BILL NUMBER: AB 1454 CHAPTERED
BILL TEXT
CHAPTER 642
FILED WITH SECRETARY OF STATE SEPTEMBER 18, 2002
APPROVED BY GOVERNOR SEPTEMBER 17, 2002
PASSED THE ASSEMBLY AUGUST 29, 2002
PASSED THE SENATE AUGUST 28, 2002
AMENDED IN SENATE AUGUST 26, 2002
AMENDED IN SENATE AUGUST 15, 2002
AMENDED IN SENATE JUNE 18, 2002
AMENDED IN SENATE APRIL 3, 2002
AMENDED IN ASSEMBLY JANUARY 29, 2002
AMENDED IN ASSEMBLY JANUARY 16, 2002
AMENDED IN ASSEMBLY APRIL 18, 2001
INTRODUCED BY Assembly Member Thomson
FEBRUARY 23, 2001
An act to amend Section 5777 of, and to add Section 5405 to, the
Welfare and Institutions Code, relating to mental health.
LEGISLATIVE COUNSEL'S DIGEST
AB 1454, Thomson. Mental health: facilities: criminal record
checks: managed care.
Existing law requires the State Department of Mental Health to
perform various functions and duties with respect to the provision of
mental health services, including the licensure of facilities that
provide these services.
This bill would require the department, prior to the initial
licensure or first renewal of a license of any person to operate or
manage certain facilities, upon the employment of any direct care
staff, as defined, and prior to the provision of services by a direct
care contractor, to submit fingerprint images and related
information pertaining to these persons to the Department of Justice
for purposes of a criminal record check, as prescribed.
This bill would also require the department, except under
specified circumstances, to deny any application for any license,
suspend or revoke any existing license, and disapprove or revoke any
employment or contract for direct services, if the applicant,
licensee, direct care staff person, or direct services contractor has
been convicted of or incarcerated for specified crimes within the
preceding 10 years.
Existing law requires the State Department of Mental Health to
implement managed mental health care for Medi-Cal beneficiaries
through fee-for-service or capitated rate contracts with mental
health plans, including individual counties, counties acting jointly,
any qualified individual or organization, or a nongovernmental
entity. Existing law further requires that contract renewal be on an
annual basis.
This bill would instead provide that, at the discretion of the
department, each contract may be renewed for a period not to exceed 3
years.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5405 is added to the Welfare and Institutions
Code, to read:
5405. (a) This section shall apply to each facility licensed by
the State Department of Mental Health, or its delegated agent, on or
after January 1, 2003. For purposes of this section, "facility"
includes psychiatric health facilities, as defined in Section 1250.2
of the Health and Safety Code, licensed pursuant to Chapter 9
(commencing with Section 77001) of Division 5 of Title 22 of the
California Code of Regulations and mental health rehabilitation
centers licensed pursuant to Chapter 3.5 (commencing with Section
781.00) of Division 1 of Title 9 of the California Code of
Regulations.
(b) (1) (A) Prior to the initial licensure or first renewal of a
license on or after January 1, 2003, of any person to operate or
manage a facility specified in subdivision (a), the department shall
submit fingerprint images and related information pertaining to the
applicant or licensee to the Department of Justice for purposes of a
criminal record check, as specified in paragraph (2), at the expense
of the applicant or licensee. The Department of Justice shall
provide the results of the criminal record check to the department.
The department shall determine whether the applicant or licensee has
ever been convicted of a crime specified in subdivision (c). The
department shall submit fingerprint images and related information
each time the position of administrator, manager, program director,
or fiscal officer of a facility is filled and prior to actual
employment for initial licensure or an individual who is initially
hired on or after January 1, 2003. For purposes of this subdivision,
"applicant" and "licensee" includes the administrator, manager,
program director, or fiscal officer of a facility.
(B) Commencing January 1, 2003, upon the employment of any direct
care staff the department shall submit fingerprint images and related
information pertaining to the direct care staff person to the
Department of Justice for purposes of a criminal record check, as
specified in paragraph (2), at the expense of the direct care staff
person or licensee. The Department of Justice shall provide the
results of the criminal record check to the department. The
department shall determine whether the direct care staff person has
ever been convicted of a crime specified in subdivision (c). The
department shall notify the licensee of these results.
(C) Commencing January 1, 2003, any contract for services provided
directly to patients or residents shall contain provisions to ensure
that the direct services contractor submits to the department
fingerprint images and related information pertaining to the direct
services contractor for submission to the Department of Justice for
purposes of a criminal record check, as specified in paragraph (2),
at the expense of the direct services contractor or licensee. The
Department of Justice shall provide the results of the criminal
record check to the department. The department shall determine
whether the direct services contractor has ever been convicted of a
crime specified in subdivision (c). The department shall notify the
licensee of these results.
