BILL NUMBER: AB 2564 CHAPTERED
BILL TEXT
CHAPTER 889
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2006
APPROVED BY GOVERNOR SEPTEMBER 30, 2006
PASSED THE SENATE AUGUST 31, 2006
PASSED THE ASSEMBLY AUGUST 31, 2006
AMENDED IN SENATE AUGUST 17, 2006
AMENDED IN SENATE AUGUST 7, 2006
AMENDED IN SENATE JUNE 8, 2006
AMENDED IN ASSEMBLY MAY 18, 2006
AMENDED IN ASSEMBLY MAY 8, 2006
AMENDED IN ASSEMBLY APRIL 17, 2006
INTRODUCED BY Assembly Member Matthews
FEBRUARY 23, 2006
An act to amend Section 1265.5 of, and to add Section 1265.6 to,
the Health and Safety Code, relating to health facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 2564, Matthews Health facilities: criminal record clearances
and blood glucose testing.
Existing law provides for the licensure of various intermediate
care facilities by the State Department of Health Services. A
violation of these provisions is a crime.
Under existing law, prior to the initial licensure or license
renewal for these facilities, the department is required to secure
from an appropriate law enforcement agency a criminal record to
determine whether any direct care staff has ever been convicted of a
crime other than a minor traffic violation. Existing law defines
direct care staff and requires the department to develop procedures
to ensure that any licensee, direct care staff, or certificate holder
for whom a criminal record has been obtained pursuant to specified
provisions of existing law shall not be required to obtain multiple
criminal record clearances. Existing law requires persons employed as
consultants and acting as direct care staff to be subject to the
same requirements for a clearance as other direct care staff.
This bill would, instead, require the department to request
criminal record information for direct care staff from the Department
of Justice, would specify that the criminal record clearance shall
be complete when the State Department of Health Services has obtained
the criminal clearance, and would prohibit direct contact by the
applicant with residents until completion of the clearance, in
accordance with specified procedures. This bill would also provide
that if the department fails to meet certain criteria relating to the
criminal record clearance for a period of 90 days, those procedures
shall be suspended, as prescribed.
By imposing additional licensure requirements on these facilities,
the bill would change the definition of an existing crime, thus
creating a state-mandated local program.
This bill would further prohibit specified persons employed as
consultants and acting as direct care staff from being required to
obtain a separate criminal record clearance.
Existing law authorizes specified persons who are not licensed
health care professionals, but who are trained to administer
injections by a licensed health care professional, to administer
injections of insulin, and to perform glucose monitoring, as
prescribed by a child's physician to a foster child placement.
This bill would authorize direct care staff, who are trained and
certified by a registered nurse acting within the scope of his or her
practice, to administer blood glucose testing for a person with
developmental disabilities who has diabetes and who is residing in an
intermediate care facility/developmentally disabled habilitative or
an intermediate care facility/developmentally disabled nursing, if
specified criteria are met.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill would incorporate additional changes in Section 1265.5
of the Health and Safety Code proposed by SB 1759 to become operative
only if this bill and SB 1759 are enacted and become effect on or
before January 1, 2007, and this bill is enacted last.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1265.5 of the Health and Safety Code is amended
to read:
1265.5. (a) (1) Prior to the initial licensure or renewal of a
license of any person or persons to operate or manage an intermediate
care facility/developmentally disabled habilitative, an intermediate
care facility/developmentally disabled nursing, or an intermediate
care facility/developmentally disabled, other than an intermediate
care facility/developmentally disabled operated by the state that
secures criminal record clearances for its employees through a method
other than as specified in this section or upon the hiring of direct
care staff by any of these facilities, the department shall request
the Department of Justice to search for criminal record information
to determine whether the applicant, facility administrator or
manager, any direct care staff, or any other adult living in the same
location, has ever been convicted of a crime other than a minor
traffic violation.
(2) The criminal record clearance shall require the applicant to
submit electronic fingerprint images and related information of the
facility administrator or manager, and any direct care staff, or any
other adult living in the same location, to the Department of
Justice. Applicants shall be responsible for any cost associated with
capturing or transmitting the fingerprint images and related
information.
(3) (A) The Licensing and Certification Program shall issue an All
Facilities Letter (AFL) to facility licensees when both of the
following criteria are met:
(i) The program receives, within three business days, 95 percent
of its total responses indicating no evidence of recorded criminal
information from the Department of Justice.
(ii) The program processes 95 percent of its total responses
requiring disqualification in accordance with subdivision (c), no
later than 45 days after the date that the report is received from
the Department of Justice.
