical day care, weekend camps, and diagnostic studies typically done in the home setting.

(Ga. L. 1963, p. 81, §§ 3, 14; Ga. L. 1967, p. 772, § 1; Ga. L. 1973, p. 560, § 1; Ga. L. 1982, p. 3, § 49; Ga. L. 1982, p. 706, §§ 1, 3, 9, 10; Ga. L. 1983, p. 3, § 38; Ga. L. 1984, p. 22, § 49; Ga. L. 1986, p. 1038, § 1; Ga. L. 1987, p. 1435, §§ 3, 4; Ga. L. 1988, p. 217, § 1; Ga. L. 1989, p. 1795, § 1; Ga. L. 1990, p. 8, § 49; Ga. L. 1991, p. 408, §§ 2-4; Ga. L. 1991, p. 1640, § 13; Ga. L. 1992, p. 6, § 49; Ga. L. 1994, p. 97, § 49; Ga. L. 1994, p. 650, § 4; Ga. L. 2004, p. 645, § 9; Ga. L. 2004, p. 1085, § 1; Ga. L. 2008, p. 1145, § 2/HB 984; Ga. L. 2009, p. 453, §§ 2-2, 2-3/HB 228; Ga. L. 2009, p. 800, § 6/HB 388; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2013, p. 135, § 11/HB 354; Ga. L. 2016, p. 773, § 6/HB 905; Ga. L. 2017, p. 774, § 49/HB 323.)

The 2013 amendment, effective July 1, 2013, deleted former subsection (t), which read: "The department shall recommend in writing to the owner of any facility operated as a day-care center, family day-care home, group day-care facility, or group day-care home or any child learning center licensed by the Department of Early Care and Learning that such facility carry liability insurance coverage sufficient to protect the facility's clients. Any such facility which after receiving such recommendation is not covered by liability insurance shall post that fact in a conspicuous place in the facility and shall notify the parent or guardian of each child under the care of the facility in writing. Such notice shall be in at least 1/2 inch letters. Each such parent or guardian must acknowledge receipt of such notice in writing and a copy of such acknowledgment shall be maintained on file at the facility at all times while the child attends the facility and for 12 months after the child's last date of attendance. Failure to do so may subject the owner of the facility to a civil fine of $1,000.00 for each such infraction."

The 2016 amendment, effective July 1, 2016, substituted "$500.00 nor more than $1,000.00" for "$50.00 nor more than $200.00" in the first sentence of subsection (p); and substituted "$500.00 nor exceeding $1,000.00" for "$100.00 nor exceeding $500.00" in the second sentence of subsection (q).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, deleted ", as defined in subsection (a) of this Code section," following "agencies" near the beginning of the first sentence of subsection (b).

Cross references.

- Applicability of Interstate Compact on the Placement of Children regarding requirements for visitation, inspection, or supervision of children, homes, institutions, or other agencies in another state which is party to compact, § 39-4-10.

Editor's notes.

- Ga. L. 2009, p. 800, § 1/HB 388, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Option of Adoption Act.'"

Administrative Rules and Regulations.

- Group day care homes, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Family & Children Services; Child Care Institutions, Chapters 290-2-1 et seq.

Immunization of children as a prerequisite to admission to schools and other facilities, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Public Health, Chapter 290-5-4.

Law reviews.

- For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 57 (1992). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 126 (1994).

JUDICIAL DECISIONS

Department of Human Resources licensure of church-operated children's home.

- Requirement that the Department of Human Resources license a church-operated children's home as a child caring institution pursuant to the Children and Youth Act, O.C.G.A. § 49-5-1 et seq., and department regulations governing child caring institutions does not violate the free exercise clause of the First Amendment, nor would the requirement violate the establishment clause of the First Amendment since such a requirement in no way aids, furthers, or confers a special benefit on any religious group. Darrell Dorminey Children's Home v. Georgia Dep't of Human Resources, 260 Ga. 25, 389 S.E.2d 211 (1990).

Foster children.

- O.C.G.A. §§ 15-11-13,15-11-58,20-2-690.1 and49-5-12 set out in clear detail the rights and services to which foster children are entitled. As a result, the federal statutory provisions in question are not too vague and amorphous to be enforced by the judiciary and each of the state statutes at issue impose specific duties on the state defendants. Thus, the federal regulatory scheme embodied in the Child and Family Services Review process does not relieve the state defendants of the defendants' obligation to fulfill the defendants' statutory duties to plaintiff foster children, nor does the regulatory scheme provide a legal excuse for the defendants' failure to do so. Kenny A. v. Perdue, F. Supp. 2d (N.D. Ga. Dec. 11, 2004).

Action for deprivation of civil rights.

- Georgia statutory foster care scheme created in a two-year-old child a legitimate and sufficiently vested claim of entitlement such that deprivation of that entitlement without due process of law imposed on the child a grievous loss, supporting the child's action for injuries under the federal Civil Rights Act. Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987), cert. denied, 489 U.S. 1065, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989).

Private cause of action.

