AB 3039: Health care facilities: criminal background checks.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2018-04-16
(1)Existing law requires the State Department of Social Services to license and regulate community care facilities, residential care facilities for persons with chronic, life-threatening illness, residential care facilities for the elderly, child care centers, and family child care homes. Existing law requires the department to obtain a criminal record for all applicants for licenses for these facilities and specified other employees and officers of these facilities. Existing law prohibits persons with specified convictions from obtaining a license, permit, or certificate. Existing law provides a process by which the department can grant an exemption from these prohibitions.
This bill, among other things, would limit the disqualifying convictions to a directly and adversely related crime, as defined, crime within the preceding 5 years or a directly and adversely related violent felony, as defined. The bill would authorize the department to grant an exemption for any of these convictions and would prohibit the department from denying an exemption on the basis of a charge for which pre- or post-plea diversion program has been completed, a conviction that was dismissed dismissed, an infraction or citation, or a conviction for which the applicant has obtained rehabilitative relief, including a certificate of rehabilitation or a pardon from the Governor.
This bill would require the department to retain specified information, including application forms and other documents submitted by applicants and notices provided to applicants, for 3 years. The bill would also require the department to retain the number of applicants for each license type and the number of applications requiring criminal history inquiries, as well as other statistical information, and would require the department to make that information public on an annual basis, while ensuring the confidentiality of the individual applicants.
Existing law authorizes the department to prohibit a person from being a member of the board of directors, an executive director, or an officer of a community care facility, residential care facility for persons with chronic, life-threatening illness, residential care facility for the elderly, or child care center if he or she, among other things, engaged in conduct that is inimical to the health, morals, welfare, or safety of either the people of the state or an individual in or receiving services from the facility or engaged in acts of financial malfeasance concerning the operation of the facility. Under existing law, an excluded person has 15 days after the order of exclusion to file a written appeal.
This bill would require the excluded person to have engaged in job-related have, in the course of fulfilling the functions or duties of the business or profession for which application is made, engaged in conduct within the preceding 5 years that is inimical to the health, morals, welfare, or safety of an individual in or receiving services from the facility or job-related financial malfeasance within the preceding 5 years. The bill would authorize an excluded person to file a written appeal within 30 days of the order of exclusion.
(2)Existing law requires the department to register home health aides. Existing law requires the department to obtain a criminal record for all applicants for the registry. Existing law prohibits a person with specified convictions from inclusion on the registry. Existing law provides a process by which the department can grant an exemption from these prohibitions.
This bill would limit the disqualifying convictions to a directly and adversely related crime, as defined, crime within the preceding 5 years or a directly and adversely related violent felony, as defined. The bill would authorize the department to grant an exemption for any of these convictions.
(1)Existing law requires the State Department of Social Services to license and regulate community care facilities, residential care facilities for persons with chronic, life-threatening illness, residential care facilities for the elderly, child care centers, and family child care homes. Existing law requires the department to obtain a criminal record for all applicants for licenses for these facilities and specified other employees and officers of these facilities. Existing law prohibits persons with specified convictions from obtaining a license, permit, or certificate. Existing law provides a process by which the department can grant an exemption from these prohibitions.
This bill, among other things, would limit the disqualifying convictions to a directly and adversely related crime, as defined, within the preceding 5 years or a violent felony, as defined. The bill would authorize the department to grant an exemption for any of these convictions and would prohibit the department from denying an exemption on the basis of a conviction that was dismissed or for which the applicant has obtained rehabilitative relief, including a certificate of rehabilitation or a pardon from the Governor.
This bill would require the department to retain specified information, including application forms and other documents submitted by applicants and notices provided to applicants, for 3 years. The bill would also require the department to retain the number of applicants for each license type and the number of applications requiring criminal history inquiries, as well as other statistical information, and would require the department to make that information public on an annual basis, while ensuring the confidentiality of the individual applicants.
Existing law authorizes the department to prohibit a person from being a member of the board of directors, an executive director, or an officer of a community care facility, residential care facility for persons with chronic, life-threatening illness, or child care center if he or she, among other things, engaged in conduct that is inimical to the health, morals, welfare, or safety of either the people of the state or an individual in or receiving services from the facility or engaged in acts of financial malfeasance concerning the operation of the facility. Under existing law, an excluded person has 15 days after the order of exclusion to file a written appeal.
This bill would require the excluded person to have engaged in job-related conduct within the preceding 5 years that is inimical to the health, morals, welfare, or safety of an individual in or receiving services from the facility or job-related financial malfeasance within the preceding 5 years. The bill would authorize an excluded person to file a written appeal within 30 days of the order of exclusion.
(2)Existing law requires the department to register home health aides. Existing law requires the department to obtain a criminal record for all applicants for the registry. Existing law prohibits a person with specified convictions from inclusion on the registry. Existing law provides a process by which the department can grant an exemption from these prohibitions.
This bill would limit the disqualifying convictions to a directly and adversely related crime, as defined, within the preceding 5 years or a violent felony, as defined. The bill would authorize the department to grant an exemption for any of these convictions.
Existing law authorizes the Employment Development Department (department) to perform various functions and duties with respect to job creation and retention activities. The department maintains an Internet Web site, known as CalJOBS, to assist persons in finding public employment and public employers in finding applicants.This bill would require the department to create new features on the CalJOBS Internet Web site to enable a person who has a prior criminal conviction to access available employment positions and to enable employers to declare their interest in and ability to hire a person with a prior criminal conviction.Existing law authorizes the Employment Development Department (department) to perform various functions and duties with respect to job creation and retention activities. The department maintains an Internet Web site, known as CalJOBS, to assist persons in finding public employment and public employers in finding applicants.
This bill would require the department to create new features on the CalJOBS Internet Web site to enable a person who has a prior criminal conviction to access available employment positions and to enable employers to declare their interest in and ability to hire a person with a prior criminal conviction.
The Legislature recognizes the need to generate timely and accurate positive fingerprint identification of applicants as a condition of issuing licenses, permits, or certificates of approval for persons to operate or provide direct care services in a community care facility, foster family home, or a certified family home or resource family of a licensed foster family agency. Therefore, the Legislature supports the use of the fingerprint live-scan technology, as identified in the long-range plan of the Department of Justice for fully automating the processing of fingerprints and other data by the year 1999, otherwise known as the California Crime Information Intelligence System (CAL-CII), to be used for applicant fingerprints. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a community care facility or certified family home.
(a)This subdivision applies to an application for licensure, special permit, or certificate of approval to operate a community care facility other than a foster family home, certified family home, as described in Section 1506, or resource family, as defined in Section 1517 or Section 16519.5 of the Welfare and Institutions Code.
(a)(1)
(1)Before and, as applicable, subsequent to issuing a license or special permit to a person to operate or manage a community care facility, the State Department of Social Services shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person an individual specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony. The department may deny clearance or an exemption for a person who was convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(2)The criminal history information shall include arrests for which the person is awaiting trial, convictions for a directly and adversely related crime that occurred within the preceding five years, and convictions for a violent felony, if any, the information authorized pursuant to subdivision (m) of Section 11105, if any, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.
(3)Except during the 200304 to the 201819 fiscal years, inclusive, neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license or special permit to operate a facility providing nonmedical board, room, and care for six or fewer children or for obtaining a criminal record of the applicant individual pursuant to this section.
(4)The following shall apply to the criminal record information:
(A)The State Department of Social Services may not require an applicant individual to disclose information or documentation regarding his or her criminal history as a condition of clearance, exemption, or licensure.
(B)Within Notwithstanding any other law, within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, individual, the State Department of Social Services shall provide an applicant individual with a complete copy of the information received. copy of his or her state or federal summary criminal history information, as provided by the Department of Justice. The state or federal summary criminal history information shall not be modified or altered in form or content from what is received from the Department of Justice.
(C)The department shall determine whether any of the convictions within the preceding five years are for directly and adversely related crimes or if any of the violent felonies are directly and adversely related, using the following procedure:
(i)Upon making a preliminary determination that a directly and adversely related conviction exists, the department shall notify the individual, in writing, of the preliminary determination and give him or her a clear description of which conviction or convictions serve as the basis for the determination.
(C)An applicant(ii)The individual shall have at least 10 business days after receiving the information pursuant to subparagraph (B) clause (i) to respond to the State Department of Social Services before adverse action is taken against the applicant. a final determination is made. If, within the 10 business days, the applicant individual notifies the State Department of Social Services, in writing, that the applicant he or she disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information in that report, the applicant individual shall have 10 additional business days to submit that information to the State Department of Social Services. The individual shall be notified of this process at the same time as the notification required in clause (i).
(D)(iii)The State Department of Social Services shall consider information submitted by the applicant individual pursuant to subparagraph (C) clause (ii) before making a final decision. The State Department of Social Services shall determine whether the applicant or any person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The State Department of Social Services may deny clearance or an exemption to a person who has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. determination.
(E)If the State Department of Social Services makes a final decision to deny an application solely or partly because of the applicants conviction history, the department shall notify the applicant, in writing, of all the following:(i)The final denial or disqualification.(ii)The procedure for the applicant to challenge the decision or request reconsideration.(iii)The right to appeal the decision pursuant to procedures set forth in the Government Code.(iv)Upon making a final determination, the State Department of Social Services shall notify the individual, in writing, of the final determination, the conviction or convictions that are the basis for the final determination, and the procedure for applying for an exemption pursuant to subdivision (g).
(v)The State Department of Social Services shall develop procedures for providing the notifications required by this subparagraph. The procedures shall protect the confidentiality and privacy of the individuals record. Summary criminal history information shall not be made available to any person or agency other than the individual, unless the individual is not the applicant, in which case the information shall be made available to the applicant and the individual.
(vi)When the State Department of Social Services determines that an individual has not been convicted of a directly and adversely related crime or a directly and adversely related violent felony, then the department shall issue a criminal record clearance for the individual. The department shall not deny a criminal record clearance based on any criminal record information other than a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony.
(F)(D)The State Department of Social Services may grant an exemption pursuant to subdivision (g) when the applicant or any other person specified in subdivision (b) deny an application upon making a final determination that the individual has been convicted of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony. felony, unless the department grants an exception pursuant to subdivision (g). The department shall not deny an application on the basis of any other criminal history.
(G)(E)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), individual is awaiting trial for a crime, directly and adversely related crime or a directly and adversely related violent felony, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(H)If a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact. (I)(F)If the State Department of Social Services finds, after licensure, that the licensee, or any other person specified in paragraph (1) of subdivision (b), receives additional conviction information or subsequent arrest or conviction information pertaining to an individual that states that he or she has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the department grants an exemption pursuant to subdivision (g). the department shall act pursuant to subparagraph (C) to determine whether the individual has been convicted of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony. If the department determines, pursuant to the procedures established in subparagraph (C), that the person has been convicted of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony, the license may be suspended, pursuant to Section 1550.5, or revoked, pursuant to Section 1550, unless the department grants an exemption pursuant to subdivision (g).
(J)(G)An applicant and any other person specified in subdivision (b) individual shall submit fingerprint images and related information to the Department of Justice for the purpose of searching the criminal records of the Federal Bureau of Investigation, in addition to the criminal records search required by this subdivision. If an applicant and all other persons described in subdivision (b) meet individual meets all of the conditions for licensure, except receipt of the Federal Bureau of Investigations criminal offender record information search response for the applicant or any of the persons described in subdivision (b), individual, the department may issue a license if the applicant and each person described in subdivision (b) has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction, as prescribed in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. license. If, after licensure, or the issuance of a certificate of approval of a certified family home by a foster family agency, the department determines that the licensee or any other person specified in subdivision (b) has a criminal record, the department receives additional information relating to the individual, the department may revoke the license, or require a foster family agency to revoke the certificate of approval, pursuant to Section 1550. The department may also suspend the license or require a foster family agency to suspend the certificate of approval pending an administrative hearing pursuant to Section 1550.5. may suspend the license, pursuant to Section 1550.5, or revoke the license, pursuant to Section 1550, after making a final determination as to whether the person has been convicted of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony by using the process established in subparagraph (C).
(K)The State Department of Social Services shall develop procedures to provide the individuals state and federal summary criminal history information with the written notification of his or her exemption denial or revocation based on the criminal record. The summary criminal history information shall be provided to the individual, as set forth in the agencys procedures. The procedure shall protect the confidentiality and privacy of the individuals record, and the criminal history information shall not be made available to the employer.(L)Notwithstanding any other law, the department shall provide an individual with a copy of his or her state or federal level criminal offender record information search response as provided to that department by the Department of Justice at any time. The state or federal level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the individual in his or her written request.(b)(1)In addition to the applicant, this This section shall be applicable to criminal record clearances and exemptions for the applicant and all of the following persons:
(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility, certified family home, or resource family home.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the community care facility. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility or in a certified family home or resource family home of a foster family agency. This paragraph does not restrict the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed community care facility or certified family home or resource family home of a foster family agency pursuant to Section 1558.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in like capacity.
(F)Additional officers of the governing body of the applicant, or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from the requirements applicable under paragraph (1):
(A)A medical professional, as defined in department regulations, who holds a valid license or certification from the persons governing California medical care regulatory entity and who is not employed, retained, or contracted by the licensee if all of the following apply:
(i)The criminal record of the person has been cleared as a condition of licensure or certification by the persons governing California medical care regulatory entity.
(ii)The person is providing time-limited specialized clinical care or services.
(iii)The person is providing care or services within the persons scope of practice.
(iv)The person is not a community care facility licensee or an employee of the facility.
(B)A third-party repair person or similar retained contractor if all of the following apply:
(i)The person is hired for a defined, time-limited job.
(ii)The person is not left alone with clients.
(iii)When clients are present in the room in which the repair person or contractor is working, a staff person who has a criminal record clearance or exemption is also present.
(C)Employees of a licensed home health agency and other members of licensed hospice interdisciplinary teams who have a contract with a client or resident of the facility, certified family home, or resource family home and are in the facility, certified family home, or resource family home at the request of that client or residents legal decisionmaker. The exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(D)Clergy and other spiritual caregivers who are performing services in common areas of the community care facility, certified family home, or resource family home or who are advising an individual client at the request of, or with the permission of, the client or legal decisionmaker, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care licensee or employee of the facility.
(E)Members of fraternal, service, or similar organizations who conduct group activities for clients if all of the following apply:
(i)Members are not left alone with clients.
(ii)Members do not transport clients off the facility, certified family home, or resource family home premises.
(iii)The same organization does not conduct group activities for clients more often than defined by the departments regulations.
(3)In addition to the exemptions in paragraph (2), the following persons in foster family homes, resource family homes, certified family homes, and small family homes are exempt from the requirements applicable under paragraph (1):
(A)Adult friends and family of the foster parent, who come into the home to visit for a length of time no longer than defined by the department in regulations, provided that the adult friends and family of the foster parent are not left alone with the foster children. However, the foster parent, acting as a reasonable and prudent parent, as defined in paragraph (2) of subdivision (a) of Section 362.04 of the Welfare and Institutions Code, may allow his or her adult friends and family to provide short-term care to the foster child and act as an appropriate occasional short-term babysitter for the child.
(B)Parents of a foster childs friend when the foster child is visiting the friends home and the friend, foster parent, or both are also present. However, the foster parent, acting as a reasonable and prudent parent, may allow the parent of the foster childs friend to act as an appropriate, occasional short-term babysitter for the child without the friend being present.
(C)Individuals who are engaged by a foster parent to provide short-term care to the child for periods not to exceed 24 hours. Caregivers shall use a reasonable and prudent parent standard in selecting appropriate individuals to act as appropriate occasional short-term babysitters.
(4)In addition to the exemptions specified in paragraph (2), the following persons in adult day care and adult day support centers are exempt from the requirements applicable under paragraph (1):
(A)Unless contraindicated by the clients individualized program plan (IPP) or needs and service plan, a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to the client.
(B)A volunteer if all of the following apply:
(i)The volunteer is supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(ii)The volunteer is never left alone with clients.
(iii)The volunteer does not provide any client assistance with dressing, grooming, bathing, or personal hygiene other than washing of hands.
(5)(A)In addition to the exemptions specified in paragraph (2), the following persons in adult residential and social rehabilitation facilities, unless contraindicated by the clients individualized program plan (IPP) or needs and services plan, are exempt from the requirements applicable under paragraph (1): a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to that client.
(B)This subdivision does not prevent a licensee from requiring a criminal record clearance of an individual exempt from the requirements of this section, provided that the individual has client contact.
(6)Any person similar to those described in this subdivision, as defined by the department in regulations.
(c)(1)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempted from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption pursuant to subdivision (g) shall be fingerprinted. Documentation of the individuals clearance or exemption shall be maintained by the licensee and shall be available for inspection. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or comply with paragraph (1) of subdivision (h). These fingerprint images and related information shall be sent by electronic transmission in a manner approved by the State Department of Social Services and the Department of Justice for the purpose of obtaining a permanent set of fingerprints, and shall be submitted to the Department of Justice by the licensee. A licensees failure to prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) or to comply with paragraph (1) of subdivision (h), as required in this section, shall result in the citation of a deficiency and the immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. The department may assess civil penalties for continued violations as permitted by Section 1548. The fingerprint images and related information shall then be submitted to the Department of Justice for processing. Upon request of the licensee, who shall enclose a self-addressed stamped envelope for this purpose, the Department of Justice shall verify receipt of the fingerprints.
(2)Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided in subdivision (a). If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. Documentation of the individuals clearance or exemption from disqualification shall be maintained by the licensee and be available for inspection. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprints, notify the licensee that the fingerprints were illegible, the illegible. The Department of Justice shall notify the State Department of Social Services, as required by Section 1522.04, and shall also notify the licensee by mail, within 14 days of electronic transmission of the fingerprints to the Department of Justice, 1522.04, if the person has no criminal history recorded. A violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. The department may assess civil penalties for continued violations as permitted by Section 1548.
(3)Upon receipt of the summary criminal history information, the State Department of Social Services shall determine whether the person will be granted a clearance or an exception, pursuant to the procedure set forth in paragraph (4) of subdivision (a). If the person receives a clearance, the department shall immediately notify the licensee. If the person does not receive a clearance, the department shall immediately notify the licensee to remove the person from the community care facility or bar the person from entering the community care facility, pending an appeal, and to seek an exemption from disqualification pursuant to subdivision (g). The licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility shall result in a citation of deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day and shall be grounds for disciplining the licensee pursuant to Section 1550.
(3)(4)Except for persons specified in subdivision (b) who are exempt from fingerprinting, the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted. If it is determined by If, subsequent to granting a clearance or exemption, the State Department of Social Services, on the basis of the fingerprint images and related information submitted to the Department of Justice, that subsequent to obtaining a criminal record clearance or exemption from disqualification pursuant to subdivision (g), the person has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, or is awaiting trial for a sex offense against a minor, the State Department of Social Services is informed that there is additional criminal history information relating to an individual, the State Department of Social Services shall determine whether the person will be granted a clearance or an exception, pursuant to the procedure set forth in paragraph (4) of subdivision (a). If the person receives a clearance, the department shall immediately notify the licensee. If the person does not receive a clearance, the department shall immediately notify the licensee to act immediately to remove the person from the community care facility or bar the person from entering the community care facility, pending an appeal, and to seek an exemption from disqualification pursuant to subdivision (g). The State Department of Social Services shall determine, within five business days of receiving notice of the application for exemption, if the person shall be allowed to remain in the facility until a decision on the exemption from disqualification is rendered. A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day and shall be grounds for disciplining the licensee pursuant to Section 1550.
(5)Except for persons specified in subdivision (b) who are exempt from fingerprinting, the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted.
(4)(6)The department may issue an exemption from disqualification on its own motion pursuant to subdivision (g) if the persons criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions or evidence of rehabilitation. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption from disqualification pursuant to this paragraph.
(5)(7)Concurrently with notifying the licensee pursuant to paragraph (3), (3) or (4), the department shall notify the affected individual of his or her right to seek an exemption from disqualification pursuant to subdivision (g). The individual may seek an exemption from disqualification only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (3). (3) or (4).
(6)(8)Notwithstanding any other provisions of this code, a person shall not be denied clearance or an exemption on the basis of a charge that has been dismissed following completion of a pre- or post-plea diversion program, a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 1203.42, or 1210.1 of the Penal Code, Code or other similar statute, an infraction or citation, or a conviction for which he or she has obtained rehabilitative relief, including, but not limited to, obtaining a certificate of rehabilitation or a pardon by the Governor. An applicant who has a charge or conviction that has been dismissed or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected on the report furnished by the Department of Justice.
(d)This subdivision applies to applicants for licensure, special permit, or certificate of approval to operate a foster family home, certified family home, as described in Section 1506, or to be a resource family, as defined in Section 1517 of this code or Section 16519.5 of the Welfare and Institutions Code.
(d)(1)
(1)Before and, as applicable, subsequent to issuing a license or certificate of approval to any person or persons to operate a foster family home, certified family home as described in Section 1506, or resource family pursuant to Section 1517 of this code or Section 16519.5 of the Welfare and Institutions Code, the State Department of Social Services or other approving authority shall secure California and Federal Bureau of Investigation criminal history information to determine whether the applicant or any person specified in subdivision (b) who is not exempt from fingerprinting has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g). The State Department of Social Services or other approving authority shall not issue a license or certificate of approval to any foster family home, certified family home, or resource family applicant who has not obtained both a California and Federal Bureau of Investigation criminal record clearance or exemption from disqualification pursuant to subdivision (g).
(2)The summary criminal history information shall include the full criminal record, if any, of those persons.
(3)Neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license, special permit, or certificate of approval described in this subdivision. The record, if any, shall be taken into consideration when evaluating a prospective applicant.
(4)The following shall apply to the criminal record information:
(A)If the applicant or other persons specified in subdivision (b) who are not exempt from fingerprinting have convictions that would make the applicants home unfit as a foster family home, a certified family home, or resource family, the license, special permit, certificate of approval, or presence shall be denied.
(B)If the State Department of Social Services finds that the applicant, or any person specified in subdivision (b) who is not exempt from fingerprinting is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services or other approving authority may cease processing the criminal record information until the conclusion of the trial.
(C)For purposes of this subdivision, a criminal record clearance provided under Section 8712 of the Family Code may be used by the department or other approving authority.
(D)To the same extent required for federal funding, a person specified in subdivision (b) who is not exempt from fingerprinting shall submit a set of fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the criminal records search required by subdivision (a). paragraph (1).
(5)Any person specified in this subdivision shall, as a part of the application, be fingerprinted and sign a declaration under penalty of perjury regarding any prior criminal convictions or arrests for any crime against a child, spousal or cohabitant abuse, or any crime for which the department cannot grant an exemption if the person was convicted and shall submit these fingerprints to the licensing agency or other approving authority.
(6)(A)Subsequent to initial licensure, certification, or approval, a person specified in subdivision (b) who is not exempt from fingerprinting shall obtain both a California and Federal Bureau of Investigation criminal record clearance, or an exemption from disqualification pursuant to subdivision (g), prior to employment, residence, or initial presence in the foster family home, certified family home, or resource family home. A foster family home licensee or foster family agency shall submit fingerprint images and related information of persons specified in subdivision (b) who are not exempt from fingerprinting to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or to comply with paragraph (1) of subdivision (h). A foster family home licensees or a foster family agencys failure to either prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g), or comply with paragraph (1) of subdivision (h), as required in this section, shall result in a citation of a deficiency, and the immediate civil penalties of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. A violation of the regulation adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the foster family home licensee or the foster family agency pursuant to Section 1550. The State Department of Social Services may assess penalties for continued violations, as permitted by Section 1548. The fingerprint images shall then be submitted to the Department of Justice for processing.
(B)Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the Department of Justice shall verify receipt of the fingerprints. Within five working days of the receipt of the criminal record or information regarding criminal convictions from the Department of Justice, the department shall notify the applicant of any criminal arrests or convictions. If no arrests or convictions are recorded, the Department of Justice shall provide the foster family home licensee or the foster family agency with a statement of that fact concurrent with providing the information to the State Department of Social Services.
(7)If the State Department of Social Services or other approving authority finds that the applicant, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the application or presence shall be denied, unless the department grants an exemption from disqualification pursuant to subdivision (g).
(8)If the State Department of Social Services or other approving authority finds, after licensure or the granting of the certificate of approval, that the licensee, certified foster parent, resource family, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the license or certificate of approval may be revoked or rescinded by the department or the foster family agency, whichever is applicable, unless the department grants an exemption from disqualification pursuant to subdivision (g). A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by paragraph (3) of subdivision (c) shall be grounds for disciplining the licensee pursuant to Section 1550.
(e)(1)The Except as provided in subdivision (d), the State Department of Social Services shall not use a record of an arrest that is not pending and not job related to to deny, revoke, rescind, or terminate an application, license, certificate of approval, clearance, exemption, employment, or residence unless the department investigates the incident and secures evidence, related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client. the arrest is for a directly and adversely related crime or a directly and adversely related violent felony. The department shall not use the arrest as the basis for denial in any of the following instances:
(A)A conviction was not obtained as a result of the arrest and the person is not awaiting trial.
(B)The arrest occurred more than five years before the determination is being made.
(C)The time before which prosecution may begin on the offense has passed.
(D)The arresting or prosecuting agency has released a statement that charges will not be filed as a result of the arrest.
(2)The State Department of Social Services may obtain relevant arrest or conviction records or reports from any law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and individuals associated with a community care facility.
(f)(1)For purposes of this section or any other provision of this chapter, a conviction means an entry of judgment of guilt following a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction does not include successful a charge that has been dismissed following completion of a post- or pre-plea diversion program, dismissal a charge that was dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or an infraction, Code or a similar statute, an infraction or citation, or a conviction where for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. Any action that the State Department of Social Services is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence. For purposes of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction. For purposes of this chapter, the state summary criminal history report certified by the Department of Justice, or documents admissible in a criminal action pursuant to Section 969b of the Penal Code, shall be prima facie evidence of the conviction, notwithstanding any other law prohibiting the admission of these documents in a civil or administrative action.
(2)For purposes of this chapter, the department shall consider criminal convictions from another state or federal court for a directly and adversely related crime or a crime that would be a violent felony if committed in this state as if the criminal offense was committed in this state.
(g)(1)(A)Except as otherwise provided in this subdivision with respect to a foster care provider applicant, including a relative caregiver, nonrelative extended family member, or resource family, after review of the record, the department may shall grant an exemption from disqualification for a license or special permit as specified in subdivision (a), or for a license, special permit, or certificate of approval as specified in paragraphs (4), (7), and (8) of subdivision (d), or for employment, residence, or presence in a community care facility as specified in paragraphs (3), (4), and (5) of subdivision (c), if the department has convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of good character as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). Except as otherwise provided in this subdivision, an exemption may be denied pursuant to this subdivision if the conviction was for a directly and adversely related crime that occurred within the preceding five years or a violent felony.