(B) After the AFL is issued, licensees shall not allow newly hired
facility administrators, managers, direct care staff, or any other
adult living in the same location to have direct contact with clients
or residents of the facility prior to completion of the criminal
record clearance. A criminal record clearance shall be complete when
the department has obtained the person's criminal record information
search response from the Department of Justice and has determined
that the person is not disqualified from engaging in the activity for
which clearance is required. Notwithstanding any other provision of
law, the department may, without taking regulatory action pursuant to
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code, implement, interpret, or make
specific this paragraph by means of an AFL or similar instruction.
(4) An applicant and any other person specified in this
subdivision, as part of the background clearance process, shall
provide information as to whether or not he or she has any prior
criminal convictions, has had any arrests within the past 12-month
period, or has any active arrests, and shall certify that, to the
best of his or her knowledge, the information provided is true. This
requirement is not intended to duplicate existing requirements for
individuals who are required to submit fingerprint images as part of
a criminal background clearance process. Every applicant shall
provide information on any prior administrative action taken against
him or her by any federal, state, or local governmental agency and
shall certify that, to the best of his or her knowledge, the
information provided is true. An applicant or other person required
to provide information pursuant to this section that knowingly or
willfully makes false statements, representations, or omissions may
be subject to administrative action, including, but not limited to,
denial of his or her application or exemption or revocation of any
exemption previously granted.
(b) (1) The application for licensure or renewal shall be denied
if the criminal record indicates that the person seeking initial
licensure or renewal of a license referred to in subdivision (a) has
been convicted of a violation or attempted violation of any one or
more of the following Penal Code provisions: Section 187, subdivision
(a) of Section 192, Section 203, 205, 206, 207, 209, 210, 210.5,
211, 220, 222, 243.4, 245, 261, 262, or 264.1, Sections 265 to 267,
inclusive, Section 273a, 273d, 273.5, or 285, subdivisions (c), (d),
(f), and (g) of Section 286, Section 288, subdivisions (c), (d), (f),
and (g) of Section 288a, Section 288.5, 289, 289.5, 368, 451, 459,
470, 475, 484, or 484b, Sections 484d to 484j, inclusive, or Section
487, 488, 496, 503, 518, or 666, unless any of the following applies:
(A) The person was convicted of a felony and has obtained a
certificate of rehabilitation under Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of Part 3 of the Penal Code and the
information or accusation against the person has been dismissed
pursuant to Section 1203.4 of the Penal Code with regard to that
felony.
(B) The person was convicted of a misdemeanor and the information
or accusation against the person has been dismissed pursuant to
Section 1203.4 or 1203.4a of the Penal Code.
(C) The person was convicted of a felony or a misdemeanor, but has
previously disclosed the fact of each conviction to the department
and the department has made a determination in accordance with law
that the conviction does not disqualify the person.
(2) The application for licensure or renewal shall be denied if
the criminal record of the person includes a conviction in another
state for an offense that, if committed or attempted in this state,
would have been punishable as one or more of the offenses set forth
in paragraph (1), unless evidence of rehabilitation comparable to the
dismissal of a misdemeanor or a certificate of rehabilitation as set
forth in subparagraph (A) or (B) of paragraph (1) is provided to the
department.
(c) If the criminal record of a person described in subdivision
(a) indicates any conviction other than a minor traffic violation or
other than a conviction listed in subdivision (b), the department may
deny the application for licensure or renewal. In determining
whether or not to deny the application for licensure or renewal
pursuant to this subdivision, the department shall take into
consideration the following factors as evidence of good character and
rehabilitation:
(1) The nature and seriousness of the offense under consideration
and its relationship to their employment duties and responsibilities.
(2) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(3) The time that has elapsed since the commission of the conduct
or offense referred to in paragraph (1) or (2) and the number of
offenses.
(4) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(5) Any rehabilitation evidence, including character references,
submitted by the person.
(6) Employment history and current employer recommendations.
(7) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(8) The granting by the Governor of a full and unconditional
pardon.
(9) A certificate of rehabilitation from a superior court.
(d) Nothing in this section shall be construed to require a
criminal record check of a person receiving services in an
intermediate care facility/developmentally disabled habilitative,
intermediate care facility/developmentally disabled-nursing, or
intermediate care facility/developmentally disabled.
(e) For purposes of this section, "direct care staff" means all
facility staff who are trained and experienced in the care of persons
with developmental disabilities and who directly provide program and
nursing services to clients. Administrative and licensed personnel
shall be considered direct care staff when directly providing program
and nursing services to clients. Persons employed as consultants and
acting as direct care staff shall be subject to the same
requirements for a criminal record clearance as other direct care
staff. However, the employing facility shall not be required to pay
any costs associated with that criminal record clearance.
(f) Upon the employment of any person specified in subdivision
(a), and prior to any contact with clients or residents, the facility
shall ensure that electronic fingerprint images and related
information are submitted to the Department of Justice for the
purpose of obtaining a criminal record check.
(g) The department shall develop procedures to ensure that any
licensee, direct care staff, or certificate holder for whom a
criminal record has been obtained pursuant to this section or Section
1338.5 or 1736 shall not be required to obtain multiple criminal
record clearances.