- Following factors are relevant in determining whether a private remedy is implicit in a statute not expressly providing one: first, whether the plaintiff is one of the class for whose special benefit the statute was enacted; second, whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; third, whether it is consistent with the underlying purpose of the legislative scheme to imply such a remedy for plaintiff. When foster children alleged that certain child services agencies and officials violated O.C.G.A. § 49-5-12(j), that subsection conferred upon the children a private cause of action. Kenny A. v. Perdue, 218 F.R.D. 277 (N.D. Ga. Aug. 18, 2003).

Cited in Department of Human Resources v. Ledbetter, 153 Ga. App. 416, 265 S.E.2d 337 (1980); Penaranda v. Cato, 740 F. Supp. 1578 (S.D. Ga. 1990); Kenny A. v. Perdue, F. Supp. 2d (N.D. Ga. Dec. 11, 2004).

OPINIONS OF THE ATTORNEY GENERAL

After school care programs on county school premises.

- Department of Human Resources may not license "latch key" or "after school" care programs operated by county school systems on the school's premises. 1985 Op. Att'y Gen. No. 85-11.

After school care programs operated by outside organization.

- Department of Human Resources licensing obligations would extend to a "latch-key" or "after-school" care program on the premises of county school systems if the program is operated by an outside organization rather than school authorities. 1988 Op. Att'y Gen. No. U88-6.

Board authorized to adopt and department to enforce fire safety standards.

- Board of Human Resources has lawful authority to adopt the 1973 Life Safety Code (National Fire Protection Association standard 101), a comprehensive set of standards that deals with preventing and controlling losses from fire, as part of the rules and regulations for day-care centers, and the Department of Human Resources has lawful authority to enforce compliance with code standards. 1976 Op. Att'y Gen. No. U76-6.

Board's standards for juvenile detention facilities are inapplicable to jails.

- Detention standards adopted by the Board of Human Resources for juvenile detention facilities do not apply to jails in which juveniles are confined. 1974 Op. Att'y Gen. No. 74-139.

Steps necessary to cease operation of unlicensed day-care center.

- Division for Children and Youth (now Department of Children and Youth Services), in the absence of specific injunctive authority, must first try to obtain a misdemeanor warrant to stop the unlicensed operation of a day-care center, and, if this proves futile or inadequate, may bring an action for equitable injunction. 1970 Op. Att'y Gen. No. 70-105.

For an update of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file identifying data, see 1991 Op. Att'y Gen. No. 91-35.

RESEARCH REFERENCES

C.J.S.

- 43 C.J.S., Infants, §§ 39 et seq., 71 et seq.

ALR.

- Tort liability of private nursery school or day-care center, or employee thereof, for injury to child while attending facility, 58 A.L.R.4th 240.

49-5-12.1. Penalties for violation of child welfare agency laws and regulations.

  1. Unless otherwise provided in subsection (r) of Code Section 49-5-12, any person who violates the provisions of Code Section 49-5-12 or who hinders, obstructs, or otherwise interferes with any representative of the department in the discharge of that person's official duties in making inspections as provided in Code Section 49-5-12 or in investigating complaints as provided in Code Section 49-5-12 shall be guilty of a misdemeanor.
    1. Any person who:
      1. Violates any licensing or registration provision of this chapter or any rule, regulation, or order issued under this chapter or any term, condition, or limitation of any license or registration certificate under this chapter thereby subjecting a child in care to injury or a life-threatening situation; or
      2. Commits any violation for which a license or registration certificate may be revoked under rules or regulations issued pursuant to this chapter

        may be subject to a civil penalty, to be imposed by the department, not to exceed $500.00. If any violation is a continuing one, each day of such violation shall constitute a separate violation for the purpose of computing the applicable civil penalty.

    2. Whenever the department proposes to subject a person to the imposition of a civil penalty under this subsection, it shall notify such person in writing:
      1. Setting forth the date, facts, and nature of each act or omission with which the person is charged;
      2. Specifically identifying the particular provision or provisions of the Code section, rule, regulation, order, license, or registration certificate involved in the violation; and
      3. Advising of each penalty which the department proposes to impose and its amount.

        Such written notice shall be sent by registered or certified mail or statutory overnight delivery by the department to the last known address of such person. The person so notified shall be granted an opportunity to show in writing, within such reasonable period as the department shall by rule or regulation prescribe, why such penalty should not be imposed. The notice shall also advise such person that, upon failure to pay the civil penalty subsequently determined by the department, if any, the penalty may be collected by civil action. Any person upon whom a civil penalty is imposed may appeal such action pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

    3. A civil penalty finally determined under this Code section may be collected by civil action in the event that such penalty is not paid as required. On the request of the department, the Attorney General is authorized to institute a civil action to collect a penalty imposed pursuant to this subsection. The Attorney General shall have the exclusive power to compromise, mitigate, or remit such civil penalties as are referred to the Attorney General for collection.
    4. All moneys collected from civil penalties shall be paid to the state for deposit in the general fund.