(B)The department shall not bar an applicant deny an exemption based solely on the type of conviction without considering evidence of rehabilitation.
(C)In determining whether a person is of good character to justify granting the exemption, the department shall consider that the person has been rehabilitated if any of the following apply:
(i)The person completed parole, probation, or other supervision for the conviction without a violation.
(ii)The person documents that he or she has worked in a related field for at least one year prior to the application or has successfully completed a course of training in a related field, unless the department finds a public record with an official finding that the person committed professional misconduct in the course of that work. A related field is a field of employment where the duties are substantially similar to the field regulated by the department. The person may satisfy this clause with documentation of work or a course of training performed or completed while incarcerated.
(iii)The person has satisfied criteria for rehabilitation developed by the department.
(C)(D)Notwithstanding any other provisions provision of this code, a person shall not be denied an exemption on the basis of a charge that has been dismissed following completion of a pre- or post-plea diversion program, a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 1203.42, or 1210.1 of the Penal Code or who or other similar statute, an infraction or citation, or a conviction for which he or she has obtained rehabilitative relief, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant whose charge or conviction has been dismissed or who has obtained rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(2)(A)For a foster care provider applicant or a resource family applicant, an exemption shall not be granted if that applicant, or any individual subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, has a conviction for any of the following offenses:
(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) of Section 451 of the Penal Code.
(iii)Under no circumstances shall an exemption be granted pursuant to this subdivision to any foster care provider applicant if that applicant, or any other person specified in subdivision (b) in those homes, has a felony conviction for either of the following offenses:
(I)A felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery. For purposes of this subparagraph, a crime involving violence means a violent crime specified in clause (i) of subparagraph (A), or clause (ii) of this subparagraph.
(II)A felony conviction, within the last five years, for physical assault, battery, or a drug- or alcohol-related offense.
(III)This clause does not apply to licenses or approvals wherein a caregiver was granted an exemption to a criminal conviction described in clause (i) prior to the enactment of this clause.
(IV)This clause shall remain operative only to the extent that compliance with its provisions is required by federal law as a condition for receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.).
(B)The department or other approving entity may grant an exemption from disqualification to a foster care provider, resource family applicant, or an individual subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, if the department or other approving entity has convincing evidence to support a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption and the conviction is for one of the following offenses:
(i)A misdemeanor conviction within the last five years that is not otherwise prohibited by subparagraph (A). Notwithstanding subparagraph (A), a misdemeanor conviction for statutory rape, as defined in Section 261.5 of the Penal Code, a misdemeanor conviction for indecent exposure, as defined in Section 314 of the Penal Code, or a misdemeanor conviction for financial abuse against an elder, as defined in Section 368 of the Penal Code, shall be eligible for the consideration of an exemption as set forth in subparagraph (C).
(ii)A felony conviction within the last seven years that is not otherwise prohibited by subparagraph (A).
(C)When granting an exemption for a crime listed in subparagraph (B), the department or other approving entity shall consider all reasonably available information, including, but not limited to, the following:
(i)The nature of the crime or crimes.
(ii)The period of time since the crime was committed.
(iii)The number of offenses.
(iv)Circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity.
(v)Activities since conviction, including employment, participation in therapy, education, or treatment.
(vi)Whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor.
(vii)Any character references or other evidence submitted by the applicant.
(viii)Whether the person convicted demonstrated honesty and truthfulness concerning the crime or crimes during the application and approval process and made reasonable efforts to assist the department in obtaining records and documents concerning the crime or crimes.
(D)(i)The department or other approving entity shall grant an exemption from disqualification to a foster care provider applicant, resource family applicant, or a person subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, who has been convicted of an offense not listed in subparagraph (A) or (B), if the individuals state and federal criminal history information received from the Department of Justice independently supports a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption.
(ii)Notwithstanding the fact that an individual meets the criteria described in clause (i), the department or other approving entity, at its discretion, as necessary to protect the health and safety of a child, may evaluate a person described in clause (i), for purposes of making an exemption decision, pursuant to the criteria described in subparagraphs (B) and (C).
(E)This paragraph shall not apply to licenses or approvals for which a caregiver was granted an exemption for a criminal conviction prior to January 1, 2018.
(3)The department shall not prohibit a person from being employed or having contact with clients in a facility, certified family home, or resource family home on the basis of a denied criminal record exemption request unless the department complies with the requirements of Section 1558 of this code or Section 16519.6 of the Welfare and Institutions Code, as applicable.
(h)(1)For purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), or an exemption granted pursuant to subdivision (g) from one facility to another, as long as the criminal record clearance or exemption has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be in writing to the State Department of Social Services, and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the State Department of Social Services shall verify whether the individual has a clearance or exemption that can be transferred. As long as the license is valid, the department shall not indicate to the licensee whether the transfer is of a clearance or an exemption.
(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of three years after an employee is no longer employed at a licensed facility in order for the criminal record clearance to be transferred.
(3)A criminal record clearance or exemption processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, or a county office with department-delegated licensing authority shall be accepted by the department or county upon notification of transfer.
(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code and Section 1522.1 concerning an individual whose criminal record clearance was originally processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, or a county office with department-delegated licensing authority, all of the following shall apply:
(A)The Department of Justice shall process a request from the department or a county to receive the notice only if all of the following conditions are met:
(i)The request is submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii) The request is for the same applicant type as the type for which the original clearance was obtained.
(iii)The request contains all prescribed data elements and format protocols pursuant to a written agreement between the department and the Department of Justice.
(B)(i)On or before January 7, 2005, the department shall notify the Department of Justice of all county offices that have department-delegated licensing authority.
(ii)The department shall notify the Department of Justice within 15 calendar days of the date on which a new county office receives department-delegated licensing authority or a countys delegated licensing authority is rescinded.
(C)The Department of Justice shall charge the department, a county office with department-delegated licensing authority, or a county child welfare agency with criminal record clearance and exemption authority, a fee for each time a request to substitute the recipient agency is received for purposes of this paragraph. This fee shall not exceed the cost of providing the service.
(i)The full criminal record obtained for purposes of this section may be used by the department or by a licensed adoption agency as a clearance required for adoption purposes.
(j)If a licensee or facility is required by law to deny employment or to terminate employment of an employee based on written notification from the department that the employee has a prior conviction for a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony or is determined unsuitable for employment under Section 1558, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.
(k)The State Department of Social Services may charge a fee for the costs of processing electronic fingerprint images and related information.
(l)(1)The department shall retain application forms and other documents submitted by applicants, notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.
(2)The department shall retain all of the following information:
(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.
(B)The number of applicants with a criminal record who received notice of disqualification or potential disqualification.
(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.
(D)The number of applicants with a criminal record who appealed disqualification.
(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.
(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.
(m)For purposes of this section, the following definitions apply:
(1)Directly and adversely related crime related means a crime felony or misdemeanor that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure. for which the application is made.
(2)Violent felony has the same meaning as in Section 667.5 of the Penal Code.
SEC. 2.Section 1550 of the Health and Safety Code is amended to read:1550.The department may deny an application for, or suspend or revoke, any license, or any special permit, certificate of approval, or administrator certificate, issued under this chapter upon any of the following grounds and in the manner provided in this chapter, or may deny a transfer of a license pursuant to paragraph (2) of subdivision (b) of Section 1524 for any of the following grounds:
(a)Violation of this chapter or of the rules and regulations promulgated under this chapter by the licensee or holder of a special permit or certificate.
(b)Aiding, abetting, or permitting the violation of this chapter or of the rules and regulations promulgated under this chapter.
(c)Conduct which is inimical to the health, morals, welfare, or safety of either the people of this state or an individual in, or receiving services from, the facility or certified family home. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(d)The conviction of a licensee, holder of a special permit or certificate, or other person mentioned in Section 1522, at any time before or during licensure, of a of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony, as defined in Section 1522. A denial, suspension, or revocation pursuant to this subdivision is subject to the provisions of Section 1522.
(e)The licensee of any facility, the holder of a special permit or certificate, or the person providing direct care or supervision knowingly allows any child to have illegal drugs or alcohol.
(f)Engaging in acts of financial malfeasance concerning the operation of a facility or certified family home, including, but not limited to, improper use or embezzlement of client moneys and property or fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services.
SEC. 2.SEC. 3.Section 1558 of the Health and Safety Code is amended to read:1558.(a)The department may prohibit a person from being a member of the board of directors, an executive director, or an officer of a licensee, or a licensee from employing, or continuing the employment of, or allowing in a licensed facility or certified family home, or allowing contact with clients of a licensed facility or certified family home by, any employee, prospective employee, or person who is not a client who has:
(1)Violated, or aided or permitted the violation by any other person of, any provisions of this chapter or of any rules or regulations promulgated under this chapter.
(2)Engaged in job-related In the course of fulfilling the functions or duties of the business or profession for which application is made, engaged in conduct within the preceding five years that is inimical to the health, morals, welfare, or safety of an individual in or receiving services from the facility or certified family home. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(3)Been denied an exemption to work or to be present in a facility or certified family home, when that person has been convicted of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony, as described defined in Section 1522.
(4)Engaged in any other conduct that would constitute a basis for disciplining a licensee or certified family home. home within the preceding five years. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(5)Engaged in job-related In the course of fulfilling the functions or duties of the business or profession for which application is made, engaged in acts of financial malfeasance within the preceding five years concerning the operation of a facility or certified family home, including, but not limited to, improper use or embezzlement of client moneys and property, fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(b)The excluded person, the facility or certified family home, and the licensee shall be given written notice of the basis of the departments action, of the excluded persons right to an appeal, and instructions for filing the appeal. The notice shall be served either by personal service or by registered mail. Within 30 days after the department serves the notice, the excluded person may file with the department a written appeal of the exclusion order. If the excluded person fails to file a written appeal within the prescribed time, the departments action shall be final.
(c)(1)The department may require the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility or certified family home pending a final decision of the matter, when, in the opinion of the director, the action is necessary to protect residents or clients from physical or mental abuse, abandonment, or any other substantial threat to their health or safety.
(2)If the department requires the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility or certified family home, the department shall serve an order of immediate exclusion upon the excluded person that shall notify the excluded person of the basis of the departments action and of the excluded persons right to a hearing.
(3)Within 30 days after the department serves an order of immediate exclusion, the excluded person may file a written appeal of the exclusion with the department. The departments action shall be final if the excluded person does not appeal the exclusion within the prescribed time. The department shall do the following upon receipt of a written appeal:
(A)Within 30 days of receipt of the appeal, serve an accusation upon the excluded person.
(B)Within 60 days of receipt of a notice of defense pursuant to Section 11506 of the Government Code by the excluded person to conduct a hearing on the accusation.
(4)An order of immediate exclusion of the excluded person from the facility or certified family home shall remain in effect until the hearing is completed and the director has made a final determination on the merits. However, the order of immediate exclusion shall be deemed vacated if the director fails to make a final determination on the merits within 60 days after the original hearing has been completed.
(d)An excluded person who files a written appeal with the department pursuant to this section shall, as part of the written request, provide his or her current mailing address. The excluded person shall subsequently notify the department in writing of any change in mailing address, until the hearing process has been completed or terminated.
(e)Hearings held pursuant to this section shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Division 3 of Title 2 of the Government Code. The standard of proof shall be the preponderance of the evidence and the burden of proof shall be on the department.
(f)The department may institute or continue a disciplinary proceeding against a member of the board of directors, an executive director, or an officer of a licensee or an employee, prospective employee, or person who is not a client upon any ground provided by this section. The department may enter an order prohibiting any person from being a member of the board of directors, an executive director, or an officer of a licensee or prohibiting the excluded persons employment or presence in the facility or certified family home, or otherwise take disciplinary action against the excluded person, notwithstanding any resignation, withdrawal of employment application, or change of duties by the excluded person, or any discharge, failure to hire, or reassignment of the excluded person by the licensee or that the excluded person no longer has contact with clients at the facility or certified family home.
(g)A licensees or certified family homes failure to comply with the departments exclusion order after being notified of the order shall be grounds for disciplining the licensee pursuant to Section 1550.
(h)(1)(A)When the excluded person appeals the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or from being a certified foster parent for one year, at which time the excluded person may petition for reinstatement.
(B)The excluded person may petition for reinstatement one year after the effective date of the decision and order of the department upholding the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the decision and order.
(2)(A)When the department informs the excluded person of his or her right to appeal the exclusion order and the excluded person does not appeal the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or a certified foster parent for one year, at which time the excluded person may petition for reinstatement.
(B)The excluded person may petition for reinstatement after one year has elapsed from the date of the notification of the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the exclusion order.
(i)Notwithstanding paragraph (2) of subdivision (a) or subdivision (c) of Section 1550, the department shall take reasonable action, including, but not limited to, prohibiting a person from being a member of the board of directors, an executive director, or an officer of a licensee of a licensed facility or certified family home, or denying an application for, or suspending or revoking, a license, special permit, certificate of approval, or administrator certificate, issued under this chapter, or denying a transfer of a license pursuant to paragraph (2) of subdivision (c) of Section 1524, upon a finding of a violation of subdivision (i) of Section 11166 of the Penal Code.
SEC. 4.Section 1568.082 of the Health and Safety Code is amended to read:1568.082.(a)The department may suspend or revoke any license issued under this chapter upon any of the following grounds and in the manner provided in this chapter:
(1)Violation by the licensee of this chapter or of the rules and regulations adopted pursuant to this chapter.
(2)Aiding, abetting, or permitting the violation of this chapter or of the rules and regulations adopted pursuant to this chapter.
(3)Conduct which is inimical to the health, welfare, or safety of either an individual in or receiving services from the facility or the people of the State of California. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(4)The provision of services beyond the level the facility is authorized to provide, or accepting or retaining residents who require services of a higher level than the facility is authorized to provide.
(5)Engaging in acts of financial malfeasance concerning the operation of a facility, including, but not limited to, improper use or embezzlement of client moneys and property or fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services.
(b)The director may temporarily suspend any license, prior to any hearing when, in the opinion of the director, the action is necessary to protect residents of the facility from physical or mental abuse, abandonment, or any other substantial threat to health or safety. The director shall notify the licensee of the temporary suspension and the effective date of the temporary suspension, and at the same time shall serve the provider with an accusation. Upon receipt of a notice of defense to the accusation by the licensee, the director shall, within 15 days, set the matter for hearing, and the hearing shall be held as soon as possible, but not later than 30 days after receipt of the notice. The temporary suspension shall remain in effect until the time the hearing is completed and the director has made a final determination on the merits. However, the temporary suspension shall be deemed vacated if the director fails to make a final determination on the merits within 30 days after the original hearing has been completed.
(c)In any case where the department orders the licensee to remove a resident who has a health condition or health conditions which cannot be cared for within the limits of the license or special permit or requires inpatient care in a health facility licensed pursuant to Chapter 2 (commencing with Section 1250), the licensee shall do all of the following:
(1)Prepare and submit to the department a written plan for relocation of the client or resident, in a form acceptable to the department.
(2)Comply with all terms and conditions of the approved relocation plan.
(3)Provide any other information as may be required by the department for the proper administration and enforcement of this section.
SEC. 3.SEC. 5.Section 1568.09 of the Health and Safety Code is amended to read:1568.09.(a)(1)It is the intent of the Legislature in enacting this section to require the electronic fingerprint images of those individuals whose contact with residents of residential care facilities for persons with a chronic, life-threatening illness may pose a risk to the residents health and safety.
It(2)It is the intent of the Legislature, in enacting this section, to require the electronic fingerprint images of those individuals whose contact with community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a residential care facility for persons with a chronic, life-threatening illness.
(a)(1) Before(3)The department shall obtain state and federal summary criminal history information for individuals listed in subdivision (b) before and, as applicable, subsequent to issuing a license to a person or persons to operate or manage a residential care facility, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. facility. The procedure for obtaining the criminal history information and issuing clearances and exemptions shall be the same as specified in Section 1522.
(2)The criminal history information shall include arrests for which the person is awaiting trial, convictions for a directly and adversely related crime within the preceding five years, and convictions for a violent felony, if any, of those persons, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.(3)The following shall apply to the criminal record information:(A)The State Department of Social Services may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of clearance, exemption, or licensure.(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the State Department of Social Services shall provide an applicant with a complete copy of the information received.(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the State Department of Social Services before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the State Department of Social Services in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the State Department of Social Services.(D)The State Department of Social Services shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant, or any other person specified in subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime within the preceding five years or a violent felony.(E)If the State Department of Social Services makes a final decision to deny an application solely or in part because of the applicants conviction history, the department shall notify the applicant, in writing, of all the following:(i)The final denial or disqualification.(ii)The procedure for the applicant to challenge the decision or request reconsideration.(iii)The right to appeal the decision under procedures set forth in the Government Code. (F)If the State Department of Social Services finds that the applicant or another person specified in subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the department may grant an exemption pursuant to subdivision (f).(G)If the State Department of Social Services finds that the applicant, or another person specified in subdivision (b), is awaiting trial for a crime, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.(H)If a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.(I)If the State Department of Social Services finds, after licensure, that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).(J)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the search required by this subdivision. If an applicant meets all other conditions for licensure, except receipt of the Federal Bureau of Investigations criminal history information for the applicant and persons listed in subdivision (b), the department may issue a license if the applicant and each person described by subdivision (b) has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction as defined in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, the department determines that the licensee or person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked pursuant to subdivision (a) of Section 1568.082. The department may also suspend the license pending an administrative hearing pursuant to subdivision (b) of Section 1568.082.(b)In addition to the applicant, this This section shall be applicable to criminal record clearances and exemptions for the applicant and all of the following persons:
(1)Adults responsible for administration or direct supervision of staff of the facility.
(2)A person, other than a resident, residing in the facility.
(3)A person who provides resident assistance in dressing, grooming, bathing, or personal hygiene. A nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the residential care facility for persons with a chronic, life-threatening illness. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility. This paragraph does not restrict the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed residential care facility for persons with a chronic, life-threatening illness pursuant to Section 1568.092.
(4)(A)A staff person, volunteer, or employee who has contact with the residents.
(B)A volunteer shall be exempt from the requirements of this subdivision if he or she is a relative, significant other, or close friend of a client receiving care in the facility and the volunteer does not provide direct care and supervision of residents. A volunteer who provides direct care and supervision shall be exempt if the volunteer is a residents spouse, significant other, close friend, or family member and provides direct care and supervision to that resident only at the request of the resident. The department may define in regulations persons similar to those described in this subparagraph who may be exempt from the requirements of this subdivision.
(5)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in that capacity.
(6)Additional officers of the governing body of the applicant, or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the persons capability to exercise substantial influence over the operation of the facility.
(c)(1)(A)Subsequent to initial licensure, a person specified in subdivision (b) and not exempted from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification, pursuant to subdivision (f), from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be fingerprinted. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or to comply with paragraph (1) of subdivision (g), prior to the persons employment, residence, or initial presence in the residential care facility.(B)These fingerprint images and related information shall be electronically submitted to the Department of Justice in a manner approved by the State Department of Social Services and the Department of Justice, for the purpose of obtaining a permanent set of fingerprints. A licensees failure to submit fingerprint images and related information to the Department of Justice, or to comply with paragraph (1) of subdivision (g), as required in this section, shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1568.082. The State Department of Social Services may assess civil penalties for continued violations as allowed in Section 1568.0822. The fingerprint images and related information shall then be submitted to the Department of Justice for processing. The licensee shall maintain and make available for inspection documentation of the individuals clearance or exemption.(2)A violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1568.082. The department may assess civil penalties for continued violations as permitted by Section 1568.0822.(3)Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided for in this subdivision. If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprint images, notify the licensee that the fingerprint images were illegible. The Department of Justice shall notify the department, as required by Section 1522.04, and shall notify the licensee by mail within 14 days of electronic transmission of the fingerprint images to the Department of Justice, if the person has no criminal history record.(4)Except for persons specified in paragraph (2) of subdivision (b), the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted under this subdivision. If it is determined by the State Department of Social Services, on the basis of the fingerprint images submitted to the Department of Justice, that the person has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the licensee shall, upon notification by the department, act immediately to remove the person from the residential care facility or bar the person from entering the residential care facility, pending an appeal, and to seek an exemption pursuant to subdivision (f). The department shall determine, within five business days of receiving notice of the application for an exemption, if the person shall be allowed to remain in the facility until a decision on the exemption is rendered. A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties by the department against the licensee, in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1568.082.(5)The department may issue an exemption on its own motion pursuant to subdivision (f) if the persons criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions, or evidence of rehabilitation. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption pursuant to this paragraph.(6)Concurrently with notifying the licensee pursuant to paragraph (4), the department shall notify the affected individual of his or her right to seek an exemption pursuant to subdivision (f). The individual may seek an exemption only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (4).(7)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.(d)(1)For purposes of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction does not include successful completion of a post- or pre-plea diversion program, successful completion of a post- or pre-plea deferred entry of judgment program, dismissal of a conviction pursuant to Sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An action that the department is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of the sentence. For purposes of this chapter, the state summary criminal history report certified by the Department of Justice, or documents admissible in a criminal action pursuant to Section 969b of the Penal Code, shall be prima facie evidence of the conviction, notwithstanding any other law prohibiting the admission of these documents in a civil or administrative action.(2)For purposes of this chapter, the department shall consider convictions from another state or federal court of a directly and adversely related crime or a crime that would, if committed in this state, be a violent felony, as if the criminal offense was committed in this state.(e)(1)The State Department of Social Services shall not use a record of arrest that is not pending or not job related to revoke or terminate an application, license, employment, or residence unless the department investigates the incident and secures evidence, related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client. (2)The State Department of Social Services may obtain relevant arrest or conviction records or reports from a law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and individuals associated with a community care facility.(f)(1)(A)After review of the record, the director may grant an exemption from disqualification for a license as specified in subdivision (a), or for employment, residence, or presence in a residential care facility as specified in paragraphs (4), (5), and (6) of subdivision (c) if the director has convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of such good character as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). An exemption may be denied pursuant to this subdivision if the conviction was for a directly and adversely related crime within the preceding five years or a violent felony.(B)The department shall not bar an applicant based solely on the type of conviction without considering evidence of rehabilitation.(C)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.(2)The department shall not prohibit a person from being employed or having contact with clients in a facility on the basis of a denied criminal record exemption request unless the department complies with Section 1568.092.(g)(1)For purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one facility to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be in writing to the department, and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed stamped envelope for this purpose, the department shall verify whether the individual has a clearance that can be transferred.(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of three years after an employee is no longer employed at a licensed facility in order for the criminal record clearance to be transferred.(h)If a licensee or facility is required by law to deny employment or to terminate employment of an employee based on written notification from the department that the employee has a prior conviction for a directly and adversely related crime within the preceding five years or a violent felony, or is determined unsuitable for employment under Section 1568.092, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.(i)(1)The Department of Justice shall charge a fee sufficient to cover its cost in providing services to comply with the 14-day requirement contained in subdivision (c) for provision to the department of criminal record information.(2)Paragraph (1) shall cease to be implemented when the department adopts emergency regulations pursuant to Section 1522.04, and shall become inoperative when permanent regulations are adopted under that section.(j)(1)The department shall retain application forms and other documents submitted by applicants, notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.(2)The department shall retain all of the following information:(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.(B)The number of applicants with a criminal record who received notice of disqualification or potential disqualification.(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.(D)The number of applicants with a criminal record who appealed disqualification.(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.(k)For purposes of this section, the following definitions apply:(1)Directly and adversely related crime means a crime that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure.(2)Violent felony has the same meaning as in Section 667.5 of the Penal Code.SEC. 4.SEC. 6.Section 1568.092 of the Health and Safety Code is amended to read:1568.092.(a)The department may prohibit a person from being a member of the board of directors, an executive director, or an officer of a licensee or a licensee from employing, or continuing the employment of, or allowing in a licensed facility, or allowing contact with clients of a licensed facility by, an employee, prospective employee, or person who is not a client who has:
(1)Violated, aided, or permitted the violation by any other person of this chapter or of any rules or regulations adopted under this chapter.
(2)Engaged in job related In the course of fulfilling the functions or duties of the business or profession for which application is made, engaged in conduct within the preceding five years that is inimical to the health, welfare, or safety of an individual in, or receiving services from, the facility. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(3)Been denied an exemption to work or to be present in a facility, when that person has been convicted of a crime, as described in Section 1568.09. 1522.
(4)Engaged in any other conduct that would constitute a basis for disciplining a licensee. licensee within the preceding five years. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(5)Engaged in job-related In the course of fulfilling the functions or duties of the business or profession for which application is made, engaged in acts of financial malfeasance within the preceding five years concerning the operation of a facility, including, but not limited to, improper use or embezzlement of client moneys and property, fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(b)The excluded person, the facility, and the licensee shall be given written notice of the basis of the action of the department, the right to an appeal, and instructions for filing an appeal. The notice shall be served either by personal service or by registered mail. Within 30 days after the department serves the notice, the excluded person may file with the department a written appeal of the exclusion order. If the excluded person fails to file a written appeal within the prescribed time, the action of the department shall be final.
(c)(1)The department may require the immediate removal of an executive director, a board member, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility pending a final decision of the matter when, in the opinion of the director, the action is necessary to protect residents or clients from physical or mental abuse, abandonment, or any other substantial threat to their health or safety.
(2)If the department requires the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility, the department shall serve an order of immediate exclusion upon the excluded person that shall notify the excluded person of the basis of the departments action and of the excluded persons right to a hearing.
(3)Within 30 days after the department serves an order of immediate exclusion, the excluded person may file a written appeal of the exclusion with the department. The departments action shall be final if the excluded person does not appeal the exclusion within the prescribed time. The department shall do the following upon receipt of a written appeal:
(A)Within 30 days of receipt of the appeal, serve an accusation upon the excluded person.
(B)Within 60 days of receipt of a notice of defense by the excluded person pursuant to Section 11506 of the Government Code, conduct a hearing on the accusation.
(4)An order of immediate exclusion from the facility shall remain in effect until the hearing is completed and the department has made a final determination on the merits. However, the order of immediate exclusion shall be deemed vacated if the department fails to make a final determination on the merits within 60 days after the original hearing has been completed.
(d)An excluded person who files a written appeal of the exclusion order with the department pursuant to this section shall, as part of the written request, provide his or her current mailing address. The excluded person shall subsequently notify the department in writing of any change in mailing address, until the hearing process has been completed or terminated.
(e)Hearings held pursuant to this section shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Division 3 of Title 2 of the Government Code. The standard of proof shall be the preponderance of the evidence and the burden of proof shall be on the department.