(2) If the applicant, licensee, direct care staff person, or
direct services contractor specified in paragraph (1) has resided in
California for at least the previous seven years, the department
shall only require the submission of one set of fingerprint images
and related information. The Department of Justice shall charge a
fee sufficient to cover the reasonable cost of processing the
fingerprint submission. Fingerprints submitted pursuant to this
subdivision include fingerprints taken by the use of live scan
technology. When requested, the Department of Justice shall forward
one set of fingerprint images to the Federal Bureau of Investigation
for the purpose of obtaining any record of previous convictions or
arrests pending adjudication of the applicant, licensee, direct care
staff person, or direct services contractor. The results of a
criminal record check provided by the Department of Justice shall
contain every conviction rendered against an applicant, licensee,
direct care staff person, or direct services contractor, and every
offense for which the applicant, licensee, direct care staff person,
or direct services contractor is presently awaiting trial, whether
the person is incarcerated or has been released on bail or on his or
her own recognizance pending trial. The department shall request
subsequent arrest notification from the Department of Justice
pursuant to Section 11105.2 of the Penal Code.
(c) (1) The department shall deny any application for any license,
suspend or revoke any existing license, and disapprove or revoke any
employment or contract for direct services, if the applicant,
licensee, employee, or direct services contractor has been convicted
of or incarcerated for a felony defined in subdivision (c) of Section
667.5 of, or subdivision (c) of Section 1192.7 of, the Penal Code,
within the preceding 10 years.
(2) The application for licensure or renewal of any license shall
be denied, and any employment or contract to provide direct services
shall be disapproved or revoked, if the criminal record of the person
includes a conviction in another jurisdiction for an offense that,
if committed or attempted in this state, would have been punishable
as one or more of the offenses referred to in paragraph (1).
(d) (1) The department may approve an application for, or renewal
of, a license, or continue any employment or contract for direct
services, if the person has been convicted of a misdemeanor offense
that is not a crime upon the person of another, the nature of which
has no bearing upon the duties for which the person will perform as a
licensee, direct care staff person, or direct services contractor.
In determining whether to approve the application, employment, or
contract for direct services, the department shall take into
consideration the factors enumerated in paragraph (2).
(2) Notwithstanding subdivision (c), if the criminal record of a
person indicates any conviction other than a minor traffic violation
the department may deny the application for license or renewal, and
may disapprove or revoke any employment or contract for direct
services. In determining whether or not to deny the application for
licensure or renewal, or to disapprove or revoke any employment or
contract for direct services, the department shall take into
consideration the following factors:
(A) The nature and seriousness of the offense under consideration
and its relationship to the person's employment, duties, and
responsibilities.
(B) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(C) The time that has elapsed since the commission of the conduct
or offense and the number of offenses.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(E) Any rehabilitation evidence, including character references,
submitted by the person.
(F) Employment history and current employer recommendations.
(G) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(H) The granting by the Governor of a full and unconditional
pardon.
(I) A certificate of rehabilitation from a superior court.
(e) Denial, suspension, or revocation of a license, or disapproval
or revocation of any employment or contract for direct services
specified in subdivision (c) and paragraph (2) of subdivision (d) are
not subject to appeal, except as provided in subdivision (f).
(f) After a review of the record, the director may grant an
exemption from denial, suspension, or revocation of any license, or
disapproval of any employment or contract for direct services, if the
crime for which the person was convicted was a property crime that
did not involve injury to any person and the director has substantial
and convincing evidence to support a reasonable belief that the
person is of such good character as to justify issuance or renewal of
the license or approval of the employment or contract.
(g) A plea or verdict of guilty, or a conviction following a plea
of nolo contendere shall be deemed a conviction within the meaning of
this section. The department may deny any application, or deny,
suspend, or revoke a license, or disapprove or revoke any employment
or contract for direct services based on a conviction specified in
subdivision (c) when the judgment of conviction is entered or when an
order granting probation is made suspending the imposition of
sentence.
(h) (1) For purposes of this section, "direct care staff" means
any person who is an employee, contractor, or volunteer who has
contact with other patients or residents in the provision of
services. Administrative and licensed personnel shall be considered
direct care staff when directly providing program services to
participants.
(2) An additional background check shall not be required pursuant
to this section if the direct care staff or licensee has received a
prior criminal history background check while working in a mental
health rehabilitation center or psychiatric health facility licensed
by the department, and provided the department has maintained
continuous subsequent arrest notification on the individual from the
Department of Justice since the prior criminal background check was
initiated.
(3) When an application is denied on the basis of a conviction
pursuant to this section, the department shall provide the individual
whose application was denied with notice, in writing, of the
specific grounds for the proposed denial.
SEC. 2. Section 5777 of the Welfare and Institutions Code is
amended to read:
5777. (a) (1) Except as otherwise specified in this part, a
contract entered into pursuant to this part shall include a provision
that the mental health plan contractor shall bear the financial risk
for the cost of providing medically necessary mental health services
to Medi-Cal beneficiaries irrespective of whether the cost of those
services exceeds the payment set forth in the contract. If the
expenditures for services do not exceed the payment set forth in the
contract, the mental health plan contractor shall report the
unexpended amount to the department, but shall not be required to
return the excess to the department.