(Code 1981, §49-5-12.1, enacted by Ga. L. 1986, p. 1038, § 1; Ga. L. 2000, p. 1589, § 3.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, §§ 84, 99, 100.

49-5-12.2. Immunity from liability.

Any caregiver or other entity under contract with the department shall be immune from civil liability as a result of a caregiver's approval of the participation of a child, who is in the custody of the department, in an age or developmentally appropriate activity, so long as such caregiver or other entity under contract with the department acts in accordance with the reasonable and prudent parent standard. No provision in any agreement between the department and a caregiver or an entity under contract with the department shall diminish the standard of care provided in this Code section.

(Code 1981, §49-5-12.2, enacted by Ga. L. 2015, p. 552, § 7/SB 138.)

Effective date.

- This Code section became effective July 1, 2015.

49-5-12.3. Definitions; annual inspection of child welfare agency.

  1. As used in this Code section, the term:
    1. "Affected agency" means any state agency, department, division, or office which requires a license or commission from the department for child welfare agencies, including, but not limited to, the Division of Family and Children Services, the Department of Juvenile Justice, the Department of Behavioral Health and Developmental Disabilities, or the Department of Community Health.
    2. "Annual inspection" means an inspection of a child welfare agency's facility, books, minutes, financial statements, files, employees, programs, and contracts to ensure contract compliance and licensure compliance.
    3. "Child welfare agency" means any child-caring institution, child-placing agency, children's transition care center, or maternity home.
    4. "Contract compliance" means adherence to the terms of a contract a child welfare agency has with an affected agency to provide child welfare services.
    5. "Licensure compliance" means adherence to licensing or commissioning requirements established pursuant to and in accordance with Code Section 49-5-12.
  2. The department shall ensure that the annual inspection of each child welfare agency is performed by all affected agencies in a singular coordinated manner. Affected agencies shall not duplicate the annual inspection but shall cooperate and assist the department with the annual inspection. Affected agencies shall share the results of the annual inspection with other applicable affected agencies.
  3. The annual inspection shall not occur sooner than 330 days or later than 390 days after the date on which the last annual inspection began and shall not exceed five days. Affected agencies may reduce the extent of the annual inspection by reducing the frequency or the extent of the inspection for contract compliance when the child welfare agency has shown an exceptional history of contract compliance as determined upon past scores; provided, however, that such reduction does not violate federal law, court order, or settlement agreement.
  4. A child welfare agency may contest the results of an annual inspection, in accordance with department rules, by filing a written appeal with the affected agency within ten days of receipt of the affected agency's annual inspection report. Within ten days of receipt of a child welfare agency's written appeal of the annual inspection, the affected agency shall hold a meeting with the child welfare agency. The meeting shall be for the parties to discuss the annual inspection.
  5. The annual inspection shall not limit the ability of affected agencies and other state departments, divisions, and agencies to ensure the safety and well-being of children in the care of child welfare agencies or to inspect, investigate, or respond as required by court order, settlement agreement, or federal law.
  6. In consultation with other affected agencies, the department shall promulgate rules and regulations consistent with this Code section, including establishing criteria which must be met in order for a child welfare agency to contest or appeal an evaluation.
  7. Nothing in this Code section shall be construed to affect the ability of any affected agency, in its sole discretion, to contract with any child welfare agency or to exercise the rights of the affected agency under the terms and conditions of any existing contract with a child welfare agency.

(Code 1981, §49-5-12.3, enacted by Ga. L. 2016, p. 773, § 7/HB 905; Ga. L. 2017, p. 774, § 49/HB 323.)

Effective date.

- This Code section became effective July 1, 2016.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "results of the annual inspection" for "results of annual inspection" near the end of the last sentence of subsection (b).

49-5-13. Private child care learning centers not required to meet federal adult-child ratio.

Nothing in this article or any rules and regulations adopted hereunder shall be construed to require that private child care learning centers maintain a ratio of adults to children under care that is commensurate with any federal requirement concerning such adult to child ratio.

(Ga. L. 1970, p. 720, § 1; Ga. L. 2013, p. 135, § 12/HB 354.)

The 2013 amendment, effective July 1, 2013, substituted "child care learning centers" for "day-care centers" in the middle of this Code section.

49-5-14. Fire inspections of day-care homes and centers; fire safety codes.

Reserved. Repealed by Ga. L. 1985, p. 1642, § 1, effective July 1, 1985.

Editor's notes.

- This Code section was based on Ga. L. 1984, p. 706, §§ 4, 5, 11; Ga. L. 1984, p. 22, § 49.

Section 3 of the Act which repealed this Code section provided that nothing in the Act would amend or repeal the definitions contained in Chapter 5 of Title 49.

49-5-15. Notice as to child brought into state for placement or adoption; bond; certificate as to foster home; reports.