(f)The department may institute or continue a disciplinary proceeding against a member of the board of directors, an executive director, or an officer of a licensee or an employee, prospective employee, or person who is not a client upon any ground provided by this section. The department may enter an order prohibiting a person from being a member of the board of directors, an executive director, or an officer of a licensee or prohibiting the excluded persons employment or presence in the facility, or otherwise take disciplinary action against the excluded person, notwithstanding any resignation, withdrawal of employment application, or change of duties by the excluded person, or any discharge, failure to hire, or reassignment of the excluded person by the licensee or that the excluded person no longer has contact with clients at the facility.
(g)A licensees failure to comply with the departments exclusion order after being notified of the order shall be grounds for disciplining the licensee pursuant to Section 1568.082.
(h)(1)(A)When the excluded person appeals the exclusion order and there is a decision and order of the department upholding the exclusion order, the person shall be prohibited from working in a facility or being licensed to operate a facility licensed by the department or from being a certified foster parent or resource family for one year, at which time the person may petition for reinstatement.
(B)The excluded person may petition for reinstatement one year after the effective date of the decision and order of the department upholding the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the decision and order.
(2)(A)When the department informs the excluded person of his or her right to appeal the exclusion order and the excluded person does not appeal the exclusion order, the person shall be prohibited from working in a facility or being licensed to operate a facility licensed by the department or a certified foster parent or resource family for one year, at which time the person may petition for reinstatement.
(B)The excluded person may petition for reinstatement after one year has elapsed from the date of the notification of the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the exclusion order.
SEC. 5.SEC. 7.Section 1569.17 of the Health and Safety Code is amended to read:1569.17.(a)(1)The Legislature recognizes the need to generate timely and accurate positive fingerprint identification of applicants as a condition of issuing licenses, permits, or certificates of approval for persons to operate or provide direct care services in a residential care facility for the elderly. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with clients of residential care facilities for the elderly may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a residential care facility for the elderly.
(a)(1)Before(2)The department shall obtain state and federal summary criminal history information for individuals listed in subdivision (b) before and, as applicable, subsequent to issuing a license to any person or persons to operate or manage a residential care facility for the elderly, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or exemption for a person who was convicted of a directly and adversely related crime within the preceding five years or a violent felony. elderly. The procedure for obtaining the criminal history information and issuing clearances and exemptions shall be the same as specified in Section 1522.
(2)The criminal history information shall include the arrests for which the person is awaiting trial, convictions of directly and adversely related crimes, and convictions of a violent felony, if any, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.(3)The following shall apply to the criminal record information:(A)The State Department of Social Services may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of clearance, exemption, or licensure.(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the State Department of Social Services shall provide an applicant with a complete copy of the information received.(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the State Department of Social Services before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the State Department of Social Services in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the State Department of Social Services.(D)The State Department of Social Services shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant, or any other person specified in subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime that occurred within the preceding five years or of a violent felony.(E)If the State Department of Social Services makes a final decision to deny an application solely or in part because of the applicants conviction history, the department shall notify the applicant, in writing, of all the following:(i)The final denial or disqualification.(ii)The procedure for the applicant to challenge the decision or request reconsideration.(iii)The right to appeal the decision under procedures set forth in the Government Code. (F)If the State Department of Social Services finds that the applicant or any other person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the department may grant an exemption pursuant to subdivision (f).(G)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), is awaiting trial for a crime, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.(H)If a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.(I)If the State Department of Social Services finds, after licensure, that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).(J)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the search required by subdivision (a). If an applicant meets all other conditions for licensure, except receipt of the Federal Bureau of Investigations criminal history information for the applicant and persons listed in subdivision (b), the department may issue a license if the applicant and each person described by subdivision (b) has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction as defined in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, the department determines that the licensee or person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked pursuant to Section 1569.50. The department may also suspend the license pending an administrative hearing pursuant to Sections 1569.50 and 1569.51.(b)In addition to the applicant, the provisions of this This section shall apply to criminal record clearances and exemptions for the applicant and all of the following persons:
(1)(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility. Residents of unlicensed independent senior housing facilities that are located in contiguous buildings on the same property as a residential care facility for the elderly shall be exempt from these requirements.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the residential care facility for the elderly. The facility shall maintain the copy of the certification on file as long as the care is being provided by the certified nurse assistant or certified home health aide at the facility. This paragraph does not restrict the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed residential care facility for the elderly pursuant to Section 1569.58.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in a similar capacity.
(F)Additional officers of the governing body of the applicant or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from requirements applicable under paragraph (1):
(A)A spouse, relative, significant other, or close friend of a client shall be exempt if this person is visiting the client or provides direct care and supervision to that client only.
(B)A volunteer to whom all of the following apply:
(i)The volunteer is at the facility during normal waking hours.
(ii)The volunteer is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(iii)The volunteer spends no more than 16 hours per week at the facility.
(iv)The volunteer does not provide clients with assistance in dressing, grooming, bathing, or personal hygiene.
(v)The volunteer is not left alone with clients in care.
(C)A third-party contractor retained by the facility if the contractor is not left alone with clients in care.
(D)A third-party contractor or other business professional retained by a client and at the facility at the request or by permission of that client. These individuals shall not be left alone with other clients.
(E)Licensed or certified medical professionals are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(F)Employees of licensed home health agencies and members of licensed hospice interdisciplinary teams who have contact with a resident of a residential care facility at the request of the resident or residents legal decisionmaker are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(G)Clergy and other spiritual caregivers who are performing services in common areas of the residential care facility, or who are advising an individual resident at the request of, or with permission of, the resident, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(H)Any person similar to those described in this subdivision, as defined by the department in regulations.
(I)This paragraph does not prevent a licensee from requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.
(c)(1)(A)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempted from fingerprinting shall obtain either a criminal record clearance or an exemption, pursuant to subdivision (f), from the State Department of Social Services prior to employment, residence, or initial presence in a facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be fingerprinted. The licensee shall submit these fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or to comply with paragraph (1) of subdivision (g) prior to the persons employment, residence, or initial presence in the residential care facility for the elderly.(B)These fingerprint images and related information shall be electronically transmitted in a manner approved by the State Department of Social Services and the Department of Justice. A licensees failure to submit fingerprint images and related information to the Department of Justice, or to comply with paragraph (1) of subdivision (g), as required in this section, shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1569.50. The State Department of Social Services may assess civil penalties for continued violations as permitted by Section 1569.49. The licensee shall then submit these fingerprint images to the State Department of Social Services for processing. Documentation of the individuals clearance or exemption shall be maintained by the licensee and be available for inspection. The Department of Justice shall notify the department, as required by Section 1522.04, and notify the licensee by mail within 14 days of electronic transmission of the fingerprints to the Department of Justice, if the person has no criminal record. A violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1569.50. The department may assess civil penalties for continued violations as permitted by Section 1569.49.(2)Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided for in this subdivision. If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprint images, notify the licensee that the fingerprint images were illegible.(3)Except for persons specified in paragraph (2) of subdivision (b), the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted under this subdivision. If the State Department of Social Services determines, on the basis of the fingerprint images submitted to the Department of Justice, that the person has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the State Department of Social Services shall notify the licensee in writing within 15 calendar days of the receipt of the notification from the Department of Justice to act immediately to remove the person from the residential care facility for the elderly or bar the person from entering the residential care facility for the elderly and to seek an exemption pursuant to subdivision (f). The department shall determine, within five business days of receiving the notice of application for exemption, if the person shall be allowed to remain in the facility until a decision on the exemption is rendered by the department. A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties by the department against the licensee, in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1569.50.(4)The department may issue an exemption on its own motion pursuant to subdivision (f) if the persons criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions, or evidence of rehabilitation. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption pursuant to this paragraph.(5)Concurrently with notifying the licensee pursuant to paragraph (4), the department shall notify the affected individual of his or her right to seek an exemption pursuant to subdivision (f). The individual may seek an exemption only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (4).(6)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected on the report furnished by the Department of Justice.(d)(1)For purposes of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction does not include successful completion of a post- or pre-plea diversion program, successful completion of a post- or pre-plea deferred entry of judgment program, dismissal of a conviction pursuant to Sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. Any action that the department is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of the sentence. For purposes of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction. For purposes of this chapter, the state summary criminal history report certified by the Department of Justice or documents admissible in a criminal action pursuant to Section 969b of the Penal Code shall be prima facie evidence of the conviction, notwithstanding any other law prohibiting the admission of these documents in a civil or administrative action.(2)For purposes of this chapter, the department shall consider criminal convictions from another state or federal court for a directly and adversely related crime or a crime that would, if committed in this state, be a violent felony, as if the criminal offense was committed in this state.(e)(1)The State Department of Social Services shall not use a record of arrest that is not pending and is not job related to revoke or terminate an application, license, employment, or residence unless the department investigates the incident and secures evidence, related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client. (2)The State Department of Social Services may obtain relevant arrest or conviction records or reports from any law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and individuals associated with a community care facility.(f)(1)(A)After review of the record, the director may grant an exemption from disqualification for a license as specified in subdivision (a), or for employment, residence, or presence in a residential care facility for the elderly as specified in paragraphs (4), (5), and (6) of subdivision (c) if the director has convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of such good character as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). An exemption may be granted pursuant to this subdivision if the conviction was for a directly and adversely related crime within the preceding five years or a violent felony.(B)The department shall not bar an applicant based solely on the type of conviction without considering evidence of rehabilitation.(C)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.(2)The director shall notify in writing the licensee or the applicant of his or her decision within 60 days of receipt of all information from the applicant and other sources determined necessary by the director for the rendering of a decision pursuant to this subdivision.(3)The department shall not prohibit a person from being employed or having contact with clients in a facility on the basis of a denied criminal record exemption request unless the department complies with the requirements of Section 1569.58.(g)(1)For purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one facility to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be submitted in writing to the department, and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed stamped envelope for this purpose, the department shall verify whether the individual has a clearance that can be transferred.(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of three years after an employee is no longer employed at a licensed facility in order for the criminal record clearances to be transferred under this section.(h)If a licensee or facility is required by law to deny employment or to terminate employment of an employee based on written notification from the department that the employee has a prior conviction for a directly and adversely related crime within the preceding five years or a violent felony, or is determined unsuitable for employment under Section 1569.58, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.(i)(1)The department shall retain application forms and other documents submitted by applicants, notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.(2)The department shall retain all of the following information:(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.(B)The number of applicants with a criminal record who received notice of disqualification or potential disqualification.(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.(D)The number of applicants with a criminal record who appealed disqualification.(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.(j)For purposes of this section, the following definitions apply:(1)Directly and adversely related crime means a crime that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure.(2)Violent felony has the same meaning as in Section 667.5 of the Penal Code.SEC. 8.Section 1569.50 of the Health and Safety Code is amended to read:1569.50.(a)The department may deny an application for a license or may suspend or revoke a license issued under this chapter upon any of the following grounds and in the manner provided in this chapter:
(1)Violation by the licensee of this chapter or of the rules and regulations adopted under this chapter.
(2)Aiding, abetting, or permitting the violation of this chapter or of the rules and regulations adopted under this chapter.
(3)Conduct that is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility or the people of the State of California. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(4)The conviction of a licensee, or other person mentioned in Section 1569.17 at any time before or during licensure, 1569.17, of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony, as defined in Section 1569.17. 1522. A denial, suspension, or revocation pursuant to this paragraph is subject to the provisions of Section 1522.
(5)Engaging in acts of financial malfeasance concerning the operation of a facility, including, but not limited to, improper use or embezzlement of client moneys and property or fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services for the care of clients.
(b)The remedies provided in this section may be applied if the department finds that any employee, administrator, partner, officer, director, member, or manager of the applicant or licensee, any a person who controls, as defined in Section 1569.2, the licensee, or any a person who holds a beneficial ownership interest of 10 percent or more in the applicant or licensee has engaged in the conduct described in subdivision (a) related to any a facility licensed pursuant to Chapter 1 (commencing with Section 1200), Chapter 2 (commencing with Section 1250), or Chapter 3 (commencing with Section 1500), or a similarly licensed facility in California or any other state.
(c)The director may temporarily suspend a license, prior to a hearing when, in the opinion of the director, the action is necessary to protect residents or clients of the facility from physical or mental abuse, abandonment, or any other substantial threat to health or safety. The director shall notify the licensee of the temporary suspension and the effective date of the temporary suspension and at the same time shall serve the provider with an accusation. Upon receipt of a notice of defense to the accusation by the licensee, the director shall, within 15 days, set the matter for hearing, and the hearing shall be held as soon as possible but not later than 30 days after receipt of the notice. The temporary suspension shall remain in effect until the time the hearing is completed and the director has made a final determination on the merits. However, the temporary suspension shall be deemed vacated if the director fails to make a final determination on the merits within 30 days after the original hearing has been completed.
(d)A licensee who abandons the facility and the residents in care resulting in an immediate and substantial threat to the health and safety of the abandoned residents, in addition to revocation of the license pursuant to this section, shall be excluded from licensure in facilities licensed by the department without the right to petition for reinstatement.
SEC. 9.Section 1569.58 of the Health and Safety Code is amended to read:1569.58.(a)The department may prohibit any person from being a licensee, owning a beneficial ownership interest of 10 percent or more in a licensed facility, or being an administrator, officer, director, member, or manager of a licensee or entity controlling a licensee, and may further prohibit any licensee from employing, or continuing the employment of, or allowing in a licensed facility, or allowing contact with clients of a licensed facility by, any employee, prospective employee, or person who is not a client and who has done any of the following:
(1)Violated, or aided or permitted the violation by any other person of, any provisions of this chapter or of any rules or regulations promulgated under this chapter.
(2)Engaged in In the course of fulfilling the functions or duties of the business or profession for which the application is made, engaged in conduct within the preceding five years that is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility, or the people of the State of California. facility. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(3)Been denied an exemption to work or to be present in a facility, when that person has been convicted of a crime directly and adversely related crime within the preceding five years or a directly and adversely related violent felony, as defined in Section 1569.17. 1522.
(4)Engaged in any other conduct that would constitute a basis for disciplining a licensee. licensee within the preceding five years. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(5)Engaged in In the course of fulfilling the functions or duties of the business or profession for which the application is made, engaged in acts of financial malfeasance within the preceding five years concerning the operation of a facility, including, but not limited to, improper use or embezzlement of client moneys and property or fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services for the care of clients. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(b)The excluded person, the facility, and the licensee shall be given written notice of the basis of the departments action and action, of the excluded persons right to an appeal. appeal, and instructions for filing the appeal. The notice shall be served either by personal service or by registered mail. Within 15 30 days after the department serves the notice, the excluded person may file with the department a written appeal of the exclusion order. If the excluded person fails to file a written appeal within the prescribed time, the departments action shall be final.
(c)(1)The department may require the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility pending a final decision of the matter, when, in the opinion of the department, the action is necessary to protect residents or clients from physical or mental abuse, abandonment, or any other substantial threat to their health or safety.
(2)If the department requires the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility the department shall serve an order of immediate exclusion upon the excluded person that shall notify the excluded person of the basis of the departments action and of the excluded persons right to a hearing.
(3)Within 15 30 days after the department serves an order of immediate exclusion, the excluded person may file a written appeal of the exclusion with the department. The departments action shall be final if the excluded person does not appeal the exclusion within the prescribed time. The department shall do the following upon receipt of a written appeal:
(A)Within 30 days of receipt of the appeal, serve an accusation upon the excluded person.
(B)Within 60 days of receipt of a notice of defense by the excluded person pursuant to Section 11506 of the Government Code, conduct a hearing on the accusation.
(4)An order of immediate exclusion of the excluded person from the facility shall remain in effect until the hearing is completed and the department has made a final determination on the merits. However, the order of immediate exclusion shall be deemed vacated if the department fails to make a final determination on the merits within 60 days after the original hearing has been completed.
(d)An excluded person who files a written appeal of the exclusion order with the department pursuant to this section shall, as part of the written request, provide his or her current mailing address. The excluded person shall subsequently notify the department in writing of any change in mailing address, until the hearing process has been completed or terminated.
(e)Hearings held pursuant to this section shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Division 3 of Title 2 of the Government Code. The standard of proof shall be the preponderance of the evidence and the burden of proof shall be on the department.
(f)The department may institute or continue a disciplinary proceeding against a member of the board of directors, an executive director, or an officer of a licensee or an employee, prospective employee, or person who is not a client upon any ground provided by this section. The department may enter an order prohibiting any person from being a member of the board of directors, an executive director, or an officer of a licensee, or prohibiting the excluded persons employment or presence in the facility, or otherwise take disciplinary action against the excluded person, notwithstanding any resignation, withdrawal of employment application, or change of duties by the excluded person, or any discharge, failure to hire, or reassignment of the excluded person by the licensee or that the excluded person no longer has contact with clients at the facility.
(g)A licensees failure to comply with the departments exclusion order after being notified of the order shall be grounds for disciplining the licensee pursuant to Section 1569.50.
(h)(1)(A)In cases in which When the excluded person appealed appeals the exclusion order and there is a decision and order of the department upholding the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or from being a certified foster parent or resource family for the remainder of the excluded persons life, unless otherwise ordered by the department. one year, at which time the excluded person may petition for reinstatement.
(B)The excluded individual person may petition for reinstatement one year after the effective date of the decision and order of the department upholding the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the decision and order.
(2)(A)In cases in which When the department informed the excluded person of his or her right to appeal the exclusion order and the excluded person did not appeal the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or a certified foster parent or resource family for the remainder of the excluded persons life, unless otherwise ordered by the department. one year, at which time the excluded person may petition for reinstatement.
(B)The excluded individual person may petition for reinstatement after one year has elapsed from the date of the notification of the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the exclusion order.
SEC. 6.SEC. 10.Section 1596.871 of the Health and Safety Code is amended to read:1596.871.(a)(1)The Legislature recognizes the need to generate timely and accurate positive fingerprint identification of applicants as a condition of issuing licenses, permits, or certificates of approval for persons to operate or provide direct care services in a child care center or family child care home. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with child day care facility clients may pose a risk to the childrens health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a child day care facility.
(a)(1)Before(2)The department shall obtain state and federal summary criminal history information for individuals listed in subdivision (b) before and, as applicable, subsequent to issuing a license or special permit to a person to operate or manage a day care facility, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who was convicted of a directly and adversely related crime within the preceding five years or a violent felony. facility. The procedure for obtaining the criminal history information and issuing clearances and exemptions shall be the same as specified in Section 1522.
(2)The criminal history information shall include arrests for which the person is awaiting trial, convictions of directly and adversely related crimes within the preceding five years, and convictions for a violent felony, if any, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.(3)Except during the 200304 to the 201819 fiscal years, inclusive, neither the Department of Justice nor the department may charge a fee for the fingerprinting of an applicant who will serve six or fewer children or any family day care applicant for a license, or for obtaining a criminal record of an applicant pursuant to this section.(4)The following shall apply to the criminal record information:(A)The State Department of Social Services may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of clearance, exemption, or licensure.(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the State Department of Social Services shall provide an applicant with a complete copy of the information received.(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the State Department of Social Services before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the State Department of Social Services in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the State Department of Social Services.(D)The State Department of Social Services shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant, or any other person specified in subdivision (b), has been convicted of a directly and adversely related crime with the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime within the preceding five years or a violent felony.(E)If the State Department of Social Services makes a final decision to deny an application solely or in part because of the applicants conviction history, the department shall notify the applicant, in writing, of all the following:(i)The final denial or disqualification.(ii)The procedure for the applicant to challenge the decision or request reconsideration.(iii)The right to appeal the decision under procedures set forth in the Government Code. (F)If the State Department of Social Services finds that the applicant or any other person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the department may grant an exemption pursuant to subdivision (f).(G)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), is awaiting trial for a crime, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.(H)If a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.(I)If the State Department of Social Services finds after licensure that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).(J)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the search required by subdivision (a). If an applicant meets all other conditions for licensure, except receipt of the Federal Bureau of Investigations criminal history information for the applicant and persons listed in subdivision (b), the department may issue a license if the applicant and each person described by subdivision (b) has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction as defined in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, the department determines that the licensee or person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked pursuant to Section 1596.885. The department may also suspend the license pending an administrative hearing pursuant to Section 1596.886.(b)(1)In addition to the applicant, this This section shall be applicable apply to criminal record clearances and exemptions for the applicant and all of the following persons:
(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a child, residing in the facility.
(C)Any person who provides care and supervision to the children.
(D)Any staff person, volunteer, or employee who has contact with the children.
(i)A volunteer providing time-limited specialized services shall be exempt from the requirements of this subdivision if this person is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption, the volunteer spends no more than 16 hours per week at the facility, and the volunteer is not left alone with children in care.
(ii)A student enrolled or participating at an accredited educational institution shall be exempt from the requirements of this subdivision if the student is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption, the facility has an agreement with the educational institution concerning the placement of the student, the student spends no more than 16 hours per week at the facility, and the student is not left alone with children in care.
(iii)A volunteer who is a relative, legal guardian, or foster parent of a client in the facility shall be exempt from the requirements of this subdivision.
(iv)A contracted repair person retained by the facility, if not left alone with children in care, shall be exempt from the requirements of this subdivision.
(v)Any person similar to those described in this subdivision, as defined by the department in regulations.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer, other person serving in like capacity, or a person designated by the chief executive officer as responsible for the operation of the facility, as designated by the applicant agency.
(F)If the applicant is a local educational agency, the president of the governing board, the school district superintendent, or a person designated to administer the operation of the facility, as designated by the local educational agency.
(G)Additional officers of the governing body of the applicant, or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the persons capability to exercise substantial influence over the operation of the facility.
(H)This section does not apply to employees of child care and development programs under contract with the State Department of Education who have completed a criminal record clearance as part of an application to the Commission on Teacher Credentialing, and who possess a current credential or permit issued by the commission, including employees of child care and development programs that serve both children subsidized under, and children not subsidized under, a State Department of Education contract. The Commission on Teacher Credentialing shall notify the department upon revocation of a current credential or permit issued to an employee of a child care and development program under contract with the State Department of Education.
(I)This section does not apply to employees of a child care and development program operated by a school district, county office of education, or community college district under contract with the State Department of Education who have completed a criminal record clearance as a condition of employment. The school district, county office of education, or community college district upon receiving information that the status of an employees criminal record clearance has changed shall submit that information to the department.
(2)This subdivision does not prevent a licensee from requiring a criminal record clearance of an individual exempt from the requirements under this subdivision.
(c)(1)(A)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempt from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification, pursuant to subdivision (f), from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be fingerprinted. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, or comply with paragraph (1) of subdivision (h), prior to the persons employment, residence, or initial presence in the child day care facility.(B)These fingerprint images and related information shall be electronically submitted to the Department of Justice in a manner approved by the State Department of Social Services and the Department of Justice for the purpose of obtaining a permanent set of fingerprints. A licensees failure to submit fingerprint images and related information to the Department of Justice or to comply with paragraph (1) of subdivision (h), as required in this section, shall result in the citation of a deficiency, and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1596.885 or 1596.886. The State Department of Social Services may assess civil penalties for repeated or continued violations permitted by Sections 1596.99 and 1597.58. The fingerprint images and related information shall then be submitted to the department for processing. Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided in this subdivision. If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprint images, notify the licensee that the fingerprints were illegible.(C)Documentation of the individuals clearance or exemption shall be maintained by the licensee, and shall be available for inspection. When live-scan technology is operational, as defined in Section 1522.04, the Department of Justice shall notify the department, as required by that section, and notify the licensee by mail within 14 days of electronic transmission of the fingerprints to the Department of Justice, if the person has no criminal record. Any violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1596.885 or 1596.886. The department may assess civil penalties for repeated or continued violations, as permitted by Sections 1596.99 and 1597.58.(2)Except for persons specified in paragraph (2) of subdivision (b), the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted under this subdivision. If it is determined by the department, on the basis of fingerprints submitted to the Department of Justice, that the person has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the State Department of Social Services shall notify the licensee to act immediately to remove the person from the child day care facility or bar the person from entering the child day care facility, pending an appeal, and to seek an exemption pursuant to subdivision (f). The department shall determine, within five business days of receiving notice of the application for exemption, if the person shall be allowed to remain in the facility until a decision on the exemption is rendered. A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties by the department against the licensee, in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1596.885 or 1596.886.(3)The department may issue an exemption on its own motion pursuant to subdivision (f) if the persons criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions, or evidence of rehabilitation. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption pursuant to this paragraph.(4)Concurrently with notifying the licensee pursuant to paragraph (3), the department shall notify the affected individual of his or her right to seek an exemption pursuant to subdivision (f). The individual may seek an exemption only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (3).(5)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.(d)(1)For purposes of this section or any other provision of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction does not include successful completion of a post- or pre-plea diversion program, successful completion of a post- or pre-plea deferred entry of judgment program, dismissal of a conviction pursuant to Sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. Any action that the department is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence. For purposes of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction. For purposes of this chapter, the state summary criminal history report certified by the Department of Justice, or documents admissible in a criminal action pursuant to Section 969b of the Penal Code, shall be prima facie evidence of conviction, notwithstanding any other law prohibiting the admission of these documents in a civil or administrative action.(2)For purposes of this chapter, the department shall consider convictions from another state or federal court for a directly and adversely related crime or a crime that would, if committed in this state, be a violent felony, as if the criminal offense was committed in this state.(e)(1)The State Department of Social Services shall not use a record of arrest that is not pending and not job related to revoke or terminate an application, license, employment, or residence unless the department investigates the incident and secures evidence, related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client.(2)The State Department of Social Services may obtain relevant arrest or conviction records or reports from any law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and individuals associated with a community care facility.(f)(1)(A)After review of the record, the director may grant an exemption from disqualification for a license or special permit as specified in paragraphs (1) and (4) of subdivision (a), or for employment, residence, or presence in a child day care facility as specified in paragraphs (3), (4), and (5) of subdivision (c) if the director has convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of good character so as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). An exemption may be granted pursuant to this subdivision if the conviction was for a directly and adversely related crime that occurred within the preceding five years or a violent felony.(B)The department shall not bar an applicant based solely on the type of conviction without considering evidence of rehabilitation.(C)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.(2)The department shall not prohibit a person from being employed or having contact with clients in a facility on the basis of a denied criminal record exemption request unless the department complies with the requirements of Section 1596.8897.(g)Upon request of the licensee, who shall enclose a self-addressed stamped envelope for this purpose, the Department of Justice shall verify receipt of the fingerprint images.(h)(1)For the purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one facility to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be in writing to the department, and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed stamped envelope for this purpose, the department shall verify whether the individual has a clearance that can be transferred.(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of three years after an employee is no longer employed at a licensed facility in order for the criminal record clearances to be transferred.(3)The following shall apply to a criminal record clearance or exemption from the department or a county office with department-delegated licensing authority:(A)A county office with department-delegated licensing authority shall accept a clearance or exemption from the department.(B)The department shall accept a clearance or exemption from any county office with department-delegated licensing authority.(C)A county office with department-delegated licensing authority shall accept a clearance or exemption from any other county office with department-delegated licensing authority.(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code concerning an individual whose criminal record clearance was originally processed by the department or a county office with department-delegated licensing authority, all of the following shall apply:(A)The Department of Justice shall process a request from the department or a county office with department-delegated licensing authority to receive the notice, only if all of the following conditions are met:(i)The request is submitted to the Department of Justice by the agency to be substituted to receive the notification.(ii)The request is for the same applicant type as the type for which the original clearance was obtained.(iii)The request contains all prescribed data elements and format protocols pursuant to a written agreement between the department and the Department of Justice.(B)(i)On or before January 7, 2005, the department shall notify the Department of Justice of all county offices that have department-delegated licensing authority.(ii)The department shall notify the Department of Justice within 15 calendar days of the date on which a new county office receives department-delegated licensing authority or a countys delegated licensing authority is rescinded.(C)The Department of Justice shall charge the department or a county office with department-delegated licensing authority a fee for each time a request to substitute the recipient agency is received for purposes of this paragraph. This fee shall not exceed the cost of providing the service.(i)(1)The department shall retain application forms and other documents submitted by applicants, notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.(2)The department shall retain all of the following information:(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.(B)The number of applicants with a criminal record who received notice of disqualification or potential disqualification.(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.(D)The number of applicants with a criminal record who appealed disqualification.(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.(j)For purposes of this section, the following definitions apply:(1)Directly and adversely related crime means a crime that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure.(2)Violent felony has the same meaning as in Section 667.5 of the Penal Code.SEC. 11.Section 1596.885 of the Health and Safety Code is amended to read:1596.885.The department may deny an application for or suspend or revoke any a license, registration, or special permit issued under this act upon any of the following grounds and in the manner provided in this act:
(a)Violation by the licensee, registrant, or holder of a special permit of this act or of the rules and regulations promulgated under this act.