(2) If the mental health plan is not the county's, the mental
health plan may not transfer the obligation for any mental health
services to Medi-Cal beneficiaries to the county. The mental health
plan may purchase services from the county. The mental health plan
shall establish mutually agreed-upon protocols with the county that
clearly establish conditions under which beneficiaries may obtain
non-Medi-Cal reimbursable services from the county. Additionally,
the plan shall establish mutually agreed-upon protocols with the
county for the conditions of transfer of beneficiaries who have lost
Medi-Cal eligibility to the county for care under Part 2 (commencing
with Section 5600), Part 3 (commencing with Section 5800), and Part 4
(commencing with Section 5850).
(3) The mental health plan shall be financially responsible for
ensuring access and a minimum required scope of benefits, consistent
with state and federal requirements, to the services to the Medi-Cal
beneficiaries of that county regardless of where the beneficiary
resides. The department shall require that the definition of medical
necessity used, and the minimum scope of benefits offered, by each
mental health contractor be the same, except to the extent that any
variations receive prior federal approval and are consistent with
state and federal statutes and regulations.
(b) Any contract entered into pursuant to this part may be renewed
if the plan continues to meet the requirements of this part,
regulations promulgated pursuant thereto, and the terms and
conditions of the contract. Failure to meet these requirements shall
be cause for nonrenewal of the contract. The department may base
the decision to renew on timely completion of a mutually agreed upon
plan of correction of any deficiencies, submissions of required
information in a timely manner, or other conditions of the contract.
At the discretion of the department, each contract may be renewed
for a period not to exceed three years.
(c) (1) The obligations of the mental health plan shall be changed
only by contract or contract amendment.
(2) A change may be made during a contract term or at the time of
contract renewal, where there is a change in obligations required by
federal or state law or when required by a change in the
interpretation or implementation of any law or regulation. To the
extent permitted by federal law and except as provided under
subdivision (r) of Section 5778, if any change in obligations occurs
that affects the cost to the mental health plan of performing under
the terms of its contract, the department may reopen contracts to
negotiate the state General Fund allocation to the mental health plan
under Section 5778, if the mental health plan is reimbursed through
a fee-for-service payment system, or the capitation rate to the
mental health plan under Section 5779, if the mental health plan is
reimbursed through a capitated rate payment system. During the time
period required to redetermine the allocation or rate, payment to the
mental health plan of the allocation or rate in effect at the time
the change occurred shall be considered interim payments and shall be
subject to increase or decrease, as the case may be, effective as of
the date on which the change is effective.
(3) To the extent permitted by federal law, either the department
or the mental health plan may request that contract negotiations be
reopened during the course of a contract due to substantial changes
in the cost of covered benefits that result from an unanticipated
event.
(d) The department shall immediately terminate a contract when the
director finds that there is an immediate threat to the health and
safety of Medi-Cal beneficiaries. Termination of the contract for
other reasons shall be subject to reasonable notice of the department'
s intent to take that action and notification of affected
beneficiaries. The plan may request a public hearing by the Office
of Administrative Hearings.
(e) A plan may terminate its contract in accordance with the
provisions in the contract. The plan shall provide written notice to
the department at least 180 days prior to the termination or
nonrenewal of the contract.
(f) Upon the request of the Director of Mental Health, the
Director of the Department of Managed Health Care may exempt a mental
health plan contractor or a capitated rate contract from the
Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code). These exemptions may be subject to conditions the director
deems appropriate. Nothing in this part shall be construed to impair
or diminish the authority of the Director of the Department of
Managed Health Care under the Knox-Keene Health Care Service Plan Act
of 1975, nor shall anything in this part be construed to reduce or
otherwise limit the obligation of a mental health plan contractor
licensed as a health care service plan to comply with the
requirements of the Knox-Keene Health Care Service Plan Act of 1975,
and the rules of the Director of the Department of Managed Health
Care promulgated thereunder. The Director of Mental Health, in
consultation with the Director of the Department of Managed Health
Care, shall analyze the appropriateness of licensure or application
of applicable standards of the Knox-Keene Health Care Service Plan
Act of 1975.
(g) The department, pursuant to an agreement with the State
Department of Health Services, shall provide oversight to the mental
health plans to ensure quality, access, and cost efficiency. At a
minimum, the department shall, through a method independent of any
agency of the mental health plan contractor, monitor the level and
quality of services provided, expenditures pursuant to the contract,
and conformity with federal and state law.
(h) County employees implementing or administering a mental health
plan act in a discretionary capacity when they determine whether or
not to admit a person for care or to provide any level of care
pursuant to this part.
(i) If a county chooses to discontinue operations as the local
mental health plan, the new plan shall give reasonable consideration
to affiliation with nonprofit community mental health agencies that
were under contract with the county and that meet the mental health
plan's quality and cost efficiency standards.
(j) Nothing in this part shall be construed to modify, alter, or
increase the obligations of counties as otherwise limited and defined
in Chapter 3 (commencing with Section 5700) of Part 2. The county's
maximum obligation for services to persons not eligible for Medi-Cal
shall be no more than the amount of funds remaining in the mental
health subaccount pursuant to Sections 17600, 17601, 17604, 17605,
17606, and 17609 after fulfilling the Medi-Cal contract obligations.