No person shall bring or send into the state any child for the purpose of placing him or procuring his adoption without first filing notice with the department. He shall file with the department a bond payable to the state for each child he intends to send or bring, approved by the department, in the penal sum of $1,000.00, conditioned that he will not send or bring into the state any child who is incorrigible or unsound in mind or body; that he will remove any such child who becomes a public charge or who, in the opinion of the department, becomes a menace to the community prior to his adoption or becoming of legal age; and that the person with whom the child is placed shall be responsible for his proper care and training. Before any child shall be brought or sent into the state for the purpose of placing him in a foster home, the person so bringing or sending such child shall first notify the department of his intention and shall obtain from the department a certificate stating that such home is, in the opinion of the department, a suitable home for the child. Such notification shall state the name, age, and personal description of the child; the name and address of the person with whom the child is to be placed; and such other information as may be required by the department. The person bringing or sending such child into the state shall report at least once each year and at such other times as the department shall direct as to the location and well-being of the child so long as such child shall remain within the state and until he shall have reached the age of 18 or shall have been legally adopted.

(Ga. L. 1963, p. 81, § 15.)

Cross references.

- Interstate Compact on the Placement of Children, T. 39, C. 4.

RESEARCH REFERENCES

C.J.S.

- 2 C.J.S., Adoption of Persons, §§ 46, 48.

49-5-16. Power of department to contract; acceptance of children from federal courts for compensation.

  1. The department shall have the power and is authorized:
    1. To enter into contracts with federal, state, county, and municipal governments and their agencies and departments; public and private institutions and agencies of this and other states; and individuals, as may be necessary or desirable in effectuating the purposes of this article;
    2. To enter into contracts and cooperative agreements with county or district departments of family and children services as may be necessary or desirable in effectuating the purposes of this article;
    3. To enter into reciprocal agreements with appropriate public and private institutions and agencies of other states relative to providing child welfare and youth services to nonresident children and youths; and to cooperate with such institutions and agencies in establishment and operation of group-care facilities appropriate for social study, treatment, and rehabilitation of children and youths; and
    4. To accept children and youths from federal courts and provide them social services within the scope of this article for compensation and under such terms as may be agreed upon.
  2. The board may authorize the commissioner to enter into contracts and agreements provided for in this Code section subject to the approval of the board or may, through appropriate action of the board, delegate such authority to the commissioner.

(Ga. L. 1963, p. 81, § 17.)

OPINIONS OF THE ATTORNEY GENERAL

Acceptance of children from federal institutions and provision of services in state facilities.

- Department of Family and Children Services (now Division of Family and Children Services of the Department of Human Resources) is authorized to enter into agreements to accept children and youth from the federal penal and corrective institutions and agencies and to provide those institutions and agencies with the services extended by the facilities of the department to those children taken pursuant to Georgia court orders; the conditions and circumstances under which such agreements should be effectuated is a matter within the administrative powers of the board pursuant to Ga. L. 1963, p. 81, § 6 (see O.C.G.A. § 49-5-5) and can be effectuated by the adoption of such appropriate rules and regulations as the board deems necessary. Adequate compensation for the costs thereof may be collected by the department from the agency transferring the children or youth to the Georgia facilities. 1968 Op. Att'y Gen. No. 68-191.

Contracting with counties for purchase or transfer of land.

- Division for Children and Youth (now Division of Family and Children Services of the Department of Human Resources) is authorized to contract with a county for the purchase or transfer of land to be used for a maximum security child detention center. 1970 Op. Att'y Gen. No. 70-104; 1970 Op. Att'y Gen. No. 70-187.

Department may contract with a county to construct and equip a temporary care facility for youths, pending juvenile delinquency proceedings, provided that funds appropriated from the Governor's Emergency Fund do not create a continuing obligation for the state. 1970 Op. Att'y Gen. No. 70-119.

Board may contract to pay travel expenses of volunteers.

- Board of Human Resources, through the board's specifically delegated contractual authority, may contract in writing to pay travel expenses to volunteer workers performing work properly authorized by the department. 1971 Op. Att'y Gen. No. 71-76.

49-5-17. Power of department to accept and use gifts.

The department is authorized and empowered to receive, accept, hold, and use, on behalf of the state and for purposes provided for in this article, gifts, grants, donations, devises, and bequests of real, personal, and mixed property of every kind and description.

(Ga. L. 1963, p. 81, § 18.)

OPINIONS OF THE ATTORNEY GENERAL

Department of Human Resources may accept public funds donated voluntarily by counties for the provision of day-care and other social services to welfare applicants and other authorized recipients. 1972 Op. Att'y Gen. No. 72-12.

Contracting with counties for purchase or transfer of land.

- Division for Children and Youth (now Division of Family and Children Services of the Department of Human Resources) is authorized to contract with a county for the purchase or transfer of land to be used for a maximum security child detention center. 1970 Op. Att'y Gen. No. 70-104; 1970 Op. Att'y Gen. No. 70-187.

RESEARCH REFERENCES

C.J.S.

- 14 C.J.S., Charities, §§ 16, 32 et seq.

49-5-18. Instituting or intervening in legal proceedings.

The commissioner is authorized to institute or to intervene in any legal proceedings necessary to the performance of duties and responsibilities of the department and to the enforcement of this article and provisions of policies, standards, rules, and regulations established by the board in conformity with this article as may be commensurate with the legal status of the department to a child or youth committed to the care, custody, or control of the department or as may otherwise be specifically provided for in this article.