(b)Aiding, abetting, or permitting the violating of this act or of the rules and regulations promulgated under this act.
(c)Conduct which that is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility or the people of this state. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(d)The conviction of a licensee, or other person specified in Section 1596.871, at any time before or during licensure, of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony, as defined in Section 1596.871. 1522. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(e)Engaging in acts of financial malfeasance concerning the operation of a facility, including, but not limited to, improper use or embezzlement of client moneys and property or fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services for the care of clients.
SEC. 7.SEC. 12.Section 1596.8897 of the Health and Safety Code is amended to read:1596.8897.(a)The department may prohibit a person from being a member of the board of directors, an executive director, or an officer of a licensee or a licensee from employing, or continuing the employment of, or allowing in a licensed facility, or allowing contact with clients of a licensed facility by, any employee, prospective employee, or person who is not a client who has:
(1)Violated, or aided or permitted the violation by any other person of, any provisions of this chapter or of any rules or regulations promulgated under this chapter.
(2)Engaged in job-related In the course of fulfilling the functions or duties of the business or profession for which application is made, engaged in conduct within the preceding five years that is inimical to the health, morals, welfare, or safety of an individual in or receiving services from the facility. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(3)Been denied an exemption to work or to be present in a facility, when that person has been convicted of a crime directly and adversely related crime within the preceding five years or a directly and adversely related violent felony, as described in Section 1596.871. 1522.
(4)Engaged in any other conduct that would constitute a basis for disciplining a licensee. licensee within the preceding five years. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(5)Engaged in job-related In the course of fulfilling the functions or duties of the business or profession for which application is made, engaged in acts of financial malfeasance within the preceding five years concerning the operation of a facility, including, but not limited to, improper use or embezzlement of client moneys and property or fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services for the care of clients. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(b)The excluded person, the facility, and the licensee shall be given written notice of the basis of the departments action, the excluded persons right to an appeal, and instructions for filing that appeal. The notice shall be served either by personal service or by registered mail. Within 30 days after the department serves the notice, the excluded person may file with the department a written appeal of the exclusion order. If the excluded person fails to file a written appeal within the prescribed time, the departments action shall be final.
(c)(1)The department may require the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility pending a final decision of the matter, when, in the opinion of the department, the action is necessary to protect residents or clients from physical or mental abuse, abandonment, or any other substantial threat to their health or safety.
(2)If the department requires the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility, the department shall serve an order of immediate exclusion upon the excluded person that shall notify the excluded person of the basis of the departments action and of the excluded persons right to a hearing.
(3)Within 30 days after the department serves an order of immediate exclusion, the excluded person may file a written appeal of the exclusion with the department. The departments action shall be final if the excluded person does not appeal the exclusion within the prescribed time. The department shall do the following upon receipt of a written appeal:
(A)Within 30 days of receipt of the appeal, serve an accusation upon the excluded person.
(B)Within 60 days of receipt of a notice of defense by the employee or prospective employee pursuant to Section 11506 of the Government Code, conduct a hearing on the accusation.
(4)An order of immediate exclusion from the facility shall remain in effect until the hearing is completed and the department has made a final determination on the merits. However, the order of immediate exclusion shall be deemed vacated if the department fails to make a final determination on the merits within 60 days after the original hearing has been completed.
(d)An excluded person who files a written appeal of the exclusion order with the department pursuant to this section shall, as part of the written request, provide his or her current mailing address. The excluded person shall subsequently notify the department in writing of any change in mailing address, until the hearing process has been completed or terminated.
(e)Hearings held pursuant to this section shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Division 3 of Title 2 of the Government Code. The standard of proof shall be the preponderance of the evidence and the burden of proof shall be on the department.
(f)The department may institute or continue a disciplinary proceeding against a member of the board of directors, an executive director, or an officer of a licensee or an employee, prospective employee, or person who is not a client upon any ground provided by this section. The department may enter an order prohibiting any person from being a member of the board of directors, the executive director, or an officer of a licensee prohibiting the excluded persons employment or presence in the facility, or otherwise take disciplinary action against the excluded person, notwithstanding any resignation, withdrawal of employment application, or change of duties by the excluded person, or any discharge, failure to hire, or reassignment of the excluded person by the licensee or that the excluded person no longer has contact with clients at the facility.
(g)A licensees failure to comply with the departments exclusion order after being notified of the order shall be grounds for disciplining the licensee pursuant to Section 1596.885 or 1596.886.
(h)(1)(A)When the excluded person appeals the exclusion order and there is a decision and order upholding the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or from being a certified foster parent or resource family for a period of one year, at which time the excluded person may petition for reinstatement.
(B)The excluded person may petition for reinstatement one year after the effective date of the decision and order of the department upholding the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the decision and order.
(2)(A)When the department informs the excluded person of his or her right to appeal the exclusion order and the excluded person does not appeal the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or a certified foster parent or resource family for a period of one year, at which time the excluded person may petition for reinstatement.
(B)The excluded person may petition for reinstatement after one year has elapsed from the date of the notification of the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the exclusion order.
SEC. 8.SEC. 13.Section 1796.19 of the Health and Safety Code is amended to read:1796.19.(a)The department shall consider, but is not limited to, the following when determining whether to approve a registration application:
(1)Evidence satisfactory to the department of the ability of the home care aide applicant to comply with this chapter and the rules and regulations promulgated under this chapter by the department.
(2)Evidence satisfactory to the department that the home care aide applicant is of reputable and responsible character. The evidence shall include, but is not limited to, a review of the independent home care aide applicants criminal offender record information pursuant to Section 1522. The department may only deny clearance or exemption for a person who registration on the basis of the applicants criminal record information if the applicant has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, crime within the preceding five years or a directly and adversely related violent felony, as defined in Section 667.5 of the Penal Code. Section 1522. Denial of registration on the basis of the applicants criminal history information is subject to the procedures and restrictions of Section 1522.
(3)Any job-related revocation Revocation or other disciplinary action taken within the preceding five years, or in the process of being taken, against the home care aide applicant related to the care of individuals against the home care aide applicant. individuals.
(4)Any other information that may be required by the department for the proper administration and enforcement of this chapter.
(b)Failure of the home care aide applicant to cooperate with the department in the completion of the Home Care Aide application shall result in the withdrawal of the registration application. Failure to cooperate means that the information described in this chapter and by any rules and regulations promulgated under this chapter has not been provided, or has not been provided in the form requested by the department, or both.
SEC. 9.SEC. 14.Section 1796.23 of the Health and Safety Code is amended to read:1796.23.(a)Each person initiating a background examination to be a registered home care aide shall submit his or her fingerprints to the Department of Justice by electronic transmission in a manner approved by the department, unless exempt under subdivision (d), and a completed home care aide application. A person initiating a background examination shall not be required to submit information regarding prior criminal convictions.
(b)A law enforcement agency or other local agency authorized to take fingerprints may charge a reasonable fee to offset the costs of fingerprinting for the purposes of this chapter. The fee revenues shall be deposited in the Fingerprint Fees Account.
(c)The Department of Justice shall use the fingerprints to search state and Federal Bureau of Investigation criminal offender record information pursuant to Section 1522. The department may deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, within the preceding five years or a violent felony, as defined in Section 667.5 of the Penal Code.
(d)A person who is a current licensee or employee in a facility licensed by the department, a certified foster parent, a certified administrator, or a registered TrustLine provider need not submit fingerprints to the department, and may transfer his or her current criminal record clearance or exemption pursuant to paragraph (1) of subdivision (h) of Section 1522. The person shall instead submit to the department, along with the persons registration application, a copy of the persons identification card described in Section 1796.22 and sign a declaration verifying the persons identity.
SEC. 10.SEC. 15.Section 1796.24 of the Health and Safety Code is amended to read:1796.24.(a)(1)The department shall establish a home care aide registry pursuant to this chapter and shall continuously update the registry information. Upon submission of the home care aide application and fingerprints or other identification documents pursuant to Section 1796.22, Sections 1796.22 and 1796.23, the department shall enter into the home care aide registry the persons name, identification number, and an indicator that the person has submitted a home care aide application and fingerprints or identification documentation. This person shall be known as a home care aide applicant.
(2)A person shall not be entitled to apply to be a registered home care aide and shall have his or her registration application returned without the right to appeal if the person would not be eligible to obtain a license pursuant to Section 1796.40 or 1796.41.
(b)(1)Before approving an individual for registration, the department shall check the individuals criminal history pursuant to Section 1522. Upon completion of the searches of the state summary criminal offender record information and the records of the Federal Bureau of Investigation, the home care aide applicant shall be issued a criminal record clearance or granted a criminal record exemption if grounds do not exist for denial pursuant to Section 1522. The department may only deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, crime within the preceding five years or a directly and adversely related violent felony, as defined in Section 667.5 of the Penal Code. The 1522. Denial of registration on the basis of the applicants criminal history information is subject to the procedures and restrictions of Section 1522.
(2)Upon issuing a criminal record clearance or granting an exemption, the department shall enter that finding in the persons record in the home care aide registry and shall notify the person of the action. This person shall be known as a registered home care aide. If the home care aide applicant meets all of the conditions for registration, except receipt of the Federal Bureau of Investigations criminal offender record information search response, the department may issue a clearance if the home care aide applicant has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a minor traffic violation. If, after approval, the department determines that the registrant has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, registration may be revoked pursuant to Section 1796.26.
(2)(3)For purposes of compliance with this section, the department may permit a home care organization applicant or a home care organization licensee to request the transfer of a home care aides current criminal record clearance or exemption for a licensed care facility issued by the department. A signed criminal record clearance or exemption transfer request shall be submitted to the department and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee or home care aide applicant, the department shall verify whether the individual has a clearance or exemption that can be transferred pursuant to the requirements of this chapter. The department shall not indicate to the home care organization whether the individual has a clearance or an exemption.
(3)(4)The department shall hold criminal record clearances and exemptions in its active files for a minimum of three years after the individual is no longer on the registry in order to facilitate a transfer request.
SEC. 11.SEC. 16.Section 1796.25 of the Health and Safety Code is amended to read:1796.25.(a)(1)If the department finds that the home care aide applicant or the registered home care aide has been convicted of a crime, directly and adversely related crime within the preceding five years or a directly and adversely related violent felony, as defined in Section 1522, the department shall may deny the home care aide application, application or revoke the registered home care aides registration registration, unless the department grants an exemption pursuant to subdivision (g) of Section 1522. The department may deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, within the preceding five years or a violent felony, as defined in Section 667.5 of the Penal Code. Denial or revocation of registration on the basis of the applicants criminal history information is subject to the procedures and restrictions of Section 1522.
(2)If the department finds that the home care aide applicant or registered home care aide has a job-related arrest, as described in subdivision (a) of Section 1522, within the preceding five years, the department may deny the registration application or registration renewal application, or revoke the registered home care aides registration, if the home care aide or registered home care aide may pose a risk to the health and safety of any person who is or may become a client and the department complies with subdivision (e) of Section 1522.(2)The department shall not deny or revoke registration on the basis of an arrest unless the arrest is for a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony, as defined in Section 1522. The department shall not use the arrest as the basis for denial in any of the following instances:
(A)A conviction was not obtained as a result of the arrest and the person is not awaiting trial.
(B)The arrest occurred more than five years before the determination is being made.
(C)The time before which prosecution may begin on the offense has passed.
(D)The arresting or prosecuting agency has released a statement that charges will not be filed as a result of the arrest.
(3)The department may deny the home care aide application or the renewal application of a registered home care aide, or revoke the home care aide registration, if the department discovers that the department or a county had previously revoked or rescinded a license or certificate to be a certified family home or resource family, a certified administrator, or a registered trustline provider held by the home care aide applicant or registered home care aide, or that the department had excluded the home care aide applicant or registered home care aide from a licensed facility, certified family home, or resource family home, pending an appeal.
(4)The department may deny the home care aide application or registered home care aide registration renewal application for placement or retention upon the home care aide registry, or revoke the registered home care aides registration, if the department discovers that the department or a county had previously denied the home care aide applicants or registered home care aides application for a license from the department or certificate to be a certified family home or resource family, a certified administrator, or a registered trustline provider, pending an appeal.
(5)The following shall apply to the state summary criminal history information:(A)The department may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of registration, exemption, or licensure.(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the department shall provide an applicant with a complete copy of the information received.(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the department before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the department in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the department.(D)The department shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, or a violent felony, as defined in Section 667.5 of the Penal Code. The department may deny licensure, registration, or an exemption for a person who has been convicted of a directly and adversely related crime that occurred within the preceding five years or of a violent felony.(E)If the department makes a final decision to deny an application solely or in part because of the applicants conviction history, the department shall notify the applicant, in writing, of all the following:(i)The final denial or disqualification.(ii)The procedure for the applicant to challenge the decision or request reconsideration.(iii)The right to appeal the decision under procedures set forth in the Government Code.(b)(1)If the department revokes or denies a home care aide application or registered home care aides renewal application pursuant to subdivision (a), the department shall advise the home care aide applicant or registered home care aide, by written notification, of the right to appeal. The home care aide applicant or registered home care aide shall have 30 days from the date of the written notification to appeal the denial or revocation.
(2)Upon receipt by the department of the appeal, the appeal shall be set for hearing. The hearing shall be conducted in accordance with Section 1551.
(c)If the home care aide application or registered home care aide renewal application is denied, the home care aide applicant or registered home care aide shall not reapply until he or she meets the timeframe set forth in Sections 1796.40 and 1796.41.
SEC. 12.SEC. 17.Section 1796.26 of the Health and Safety Code is amended to read:1796.26.(a)(1)The department may revoke or deny a registered home care aides registration or request for registration renewal if any of the following apply to the registered home care aide:
(A) He or she procured or attempted to procure his or her registered home care aide registration or renewal by fraud or willful and intentional misrepresentation.
(B)He or she has a criminal conviction, unless an exemption is granted pursuant to Section 1522. The department may deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, within the preceding five years or a violent felony, as defined in Section 667.5 of the Penal Code. been denied a criminal record exemption pursuant to subdivision (g) of Section 1522 to register as a home care aide when the person has been convicted of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony, as defined in Section 1522.
(C)He In the course of fulfilling the functions or duties of a home care aide, he or she engages or has engaged in job-related conduct within the preceding five years that is inimical to the health, morals, welfare, or safety of an individual receiving or seeking to receive home care services. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(2)An individual whose registration has been revoked shall not reapply until he or she meets the timeframe as set forth in Section 1796.40 or 1796.41.
(3)An individual whose criminal record exemption has been denied shall not reapply for one year from the date of the exemption denial.
(4)The hearing to revoke or deny the registered home care aide registration or registration renewal request shall be conducted in accordance with Section 1551.
(b)(1)The registered home care aides registration shall be considered forfeited under the following conditions:
(A)The registered home care aide has had a license or certificate of approval revoked, suspended, or denied as authorized under Section 1534, 1550, 1568.082, 1569.50, 1596.608, or 1596.885.
(B)The registered home care aide has been denied employment, residence, or presence in a facility or clients home based on action resulting from an administrative hearing pursuant to Section 1558, 1568.092, 1569.58, or 1596.8897.
(C)The registered home care aide fails to establish a mailing address with the department within 90 days of registration or maintain a current mailing address with the department.
(D)The registered home care aides registration is not renewed.
(E)The registered home care aide surrenders his or her registration to the department.
(F)The registered home care aide dies.
(2)An individual whose registered home care aide registration has been forfeited shall not reapply until he or she meets the timeframe set forth by the department in Sections 1796.40 and 1796.41.
(c)A registered home care aides registration shall not be transferred or sold to another individual or entity.
SEC. 13.SEC. 18.Section 1796.38 of the Health and Safety Code is amended to read:1796.38.The department may deny an application for licensure or suspend or revoke any license issued pursuant to this chapter, pursuant to Sections 1550.5 and 1551 and in the manner provided in this chapter on any of the following grounds:
(a)Violation by the licensee of this chapter or of the rules and regulations promulgated under this chapter.
(b)Aiding, abetting, or permitting the violation of this chapter or of the rules and regulations promulgated under this chapter.
(c)Job-related In the course of fulfilling the functions or duties of a licensee, engaging in conduct within the preceding five years that is inimical to the health, morals, welfare, or safety of an individual receiving home care services. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
(d)The conviction of a licensee, or other person mentioned in Section 1522, at any time before or during licensure, of a crime described in Section 1522. The department may deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, crime within the preceding five years or a directly and adversely related violent felony, as defined in Section 667.5 of the Penal Code. 1522. Denial, suspension, or revocation of licensure pursuant to this subdivision is subject to the procedures and restrictions of Section 1522.
(e)Engaging in job-related In the course of fulfilling the functions or duties of a home care licensee within the preceding five years, engaging in acts of financial malfeasance within the preceding five years concerning the operation of a home care organization. If the alleged conduct is the subject of an arrest, prosecution, or other criminal proceeding, the departments denial, suspension, or revocation is subject to the provisions of Section 1522.
The Legislature recognizes the need to generate timely and accurate positive fingerprint identification of applicants as a condition of issuing licenses, permits, or certificates of approval for persons to operate or provide direct care services in a community care facility, foster family home, or a certified family home or resource family of a licensed foster family agency. Therefore, the Legislature supports the use of the fingerprint live-scan technology, as identified in the long-range plan of the Department of Justice for fully automating the processing of fingerprints and other data by the year 1999, otherwise known as the California Crime Information Intelligence System (CAL-CII), to be used for applicant fingerprints. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a community care facility or certified family home.
(a)(1)Before and, as applicable, subsequent to issuing a license or special permit to any person or persons a person to operate or manage a community care facility, the State Department of Social Services shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5 of the Penal Code, subdivision (b) of Section 273a of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g). directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who was convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(2)The criminal history information shall include the full criminal record, arrests for which the person is awaiting trial, convictions for a directly and adversely related crime that occurred within the preceding five years, and convictions for a violent felony, if any, of those persons, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.
(3)Except during the 200304 to the 201819 fiscal years, inclusive, neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license or special permit to operate a facility providing nonmedical board, room, and care for six or less fewer children or for obtaining a criminal record of the applicant pursuant to this section.
(4)The following shall apply to the criminal record information:
(A)The State Department of Social Services may not require an applicant to disclose information or documentation regarding his or her criminal history as a condition of clearance, exemption, or licensure.
(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the State Department of Social Services shall provide an applicant with a complete copy of the information received.
(C)An applicant shall have at least 10 business days after receiving the information pursuant to subparagraph (B) to respond to the State Department of Social Services before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the State Department of Social Services, in writing, that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information in that report, the applicant shall have 10 additional business days to submit that information to the State Department of Social Services.
(D)The State Department of Social Services shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The State Department of Social Services shall determine whether the applicant or any person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The State Department of Social Services may deny clearance or an exemption to a person who has been convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(E)If the State Department of Social Services makes a final decision to deny an application solely or partly because of the applicants conviction history, the department shall notify the applicant, in writing, of all the following:
(i)The final denial or disqualification.
(ii)The procedure for the applicant to challenge the decision or request reconsideration.
(iii)The right to appeal the decision pursuant to procedures set forth in the Government Code.
(A)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), has been convicted of a crime other than a minor traffic violation, the application shall be denied, unless the department grants an exemption pursuant to subdivision (g).(F)The State Department of Social Services may grant an exemption pursuant to subdivision (g) when the applicant or any other person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(B)(G)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), is awaiting trial for a crime other than a minor traffic violation, crime, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)(H)If no criminal record information has a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(D)(I)If the State Department of Social Services finds finds, after licensure finds, after licensure, that the licensee, or any other person specified in paragraph (1) of subdivision (b), has been convicted of a crime other than a minor traffic violation, directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the department grants an exemption pursuant to subdivision (g).
(E)(J)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice for the purpose of searching the criminal records of the Federal Bureau of Investigation, in addition to the criminal records search required by this subdivision. If an applicant and all other persons described in subdivision (b) meet all of the conditions for licensure, except receipt of the Federal Bureau of Investigations criminal offender record information search response for the applicant or any of the persons described in subdivision (b), the department may issue a license if the applicant and each person described in subdivision (b) has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction, as prescribed in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, or the issuance of a certificate of approval of a certified family home by a foster family agency, the department determines that the licensee or any other person specified in subdivision (b) has a criminal record, the department may revoke the license, or require a foster family agency to revoke the certificate of approval, pursuant to Section 1550. The department may also suspend the license or require a foster family agency to suspend the certificate of approval pending an administrative hearing pursuant to Section 1550.5.
(F)(K)The State Department of Social Services shall develop procedures to provide the individuals state and federal summary criminal history information with the written notification of his or her exemption denial or revocation based on the criminal record. Receipt of the The summary criminal history information shall be optional on the part of provided to the individual, as set forth in the agencys procedures. The procedure shall protect the confidentiality and privacy of the individuals record, and the criminal history information shall not be made available to the employer.
(G)(L)Notwithstanding any other law, the department is authorized to shall provide an individual with a copy of his or her state or federal level criminal offender record information search response as provided to that department by the Department of Justice if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. at any time. The state or federal level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the individual in his or her written request. The department shall retain a copy of the individuals written request and the response and date provided.
(b)(1)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility, certified family home, or resource family home.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the community care facility. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility or in a certified family home or resource family home of a foster family agency. Nothing in this paragraph restricts This paragraph does not restrict the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed community care facility or certified family home or resource family home of a foster family agency pursuant to Section 1558.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in like capacity.
(F)Additional officers of the governing body of the applicant, or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from the requirements applicable under paragraph (1):
(A)A medical professional professional, as defined in department regulations regulations, who holds a valid license or certification from the persons governing California medical care regulatory entity and who is not employed, retained, or contracted by the licensee if all of the following apply:
(i)The criminal record of the person has been cleared as a condition of licensure or certification by the persons governing California medical care regulatory entity.
(ii)The person is providing time-limited specialized clinical care or services.
(iii)The person is providing care or services within the persons scope of practice.
(iv)The person is not a community care facility licensee or an employee of the facility.
(B)A third-party repair person or similar retained contractor if all of the following apply:
(i)The person is hired for a defined, time-limited job.
(ii)The person is not left alone with clients.
(iii)When clients are present in the room in which the repair person or contractor is working, a staff person who has a criminal record clearance or exemption is also present.
(C)Employees of a licensed home health agency and other members of licensed hospice interdisciplinary teams who have a contract with a client or resident of the facility, certified family home, or resource family home and are in the facility, certified family home, or resource family home at the request of that client or residents legal decisionmaker. The exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(D)Clergy and other spiritual caregivers who are performing services in common areas of the community care facility, certified family home, or resource family home or who are advising an individual client at the request of, or with the permission of, the client or legal decisionmaker, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care licensee or employee of the facility.
(E)Members of fraternal, service, or similar organizations who conduct group activities for clients if all of the following apply:
(i)Members are not left alone with clients.
(ii)Members do not transport clients off the facility, certified family home, or resource family home premises.
(iii)The same organization does not conduct group activities for clients more often than defined by the departments regulations.
(3)In addition to the exemptions in paragraph (2), the following persons in foster family homes, resource family homes, certified family homes, and small family homes are exempt from the requirements applicable under paragraph (1):
(A)Adult friends and family of the foster parent, who come into the home to visit for a length of time no longer than defined by the department in regulations, provided that the adult friends and family of the foster parent are not left alone with the foster children. However, the foster parent, acting as a reasonable and prudent parent, as defined in paragraph (2) of subdivision (a) of Section 362.04 of the Welfare and Institutions Code, may allow his or her adult friends and family to provide short-term care to the foster child and act as an appropriate occasional short-term babysitter for the child.
(B)Parents of a foster childs friend when the foster child is visiting the friends home and the friend, foster parent, or both are also present. However, the foster parent, acting as a reasonable and prudent parent, may allow the parent of the foster childs friend to act as an appropriate, occasional short-term babysitter for the child without the friend being present.
(C)Individuals who are engaged by a foster parent to provide short-term care to the child for periods not to exceed 24 hours. Caregivers shall use a reasonable and prudent parent standard in selecting appropriate individuals to act as appropriate occasional short-term babysitters.
(4)In addition to the exemptions specified in paragraph (2), the following persons in adult day care and adult day support centers are exempt from the requirements applicable under paragraph (1):
(A)Unless contraindicated by the clients individualized program plan (IPP) or needs and service plan, a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to the client.
(B)A volunteer if all of the following applies: apply:
(i)The volunteer is supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(ii)The volunteer is never left alone with clients.
(iii)The volunteer does not provide any client assistance with dressing, grooming, bathing, or personal hygiene other than washing of hands.
(5)(A)In addition to the exemptions specified in paragraph (2), the following persons in adult residential and social rehabilitation facilities, unless contraindicated by the clients individualized program plan (IPP) or needs and services plan, are exempt from the requirements applicable under paragraph (1): a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to that client.
(B)This subdivision does not prevent a licensee from requiring a criminal record clearance of any an individual exempt from the requirements of this section, provided that the individual has client contact.
(6)Any person similar to those described in this subdivision, as defined by the department in regulations.
(c)(1)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempted from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be fingerprinted and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. fingerprinted. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or comply with paragraph (1) of subdivision (h). These fingerprint images and related information shall be sent by electronic transmission in a manner approved by the State Department of Social Services and the Department of Justice for the purpose of obtaining a permanent set of fingerprints, and shall be submitted to the Department of Justice by the licensee. A licensees failure to prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) or to comply with paragraph (1) of subdivision (h), as required in this section, shall result in the citation of a deficiency and the immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. The department may assess civil penalties for continued violations as permitted by Section 1548. The fingerprint images and related information shall then be submitted to the Department of Justice for processing. Upon request of the licensee, who shall enclose a self-addressed stamped postcard envelope for this purpose, the Department of Justice shall verify receipt of the fingerprints.
(2)Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided for in subdivision (a). If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. Documentation of the individuals clearance or exemption from disqualification shall be maintained by the licensee and be available for inspection. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprints, notify the licensee that the fingerprints were illegible, the Department of Justice shall notify the State Department of Social Services, as required by Section 1522.04, and shall also notify the licensee by mail, within 14 days of electronic transmission of the fingerprints to the Department of Justice, if the person has no criminal history recorded. A violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. The department may assess civil penalties for continued violations as permitted by Section 1548.
(3)Except for persons specified in subdivision (b) who are exempt from fingerprinting, the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted. If it is determined by the State Department of Social Services, on the basis of the fingerprint images and related information submitted to the Department of Justice, that subsequent to obtaining a criminal record clearance or exemption from disqualification pursuant to subdivision (g), the person has been convicted of, of a directly and adversely related crime within the preceding five years or a violent felony, or is awaiting trial for, for a sex offense against a minor, or has been convicted for an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the State Department of Social Services shall notify the licensee to act immediately to terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility. The State Department of Social Services may subsequently grant an exemption from disqualification pursuant to subdivision (g). If the conviction or arrest was for another crime, except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (A) terminate the persons employment, remove the person from the community care facility or bar the person from entering the community care facility; or (B) facility, pending an appeal, and to seek an exemption from disqualification pursuant to subdivision (g). The State Department of Social Services shall determine determine, within five business days of receiving notice of the application for exemption, if the person shall be allowed to remain in the facility until a decision on the exemption from disqualification is rendered. A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day and shall be grounds for disciplining the licensee pursuant to Section 1550.
(4)The department may issue an exemption from disqualification on its own motion pursuant to subdivision (g) if the persons criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions. convictions or evidence of rehabilitation. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption from disqualification pursuant to this paragraph.
(5)Concurrently with notifying the licensee pursuant to paragraph (3), the department shall notify the affected individual of his or her right to seek an exemption from disqualification pursuant to subdivision (g). The individual may seek an exemption from disqualification only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (3).
(6)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code, or for which he or she has obtained rehabilitative relief, including, but not limited to, obtaining a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected on the report furnished by the Department of Justice.
(d)(1)Before and, as applicable, subsequent to issuing a license or certificate of approval to any person or persons to operate a foster family home, certified family home as described in Section 1506, or resource family pursuant to Section 1517 of this code or Section 16519.5 of the Welfare and Institutions Code, the State Department of Social Services or other approving authority shall secure California and Federal Bureau of Investigation criminal history information to determine whether the applicant or any person specified in subdivision (b) who is not exempt from fingerprinting has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g). The State Department of Social Services or other approving authority shall not issue a license or certificate of approval to any foster family home, certified family home, or resource family applicant who has not obtained both a California and Federal Bureau of Investigation criminal record clearance or exemption from disqualification pursuant to subdivision (g).
(2)The summary criminal history information shall include the full criminal record, if any, of those persons.
(3)Neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license, special permit, or certificate of approval described in this subdivision. The record, if any, shall be taken into consideration when evaluating a prospective applicant.
(4)The following shall apply to the criminal record information:
(A)If the applicant or other persons specified in subdivision (b) who are not exempt from fingerprinting have convictions that would make the applicants home unfit as a foster family home, a certified family home, or resource family, the license, special permit, certificate of approval, or presence shall be denied.
(B)If the State Department of Social Services finds that the applicant, or any person specified in subdivision (b) who is not exempt from fingerprinting is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services or other approving authority may cease processing the criminal record information until the conclusion of the trial.
(C)For purposes of this subdivision, a criminal record clearance provided under Section 8712 of the Family Code may be used by the department or other approving authority.
(D)To the same extent required for federal funding, a person specified in subdivision (b) who is not exempt from fingerprinting shall submit a set of fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the criminal records search required by subdivision (a).
(5)Any person specified in this subdivision shall, as a part of the application, be fingerprinted and sign a declaration under penalty of perjury regarding any prior criminal convictions or arrests for any crime against a child, spousal or cohabitant abuse, or any crime for which the department cannot grant an exemption if the person was convicted and shall submit these fingerprints to the licensing agency or other approving authority.
(6)(A)Subsequent to initial licensure, certification, or approval, a person specified in subdivision (b) who is not exempt from fingerprinting shall obtain both a California and Federal Bureau of Investigation criminal record clearance, or an exemption from disqualification pursuant to subdivision (g), prior to employment, residence, or initial presence in the foster family home, certified family home, or resource family home. A foster family home licensee or foster family agency shall submit fingerprint images and related information of persons specified in subdivision (b) who are not exempt from fingerprinting to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or to comply with paragraph (1) of subdivision (h). A foster family home licensees or a foster family agencys failure to either prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g), or comply with paragraph (1) of subdivision (h), as required in this section, shall result in a citation of a deficiency, and the immediate civil penalties of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. A violation of the regulation adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the foster family home licensee or the foster family agency pursuant to Section 1550. The State Department of Social Services may assess penalties for continued violations, as permitted by Section 1548. The fingerprint images shall then be submitted to the Department of Justice for processing.
(B)Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the Department of Justice shall verify receipt of the fingerprints. Within five working days of the receipt of the criminal record or information regarding criminal convictions from the Department of Justice, the department shall notify the applicant of any criminal arrests or convictions. If no arrests or convictions are recorded, the Department of Justice shall provide the foster family home licensee or the foster family agency with a statement of that fact concurrent with providing the information to the State Department of Social Services.
(7)If the State Department of Social Services or other approving authority finds that the applicant, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the application or presence shall be denied, unless the department grants an exemption from disqualification pursuant to subdivision (g).
(8)If the State Department of Social Services or other approving authority finds finds, after licensure or the granting of the certificate of approval approval, that the licensee, certified foster parent, resource family, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the license or certificate of approval may be revoked or rescinded by the department or the foster family agency, whichever is applicable, unless the department grants an exemption from disqualification pursuant to subdivision (g). A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by paragraph (3) of subdivision (c) shall be grounds for disciplining the licensee pursuant to Section 1550.
(e)(1)The State Department of Social Services shall not use a record of arrest to deny, an arrest that is not pending and not job related to revoke, rescind, or terminate any an application, license, certificate of approval, employment, or residence unless the department investigates the incident and secures evidence, whether or not related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or subdivision (b) of Section 273a, of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g), prior to the completion of an investigation pursuant to paragraph (1). (3)(2)The State Department of Social Services is authorized to obtain any may obtain relevant arrest or conviction records or reports from any law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and individuals associated with a community care facility.
(f)(1)For purposes of this section or any other provision of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction does not include successful completion of a post- or pre-plea diversion program, dismissal pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or an infraction, citation, or a conviction where rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. Any action that the State Department of Social Services is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. sentence. For purposes of this section or any other provision of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction. For purposes of this section or any other provision of this chapter, the arrest disposition state summary criminal history report certified by the Department of Justice, or documents admissible in a criminal action pursuant to Section 969b of the Penal Code, shall be prima facie evidence of the conviction, notwithstanding any other law prohibiting the admission of these documents in a civil or administrative action.
(2)For purposes of this section or any other provision of this chapter, the department shall consider criminal convictions from another state or federal court for a directly and adversely related crime or a crime that would be a violent felony if committed in this state as if the criminal offense was committed in this state.
(g)(1)(A)Except as otherwise provided in this subdivision with respect to a foster care provider applicant, including a relative caregiver, nonrelative extended family member, or resource family, after review of the record, the department may grant an exemption from disqualification for a license or special permit as specified in paragraph (4) of subdivision (a), or for a license, special permit, or certificate of approval as specified in paragraphs (4), (7), and (8) of subdivision (d), or for employment, residence, or presence in a community care facility as specified in paragraphs (3), (4), and (5) of subdivision (c), if the department has substantial and convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of good character as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). Except as otherwise provided in this subdivision, an exemption shall not be granted may be denied pursuant to this subdivision if the conviction was for either of the following offenses: a directly and adversely related crime that occurred within the preceding five years or a violent felony.
(A)(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.(ii)Notwithstanding clause (i), the department may grant an exemption regarding the conviction for an offense described in paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5 of the Penal Code, if the employee or prospective employee has been rehabilitated as provided in Section 4852.03 of the Penal Code, has maintained the conduct required in Section 4852.05 of the Penal Code for at least 10 years, and has the recommendation of the district attorney representing the employees county of residence, or if the employee or prospective employee has received a certificate of rehabilitation pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. This clause shall not apply to foster care providers, including relative caregivers, nonrelative extended family members, or any other person specified in subdivision (b), in those homes where the individual has been convicted of an offense described in paragraph (1) of subdivision (c) of Section 667.5 of the Penal Code.(B)A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) of Section 451 of the Penal Code.(B)The department shall not bar an applicant based solely on the type of conviction without considering evidence of rehabilitation.
(C)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has obtained rehabilitative relief, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant whose conviction has been dismissed or who has obtained rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(2)(A)For a foster care provider applicant or a resource family applicant, an exemption shall not be granted if that applicant, or any individual subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, has a conviction for any of the following offenses:
(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) of Section 451 of the Penal Code.
(iii)Under no circumstances shall an exemption be granted pursuant to this subdivision to any foster care provider applicant if that applicant, or any other person specified in subdivision (b) in those homes, has a felony conviction for either of the following offenses:
(I)A felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery. For purposes of this subparagraph, a crime involving violence means a violent crime specified in clause (i) of subparagraph (A), or clause (ii) of this subparagraph.
(II)A felony conviction, within the last five years, for physical assault, battery, or a drug- or alcohol-related offense.
(III)This clause shall does not apply to licenses or approvals wherein a caregiver was granted an exemption to a criminal conviction described in clause (i) prior to the enactment of this clause.
(IV)This clause shall remain operative only to the extent that compliance with its provisions is required by federal law as a condition for receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.).
(B)The department or other approving entity may grant an exemption from disqualification to a foster care provider, resource family applicant, or any an individual subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, if the department or other approving entity has substantial and convincing evidence to support a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption and the conviction is for one of the following offenses:
(i)Any A misdemeanor conviction within the last five years that is not otherwise prohibited by subparagraph (A). Notwithstanding subparagraph (A), a misdemeanor conviction for statutory rape, as defined in Section 261.5 of the Penal Code, a misdemeanor conviction for indecent exposure, as defined in Section 314 of the Penal Code, or a misdemeanor conviction for financial abuse against an elder, as defined in Section 368 of the Penal Code, shall be eligible for the consideration of an exemption as set forth in subparagraph (C).
(ii)Any A felony conviction within the last seven years that is not otherwise prohibited by subparagraph (A).
(C)When granting an exemption for a crime listed in subparagraph (B), the department or other approving entity shall consider all reasonably available information, including, but not limited to, the following:
(i)The nature of the crime or crimes.
(ii)The period of time since the crime was committed.
(iii)The number of offenses.
(iv)Circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity.
(v)Activities since conviction, including employment, participation in therapy, education, or treatment.
(vi)Whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor.
(vii)Any character references or other evidence submitted by the applicant.
(viii)Whether the person convicted demonstrated honesty and truthfulness concerning the crime or crimes during the application and approval process and made reasonable efforts to assist the department in obtaining records and documents concerning the crime or crimes.
(D)(i)The department or other approving entity shall grant an exemption from disqualification to a foster care provider applicant, resource family applicant, or any a person subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, who has been convicted of an offense not listed in subparagraph (A) or (B), if the individuals state and federal criminal history information received from the Department of Justice independently supports a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption.
(ii)Notwithstanding the fact that an individual meets the criteria described in clause (i), the department or other approving entity, at its discretion, as necessary to protect the health and safety of a child, may evaluate a person described in clause (i), for purposes of making an exemption decision, pursuant to the criteria described in subparagraphs (B) and (C).
(E)This paragraph shall not apply to licenses or approvals for which a caregiver was granted an exemption for a criminal conviction prior to the effective date of the act that added this subparagraph. January 1, 2018.
(3)The department shall not prohibit a person from being employed or having contact with clients in a facility, certified family home, or resource family home on the basis of a denied criminal record exemption request or arrest information unless the department complies with the requirements of Section 1558 of this code or Section 16519.6 of the Welfare and Institutions Code, as applicable.
(h)(1)For purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one facility to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be in writing to the State Department of Social Services, and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the State Department of Social Services shall verify whether the individual has a clearance that can be transferred.
(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of three years after an employee is no longer employed at a licensed facility in order for the criminal record clearance to be transferred.
(3)A criminal record clearance or exemption processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, or a county office with department-delegated licensing authority shall be accepted by the department or county upon notification of transfer.
(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code and Section 1522.1 concerning an individual whose criminal record clearance was originally processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, or a county office with department-delegated licensing authority, all of the following shall apply:
(A)The Department of Justice shall process a request from the department or a county to receive the notice only if all of the following conditions are met:
(i)The request shall be is submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii) The request shall be is for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain contains all prescribed data elements and format protocols pursuant to a written agreement between the department and the Department of Justice.
(B)(i)On or before January 7, 2005, the department shall notify the Department of Justice of all county offices that have department-delegated licensing authority.
(ii)The department shall notify the Department of Justice within 15 calendar days of the date on which a new county office receives department-delegated licensing authority or a countys delegated licensing authority is rescinded.
(C)The Department of Justice shall charge the department, a county office with department-delegated licensing authority, or a county child welfare agency with criminal record clearance and exemption authority, a fee for each time a request to substitute the recipient agency is received for purposes of this paragraph. This fee shall not exceed the cost of providing the service.
(i)The full criminal record obtained for purposes of this section may be used by the department or by a licensed adoption agency as a clearance required for adoption purposes.
(j)If a licensee or facility is required by law to deny employment or to terminate employment of any an employee based on written notification from the state department that the employee has a prior criminal conviction for a directly and adversely related crime within the preceding five years or a violent felony or is determined unsuitable for employment under Section 1558, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.
(k)The State Department of Social Services may charge a fee for the costs of processing electronic fingerprint images and related information.
(l)(1)The department shall retain application forms and other documents submitted by applicants, notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.
(2)The department shall retain all of the following information:
(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.
(B)The number of applicants with a criminal record who received notice of disqualification or potential disqualification.
(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.
(D)The number of applicants with a criminal record who appealed disqualification.
(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.
(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.
(m)For purposes of this section, the following definitions apply:
(1)Directly and adversely related crime means a crime that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure.
(2)Violent felony has the same meaning as in Section 667.5 of the Penal Code.
SEC. 2.Section 1558 of the Health and Safety Code is amended to read:1558.(a)The department may prohibit any a person from being a member of the board of directors, an executive director, or an officer of a licensee, or a licensee from employing, or continuing the employment of, or allowing in a licensed facility or certified family home, or allowing contact with clients of a licensed facility or certified family home by, any employee, prospective employee, or person who is not a client who has:
(1)Violated, or aided or permitted the violation by any other person of, any provisions of this chapter or of any rules or regulations promulgated under this chapter.
(2)Engaged in job-related conduct within the preceding five years that is inimical to the health, morals, welfare, or safety of either the people of this state or an individual in or receiving services from the facility or certified family home.
(3)Been denied an exemption to work or to be present in a facility or certified family home, when that person has been convicted of a crime as defined described in Section 1522.
(4)Engaged in any other conduct that would constitute a basis for disciplining a licensee or certified family home.
(5)Engaged in job-related acts of financial malfeasance within the preceding five years concerning the operation of a facility or certified family home, including, but not limited to, improper use or embezzlement of client moneys and property or property, fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services.
(b)The excluded person, the facility or certified family home, and the licensee shall be given written notice of the basis of the departments action and action, of the excluded persons right to an appeal. appeal, and instructions for filing the appeal. The notice shall be served either by personal service or by registered mail. Within 15 30 days after the department serves the notice, the excluded person may file with the department a written appeal of the exclusion order. If the excluded person fails to file a written appeal within the prescribed time, the departments action shall be final.
(c)(1)The department may require the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility or certified family home pending a final decision of the matter, when, in the opinion of the director, the action is necessary to protect residents or clients from physical or mental abuse, abandonment, or any other substantial threat to their health or safety.
(2)If the department requires the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility or certified family home, the department shall serve an order of immediate exclusion upon the excluded person that shall notify the excluded person of the basis of the departments action and of the excluded persons right to a hearing.
(3)Within 15 30 days after the department serves an order of immediate exclusion, the excluded person may file a written appeal of the exclusion with the department. The departments action shall be final if the excluded person does not appeal the exclusion within the prescribed time. The department shall do the following upon receipt of a written appeal:
(A)Within 30 days of receipt of the appeal, serve an accusation upon the excluded person.
(B)Within 60 days of receipt of a notice of defense pursuant to Section 11506 of the Government Code by the excluded person to conduct a hearing on the accusation.
(4)An order of immediate exclusion of the excluded person from the facility or certified family home shall remain in effect until the hearing is completed and the director has made a final determination on the merits. However, the order of immediate exclusion shall be deemed vacated if the director fails to make a final determination on the merits within 60 days after the original hearing has been completed.
(d)An excluded person who files a written appeal with the department pursuant to this section shall, as part of the written request, provide his or her current mailing address. The excluded person shall subsequently notify the department in writing of any change in mailing address, until the hearing process has been completed or terminated.
(e)Hearings held pursuant to this section shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Division 3 of Title 2 of the Government Code. The standard of proof shall be the preponderance of the evidence and the burden of proof shall be on the department.
(f)The department may institute or continue a disciplinary proceeding against a member of the board of directors, an executive director, or an officer of a licensee or an employee, prospective employee, or person who is not a client upon any ground provided by this section. The department may enter an order prohibiting any person from being a member of the board of directors, an executive director, or an officer of a licensee or prohibiting the excluded persons employment or presence in the facility or certified family home, or otherwise take disciplinary action against the excluded person, notwithstanding any resignation, withdrawal of employment application, or change of duties by the excluded person, or any discharge, failure to hire, or reassignment of the excluded person by the licensee or that the excluded person no longer has contact with clients at the facility or certified family home.
(g)A licensees or certified family homes failure to comply with the departments exclusion order after being notified of the order shall be grounds for disciplining the licensee pursuant to Section 1550.
(h)(1)(A)In cases where When the excluded person appealed appeals the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or from being a certified foster parent for the remainder of the excluded persons life, unless otherwise ordered by the department. one year, at which time the excluded person may petition for reinstatement.
(B)The excluded individual person may petition for reinstatement one year after the effective date of the decision and order of the department upholding the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the decision and order.
(2)(A)In cases where When the department informed informs the excluded person of his or her right to appeal the exclusion order and the excluded person did does not appeal the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or a certified foster parent for the remainder of the excluded persons life, unless otherwise ordered by the department. one year, at which time the excluded person may petition for reinstatement.
(B)The excluded individual person may petition for reinstatement after one year has elapsed from the date of the notification of the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the exclusion order.
(i)Notwithstanding paragraph (2) of subdivision (a) or subdivision (c) of Section 1550, the department shall take reasonable action, including, but not limited to, prohibiting a person from being a member of the board of directors, an executive director, or an officer of a licensee of a licensed facility or certified family home, or denying an application for, or suspending or revoking, a license, special permit, certificate of approval, or administrator certificate, issued under this chapter, or denying a transfer of a license pursuant to paragraph (2) of subdivision (c) of Section 1524, upon a finding of a violation of subdivision (i) of Section 11166 of the Penal Code.
SEC. 3.Section 1568.09 of the Health and Safety Code is amended to read:1568.09.It is the intent of the Legislature in enacting this section to require the electronic fingerprint images of those individuals whose contact with residents of residential care facilities for persons with a chronic, life-threatening illness may pose a risk to the residents health and safety.
It is the intent of the Legislature, in enacting this section, to require the electronic fingerprint images of those individuals whose contact with community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a residential care facility for persons with a chronic, life-threatening illness.
(a)(1)Before and, as applicable, subsequent to issuing a license to a person or persons to operate or manage a residential care facility, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f). directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(2)The criminal history information shall include the full criminal record, arrests for which the person is awaiting trial, convictions for a directly and adversely related crime within the preceding five years, and convictions for a violent felony, if any, of those persons, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.
(3)The following shall apply to the criminal record information:
(A)The State Department of Social Services may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of clearance, exemption, or licensure.
(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the State Department of Social Services shall provide an applicant with a complete copy of the information received.
(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the State Department of Social Services before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the State Department of Social Services in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the State Department of Social Services.
(D)The State Department of Social Services shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant, or any other person specified in subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(E)If the State Department of Social Services makes a final decision to deny an application solely or in part because of the applicants conviction history, the department shall notify the applicant, in writing, of all the following:
(i)The final denial or disqualification.
(ii)The procedure for the applicant to challenge the decision or request reconsideration.
(iii)The right to appeal the decision under procedures set forth in the Government Code.
(A)(F)If the State Department of Social Services finds that the applicant or another person specified in subdivision (b), has been convicted of a crime, other than a minor traffic violation, the application shall be denied, unless the director grants an exemption pursuant to subdivision (f). directly and adversely related crime within the preceding five years or a violent felony, the department may grant an exemption pursuant to subdivision (f).
(B)(G)If the State Department of Social Services finds that the applicant, or another person specified in subdivision (b), is awaiting trial for a crime other than a minor traffic violation, crime, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)(H)If no criminal record information has a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(D)(I)If the State Department of Social Services finds after licensure finds, after licensure, that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a crime other than a minor traffic violation, directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(E)(J)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the search required by this subdivision. If an applicant meets all other conditions for licensure, except receipt of the Federal Bureau of Investigations criminal history information for the applicant and persons listed in subdivision (b), the department may issue a license if the applicant and each person described by subdivision (b) has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction as defined in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, the department determines that the licensee or person specified in subdivision (b) has a criminal record, been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked pursuant to subdivision (a) of Section 1568.082. The department may also suspend the license pending an administrative hearing pursuant to subdivision (b) of Section 1568.082.
(b)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(1)Adults responsible for administration or direct supervision of staff of the facility.
(2)A person, other than a resident, residing in the facility.
(3)A person who provides resident assistance in dressing, grooming, bathing, or personal hygiene. A nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the residential care facility for persons with a chronic, life-threatening illness. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility. This paragraph does not restrict the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed residential care facility for persons with a chronic, life-threatening illness pursuant to Section 1568.092.
(4)(A)A staff person, volunteer, or employee who has contact with the residents.
(B)A volunteer shall be exempt from the requirements of this subdivision if he or she is a relative, significant other, or close friend of a client receiving care in the facility and the volunteer does not provide direct care and supervision of residents. A volunteer who provides direct care and supervision shall be exempt if the volunteer is a residents spouse, significant other, close friend, or family member and provides direct care and supervision to that resident only at the request of the resident. The department may define in regulations persons similar to those described in this subparagraph who may be exempt from the requirements of this subdivision.
(5)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in that capacity.
(6)Additional officers of the governing body of the applicant, or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the persons capability to exercise substantial influence over the operation of the facility.
(c)(1)(A)Subsequent to initial licensure, a person specified in subdivision (b) and not exempted from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification, pursuant to subdivision (f), from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be fingerprinted and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. fingerprinted. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or to comply with paragraph (1) of subdivision (g), prior to the persons employment, residence, or initial presence in the residential care facility.
(B)These fingerprint images and related information shall be electronically submitted to the Department of Justice in a manner approved by the State Department of Social Services and the Department of Justice, for the purpose of obtaining a permanent set of fingerprints. A licensees failure to submit fingerprint images and related information to the Department of Justice, or to comply with paragraph (1) of subdivision (g), as required in this section, shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1568.082. The State Department of Social Services may assess civil penalties for continued violations as allowed in Section 1568.0822. The fingerprint images and related information shall then be submitted to the Department of Justice for processing. The licensee shall maintain and make available for inspection documentation of the individuals clearance or exemption.
(2)A violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1568.082. The department may assess civil penalties for continued violations as permitted by Section 1568.0822.
(3)Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided for in this subdivision. If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprint images, notify the licensee that the fingerprint images were illegible. The Department of Justice shall notify the department, as required by Section 1522.04, and shall notify the licensee by mail within 14 days of electronic transmission of the fingerprint images to the Department of Justice, if the person has no criminal history record.
(4)Except for persons specified in paragraph (2) of subdivision (b), the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted under this subdivision. If it is determined by the State Department of Social Services, on the basis of the fingerprint images submitted to the Department of Justice, that the person has been convicted of a sex offense against a minor, an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the department shall notify the licensee to act immediately to terminate the persons employment, remove the person from the residential care facility, or bar the person from entering the residential care facility. The department may subsequently grant an exemption pursuant to subdivision (f). If the conviction was for another crime, except a minor traffic violation, a directly and adversely related crime within the preceding five years or a violent felony, the licensee shall, upon notification by the department, act immediately to either (A) terminate the persons employment, remove the person from the residential care facility, facility or bar the person from entering the residential care facility; or (B) facility, pending an appeal, and to seek an exemption pursuant to subdivision (f). The department shall determine determine, within five business days of receiving notice of the application for an exemption, if the person shall be allowed to remain in the facility until a decision on the exemption is rendered. A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties by the department against the licensee, in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1568.082.
(5)The department may issue an exemption on its own motion pursuant to subdivision (f) if the persons criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions. convictions, or evidence of rehabilitation. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption pursuant to this paragraph.
(6)Concurrently with notifying the licensee pursuant to paragraph (4), the department shall notify the affected individual of his or her right to seek an exemption pursuant to subdivision (f). The individual may seek an exemption only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (4).