(Ga. L. 1963, p. 81, § 19.)

49-5-19. Annual report on children and youth services.

The commissioner shall prepare and publish in print or electronically an annual report on the operations of the department and of county departments of family and children services under this article and submit it to the Governor, the board, and all interested persons, officials, agencies, and groups, public or private. The report shall contain, in addition to information, statistics, and data required by other provisions of this article, a comprehensive analysis of performance of child welfare and youth services throughout the state; an analysis of goals to ensure that no more than 25 percent of children remain in the foster care system under Title IV-E of the Social Security Act for a period of 24 months or longer, as provided by Public Law 96-272; and such other information and recommendations of the commissioner as may be suitable.

(Ga. L. 1963, p. 81, § 20; Ga. L. 1982, p. 1120, §§ 1, 2; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2015, p. 552, § 8/SB 138.)

The 2015 amendment, effective July 1, 2015, substituted "ensure that no more than 25 percent of children remain in the foster care system under Title IV-E of the Social Security Act" for "reduce by 1 percent each year, beginning with the fiscal year that starts October 1, 1983, the number of children who have been in family or institutional foster care" in this Code section.

U.S. Code.

- Public Law 96-272, the federal Adoption Assistance and Child Welfare Act of 1980, is codified in numerous provisions of Title 42 of the U.S. Code.

49-5-20. Existing charters of charitable institutions.

Nothing in this article shall be deemed to revoke any charter of incorporation of any orphans' home or charitable or benevolent institution incorporated and established under the Act of the General Assembly approved December 18, 1894 (Ga. L. 1894, p. 80), as amended by the Act of the General Assembly approved December 16, 1898 (Ga. L. 1898, p. 104), notwithstanding the repeal of such Acts by Ga. L. 1963, p. 81, Section 24, or to impair or diminish the rights, powers, or privileges of such corporation as provided in its charter of incorporation.

(Ga. L. 1963, p. 81, § 22; Ga. L. 1994, p. 97, § 49.)

49-5-21. Penalties for aiding, harboring, or encouraging escapees or hindering their apprehension.

  1. Any person who shall knowingly aid, assist, or encourage any child or youth under the lawful control or custody of the department or of any licensed child welfare agency or home or facility used by such agency, public or private, to escape or to attempt to escape its control or custody shall be guilty of a misdemeanor.
  2. Any person who shall knowingly harbor, shelter, entertain, or encourage any child or youth who has escaped the lawful custody or control of the department or of any licensed child welfare agency or home or facility used by such agency, public or private, shall be guilty of a misdemeanor.
  3. Any person who shall knowingly hinder the apprehension of any child under the lawful control or custody of the department who has been placed by the department in one of its institutions or facilities and who has escaped therefrom or who has been placed under supervision and is alleged to have broken the conditions thereof shall be guilty of a misdemeanor.

(Ga. L. 1963, p. 81, § 16; Ga. L. 1976, p. 1066, § 2.)

49-5-22. Voluntary pre-kindergarten programs to provide toilet facilities screened for privacy.

  1. The General Assembly finds that just as gender separated toileting among nonrelatives is the norm among adults, children should be allowed the same opportunity to practice modesty when independent toileting behavior is well established among the majority of their age group. Standardized adherence to this policy would provide privacy, injury control, and sanitation.
  2. Each public or private voluntary pre-kindergarten program in this state which receives state funding shall provide toilet facilities for the four-year-old pre-kindergarten age children which it serves which are suitably screened for privacy. Nothing contained in this Code section shall be construed to require a pre-kindergarten program to provide separately constructed toilet facilities.
  3. The provisions of subsection (b) of this Code section shall not apply to any voluntary pre-kindergarten program which provides separate and gender-specific toilet facilities for the children which it serves.

(Code 1981, §49-5-22, enacted by Ga. L. 1996, p. 991, § 1; Ga. L. 1997, p. 143, § 49.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, "four-year-old" was substituted for "four year old" in the first sentence of subsection (b).

49-5-23. Obtaining information on recall notices.

  1. Any agency, department, or office that regulates child welfare agencies shall make available to such child welfare agencies at the time of application for initial or renewal certification or licensure information concerning contacting the U.S. Consumer Product Safety Commission to obtain recall notices on unsafe child and infant products.
  2. Child welfare agencies shall post the phone number and website of the U.S. Consumer Product Safety Commission in a location visible to parents and visitors. The notice shall also advise such parents and visitors on how to obtain recall notices on unsafe child and infant products.

(Code 1981, §49-5-23, enacted by Ga. L. 2004, p. 333, § 1.)

49-5-24. Interagency efforts to gather and share comprehensive data; legislative findings; state-wide system for sharing data regarding care and protection of children; interagency data protocol; interagency agreements; waivers from certain federal regulations.