(7)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(d)(1)For purposes of this section or any other provision of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction does not include successful completion of a post- or pre-plea diversion program, successful completion of a post- or pre-plea deferred entry of judgment program, dismissal of a conviction pursuant to Sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An action that the department is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of the sentence, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting that person to withdraw his or her plea of guilty and to enter a plea of not guilty, setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. For purposes of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction. sentence. For purposes of this section or any other provision of this chapter, the arrest disposition report state summary criminal history report certified by the Department of Justice, or documents admissible in a criminal action pursuant to Section 969b of the Penal Code, shall be prima facie evidence of the conviction, notwithstanding any other provision of law prohibiting the admission of these documents in a civil or administrative action.
(2)For purposes of this section or any other provision of this chapter, the department shall consider criminal convictions from another state or federal court of a directly and adversely related crime or a crime that would, if committed in this state, be a violent felony, as if the criminal offense was committed in this state.
(e)(1)The State Department of Social Services shall not use a record of arrest to deny, revoke, or terminate any that is not pending or not job related to revoke or terminate an application, license, employment, or residence unless the department investigates the incident and secures evidence, whether or not related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, or subdivision (b) of Section 273a, of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f), prior to the departments completion of an investigation pursuant to paragraph (1). (3)(2)The State Department of Social Services is authorized to obtain may obtain relevant arrest or conviction records or reports from a law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and individuals associated with a community care facility.
(f)(1)(A)After review of the record, the director may grant an exemption from disqualification for a license as specified in paragraphs (1) and (4) of subdivision (a), or for employment, residence, or presence in a residential care facility as specified in paragraphs (4), (5), and (6) of subdivision (c) if the director has substantial and convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of such good character as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). However, an An exemption shall not be granted may be denied pursuant to this subdivision if the conviction was for any of the following offenses: a directly and adversely related crime within the preceding five years or a violent felony.
(A)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.(B)A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) of Section 451 of the Penal Code.(B)The department shall not bar an applicant based solely on the type of conviction without considering evidence of rehabilitation.
(C)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(2)The department shall not prohibit a person from being employed or having contact with clients in a facility on the basis of a denied criminal record exemption request or arrest information unless the department complies with Section 1568.092.
(g)(1)For purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one facility to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be in writing to the department, and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed stamped envelope for this purpose, the department shall verify whether the individual has a clearance that can be transferred.
(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of two three years after an employee is no longer employed at a licensed facility in order for the criminal record clearance to be transferred.
(h)If a licensee or facility is required by law to deny employment or to terminate employment of any an employee based on written notification from the state department that the employee has a prior criminal conviction for a directly and adversely related crime within the preceding five years or a violent felony, or is determined unsuitable for employment under Section 1568.092, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.
(i)(1)The Department of Justice shall charge a fee sufficient to cover its cost in providing services to comply with the 14-day requirement contained in subdivision (c) for provision to the department of criminal record information.
(2)Paragraph (1) shall cease to be implemented when the department adopts emergency regulations pursuant to Section 1522.04, and shall become inoperative when permanent regulations are adopted under that section.
(j)Notwithstanding any other law, the department may provide an individual with a copy of his or her state or federal level criminal offender record information search response as provided to that department by the Department of Justice if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. The state or federal level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the individual in his or her written request. The department shall retain a copy of the individuals written request and the response and date provided.(j)(1)The department shall retain application forms and other documents submitted by applicants, notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.
(2)The department shall retain all of the following information:
(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.
(B)The number of applicants with a criminal record who received notice of disqualification or potential disqualification.
(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.
(D)The number of applicants with a criminal record who appealed disqualification.
(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.
(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.
(k)For purposes of this section, the following definitions apply:
(1)Directly and adversely related crime means a crime that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure.
(2)Violent felony has the same meaning as in Section 667.5 of the Penal Code.
SEC. 4.Section 1568.092 of the Health and Safety Code is amended to read:1568.092.(a)The department may prohibit any a person from being a member of the board of directors, an executive director, or an officer of a licensee or a licensee from employing, or continuing the employment of, or allowing in a licensed facility, or allowing contact with clients of a licensed facility by, any an employee, prospective employee, or person who is not a client who has:
(1)Violated, aided, or permitted the violation by any other person of this chapter or of any rules or regulations adopted under this chapter.
(2)Engaged in job related conduct within the preceding five years that is inimical to the health, welfare, or safety of either an individual, in an individual in, or receiving services from the facility, or the people of the State of California. from, the facility.
(3)Been denied an exemption to work or to be present in a facility, when that person has been convicted of a crime as defined crime, as described in Section 1568.09.
(4)Engaged in any other conduct that would constitute a basis for disciplining a licensee.
(5)Engaged in job-related acts of financial malfeasance within the preceding five years concerning the operation of a facility, including, but not limited to, improper use or embezzlement of client moneys and property or property, fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services.
(b)The excluded person, the facility, and the licensee shall be given written notice of the basis of the action of the department and of department, the right to an appeal of the excluded person. appeal, and instructions for filing an appeal. The notice shall be served either by personal service or by registered mail. Within 15 30 days after the department serves the notice, the excluded person may file with the department a written appeal of the exclusion order. If the excluded person fails to file a written appeal within the prescribed time, the action of the department shall be final.
(c)(1)The department may require the immediate removal of an executive director, a board member, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility pending a final decision of the matter when, in the opinion of the director, the action is necessary to protect residents or clients from physical or mental abuse, abandonment, or any other substantial threat to their health or safety.
(2)If the department requires the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility, the department shall serve an order of immediate exclusion upon the excluded person that shall notify the excluded person of the basis of the departments action and of the excluded persons right to a hearing.
(3)Within 15 30 days after the department serves an order of immediate exclusion, the excluded person may file a written appeal of the exclusion with the department. The departments action shall be final if the excluded person does not appeal the exclusion within the prescribed time. The department shall do the following upon receipt of a written appeal:
(A)Within 30 days of receipt of the appeal, serve an accusation upon the excluded person.
(B)Within 60 days of receipt of a notice of defense by the excluded person pursuant to Section 11506 of the Government Code, conduct a hearing on the accusation.
(4)An order of immediate exclusion of the excluded person from the facility shall remain in effect until the hearing is completed and the department has made a final determination on the merits. However, the order of immediate exclusion shall be deemed vacated if the department fails to make a final determination on the merits within 60 days after the original hearing has been completed.
(d)An excluded person who files a written appeal of the exclusion order with the department pursuant to this section shall, as part of the written request, provide his or her current mailing address. The excluded person shall subsequently notify the department in writing of any change in mailing address, until the hearing process has been completed or terminated.
(e)Hearings held pursuant to this section shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Division 3 of Title 2 of the Government Code. The standard of proof shall be the preponderance of the evidence and the burden of proof shall be on the department.
(f)The department may institute or continue a disciplinary proceeding against a member of the board of directors, an executive director, or an officer of a licensee or an employee, prospective employee, or person who is not a client upon any ground provided by this section. The department may enter an order prohibiting any a person from being a member of the board of directors, an executive director, or an officer of a licensee or prohibiting the excluded persons employment or presence in the facility, or otherwise take disciplinary action against the excluded person, notwithstanding any resignation, withdrawal of employment application, or change of duties by the excluded person, or any discharge, failure to hire, or reassignment of the excluded person by the licensee or that the excluded person no longer has contact with clients at the facility.
(g)A licensees failure to comply with the departments exclusion order after being notified of the order shall be grounds for disciplining the licensee pursuant to Section 1568.082.
(h)(1)(A)In cases in which When the excluded person appealed appeals the exclusion order and there is a decision and order of the department upholding the exclusion order, the person shall be prohibited from working in any a facility or being licensed to operate any a facility licensed by the department or from being a certified foster parent or resource family for the remainder of the excluded persons life, unless otherwise ordered by the department. one year, at which time the person may petition for reinstatement.
(B)The excluded individual person may petition for reinstatement one year after the effective date of the decision and order of the department upholding the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the decision and order.
(2)(A)In cases in which When the department informed informs the excluded person of his or her right to appeal the exclusion order and the excluded person did does not appeal the exclusion order, the person shall be prohibited from working in any a facility or being licensed to operate any a facility licensed by the department or a certified foster parent or resource family for the remainder of the excluded persons life, unless otherwise ordered by the department. one year, at which time the person may petition for reinstatement.
(B)The excluded individual person may petition for reinstatement after one year has elapsed from the date of the notification of the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the exclusion order.
SEC. 5.Section 1569.17 of the Health and Safety Code is amended to read:1569.17.The Legislature recognizes the need to generate timely and accurate positive fingerprint identification of applicants as a condition of issuing licenses, permits, or certificates of approval for persons to operate or provide direct care services in a residential care facility for the elderly. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with clients of residential care facilities for the elderly may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a residential care facility for the elderly.
(a)(1)Before and, as applicable, subsequent to issuing a license to any person or persons to operate or manage a residential care facility for the elderly, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f). directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or exemption for a person who was convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(2)The criminal history information shall include the full criminal record, arrests for which the person is awaiting trial, convictions of directly and adversely related crimes, and convictions of a violent felony, if any, of those persons, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.
(3)The following shall apply to the criminal record information:
(A)The State Department of Social Services may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of clearance, exemption, or licensure.
(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the State Department of Social Services shall provide an applicant with a complete copy of the information received.
(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the State Department of Social Services before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the State Department of Social Services in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the State Department of Social Services.
(D)The State Department of Social Services shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant, or any other person specified in subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime that occurred within the preceding five years or of a violent felony.
(E)If the State Department of Social Services makes a final decision to deny an application solely or in part because of the applicants conviction history, the department shall notify the applicant, in writing, of all the following:
(i)The final denial or disqualification.
(ii)The procedure for the applicant to challenge the decision or request reconsideration.
(iii)The right to appeal the decision under procedures set forth in the Government Code.
(A)(F)If the State Department of Social Services finds that the applicant or any other person specified in subdivision (b) has been convicted of a crime, other than a minor traffic violation, the application or presence shall be denied, unless the director grants directly and adversely related crime within the preceding five years or a violent felony, the department may grant an exemption pursuant to subdivision (f).
(B)(G)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), is awaiting trial for a crime other than a minor traffic violation, crime, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)(H)If no criminal record information has a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(D)(I)If the State Department of Social Services finds after licensure finds, after licensure, that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a crime other than a minor traffic violation, directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(E)(J)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the search required by subdivision (a). If an applicant meets all other conditions for licensure, except receipt of the Federal Bureau of Investigations criminal history information for the applicant and persons listed in subdivision (b), the department may issue a license if the applicant and each person described by subdivision (b) has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction as defined in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, the department determines that the licensee or person specified in subdivision (b) has a criminal record, been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked pursuant to Section 1569.50. The department may also suspend the license pending an administrative hearing pursuant to Sections 1569.50 and 1569.51.
(b)In addition to the applicant, the provisions of this section shall apply to criminal record clearances and exemptions for the following persons:
(1)(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility. Residents of unlicensed independent senior housing facilities that are located in contiguous buildings on the same property as a residential care facility for the elderly shall be exempt from these requirements.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the residential care facility for the elderly. The facility shall maintain the copy of the certification on file as long as the care is being provided by the certified nurse assistant or certified home health aide at the facility. Nothing in this paragraph restricts This paragraph does not restrict the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed residential care facility for the elderly pursuant to Section 1569.58.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in a similar capacity.
(F)Additional officers of the governing body of the applicant or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from requirements applicable under paragraph (1):
(A)A spouse, relative, significant other, or close friend of a client shall be exempt if this person is visiting the client or provides direct care and supervision to that client only.
(B)A volunteer to whom all of the following apply:
(i)The volunteer is at the facility during normal waking hours.
(ii)The volunteer is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(iii)The volunteer spends no more than 16 hours per week at the facility.
(iv)The volunteer does not provide clients with assistance in dressing, grooming, bathing, or personal hygiene.
(v)The volunteer is not left alone with clients in care.
(C)A third-party contractor retained by the facility if the contractor is not left alone with clients in care.
(D)A third-party contractor or other business professional retained by a client and at the facility at the request or by permission of that client. These individuals shall not be left alone with other clients.
(E)Licensed or certified medical professionals are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(F)Employees of licensed home health agencies and members of licensed hospice interdisciplinary teams who have contact with a resident of a residential care facility at the request of the resident or residents legal decisionmaker are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(G)Clergy and other spiritual caregivers who are performing services in common areas of the residential care facility, or who are advising an individual resident at the request of, or with permission of, the resident, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(H)Any person similar to those described in this subdivision, as defined by the department in regulations.
(I)Nothing in this paragraph shall This paragraph does not prevent a licensee from requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.
(c)(1)(A)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempted from fingerprinting shall obtain either a criminal record clearance or an exemption, pursuant to subdivision (f), from the State Department of Social Services prior to employment, residence, or initial presence in a facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be fingerprinted and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. fingerprinted. The licensee shall submit these fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or to comply with paragraph (1) of subdivision (g) prior to the persons employment, residence, or initial presence in the residential care facility for the elderly.
(B)These fingerprint images and related information shall be electronically transmitted in a manner approved by the State Department of Social Services and the Department of Justice. A licensees failure to submit fingerprint images and related information to the Department of Justice, or to comply with paragraph (1) of subdivision (g), as required in this section, shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1569.50. The State Department of Social Services may assess civil penalties for continued violations as permitted by Section 1569.49. The licensee shall then submit these fingerprint images to the State Department of Social Services for processing. Documentation of the individuals clearance or exemption shall be maintained by the licensee and be available for inspection. The Department of Justice shall notify the department, as required by Section 1522.04, and notify the licensee by mail within 14 days of electronic transmission of the fingerprints to the Department of Justice, if the person has no criminal record. A violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1569.50. The department may assess civil penalties for continued violations as permitted by Section 1569.49.
(2)Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided for in this subdivision. If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprint images, notify the licensee that the fingerprint images were illegible.
(3)Except for persons specified in paragraph (2) of subdivision (b), the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted under this subdivision. If the State Department of Social Services determines, on the basis of the fingerprint images submitted to the Department of Justice, that the person has been convicted of a sex offense against a minor, an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, directly and adversely related crime within the preceding five years or a violent felony, the State Department of Social Services shall notify the licensee in writing within 15 calendar days of the receipt of the notification from the Department of Justice to act immediately to terminate the persons employment, remove the person from the residential care facility for the elderly, or bar the person from entering the residential care facility for the elderly. The State Department of Social Services may subsequently grant an exemption pursuant to subdivision (f). If the conviction was for another crime, except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (1) terminate the persons employment, remove the person from the residential care facility for the elderly, elderly or bar the person from entering the residential care facility for the elderly or (2) and to seek an exemption pursuant to subdivision (f). The department shall determine determine, within five business days of receiving the notice of application for exemption, if the person shall be allowed to remain in the facility until a decision on the exemption is rendered by the department. A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties by the department against the licensee, in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1569.50.
(4)The department may issue an exemption on its own motion pursuant to subdivision (f) if the persons criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions. convictions, or evidence of rehabilitation. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption pursuant to this paragraph.
(5)Concurrently with notifying the licensee pursuant to paragraph (4), the department shall notify the affected individual of his or her right to seek an exemption pursuant to subdivision (f). The individual may seek an exemption only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (4).
(6)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected on the report furnished by the Department of Justice.
(d)(1)For purposes of this section or any other provision of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction does not include successful completion of a post- or pre-plea diversion program, successful completion of a post- or pre-plea deferred entry of judgment program, dismissal of a conviction pursuant to Sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. Any action that the department is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of the sentence, notwithstanding a subsequent order pursuant to the provisions of Sections 1203.4 and 1203.4a of the Penal Code permitting a person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. sentence. For purposes of this section or any other provision of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction. For purposes of this section or any other provision of this chapter, the arrest disposition state summary criminal history report certified by the Department of Justice or documents admissible in a criminal action pursuant to Section 969b of the Penal Code shall be prima facie evidence of the conviction, notwithstanding any other law prohibiting the admission of these documents in a civil or administrative action.
(2)For purposes of this section or any other provision of this chapter, the department shall consider criminal convictions from another state or federal court for a directly and adversely related crime or a crime that would, if committed in this state, be a violent felony, as if the criminal offense was committed in this state.
(e)(1)The State Department of Social Services shall not use a record of arrest to deny, revoke, or terminate any that is not pending and is not job related to revoke or terminate an application, license, employment, or residence unless the department investigates the incident and secures evidence, whether or not related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or subdivision (b) of Section 273a of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a record exemption pursuant to subdivision (f), prior to the departments completion of an investigation pursuant to paragraph (1). (3)(2)The State Department of Social Services is authorized to obtain any may obtain relevant arrest or conviction records or reports from any law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and individuals associated with a community care facility.
(f)(1)(A)After review of the record, the director may grant an exemption from disqualification for a license as specified in paragraphs (1) and (4) of subdivision (a), or for employment, residence, or presence in a residential care facility for the elderly as specified in paragraphs (4), (5), and (6) of subdivision (c) if the director has substantial and convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of such good character as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). However, an exemption shall not An exemption may be granted pursuant to this subdivision if the conviction was for any of the following offenses: a directly and adversely related crime within the preceding five years or a violent felony.
(A)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.(B)A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) of Section 451 of the Penal Code.(B)The department shall not bar an applicant based solely on the type of conviction without considering evidence of rehabilitation.
(C)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(2)The director shall notify in writing the licensee or the applicant of his or her decision within 60 days of receipt of all information from the applicant and other sources determined necessary by the director for the rendering of a decision pursuant to this subdivision.
(3)The department shall not prohibit a person from being employed or having contact with clients in a facility on the basis of a denied criminal record exemption request or arrest information unless the department complies with the requirements of Section 1569.58.
(g)(1)For purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one facility to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be submitted in writing to the department, and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed stamped envelope for this purpose, the department shall verify whether the individual has a clearance that can be transferred.
(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of two three years after an employee is no longer employed at a licensed facility in order for the criminal record clearances to be transferred under this section.
(h)If a licensee or facility is required by law to deny employment or to terminate employment of any an employee based on written notification from the department that the employee has a prior criminal conviction for a directly and adversely related crime within the preceding five years or a violent felony, or is determined unsuitable for employment under Section 1569.58, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.
(i)Notwithstanding any other law, the department may provide an individual with a copy of his or her state or federal level criminal offender record information search response as provided to that department by the Department of Justice if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. The state or federal level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the individual in his or her written request. The department shall retain a copy of the individuals written request and the response and date provided.(i)(1)The department shall retain application forms and other documents submitted by applicants, notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.
(2)The department shall retain all of the following information:
(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.
(B)The number of applicants with a criminal record who received notice of disqualification or potential disqualification.
(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.
(D)The number of applicants with a criminal record who appealed disqualification.
(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.
(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.
(j)For purposes of this section, the following definitions apply:
(1)Directly and adversely related crime means a crime that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure.
(2)Violent felony has the same meaning as in Section 667.5 of the Penal Code.
SEC. 6.Section 1596.871 of the Health and Safety Code is amended to read:1596.871.The Legislature recognizes the need to generate timely and accurate positive fingerprint identification of applicants as a condition of issuing licenses, permits, or certificates of approval for persons to operate or provide direct care services in a child care center or family child care home. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with child day care facility clients may pose a risk to the childrens health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a child day care facility.
(a)(1)Before and, as applicable, subsequent to issuing a license or special permit to any a person to operate or manage a day care facility, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f). been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who was convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(2)The criminal history information shall include the full criminal record, arrests for which the person is awaiting trial, convictions of directly and adversely related crimes within the preceding five years, and convictions for a violent felony, if any, of those persons, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.
(3)Except during the 200304 to the 201819 fiscal years, inclusive, neither the Department of Justice nor the department may charge a fee for the fingerprinting of an applicant who will serve six or fewer children or any family day care applicant for a license, or for obtaining a criminal record of an applicant pursuant to this section.
(4)The following shall apply to the criminal record information:
(A)The State Department of Social Services may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of clearance, exemption, or licensure.
(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the State Department of Social Services shall provide an applicant with a complete copy of the information received.
(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the State Department of Social Services before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the State Department of Social Services in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the State Department of Social Services.
(D)The State Department of Social Services shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant, or any other person specified in subdivision (b), has been convicted of a directly and adversely related crime with the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(E)If the State Department of Social Services makes a final decision to deny an application solely or in part because of the applicants conviction history, the department shall notify the applicant, in writing, of all the following:
(i)The final denial or disqualification.
(ii)The procedure for the applicant to challenge the decision or request reconsideration.
(iii)The right to appeal the decision under procedures set forth in the Government Code.
(A)(F)If the State Department of Social Services finds that the applicant or any other person specified in subdivision (b) has been convicted of a crime, other than a minor traffic violation, the application shall be denied, unless the director grants directly and adversely related crime within the preceding five years or a violent felony, the department may grant an exemption pursuant to subdivision (f).
(B)(G)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), is awaiting trial for a crime other than a minor traffic violation, crime, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record information has(H)If a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(D)(I)If the State Department of Social Services finds after licensure that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a crime other than a minor traffic violation, directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(E)(J)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the search required by subdivision (a). If an applicant meets all other conditions for licensure, except receipt of the Federal Bureau of Investigations criminal history information for the applicant and persons listed in subdivision (b), the department may issue a license if the applicant and each person described by subdivision (b) has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction as defined in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, the department determines that the licensee or person specified in subdivision (b) has a criminal record, been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked pursuant to Section 1596.885. The department may also suspend the license pending an administrative hearing pursuant to Section 1596.886.
(b)(1)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a child, residing in the facility.
(C)Any person who provides care and supervision to the children.
(D)Any staff person, volunteer, or employee who has contact with the children.
(i)A volunteer providing time-limited specialized services shall be exempt from the requirements of this subdivision if this person is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption, the volunteer spends no more than 16 hours per week at the facility, and the volunteer is not left alone with children in care.
(ii)A student enrolled or participating at an accredited educational institution shall be exempt from the requirements of this subdivision if the student is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption, the facility has an agreement with the educational institution concerning the placement of the student, the student spends no more than 16 hours per week at the facility, and the student is not left alone with children in care.
(iii)A volunteer who is a relative, legal guardian, or foster parent of a client in the facility shall be exempt from the requirements of this subdivision.
(iv)A contracted repair person retained by the facility, if not left alone with children in care, shall be exempt from the requirements of this subdivision.
(v)Any person similar to those described in this subdivision, as defined by the department in regulations.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer, other person serving in like capacity, or a person designated by the chief executive officer as responsible for the operation of the facility, as designated by the applicant agency.
(F)If the applicant is a local educational agency, the president of the governing board, the school district superintendent, or a person designated to administer the operation of the facility, as designated by the local educational agency.
(G)Additional officers of the governing body of the applicant, or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the persons capability to exercise substantial influence over the operation of the facility.
(H)This section does not apply to employees of child care and development programs under contract with the State Department of Education who have completed a criminal record clearance as part of an application to the Commission on Teacher Credentialing, and who possess a current credential or permit issued by the commission, including employees of child care and development programs that serve both children subsidized under, and children not subsidized under, a State Department of Education contract. The Commission on Teacher Credentialing shall notify the department upon revocation of a current credential or permit issued to an employee of a child care and development program under contract with the State Department of Education.
(I)This section does not apply to employees of a child care and development program operated by a school district, county office of education, or community college district under contract with the State Department of Education who have completed a criminal record clearance as a condition of employment. The school district, county office of education, or community college district upon receiving information that the status of an employees criminal record clearance has changed shall submit that information to the department.
(2)Nothing in this subdivision shall This subdivision does not prevent a licensee from requiring a criminal record clearance of any individuals an individual exempt from the requirements under this subdivision.
(c)(1)(A)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempt from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification, pursuant to subdivision (f), from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be fingerprinted and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. fingerprinted. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, or comply with paragraph (1) of subdivision (h), prior to the persons employment, residence, or initial presence in the child day care facility.
(B)These fingerprint images and related information shall be electronically submitted to the Department of Justice in a manner approved by the State Department of Social Services and the Department of Justice for the purpose of obtaining a permanent set of fingerprints. A licensees failure to submit fingerprint images and related information to the Department of Justice or to comply with paragraph (1) of subdivision (h), as required in this section, shall result in the citation of a deficiency, and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1596.885 or 1596.886. The State Department of Social Services may assess civil penalties for repeated or continued violations permitted by Sections 1596.99 and 1597.58. The fingerprint images and related information shall then be submitted to the department for processing. Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided in this subdivision. If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprint images, notify the licensee that the fingerprints were illegible.
(C)Documentation of the individuals clearance or exemption shall be maintained by the licensee, and shall be available for inspection. When live-scan technology is operational, as defined in Section 1522.04, the Department of Justice shall notify the department, as required by that section, and notify the licensee by mail within 14 days of electronic transmission of the fingerprints to the Department of Justice, if the person has no criminal record. Any violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1596.885 or 1596.886. The department may assess civil penalties for repeated or continued violations, as permitted by Sections 1596.99 and 1597.58.
(2)Except for persons specified in paragraph (2) of subdivision (b), the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted under this subdivision. If it is determined by the department, on the basis of fingerprints submitted to the Department of Justice, that the person has been convicted of a sex offense against a minor, an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, a directly and adversely related crime within the preceding five years or a violent felony, the State Department of Social Services shall notify the licensee to act immediately to terminate the persons employment, remove the person from the child day care facility, or bar the person from entering the child day care facility. The department may subsequently grant an exemption pursuant to subdivision (f). If the conviction was for another crime except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (1) terminate the persons employment, remove the person from the child day care facility, facility or bar the person from entering the child day care facility; or (2) facility, pending an appeal, and to seek an exemption pursuant to subdivision (f). The department shall determine determine, within five business days of receiving notice of the application for exemption, if the person shall be allowed to remain in the facility until a decision on the exemption is rendered. A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties by the department against the licensee, in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1596.885 or 1596.886.
(3)The department may issue an exemption on its own motion pursuant to subdivision (f) if the persons criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions. convictions, or evidence of rehabilitation. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption pursuant to this paragraph.
(4)Concurrently with notifying the licensee pursuant to paragraph (3), the department shall notify the affected individual of his or her right to seek an exemption pursuant to subdivision (f). The individual may seek an exemption only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (3).
(5)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(d)(1)For purposes of this section or any other provision of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction does not include successful completion of a post- or pre-plea diversion program, successful completion of a post- or pre-plea deferred entry of judgment program, dismissal of a conviction pursuant to Sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. Any action that the department is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. sentence. For purposes of this section or any other provision of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction. For purposes of this section or any other provision of this chapter, the arrest disposition state summary criminal history report certified by the Department of Justice, or documents admissible in a criminal action pursuant to Section 969b of the Penal Code, shall be prima facie evidence of conviction, notwithstanding any other law prohibiting the admission of these documents in a civil or administrative action.
(2)For purposes of this section or any other provision of this chapter, the department shall consider criminal convictions from another state or federal court for a directly and adversely related crime or a crime that would, if committed in this state, be a violent felony, as if the criminal offense was committed in this state.