    1. In an effort to improve the availability and quality of programs and services for the protection of children and youth, the General Assembly supports interagency efforts to gather comprehensive data and to actively share and disseminate data among those agencies responsible for making informed decisions regarding the treatment, care, security, and protection of children within this state.
    2. The General Assembly finds that the sharing and integration of appropriate data and information may have numerous benefits for children and families in this state, as well as for the state and local agencies attempting to provide services for them.
    3. The General Assembly finds that such data sharing and integration can serve the best interests of the child and the family, contribute to higher levels of effectiveness in service delivery, provide greater efficiency and productivity, and assist in the protection of children. Specifically, such data sharing and integration can reduce redundant data entry, expedite data sharing between agencies, provide for more timely service delivery, ensure more accurate and up-to-date information, assist in the development of a seamless system of services, and contribute to better performance and greater accountability by all involved parties.
    4. The General Assembly finds that the goals and purposes of this chapter, including the goal to develop a seamless system of services for children and their families, would be furthered by the development of a central repository of data for planning and evaluation purposes and urges the agencies to work toward the development of such a central repository.
  1. The department, working with the following agencies, shall develop and implement a workable state-wide system for sharing data relating to the care and protection of children between such agencies, utilizing existing state-wide data bases and data delivery systems to the greatest extent possible, to streamline access to such data:
    1. Division of Family and Children Services of the department;
    2. Department of Early Care and Learning;
    3. Department of Community Health;
    4. Department of Public Health;
    5. Department of Behavioral Health and Developmental Disabilities;
    6. Department of Juvenile Justice;
    7. Department of Education; and
    8. Georgia Crime Information Center.
  2. The department, working with such agencies, shall establish an interagency data protocol to enable each agency to accurately and efficiently collect and share data with the other agencies in the most effective and expeditious manner. The interagency data protocol shall:
    1. Include protocols and procedures to be used by agencies in data processing, including but not limited to collecting, storing, manipulating, sharing, retrieving, and releasing data;
    2. Delineate the specific data to be shared among all or specified agencies, the person or persons authorized by each agency to have access to another agency's data, and the security arrangements between agencies to ensure the protection of the data from unauthorized access that may threaten the privacy of persons and the confidentiality of the data;
    3. Establish the circumstances under which and the reasons for which an agency may share information with another agency, with a local political subdivision, with a nongovernmental entity, or with an individual; and
    4. Ensure compliance with all state and federal laws and regulations concerning the privacy of information, including but not limited to the federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. Section 1232g, and the federal Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. Section 1320d to 1320d-9.
  3. To further delineate the parameters for the sharing of data with one or more agencies, specific interagency agreements may be executed between or among agencies.
  4. If a federal law or regulation impedes necessary data sharing between agencies, the appropriate agency or agencies shall make all reasonable attempts to be granted a waiver or exemption from the applicable law or regulation.
  5. The Department of Human Services and any of the agencies in subsection (b) of this Code section may apprise chairpersons of the appropriate committees of the General Assembly of the need for any legislative action necessary to facilitate or improve data sharing between agencies for the purposes of this Code section.
    1. Notwithstanding any provision to the contrary, nothing in this Code section shall be construed to nullify any memorandum of understanding existing as of June 30, 2015, or prohibit the creation of memorandums of understanding on and after July 1, 2015, between or among agencies concerning data sharing or any other data sharing practices.
    2. Notwithstanding any provision to the contrary, nothing in this Code section shall prohibit the release to or sharing of data with nongovernmental entities or individuals if the release or sharing is otherwise required, permitted, or allowed pursuant to state or federal law.

(Code 1981, §49-5-24, enacted by Ga. L. 2015, p. 552, § 9/SB 138; Ga. L. 2016, p. 864, § 49/HB 737.)

Effective date.

- This Code section became effective July 1, 2015.

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, in paragraph (g)(1), substituted "any memorandum" for "any memoranda" and substituted "creation of memorandums" for "creation of memoranda".

ARTICLE 2 CHILD ABUSE RECORDS

Cross references.

- Procedures for reporting of instances of child abuse, and as to penalty for failure to report suspected cases of child abuse, § 19-7-5.

Battery, assault, stalking, and other offenses involving family members, § 19-13-1 et seq.

Law reviews.

- For note on 1993 amendment of this article, see 10 Ga. St. U.L. Rev. 131 (1993).

49-5-40. Definitions; confidentiality of records; restricted access to records.

  1. As used in this article, the term:
    1. "Abused" means subjected to child abuse.
    2. "Child" means an individual under 18 years of age.
    3. "Child abuse" means:
      1. Physical injury or death inflicted upon a child by a parent, guardian, legal custodian, or caretaker thereof by other than accidental means; provided, however, that physical forms of discipline may be used as long as there is no physical injury to the child;
      2. Neglect or exploitation of a child by a parent, guardian, legal custodian, or caretaker thereof;
      3. Sexual abuse of a child;
      4. Sexual exploitation of a child; or
      5. Emotional abuse of a child.

        However, no child who in good faith is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be abused.

    4. "Child advocacy center" means an entity which is operated for the purposes of investigating known or suspected child abuse and treating a child or a family that is the subject of a report of child abuse and which:
      1. Has been created and supported through one or more intracommunity compacts between such center and:
        1. One or more law enforcement agencies within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation;
        2. The office of the district attorney, Attorney General, or United States Attorney;
        3. A legally mandated public or private child protective agency within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation;
        4. A mental health board within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation; or
        5. A community health service board within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation; and
      2. Has been approved by a protocol committee established under Chapter 15 of Title 19.
    5. "Court" means a judge of any court of record or an administrative law judge of the Office of State Administrative Hearings.
    6. "Emotional abuse" shall have the same meaning as set forth in Code Section 15-11-2.
    7. "Legal custodian" shall have the same meaning as set forth in Code Section 15-11-2.
    8. "Near fatality" means an act that places a child in serious or critical condition as certified by a physician.
    9. "Record" shall include documents, books, maps, drawings, computer based or generated information, data, data fields, digital images, photographs, video images, audio recordings, and video recordings.
    10. "Sexual abuse" means an individual's employing, using, persuading, inducing, enticing, or coercing any child who is not that individual's spouse to engage in any act which involves:
      1. Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between individuals of the same or opposite sex;
      2. Bestiality;
      3. Masturbation;
      4. Lewd exhibition of the genitals or pubic area of any individual;
      5. Flagellation or torture by or upon an individual who is nude;
      6. Condition of being fettered, bound, or otherwise physically restrained on the part of an individual who is nude;
      7. Physical contact in an act of apparent sexual stimulation or gratification with any individual's clothed or unclothed genitals, pubic area, or buttocks or with a female's clothed or unclothed breasts;
      8. Defecation or urination for the purpose of sexual stimulation; or
      9. Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.
    11. "Sexual exploitation" means conduct by any individual who allows, permits, encourages, or requires any child to engage in:
      1. Trafficking of persons for labor or sexual servitude, in violation of Code Section 16-5-46;
      2. Prostitution, in violation of Code Section 16-6-9;
      3. Obscene depiction of a minor, in violation of Code Section 16-11-40.1;
      4. Nude or sexually explicit electronic transmission, in violation of Code Section 16-11-90; or
      5. Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, in violation of Code Section 16-12-100.
  2. Each and every record concerning reports of child abuse and child controlled substance or marijuana abuse which is in the custody of the department, other state or local agency, or child advocacy center is declared to be confidential, and access thereto is prohibited except as provided in Code Sections 49-5-41 and 49-5-41.1.
  3. Each and every record concerning child abuse or neglect which is received by the department from the child abuse and neglect registry of any other state shall not be disclosed or used outside the department for any other purpose other than conducting background checks to be used in foster care and adoptive placements.

(Ga. L. 1975, p. 1135, § 1; Ga. L. 1987, p. 1000, § 2; Ga. L. 1990, p. 1778, § 1; Ga. L. 1993, p. 1712, § 1; Ga. L. 2007, p. 478, § 7/SB 128; Ga. L. 2009, p. 43, § 1/SB 79; Ga. L. 2009, p. 733, § 3/SB 69; Ga. L. 2016, p. 160, § 2/HB 725; Ga. L. 2017, p. 774, § 49/HB 323.)

The 2016 amendment, effective July 1, 2016, rewrote this Code section.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation throughout subparagraph (a)(4)(A).

Cross references.

- Persons required to report instances of child abuse, § 19-7-5.

Battery, assault and stalking involving family members, § 19-13-1 et seq.

Toll free number for reporting child abuse or neglect, § 20-2-324.4.

Editor's notes.

- Ga. L. 2016, p. 160, § 1/HB 725, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Child Abuse Records Protection Act.'"

Law reviews.

- For article, "Georgia's Open Records and Open Meetings Laws: A Continued March Toward Government in the Sunshine," see 40 Mercer L. Rev. 1 (1988). For article, "Practical Challenges to Representing Unaccompanied Children Before the Atlanta Immigration Court," see 22 Ga. St. Bar J. 35 (April 2017).

JUDICIAL DECISIONS

Discovery of "scientific records."

- Former O.C.G.A. § 17-7-211 did not provide an independent statutory basis for discovery of "scientific records" of child abuse maintained by institutions listed in O.C.G.A. § 49-5-40. In the absence of obtaining a statutory exception by compliance with O.C.G.A. § 49-5-41 or O.C.G.A. § 49-5-41.1, as applicable, such child abuse records remain protected. Horne v. State, 192 Ga. App. 528, 385 S.E.2d 704 (1989), cert. denied, 494 U.S. 1006, 110 S. Ct. 1302, 108 L. Ed. 2d 749 (1990).

Failure to provide county child abuse records.

- Trial court erred by failing to provide the defendant with the county child abuse documents the defendant requested during the defendant's trial for child molestation, but the defendant was not denied due process since the defendant failed to show that the trial court withheld any material, exculpatory information. Dodd v. State, 293 Ga. App. 816, 668 S.E.2d 311 (2008).

Oral allegation of child abuse to Department of Family and Children Services was publication for purposes of slander claim.