(e)(1)The State Department of Social Services shall not use a record of arrest to deny, revoke, or terminate any that is not pending and not job related to revoke or terminate an application, license, employment, or residence unless the department investigates the incident and secures evidence, whether or not related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or subdivision (b) of Section 273a of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f), prior to the departments completion of an investigation pursuant to paragraph (1).(3)(2)The State Department of Social Services is authorized to obtain any may obtain relevant arrest or conviction records or reports from any law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and individuals associated with a community care facility.
(f)(1)(A)After review of the record, the director may grant an exemption from disqualification for a license or special permit as specified in paragraphs (1) and (4) of subdivision (a), or for employment, residence, or presence in a child day care facility as specified in paragraphs (3), (4), and (5) of subdivision (c) if the director has substantial and convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of good character so as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). However, an exemption shall not An exemption may be granted pursuant to this subdivision if the conviction was for any of the following offenses: a directly and adversely related crime that occurred within the preceding five years or a violent felony.
(A)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.(B)A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) or (b) of Section 451 of the Penal Code.(B)The department shall not bar an applicant based solely on the type of conviction without considering evidence of rehabilitation.
(C)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(2)The department shall not prohibit a person from being employed or having contact with clients in a facility on the basis of a denied criminal record exemption request or arrest information unless the department complies with the requirements of Section 1596.8897.
(g)Upon request of the licensee, who shall enclose a self-addressed stamped postcard envelope for this purpose, the Department of Justice shall verify receipt of the fingerprint images.
(h)(1)For the purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one facility to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be in writing to the department, and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed stamped envelope for this purpose, the department shall verify whether the individual has a clearance that can be transferred.
(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of two three years after an employee is no longer employed at a licensed facility in order for the criminal record clearances to be transferred.
(3)The following shall apply to a criminal record clearance or exemption from the department or a county office with department-delegated licensing authority:
(A)A county office with department-delegated licensing authority may shall accept a clearance or exemption from the department.
(B)The department may shall accept a clearance or exemption from any county office with department-delegated licensing authority.
(C)A county office with department-delegated licensing authority may shall accept a clearance or exemption from any other county office with department-delegated licensing authority.
(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code concerning an individual whose criminal record clearance was originally processed by the department or a county office with department-delegated licensing authority, all of the following shall apply:
(A)The Department of Justice shall process a request from the department or a county office with department-delegated licensing authority to receive the notice, only if all of the following conditions are met:
(i)The request shall be is submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii)The request shall be is for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain contains all prescribed data elements and format protocols pursuant to a written agreement between the department and the Department of Justice.
(B)(i)On or before January 7, 2005, the department shall notify the Department of Justice of all county offices that have department-delegated licensing authority.
(ii)The department shall notify the Department of Justice within 15 calendar days of the date on which a new county office receives department-delegated licensing authority or a countys delegated licensing authority is rescinded.
(C)The Department of Justice shall charge the department or a county office with department-delegated licensing authority a fee for each time a request to substitute the recipient agency is received for purposes of this paragraph. This fee shall not exceed the cost of providing the service.
(i)Notwithstanding any other law, the department may provide an individual with a copy of his or her state or federal level criminal offender record information search response as provided to that department by the Department of Justice if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. The state or federal level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the individual in his or her written request. The department shall retain a copy of the individuals written request and the response and date provided.(i)(1)The department shall retain application forms and other documents submitted by applicants, notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.
(2)The department shall retain all of the following information:
(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.
(B)The number of applicants with a criminal record who received notice of disqualification or potential disqualification.
(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.
(D)The number of applicants with a criminal record who appealed disqualification.
(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.
(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.
(j)For purposes of this section, the following definitions apply:
(1)Directly and adversely related crime means a crime that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure.
(2)Violent felony has the same meaning as in Section 667.5 of the Penal Code.
SEC. 7.Section 1596.8897 of the Health and Safety Code is amended to read:1596.8897.(a)The department may prohibit any a person from being a member of the board of directors, an executive director, or an officer of a licensee or a licensee from employing, or continuing the employment of, or allowing in a licensed facility, or allowing contact with clients of a licensed facility by, any employee, prospective employee, or person who is not a client who has:
(1)Violated, or aided or permitted the violation by any other person of, any provisions of this chapter or of any rules or regulations promulgated under this chapter.
(2)Engaged in job-related conduct within the preceding five years that is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility, or the people of the State of California. facility.
(3)Been denied an exemption to work or to be present in a facility, when that person has been convicted of a crime as defined described in Section 1596.871.
(4)Engaged in any other conduct that would constitute a basis for disciplining a licensee.
(5)Engaged in job-related acts of financial malfeasance within the preceding five years concerning the operation of a facility, including, but not limited to, improper use or embezzlement of client moneys and property or fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services for the care of clients.
(b)The excluded person, the facility, and the licensee shall be given written notice of the basis of the departments action and of action, the excluded persons right to an appeal. appeal, and instructions for filing that appeal. The notice shall be served either by personal service or by registered mail. Within 15 30 days after the department serves the notice, the excluded person may file with the department a written appeal of the exclusion order. If the excluded person fails to file a written appeal within the prescribed time, the departments action shall be final.
(c)(1)The department may require the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility pending a final decision of the matter, when, in the opinion of the department, the action is necessary to protect residents or clients from physical or mental abuse, abandonment, or any other substantial threat to their health or safety.
(2)If the department requires the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility, the department shall serve an order of immediate exclusion upon the excluded person that shall notify the excluded person of the basis of the departments action and of the excluded persons right to a hearing.
(3)Within 15 30 days after the department serves an order of immediate exclusion, the excluded person may file a written appeal of the exclusion with the department. The departments action shall be final if the excluded person does not appeal the exclusion within the prescribed time. The department shall do the following upon receipt of a written appeal:
(A)Within 30 days of receipt of the appeal, serve an accusation upon the excluded person.
(B)Within 60 days of receipt of a notice of defense by the employee or prospective employee pursuant to Section 11506 of the Government Code, conduct a hearing on the accusation.
(4)An order of immediate exclusion of the excluded person from the facility shall remain in effect until the hearing is completed and the department has made a final determination on the merits. However, the order of immediate exclusion shall be deemed vacated if the department fails to make a final determination on the merits within 60 days after the original hearing has been completed.
(d)An excluded person who files a written appeal of the exclusion order with the department pursuant to this section shall, as part of the written request, provide his or her current mailing address. The excluded person shall subsequently notify the department in writing of any change in mailing address, until the hearing process has been completed or terminated.
(e)Hearings held pursuant to this section shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Division 3 of Title 2 of the Government Code. The standard of proof shall be the preponderance of the evidence and the burden of proof shall be on the department.
(f)The department may institute or continue a disciplinary proceeding against a member of the board of directors, an executive director, or an officer of a licensee or an employee, prospective employee, or person who is not a client upon any ground provided by this section. The department may enter an order prohibiting any person from being a member of the board of directors, the executive director, or an officer of a licensee prohibiting the excluded persons employment or presence in the facility, or otherwise take disciplinary action against the excluded person, notwithstanding any resignation, withdrawal of employment application, or change of duties by the excluded person, or any discharge, failure to hire, or reassignment of the excluded person by the licensee or that the excluded person no longer has contact with clients at the facility.
(g)A licensees failure to comply with the departments exclusion order after being notified of the order shall be grounds for disciplining the licensee pursuant to Section 1596.885 or 1596.886.
(h)(1)(A)In cases in which When the excluded person appealed appeals the exclusion order and there is a decision and order upholding the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or from being a certified foster parent or resource family for the remainder of the excluded persons life, unless otherwise ordered by the department. a period of one year, at which time the excluded person may petition for reinstatement.
(B)The excluded individual person may petition for reinstatement one year after the effective date of the decision and order of the department upholding the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the decision and order.
(2)(A)In cases in which When the department informed informs the excluded person of his or her right to appeal the exclusion order and the excluded person did does not appeal the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or a certified foster parent or resource family for the remainder of the excluded persons life, unless otherwise ordered by the department. a period of one year, at which time the excluded person may petition for reinstatement.
(B)The excluded individual person may petition for reinstatement after one year has elapsed from the date of the notification of the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the exclusion order.
SEC. 8.Section 1796.19 of the Health and Safety Code is amended to read:1796.19.(a)The department shall consider, but is not limited to, the following when determining whether to approve a registration application:
(1)Evidence satisfactory to the department of the ability of the home care aide applicant to comply with this chapter and the rules and regulations promulgated under this chapter by the department.
(2)Evidence satisfactory to the department that the home care aide applicant is of reputable and responsible character. The evidence shall include, but is not limited to, a review of the independent home care aide applicants criminal offender record information pursuant to Section 1522. The department may deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, within the preceding five years or a violent felony, as defined in Section 667.5 of the Penal Code.
(3) Any job-related revocation or other disciplinary action taken, taken within the preceding five years, or in the process of being taken, related to the care of individuals against the home care aide applicant.
(4)Any other information that may be required by the department for the proper administration and enforcement of this chapter.
(b)Failure of the home care aide applicant to cooperate with the department in the completion of the Home Care Aide application shall result in the withdrawal of the registration application. Failure to cooperate means that the information described in this chapter and by any rules and regulations promulgated under this chapter has not been provided, or has not been provided in the form requested by the department, or both.
SEC. 9.Section 1796.23 of the Health and Safety Code is amended to read:1796.23.(a)Each person initiating a background examination to be a registered home care aide shall submit his or her fingerprints to the Department of Justice by electronic transmission in a manner approved by the department, unless exempt under subdivision (d). Each person initiating a background examination to be a registered home care aide shall also submit to the department a signed declaration under penalty of perjury regarding any prior criminal convictions pursuant to Section 1522 (d), and a completed home care aide application.
(b)A law enforcement agency or other local agency authorized to take fingerprints may charge a reasonable fee to offset the costs of fingerprinting for the purposes of this chapter. The fee revenues shall be deposited in the Fingerprint Fees Account.
(c)The Department of Justice shall use the fingerprints to search state and Federal Bureau of Investigation criminal offender record information pursuant to Section 1522. The department may deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, within the preceding five years or a violent felony, as defined in Section 667.5 of the Penal Code.
(d)A person who is a current licensee or employee in a facility licensed by the department, a certified foster parent, a certified administrator, or a registered TrustLine provider need not submit fingerprints to the department, and may transfer his or her current criminal record clearance or exemption pursuant to paragraph (1) of subdivision (h) of Section 1522. The person shall instead submit to the department, along with the persons registration application, a copy of the persons identification card described in Section 1796.22 and sign a declaration verifying the persons identity.
SEC. 10.Section 1796.24 of the Health and Safety Code is amended to read:1796.24.(a)(1)The department shall establish a home care aide registry pursuant to this chapter and shall continuously update the registry information. Upon submission of the home care aide application and fingerprints or other identification documents pursuant to Section 1796.22, the department shall enter into the home care aide registry the persons name, identification number, and an indicator that the person has submitted a home care aide application and fingerprints or identification documentation. This person shall be known as a home care aide applicant.
(2)A person shall not be entitled to apply to be a registered home care aide and shall have his or her registration application returned without the right to appeal if the person would not be eligible to obtain a license pursuant to Section 1796.40 or 1796.41.
(b)(1)Before approving an individual for registration, the department shall check the individuals criminal history pursuant to Section 1522. Upon completion of the searches of the state summary criminal offender record information and the records of the Federal Bureau of Investigation, the home care aide applicant shall be issued a criminal record clearance or granted a criminal record exemption if grounds do not exist for denial pursuant to Section 1522. The department may deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, within the preceding five years or a violent felony, as defined in Section 667.5 of the Penal Code. The department shall enter that finding in the persons record in the home care aide registry and shall notify the person of the action. This person shall be known as a registered home care aide. If the home care aide applicant meets all of the conditions for registration, except receipt of the Federal Bureau of Investigations criminal offender record information search response, the department may issue a clearance if the home care aide applicant has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a minor traffic violation. If, after approval, the department determines that the registrant has a criminal record, been convicted of a directly and adversely related crime within the preceding five years or a violent felony, registration may be revoked pursuant to Section 1796.26.
(2)For purposes of compliance with this section, the department may permit a home care organization applicant or a home care organization licensee to request the transfer of a home care aides current criminal record clearance or exemption for a licensed care facility issued by the department. A signed criminal record clearance or exemption transfer request shall be submitted to the department and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee or home care aide applicant, the department shall verify whether the individual has a clearance or exemption that can be transferred pursuant to the requirements of this chapter.
(3)The department shall hold criminal record clearances and exemptions in its active files for a minimum of three years after the individual is no longer on the registry in order to facilitate a transfer request.
SEC. 11.Section 1796.25 of the Health and Safety Code is amended to read:1796.25.(a)(1)If the department finds that the home care aide applicant or the registered home care aide has been convicted of a crime, other than a minor traffic violation, the department shall deny the home care aide application, or revoke the registered home care aides registration unless the department grants an exemption pursuant to subdivision (g) of Section 1522. The department may deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, within the preceding five years or a violent felony, as defined in Section 667.5 of the Penal Code.
(2)If the department finds that the home care aide applicant or registered home care aide has an arrest a job-related arrest, as described in subdivision (a) of Section 1522, within the preceding five years, the department may deny the registration application or registration renewal application, or revoke the registered home care aides registration, if the home care aide or registered home care aide may pose a risk to the health and safety of any person who is or may become a client and the department complies with subdivision (e) of Section 1522.
(3)The department may deny the home care aide application or the renewal application of a registered home care aide, or revoke the home care aide registration, if the department discovers that the department or a county had previously revoked or rescinded a license or certificate to be a certified family home or resource family, a certified administrator, or a registered trustline provider held by the home care aide applicant or registered home care aide, or that the department had excluded the home care aide applicant or registered home care aide from a licensed facility, certified family home, or resource family home. home, pending an appeal.
(4)The department may deny the home care aide application or registered home care aide registration renewal application for placement or retention upon the home care aide registry, or revoke the registered home care aides registration, if the department discovers that the department or a county had previously denied the home care aide applicants or registered home care aides application for a license from the department or certificate to be a certified family home or resource family, a certified administrator, or a registered trustline provider. provider, pending an appeal.
(5)The following shall apply to the state summary criminal history information:
(A)The department may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of registration, exemption, or licensure.
(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the department shall provide an applicant with a complete copy of the information received.
(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the department before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the department in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the department.
(D)The department shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, or a violent felony, as defined in Section 667.5 of the Penal Code. The department may deny licensure, registration, or an exemption for a person who has been convicted of a directly and adversely related crime that occurred within the preceding five years or of a violent felony.
(E)If the department makes a final decision to deny an application solely or in part because of the applicants conviction history, the department shall notify the applicant, in writing, of all the following:
(i)The final denial or disqualification.
(ii)The procedure for the applicant to challenge the decision or request reconsideration.
(iii)The right to appeal the decision under procedures set forth in the Government Code.
(b)(1)If the department revokes or denies a home care aide application or registered home care aides renewal application pursuant to subdivision (a), the department shall advise the home care aide applicant or registered home care aide, by written notification, of the right to appeal. The home care aide applicant or registered home care aide shall have 15 30 days from the date of the written notification to appeal the denial or revocation.
(2)Upon receipt by the department of the appeal, the appeal shall be set for hearing. The hearing shall be conducted in accordance with Section 1551.
(c)If the home care aide application or registered home care aide renewal application is denied, the home care aide applicant or registered home care aide shall not reapply until he or she meets the timeframe set forth in Sections 1796.40 and 1796.41.
SEC. 12.Section 1796.26 of the Health and Safety Code is amended to read:1796.26.(a)(1)The department may revoke or deny a registered home care aides registration or request for registration renewal if any of the following apply to the registered home care aide:
(A) He or she procured or attempted to procure his or her registered home care aide registration or renewal by fraud or willful and intentional misrepresentation.
(B) He or she has a criminal conviction, other than a minor traffic violation, unless an exemption is granted pursuant to Section 1522. The department may deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, within the preceding five years or a violent felony, as defined in Section 667.5 of the Penal Code.
(C) He or she engages or has engaged in job-related conduct within the preceding five years that is inimical to the health, morals, welfare, or safety of the people of the State of California or an individual receiving or seeking to receive home care services.
(2)An individual whose registration has been revoked shall not reapply until he or she meets the timeframe as set forth in Section 1796.40 or 1796.41.
(3)An individual whose criminal record exemption has been denied shall not reapply for two years one year from the date of the exemption denial.
(4)The hearing to revoke or deny the registered home care aide registration or registration renewal request shall be conducted in accordance with Section 1551.
(b)(1)The registered home care aides registration shall be considered forfeited under the following conditions:
(A)The registered home care aide has had a license or certificate of approval revoked, suspended, or denied as authorized under Section 1534, 1550, 1568.082, 1569.50, 1596.608, or 1596.885.
(B)The registered home care aide has been denied employment, residence, or presence in a facility or clients home based on action resulting from an administrative hearing pursuant to Section 1558, 1568.092, 1569.58, or 1596.8897.
(C)The registered home care aide fails to establish a mailing address with the department within 90 days of registration or maintain a current mailing address with the department.
(D)The registered home care aides registration is not renewed.
(E)The registered home care aide surrenders his or her registration to the department.
(F)The registered home care aide dies.
(2)An individual whose registered home care aide registration has been forfeited shall not reapply until he or she meets the timeframe set forth by the department in Sections 1796.40 and 1796.41.
(c)A registered home care aides registration shall not be transferred or sold to another individual or entity.
SEC. 13.Section 1796.38 of the Health and Safety Code is amended to read:1796.38.The department may deny an application for licensure or suspend or revoke any license issued pursuant to this chapter, pursuant to Sections 1550.5 and 1551 and in the manner provided in this chapter on any of the following grounds:
(a)Violation by the licensee of this chapter or of the rules and regulations promulgated under this chapter.
(b)Aiding, abetting, or permitting the violation of this chapter or of the rules and regulations promulgated under this chapter.
(c)Conduct Job-related conduct within the preceding five years that is inimical to the health, morals, welfare, or safety of either an individual receiving home care services or the people of the State of California. services.
(d)The conviction of a licensee, or other person mentioned in Section 1522, at any time before or during licensure, of a crime described in Section 1522. The department may deny clearance or exemption for a person who has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, within the preceding five years or a violent felony, as defined in Section 667.5 of the Penal Code.
(e)Engaging in job-related acts of financial malfeasance within the preceding five years concerning the operation of a home care organization.
SECTION 1.Section 325.3 is added to the Unemployment Insurance Code, to read:325.3.(a)The department shall develop tools, including a searchable database to be included in the CalJOBS Internet Web site, that will enable a person who has a prior criminal conviction to access available employment positions.(b)The department shall also create a feature on the CalJOBS Internet Web site, to enable employers to declare their interest in, and ability to hire, a person with a prior criminal conviction.(a)The department shall develop tools, including a searchable database to be included in the CalJOBS Internet Web site, that will enable a person who has a prior criminal conviction to access available employment positions.
(b)The department shall also create a feature on the CalJOBS Internet Web site, to enable employers to declare their interest in, and ability to hire, a person with a prior criminal conviction.
|
Date
|
Status
|
|---|---|
| May 25, 2018 | Joint Rule 62(a), file notice suspended. |
| May 23, 2018 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Apr 26, 2018 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 2.) (April 24). Re-referred to Com. on APPR. |
| Apr 17, 2018 | Re-referred to Com. on HUM. S. |
| Apr 16, 2018 | From committee chair, with author's amendments: Amend, and re-refer to Com. on HUM. S. Read second time and amended. |
| Apr 4, 2018 | Re-referred to Com. on HUM. S. |
| Apr 3, 2018 | From committee chair, with author's amendments: Amend, and re-refer to Com. on HUM. S. Read second time and amended. |
| Apr 2, 2018 | Referred to Com. on HUM. S. |
| Feb 17, 2018 | From printer. May be heard in committee March 19. |
| Feb 16, 2018 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Apr 24, 2018 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Human Services |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| ACLU of California | * Support | Apr 24, 2018 |
| Alameda County | * Support | Apr 24, 2018 |
| alameda county public defender's office | ** Support | Apr 23, 2018 |
| All of Us or None | * Support | Apr 24, 2018 |
| ARC | * Indeterminate | Apr 24, 2018 |
| California Association Of Local Conservation Corps | ** Support | Apr 23, 2018 |
| California Childcare Resource & Referral Network | * Against | Apr 24, 2018 |
| Childcare Law Center | * Against Unless Amend | Apr 24, 2018 |
| East Bay Community Law Center | * Support | Apr 24, 2018 |
| Legal Services for Prisoners with Children | * Support | Apr 24, 2018 |
| National Association of Social Workers California Chapter | * Support | Apr 24, 2018 |
| National Employment Law Project | ** Support | Apr 23, 2018 |
| Oakland Private Industry Council, Inc. | ** Support | Apr 23, 2018 |
| Policy Link | * Support | Apr 24, 2018 |
| Root & Rebound, Sponsor | ** Support | Apr 23, 2018 |
| UCP California collaboration | * Indeterminate | Apr 24, 2018 |
| Young Women's Freedom Center | ** Support | Apr 23, 2018 |
Date of Hearing: May 23, 2018
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
ABPCA Bill Id:AB 3039
Author:(Holden) – As Amended Ver:April 16, 2018
Policy Committee: | Human Services | Vote: | 5 - 2 |
|
| ||
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill makes numerous changes to the existing criminal background check process in order to limit the Department of Social Services’ (DSS) discretion to deny, to suspend, or to revoke licensure, operation, or employment in community care facilities. This bill limits DSS’s discretion to cases where the applicant or licensee was formally convicted of a related crime and prohibits license denial or suspension or revocation for offenses older than five years with the exception of violent felonies, as currently established in statute.
This bill applies to Residential Care Facilities for the Elderly (RCFEs), Residential Care Facilities for Persons with Chronic Life-Threatening Illness (RCFPCLTI), and child care facilities, as well as home care aide registry applicants and home care organizations.
FISCAL EFFECT:
- Costs to DSS likely in the low hundreds of thousands of dollars (GF) for increased workload to provide individuals copies of state and federal summary criminal history information from the Department of Justice (DOJ) and to develop and implement procedures for providing notifications of determinations and for handling appeals.
- In addition, provisions of this bill may render the state out of compliance with the federal Child Care and Development Block Grant (CCDBG) requirements and possibly the Adam Walsh Child Protection and Safety Act of 2006 criminal background check requirements, thereby jeopardizing potentially millions of dollars in federal Title IV-E funding and other federal funding for various programs.
COMMENTS:
- Purpose. This bill seeks to eliminate barriers to employment in community care facilities for people with criminal records convictions. According to the author:
[This bill] creates a fair chance for people with arrest and conviction records to access caregiving and other jobs governed by the Department of Social Services (DSS). This bill clarifies which prior convictions may be considered or exempted, and streamlines the process used by DSS to evaluate potential caregivers and others with a record of conviction or arrest.
- Background. The Community Care Licensing Division (CCLD) within DSS provides licenses and investigates complaints against facilities within its jurisdiction, which includes RCFEs and child care facilities, among others, in order to provide for the health and safety of the vulnerable populations in those facilities. These facilities typically provide non-medical care and supervision for children and adults in need, which includes families needing early childhood education (child care), children in foster care and at-risk youth needing shelter services, seniors needing residential care, and individuals with disabilities.
- Criminal background checks. Existing law requires DSS to perform background checks on applicants, licensees, adult residents, employees, and certain volunteers in community care facilities who come into contact with clients. In January 1992, DSS created the Caregiver Background Check Bureau (CBCB) within CCLD in order to help protect children and vulnerable individuals receiving care. An individual seeking clearance must submit fingerprints that allow the DOJ to conduct a criminal history check. If the individual has no criminal history, a clearance notice is sent to the individual and the CBCB. If, however, the individual has a criminal record, DOJ sends a criminal record transcript to the CBCB, which then reviews the history and determines if the convictions are for crimes that may be exempted under current law.
Existing law prohibits DSS from offering exemptions to individuals who have been convicted of certain serious crimes, including convictions for murder, kidnapping, and incest, and cannot allow individuals convicted of committing these crimes to be in a licensed facility. Additional non-exemptible crimes include convictions for possession of child pornography, sexual exploitation of a child, elder or dependent abuse, and arson.
This bill institutes a five-year “washout period” for convictions. Under these provisions, crimes older than five years are no longer considered for purposes of denying a licensure application or revoking or suspending a current license. This washout period does not apply to violent felonies codified under Penal Code § 667.5.
This bill changes the term “substantially related” to “directly and adversely related,” clarifying that the relationship between the crime and the license or employment being sought should imply a greater proclivity for the individual to engage in misconduct while in that role.
- California State Auditor report. In March 2017, the California State Auditor released a report concerning background checks for individuals who have contact with clients of facilities licensed by DSS. The audit recommended that the list of crimes that are non-exemptible be expanded in order to reduce the risk to the safety of clients in facilities. AB 1914 (Flora), which passed out of this committee in April and is pending in the Senate Human Services Committee, seeks to adopt expansion of nonexemptible crimes per the audit.
- Related Legislation.
AB 2138 (Chiu), of this legislative session, makes similar reforms to the use of criminal history for licenses granted by the state Department of Consumer Affairs. That bill is before this committee today.
- Prior Legislation.
AB 213 (Mitchell), Chapter 733, Statutes of 2017, made changes to the criminal record background check exemption process for foster and adoptive parents and delineates a list of non-exemptible crimes, a list of crimes for which exemption may be granted after review, and a list of crimes that are presumed exemptible.
AB 484 (Cunningham), Chapter 526, Statutes of 2017, made convictions for any crime listed in Penal Code section 261, which pertains to crimes related to rape, abduction, carnal abuse of children, and seduction, a requirement for registering on the sex offender registry.
Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081
Date of Hearing: April 24, 2018
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Blanca Rubio, Chair
ABPCA Bill Id:AB 3039 (
Author:Holden) – As Amended Ver:April 16, 2018
SUBJECT: Health care facilities: criminal background checks
SUMMARY: Makes numerous changes to the existing criminal background check process for community care facilities and applies those changes to certain components of licensure, operation, and employment in: community care facilities, Residential Care Facilities for Persons with Chronic Life-Threatening Illness (RCFPCLTI), Residential Care Facilities for the Elderly (RCFEs), child care facilities, as well as home care aide registry applicants and home care organizations.
Specifically, this bill:
- Adopts the following changes related to the criminal background check process for community care facilities:
- For applicants for licensure or special permit to operate or manage a community care facility:
- Defines “directly and adversely related” as a felony or misdemeanor that is directly and adversely related to the qualifications, functions, or duties of the business or profession being applied for, and requires determination of whether a crime is directly and adversely related to be based on the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession being applied for.