- Although under O.C.G.A. § 49-5-40(b), reports made to the Department of Family and Children Services (DFACS) are confidential, the law of defamation requires only that the statement be disseminated to any person other than the person slandered. Therefore, a landlord's oral allegations to a DFACS employee that a tenant committed child abuse amounted to "publication" for purposes of O.C.G.A. § 51-5-4. Brown v. Rader, 299 Ga. App. 606, 683 S.E.2d 16 (2009).

Criminal defendant not entitled to MySpace.com and school records.

- Trial court did not abuse the court's discretion in denying the defendant access to the incest victim's MySpace.com and school records because the defendant failed to show both the materiality and the favorable nature of the evidence sought. Stephens v. State, 305 Ga. App. 339, 699 S.E.2d 558 (2010).

Burden on defendant to show need for release of records.

- Trial court did not err by failing to release documents showing earlier child abuse from a child's file which might have been critical to a defendant's case since the burden was on the defendant to show what documents in a child's sealed file were suppressed and how it was materially exculpatory and the defendant failed to make the showing. Dunagan v. State, 255 Ga. App. 309, 565 S.E.2d 526 (2002).

Cited in Ray v. Department of Human Resources, 155 Ga. App. 81, 270 S.E.2d 303 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Release of records to Department of Education hearing officers.

- Those portions of child protective service records releasable to parents and guardians under Social Services County Letter No. 86-1 promulgated pursuant to federal court order in J.J. v. Ledbetter, C.A. No. CV180-84, U.S.D.C., S.D. Ga. (1985), may likewise be released to Department of Education hearing officers conducting hearings under the Education of All Handicapped Act, 20 U.S.C. § 1401 et seq., if, and only if, (1) the parents specifically request in writing that the Department of Human Resources forward the records to the hearing officer, or (2) the Department of Human Resources receives a written request for the records from the hearing officer personally and is subsequently able to secure the written permission of the parents to forward the records to the hearing officer. 1987 Op. Att'y Gen. No. 87-25.

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect, 44 A.L.R.4th 649.

Denial or restriction of visitation rights to parent charged with sexually abusing child, 1 A.L.R.5th 776.

49-5-41. Persons and agencies permitted access to records.

  1. Notwithstanding Code Section 49-5-40, the following persons or agencies shall have reasonable access to such records concerning reports of child abuse:
    1. Any federal, state, or local governmental entity, tribal entity, or any agency of any such entity that has a need for information contained in such records in order to carry out its legal responsibilities to protect children from child abuse and neglect;
    2. A grand jury by subpoena upon its determination that access to such records is necessary in the conduct of its official business;
    3. A prosecuting attorney in this state or any other state or political subdivision thereof, or for the United States, who may seek such access in connection with official duty;
    4. Any adult who makes a report of suspected child abuse as required by Code Section 19-7-5, but such access shall include only notification regarding the child concerning whom the report was made, shall disclose only whether the investigation by the department or governmental child protective agency of the reported abuse is ongoing or completed and, if completed, whether child abuse was confirmed or unconfirmed, and shall only be disclosed if requested by the person making the report;
      1. Any entity that receives from a school employee a report of suspected child abuse as required by Code Section 19-7-5.
      2. Within 24 hours of receiving such report, such entity shall acknowledge, in writing, the receipt of such report to the reporting individual. Within five days of completing the investigation of the suspected child abuse, such entity shall disclose, in writing, to the school counselor for the school such child was attending at the time of the reported child abuse whether the suspected child abuse was confirmed or unconfirmed. If a school does not have a school counselor, such disclosure shall be made to the principal.
      3. As used in this paragraph, the term:
        1. "Entity" means a child welfare agency providing protective services as designated by the department or, in the absence of such agency, a law enforcement agency or prosecuting attorney.
        2. "School" shall have the same meaning as set forth in Code Section 19-7-5;
    5. Any adult requesting information regarding investigations by the department or a governmental child protective agency regarding the findings or information about the case of child abuse or neglect involving a fatality or near fatality; provided, however, that the following may be redacted from such records:
      1. Any record of law enforcement or prosecution agencies in any pending investigation or prosecution of criminal activity contained within the child abuse, neglect, or dependency records;

        (A.1) Any part of a record of the department or a governmental child protective agency that includes information provided by law enforcement or prosecution agencies in any pending investigation or prosecution of criminal activity contained within the child abuse, neglect, or dependency records;

      2. Medical and mental health records made confidential by other provisions of law;
      3. Privileged communications of an attorney;
      4. The identifying information of a person who reported suspected child abuse;
      5. Information that may cause mental or physical harm to the sibling or other child living in the household of the child being investigated;
      6. The name of a child who is the subject of reported child abuse or neglect;
      7. The name of any parent or other person legally responsible for the child who is the subject of reported child abuse or neglect, provided that such person is not under investigation for the reported child abuse or neglect; and
      8. The name of any member of the household of the child who is the subject of reported child abuse or neglect, provided that such person is not under investigation for the reported c