- Defines “violent felony” as having the same meaning as current law, which includes murder or voluntary manslaughter, mayhem, and rape, as specified, among other crimes.
- Deletes the requirement that the Department of Social Services (DSS) determine if an applicant has ever been convicted of a crime other than a minor traffic violation or arrested for certain crimes for which registration as a sex offender is required as specified in current law, or for violating certain provisions of current law related to assault and battery, or certain other violations per current law or, prior to January 1, 1994, current law related to abandonment or neglect of a child, or for any non-exemptible crime, as specified, and instead requires DSS to determine if a person has been convicted of a directly and adversely related crime within the preceding five years, or a directly and adversely related violent felony.
- Deletes the requirement that a criminal history provided by the Department of Justice (DOJ) include a full criminal record, and instead requires the criminal history information to include every conviction of an offense rendered against the applicant, every offense for which the individual is awaiting trial, any directly and adversely related crimes, any directly and adversely related violent felonies, sex offender registration status, and sentencing information, as specified.
- Recasts provisions related to the criminal record information and the required provision of criminal history by an applicant, including: provision of criminal history information by DSS to an applicant, determination of crimes in the past five years that are adversely and related crimes, denial of an application by DSS for crimes other than a minor traffic violation, except in certain circumstances and based on other criminal history, as well as the following:
- For applicants for licensure or special permit to operate or manage a community care facility:
- the ability of DSS to cease processing criminal record information after receiving new information;
- the requirement that, if no criminal record information has been recorded, DOJ provide the applicant and DSS with a statement of that fact;
- the ability of DSS to revoke a license if DSS finds after licensure that an individual has been convicted of a crime and instead requires DSS to utilize the investigation process created by the provisions of this bill to confirm whether the individual has been convicted of a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony;
- DSS’ ability to suspend or revoke a license under certain circumstances;
- the ability for DSS to issue a license if an applicant or person has signed and submitted a statement that he or she has never been convicted of a crime other than a minor traffic violation, and instead allows DSS to issue a license to an individual if the individual meets all of the conditions for licensure;
- the ability of DSS to revoke or require a foster family agency to revoke a license or certificate of approval for certified family homes by a foster family agency, respectively, under certain circumstances; and
- the requirement that DSS develop procedures to provide a person’s criminal history information to the individual, as specified.
- For applicants and other individuals in a facility, as specified:
- Deletes the requirement that an individual be fingerprinted and sign a statement regarding any prior criminal convictions, and instead requires an individual who has not received a clearance or exemption be fingerprinted, and further requires the individual’s clearance or exemption be maintained by the licensee and be made available for inspection, as specified.
- Deletes the requirement that, if no criminal record information has been recorded, the DOJ provide a statement of that fact to the licensee.
- Deletes the requirement that licensee maintain and make available for inspection an individual’s clearance or exemption from disqualification.
- Requires DSS to determine whether the person will be granted a clearance or exception, and requires DSS, if the person receives a clearance, to immediately notify a licensee, and further requires DSS, if the person does not receive a clearance, to immediately notify the licensee to remove the person or bar the person from entering the facility, pending an appeal, and to seek an exemption from disqualification, as specified.
- Subjects a licensee, in the event that the licensee fails to comply with the department’s prohibition of employment, contact with clients, or presence in a facility, to citation of deficiency and an immediate assessment of civil penalties, and is grounds for discipline of the licensee, as specified.
- Deletes the requirement that a licensee attempt to obtain previous employment history of individuals required to be fingerprinted.
- Deletes the requirement that DSS, if DSS determines that a person has been convicted of, or is awaiting trial for, a sex offense against a minor, or has been convicted for an offense specified in current law related to assault and battery, current law related to abandonment and neglect of a child, or current law related to crimes against an elder, or a felony, after a clearance or exemption from disqualification has been issued, notify a licensee to act immediately to end the person’s employment, remove the person from the facility, or bar the person from entering the facility.
- Requires DSS, if subsequent to granting a clearance or exemption DSS is informed that there is additional criminal history information related to an individual, to determine whether the person will be granted a clearance or an exception, as specified, and further requires DSS to notify the licensee if a clearance is granted, and in the event that a clearance is not granted, requires DSS to notify the licensee to bar the person from entering the facility pending an appeal.
- Requires DSS to determine whether a person will be allowed to remain in a facility within five business days of receiving notice of the application for exemption, as specified.
- Requires a licensee to attempt to obtain previous employment history of individuals required to be fingerprinted, with certain exceptions, as specified.
- For applicants for licensure, special permit, or certificate of approval to operate a foster family home, certified family home, or be a resource family, as specified:
- Allows DSS to issue exemptions from disqualification based on evidence of rehabilitation, in addition to existing circumstances.
- Prohibits an individual from being denied a clearance or exemption on the basis of: a charge that has been dismissed after a person completed a pre- or post-plea diversion program; a conviction that has been dismissed pursuant to procedures in current law; an infraction or citation; or a conviction for which he or she obtained rehabilitative relief, as specified.
- Requires an applicant with a charge or a conviction that has been dismissed to provide proof of dismissal or relief, as specified.
- Specifies that certain provisions of this bill applies to applicants for licensure, special permit, or certificate of approval to operate a foster family home, certified family home, or to be a resource family home, as specified.
- Specifies that summary criminal history information include a full criminal record, as specified.
- Deletes the prohibition on DSS using an arrest record to deny a criminal record clearance or exemption unless DSS investigates the incident and secures evidence admissible in an administrative hearing to establish conduct by the person that may pose a risk to clients, as specified, and instead prohibits DSS from using an arrest record to deny a criminal record clearance or exemption unless the arrest is for a directly and adversely related crime or a directly and adversely related violent felony.
- Deletes the prohibition on DSS issuing a criminal record clearance to a person who has been arrested for crimes specified in current law, related to crimes for which registration as a sex offender is required, current law related to assault and battery, or certain other violations per current law or, prior to January 1, 1994, current law related to abandonment or neglect of a child, or for non-exemptible crimes, as specified.
- Prohibits DSS from using an arrest as a basis for denial in certain instances, as specified.
- Specifies that a conviction means an entry of judgment of guilt following a plea or verdict of guilty or a plea of nolo contendere, and further specifies that a conviction does not include a charge that has been dismissed after completing a post- or pre-plea diversion program, a charge dismissed pursuant to current law, an infraction or citation, or a conviction for which rehabilitative relief has been granted, as specified.
- Deletes language authorizing DSS to take action based on a conviction regardless of a subsequent order that allows a person to withdraw his or her guilty plea and enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment.
- Requires, rather than allows, DSS to grant an exemption from disqualification for a license or special permit, or for a license, special permit, or certificate of approval for certain crimes deemed exemptible by the provisions of this bill.
- Deletes the prohibition on the provision of exemptions for certain crimes, including but not limited to: crimes specified in current law, related to crimes for which registration as a sex offender is required, certain other violations per current law, prior to January 1, 1994, current law related to abandonment or neglect of a child, or a felony offense as specified in current law, related to unprofessional conduct, among others, and instead prohibits DSS from denying an exemption based solely on the type of conviction without considering evidence of rehabilitation.
- Requires DSS to consider a person rehabilitated if certain conditions apply, as specified.
- Specifies that certain provisions of this bill do not apply to exemptions granted prior to January 1, 2018.
- Allows DSS to permit a person to transfer an exemption, as specified, from one facility to another, so long as the exemption has been processed through a state licensing district office.
- Requires DSS, upon request of the licensee, to verify whether an individual has an exemption, and further prohibits DSS from indicating to the licensee whether the transfer is of a clearance or an exemption, so long as the license is valid.
- Includes conviction for a directly and adversely related crime within the preceding five years or a directly and adversely related violent felony among the circumstances for which a licensee is required by law to deny employment to an individual, and for which a facility may not incur civil liability or unemployment insurance liability as a result of that denial or termination, as specified.
- Requires DSS to retain certain documents related to criminal background check procedures for a minimum of three years, as specified.
- For applicants and other individuals in a facility, as specified:
- Exempts foster family homes, certified family homes, or resource families from certain changes made by the provisions of this bill to the criminal background check process, as specified.
- Subjects the following to the criminal records exemption process specified by the provisions of this bill:
- the ability of DSS to prohibit, for community care facilities, RCFPCLTIs, and child care facilities, any person from being a member of the board of directors, an executive director, or an officer of a licensee, a licensee from employing, continuing the employment of, allowing in a facility, or allowing contact with clients of a facility by any employee, prospective employee, or certain individuals who engaged in certain conduct;
- the ability of DSS to prohibit, for RCFEs, any person from being a licensee, owning a beneficial ownership interest of 10% or more in a licensed facility, or being an administrator, officer, director, member, or manager of a licensee, or entity controlling a licensee, a licensee from employing, allowing in a facility, or allowing contact with clients of a facility by any employee, prospective employee, or certain individuals who engaged in certain conduct; and
- the ability of DSS to deny an application for licensure of, or suspend or revoke a license issued for the operation of, a community care facility, an RCFPCLTI, RCFE, child care facility, or home care aide organization, due to arrest, prosecution or other criminal proceedings for certain conduct, as specified.
- Deletes the existing criminal background check process as it applies to individuals who have contact with clients in RCFPCLTIs, RCFEs, and child care facilities, as specified, and instead requires DSS to obtain state and federal summary criminal history information for those individuals, as specified, and subjects those individuals to the background check process as specified by provisions of this bill.
- Adopts the following changes related to registered home care aides:
- Subjects the ability of DSS to deny registration as a home care aide, deny a home care aide application, or revoke a home care aide’s registration, if the individual has been convicted of certain crimes, as specified, to the criminal records exemption process as specified by the provisions of this bill.
- Deletes the requirement that a person initiating a background examination to be a registered home care aide submit a signed declaration regarding any prior criminal convictions, as specified, and prohibits an individual from being required to submit information regarding prior criminal convictions.
- Deletes the ability of DSS, prior to approving an individual for registration as a home care aide, to approve a criminal record clearance if the home care aide applicant signs a statement that he or she has never been convicted of a crime in the United States, as specified, and instead requires DSS to comply with the criminal records exemption process as specified by the provisions of this bill.
- Subjects the ability of DSS to revoke or deny a registered home care aide’s registration or request for registration if the individual engaged in conduct, as specified, that resulted in an arrest, prosecution, or other criminal proceeding, to the criminal records exemption process as specified by the provisions of this bill.
- Makes technical changes.
EXISTING LAW:
- Establishes the Community Care Facilities Act, which allows for the licensure and oversight of out of home placements for abused and neglected children by DSS. (HSC 1500 et seq.)
- Establishes the Community Care Licensing Division (CCLD) within DSS and requires DSS to license group care facilities, private foster family agencies, and foster family homes in order to place children who are in the child welfare system. Further requires, prior to licensure, a foster home provider to undergo a criminal background check, as specified. (HSC 1502 and 1522)
- Defines “community care facility” as any facility, place, or building that is maintained and operated to provide nonmedical residential care, day treatment, adult day care, or foster family agency services for children, adults, or children and adults, including, but not limited to, the physically handicapped, mentally impaired, incompetent persons, and abused or neglected children, and includes: residential facilities, adult day programs, foster family agencies, group homes, and children’s crisis residential programs, among others. (HSC 1502 et seq.)
- Defines “residential care facility” as a residential care facility for persons with chronic, life-threatening illness who are 18 years of age or older or are emancipated minors. (HSC 1568.01 (j))
- Defines “terminal illness” as a medical condition resulting from a prognosis of a life expectancy of one year or less, if the disease follows its normal course. (HSC 1568.01 (l))
- Defines “residential care facility for the elderly” as a housing arrangement chosen voluntarily by persons 60 years of age or over, or their authorized representative, where varying levels and intensities of care and supervision, protective supervision, or personal care are provided, based upon their varying needs, as determined in order to be admitted and to remain in the facility. (HSC 1569.2 (o)(1))
- Defines “home care organization” to mean an adult individual or entity that arranges for home care services by an affiliated home care aide to a client and is licensed, as specified. (HSC 1796.12 (j))
- Defines “registered home care aide” as an affiliated home care aide or independent home care aide, 18 years of age or older, who is listed on the home care aide registry. (HSC 1796.12 (o))
- Requires individuals in community care facilities, including adults responsible for administration or direct supervision of staff, any person, other than a client, residing in the facility, and any staff person, volunteer, or employee who has contact with clients, among others, to obtain either a criminal record clearance or a criminal record exemption from DSS before his or her initial presence in a community care facility or certified family home. (HSC 1522 (a))
- Requires DSS to deny the applications of certain applicants if the applicant has been convicted of a crime other than a minor traffic violation, unless the department has granted an exemption pursuant to the exemption requirements specified in HSC 1522 (g), if the individual is awaiting trial for a crime other than a minor traffic violation, or, it is discovered by DSS after licensure that an individual has been convicted of a crime other than a minor traffic violation. (HSC 1522 (a)(4))
- Prohibits a criminal records exemption from being granted for an applicant to work, reside, or volunteer in certain facilities, including: residential care facilities for the elderly, residential care facilities for the chronically ill, child day care facilities, and community care facilities, has a conviction for certain offenses, as specified, including an offense specified in subdivision (c) of PEN 290, which pertains to crime for which registration as a sex offender is required. (HSC 1522 (g)(1)(A), HSC 1569.17 (f), HSC 1568.09 (f), HSC 1596.871 )
- Allows the Department of Justice (DOJ) to provide subsequent state or federal arrest or disposition notification to any entity authorized by state or federal law to receive state or federal summary criminal history information to assist in fulfilling employment, licensing, certification duties, or the duties of approving relative caregivers, nonrelative extended family members, and resource families upon the arrest or disposition of any person whose fingerprints are maintained on file at the DOJ or the Federal Bureau of Investigation as the result of an application for licensing, employment, certification, or approval. (PEN 11105.2 (a))
- Requires DOJ to, within 14 calendar days, notify DSS of the criminal record information, and, if no criminal information has been recorded, provide a statement of that fact. (HSC 1522 (c)(2))
FISCAL EFFECT: Unknown.
COMMENTS:
DSS Community Care Licensing Division (CCLD): CCLD is tasked with the responsibility of licensing and investigating complaints against facilities within its jurisdiction, which includes: Residential Care Facilities for the Elderly (RCFEs) and child care facilities, among others, in order to provide for the health and safety of the vulnerable populations in those facilities. These facilities typically provide non-medical care and supervision for children and adults in need, which includes adult care services, families in need of early childhood education (child care), children in foster care and at-risk youth needing shelter services, seniors in need of residential care, and individuals with disabilities. CCLD is responsible for screening and inspecting facilities to ensure facilities comply with applicable laws and regulations, as well as overseeing any necessary corrective actions in the event of noncompliance.
Criminal background checks: Current law requires DSS to perform background checks on applicants, licensees, adult residents, employees, and certain volunteers in community care facilities who come into contact with clients. In January 1992, DSS created the Caregiver Background Check Bureau (CBCB) within CCLD in order to help protect children and vulnerable individuals receiving care. Individuals seeking clearance must submit fingerprints that allow the DOJ to conduct a criminal history check. If the individual has no criminal history, a clearance notice is sent to the applicant and the CBCB. If, however, the individual has a criminal record, DOJ sends a criminal record transcript to the CBCB, which then reviews the history and determines if the convictions are for crimes that may be exempted under current law. Current law prohibits DSS from offering exemptions to individuals who have been convicted of certain serious crimes, including convictions for murder, kidnapping, and incest such that the CBCB cannot allow individuals convicted of committing these crimes to be in a licensed facility. Current non-exemptible crimes include, but are not limited to: convictions for murder, possession of child pornography, sexual exploitation of a child, elder or dependent abuse, and arson, among others.
California State Auditor report: In March 2017, the California State Auditor released Audit Report 2016-126, which examined the timeliness and quality of the DSS background check process for individuals who have contact with clients in licensed facilities. The audit also examined whether the DOJ was sending all necessary and appropriate criminal history information to DSS for purposes of conducting thorough background checks in a timely manner. The audit drew the following conclusions:
The DOJ does not send DSS certain necessary information: In 2016, DOJ stopped providing DSS with information related to sentencing as state law does not explicitly require that information be shared. Specifically, DOJ is statutorily required to provide the following information about applicants seeking a criminal record clearance: every criminal conviction of an individual; every arrest for which an individual is awaiting trial; and every arrest for certain crimes, including murder, elder abuse and assault, and sex offender status, but not information related to any arrest that was subsequently deemed a detention only or that resulted in the successful completion of a diversion program or exoneration. As such, because DOJ does not have the explicit statutory authority to provide information related to sentencing, DSS issues clearance and exemption decisions based upon incomplete criminal record histories, despite state regulations that require DSS to consider whether an applicant is on probation or parole, as well as the time that has passed since the end of parole, probation, or incarceration.
DSS does not always obtain or review all pertinent information: The audit report found that, contrary to requirements in state law, the CBCB clears individuals to be present in licensed facilities without reviewing convictions for relatively minor crimes, called infractions, which are often punishable by a fine imposed by courts, and can include theft, leaving a child under six years old in a vehicle without supervision, and selling liquor to a minor. Current law requires a criminal records exemption be granted for conviction of any crime, with the exception of a minor traffic violation as a prerequisite to presence in a licensed facility; however, background check procedures dictate DSS staff to review only convictions for misdemeanors or felonies, and not infraction convictions, as DSS interprets “minor traffic violation” as inclusive of all infractions, be they traffic-related or otherwise. Current law does allow for an individual to be present in a licensed facility based on his or her in-state criminal history and prior to receipt of the federal records of arrests and prosecutions (RAP) sheet so long as the individual has submitted a self-disclosure form attesting that he or she has never been convicted of a crime, other than a minor traffic violation. The audit report found that, contrary to state law, DSS allowed individuals from whom a self-disclosure form was not obtained, to be present in licensed facilities.
Delays at DOJ and DSS cause further delays in the issuance of exemption decisions: DOJ is currently required to provide DSS with certain information related to criminal record histories within 14 days of receiving an individual’s fingerprints. In some instances, the average amount of time it took DOJ to send certain information to DSS was between 30 and 66 days after fingerprinting. While DOJ states that delays are sometimes caused by the need to manually verify fingerprint images and identify missing criminal information, delays at DOJ only exacerbate the length of time it takes DSS to initiate and complete background checks. The audit also found that the amount of information contained in the materials from DOJ affects the timeliness with which the CBCB issues a decision on a criminal record exemption. During Fiscal Years 2013-14 and 2015-16, upon receipt of information from DOJ, CBCB took an average of between 149 and 170 days – approximately five to six months – to decide whether to grant or deny a standard exemption. State regulations allow 45 days for an individual or facility to submit exemption request documents to DSS; as such, the exemption process took an average of about four months.
Auditor’s recommendations: In response to these findings, the audit made several recommendations, including but not limited to, the following:
- Amend state law to clearly direct DOJ to transmit all convictions it receives;
- Require DOJ to obtain and transmit subsequent federal RAP sheets and to report to the Legislature periodically about its implementation efforts;
- Require DSS to change its practice of allowing individuals who have not submitted a self-disclosure form to DSS to have access to licensed facilities, which is contrary to the requirements in state law;
- Expand the list of non-exemptible crimes to include eight specific crimes that are currently exemptible but are similar to crimes for which an exemption may not be granted; and
- Establish timeframes by which DSS must notify individuals and facilities that criminal history exemptions are required, and for evaluating and issuing exemption decisions.
Need for this bill: According to the author, “[This bill] creates a fair chance for people with arrest and conviction records to access caregiving and other jobs governed by the Department of Social Services. This bill clarifies which prior convictions may be considered or exempted, and streamlines the process used by DSS to evaluate potential caregivers and others with a record of conviction or arrest.”
Advocates in support of this bill have cited that the impetus for this bill stems from increased risks of recidivism and the importance of employment opportunities for individuals with criminal records. A 2014 Huffington Post article entitled “A Criminal Record May No Longer Be a Stumbling Block to Employment in Some Places,” provides support for the argument that consideration of old criminal records convictions does not indicate future risk. The article states that, “Kiminori Nakamura, assistant professor of criminology and criminal justice at the University of Maryland said most people who return to prison do so within three to five years. The longer they’re out, he said, the less likely they are to return. Nakamura co-authored a 2009 study that found people with a criminal record are at no greater criminal risk after they’ve been out seven to ten years than those with no record. ‘Very old criminal records are not very useful in predicting risk,’ he said.” A July 2009 report by the PEW Center on the States, writes: “Offenders on probation and parole are at the highest risk of re-arrest during the first few months of community supervision. A 2008 report produced by the National Research Council reviewed records from over 240,000 offenders released from prison in 13 states, and found the overall probability of arrest is roughly twice as high in the first month of supervision as it is in the 15th month.”
Advocates also cite research compiled by the National Employment Law Project (NELP), an organization that works to strengthen protections and supports for low-wage workers and the unemployed and advocates for Fair-Chance employment policies which would eliminate certain questions on job applications related to criminal record histories. NELP, in a fact sheet on Fair-Chance employment policies, states that roughly 70 million people in the United States have some sort of criminal record, and nearly 700,000 people return to their communities from incarceration every year. NELP writes:
Numerous research studies find that people require a combination of family support, community assistance, and economic opportunity to stay out of the criminal justice system. Having access to employment opportunities is a critical component of this web of support. A steady job provides not just financial resources, but also connections to society…While having a job – especially a low-wage job – is not a guarantee that a formerly incarcerated person will remain out of the criminal justice system, unemployment strains critical family supports and provides financial incentives to engage in illegal behaviors. Thus, removing a barrier that cuts off employment opportunities before the hiring process even begins, is critical to designing a robust policy platform to help millions of Americans with records.
The fact sheet also states “A 2011 study of the formerly incarcerated found that employment was the single most important influence on decreasing recidivism, and that two years after release nearly twice as many employed people with records had avoided another brush with the law than their unemployed counterparts,” and “a three-year recidivism study found that formerly incarcerated persons with one year of employment had a 16% recidivism rate over three years as compared to a 52.3% recidivism rate for all Department of Correction releases. Even just 30 days of employment lowered the three-year recidivism rate to 20%.”
Proponents of this bill therefore assert that the provisions of this bill would eliminate unnecessary barriers to employment in community care facilities and decrease the risk of recidivism for individuals with criminal records convictions, who, according to information provided by advocates, are oftentimes minorities.
Stakeholder concerns: The California Child Care Resource & Referral Network, in a letter addressed to the committee citing its concerns, states, “[This bill] eliminates 60 serious crime categories that are now considered ‘non-exemptible’ felony convictions which include murder, willful child cruelty, registered sex offenses and human trafficking. Currently, individuals with convictions for any of these crimes are automatically denied the ability to provide child care. This bill would require DSS to consider individuals convicted of these serious and often violent felonies for an exemption and potentially allow these individuals to care for children.
[This bill] limits DSS’ ability to look at convictions and patterns of convictions that occurred more than 5 years ago. When a child’s well-being is at stake, DSS should have the authority to take into consideration an individual’s full criminal history. If a criminal conviction from 6, 7, 10 or 12 or more years ago would put a child at risk, DSS should have the authority to initially deny that individual from being a childcare provider and require that the individual go through the exemption process and request a hearing if necessary.”
Staff comments: The goal of this bill is to ensure that potential caregivers who have convictions for crimes that occurred many years ago or who have more recent convictions and are rehabilitated are not unnecessarily excluded from employment opportunities in community care facilities. While the goal of this bill has merit, it should be noted that the primary role of CCLD is to provide for the health and safety of vulnerable populations, such as children, adults, and seniors, in licensed facilities. The criminal background check process is one way by which DSS ensures that the individuals approved to be present in facilities do not pose a threat to the health and safety of these vulnerable populations. The March 2017 report from the State Auditor made a number of findings related to the existing criminal background check process; specifically, the audit noted that exemption decisions were often based on incomplete information provided by DOJ, and the amount of time it took DSS to issue decisions was extensive, among other findings. In response to these findings, the State Auditor made several recommendations, several of which are contrary to the provisions of this bill, including that:
- The list of non-exemptible crimes should be updated to include eight specific crimes that are currently exemptible but are similar to crimes for which an exemption may not be granted. The provisions of this bill delete the current list of non-exemptible crimes and instead make reference to directly and adversely related crimes and violent felonies, as defined by the bill.
- DSS should change its practice of allowing individuals who have not submitted a self-disclosure form to DSS to have access to licensed facilities. The provisions of this bill would delete the requirement that an individual sign a statement attesting that he or she has never been convicted of a crime in the United States.
Proponents of this bill have voiced concerns related to demographic disparities among individuals who are denied criminal records exemptions such that legislation is needed in order to reduce the disproportionate rates at which minorities, specifically women and persons of color, are denied employment opportunities due to criminal histories. However, according to DSS, demographic data related to the age, gender, and ethnicity of individuals who apply for criminal records exemptions are not collected, as these factors are not considered when determining whether to grant an exemption. Because of this, it is difficult to ascertain whether the disparities noted by the bill’s proponents occur throughout the state.
PRIOR AND RELATED LEGISLATION:
AB 1914 (Flora), 2018, includes particular crimes in the list of crimes for which a criminal record exemption may not be granted for purposes of licensure, permitting, certification, employment, volunteering, or residence in certain community care facilities. It is currently on the Assembly Floor.
AB 213 (Mitchell), Chapter 733, Statutes of 2017, made changes to the criminal record background check exemption process for foster and adoptive parents and delineates a list of non-exemptible crimes, a list of crimes for which exemption may be granted after review, and a list of crimes that are presumed exemptible.
AB 484 (Cunningham), Chapter 526, Statutes of 2017, made convictions for any crime listed in PEN 261, which pertains to crimes related to rape, abduction, carnal abuse of children, and seduction, a requirement for registering on the sex offender registry.
SB 384 (Wiener), Chapter 541, Statutes of 2017, created a tiered registry for sex offenses such that people are required to register for 10 years, 20 years, or lifetime depending on the offense for which the individual was convicted.
SB 942 (Liu), 2016, would have required that criminal records checks be conducted within a specified timeframe, and would have required various hearings if the county fails to meet those time frames, and would have authorized placement of a child in a home in which an exemption is pending under circumstances in which the county is found to have abused its discretion. It died on the Assembly Appropriations suspense file.
REGISTERED SUPPORT / OPPOSITION:
Support
Alameda County Public Defender’s Office
American Civil Liberties Union of CA
California Association of Local Conservation Corps
East Bay Community Law Center, sponsor
National Association of Social Workers, CA Chapter
National Employment Law Project
Oakland Private Industry Council, Inc.
Root & Rebound, sponsor
Young Women’s Freedom Center
Opposition
None on file.
Analysis Prepared by: Kelsy Castillo / HUM. S. / (916) 319-2089
Discussed in Hearing
24MIN
Assembly Standing Committee on Human Services
Bill Author
Bill Co-Author(s):