(h) In addition to the persons who are not required to obtain
multiple criminal record clearances pursuant to subdivision (g), a
person shall not be required to obtain a separate criminal record
clearance if the person meets all of the following criteria:
(1) The person is employed as a consultant and acts as direct care
staff.
(2) The person is a registered nurse, licensed vocational nurse,
physical therapist, occupational therapist, or speech-language
pathologist.
(3) The person has obtained a criminal record clearance as a
prerequisite to holding a license or certificate to provide direct
care services.
(4) The person has a license or certificate to provide direct care
service that is in good standing with the appropriate licensing or
certification board.
(5) The person is providing time-limited, specialized clinical
care or services.
(6) The person is not left alone with a client.
(i) If, at any time, the department does not meet the standards
specified in clauses (i) and (ii) of subparagraph (A) of paragraph
(3) of subdivision (a), for a period of 90 days, the requirements in
paragraph (3) of subdivision (a) shall be suspended until the
department can demonstrate that it has met those standards for a
period of 90 days.
SEC. 1.5. Section 1265.5 of the Health and Safety Code is amended
to read:
1265.5. (a) (1) Prior to the initial licensure or renewal of a
license of any person or persons to operate or manage an intermediate
care facility/developmentally disabled habilitative, an intermediate
care facility/developmentally disabled nursing, or an intermediate
care facility/developmentally disabled, other than an intermediate
care facility/developmentally disabled operated by the state that
secures criminal record clearances for its employees through a method
other than as specified in this section or upon the hiring of direct
care staff by any of these facilities, the department shall secure
from the Department of Justice criminal offender record information
to determine whether the applicant, facility administrator or
manager, any direct care staff, or any other adult living in the same
location, has ever been convicted of a crime other than a minor
traffic violation.
(2) (A) The criminal record clearance shall require the applicant
to submit electronic fingerprint images and related information of
the facility administrator or manager, and any direct care staff, or
any other adult living in the same location, to the Department of
Justice. Applicants shall be responsible for any cost associated with
capturing or transmitting the fingerprint images and related
information.
(B) The criminal record clearance shall be completed prior to
direct staff contact with residents of the facility. A criminal
record clearance shall be complete when the department has obtained
the person's criminal record information from the Department of
Justice and has determined that he or she is not disqualified from
engaging in the activity for which clearance is required.
(3) (A) The Licensing and Certification Program shall issue an All
Facilities Letter (AFL) to facility licensees when it determines
that both of the following criteria have been met for a period of 30
days:
(i) The program receives, within three business days, 95 percent
of its total responses indicating no evidence of recorded criminal
information from the Department of Justice.
(ii) The program processes 95 percent of its total responses
requiring disqualification in accordance with subdivision (b), with
notices mailed to the facility no later than 45 days after the date
that the criminal offender record information report is received from
the Department of Justice.
(B) After the AFL is issued, facilities shall not allow newly
hired facility administrators, managers, direct care staff, or any
other adult living in the same location to have direct contact with
clients or residents of the facility prior to completion of the
criminal record clearance. A criminal record clearance shall be
complete when the department has obtained the person's criminal
offender record information search response from the Department of
Justice and has determined that the person is not disqualified from
engaging in the activity for which clearance is required.
(C) An applicant or certificate holder who may be disqualified on
the basis of a criminal conviction shall provide the department with
a certified copy of the judgment of each conviction. In addition, the
individual may, during a period of two years after the department
receives the criminal record report, provide the department with
evidence of good character and rehabilitation in accordance with
subdivision (c) of Section 1265.5. Upon receipt of a new application
for certification of the individual, the department may receive and
consider the evidence during the two-year period without requiring
additional fingerprint imaging to clear the individual.
(D) The department's Licensing and Certification Program shall
explore and implement methods for maximizing its efficiency in
processing criminal record clearances within the requirements of law,
including a streamlined clearance process for persons that have been
disqualified in the basis of criminal convictions that do not
require automatic denial pursuant to subdivision (b) of Section
1265.5.
(4) An applicant and any other person specified in this
subdivision, as part of the background clearance process, shall
provide information as to whether or not the person has any prior
criminal convictions, has had any arrests within the past 12-month
period, or has any active arrests, and shall certify that, to the
best of his or her knowledge, the information provided is true. This
requirement is not intended to duplicate existing requirements for
individuals who are required to submit fingerprint images as part of
a criminal background clearance process. Every applicant shall
provide information on any prior administrative action taken against
him or her by any federal, state, or local governmental agency and
shall certify that, to the best of his or her knowledge, the
information provided is true. An applicant or other person required
to provide information pursuant to this section that knowingly or
willfully makes false statements, representations, or omissions may
be subject to administrative action, including, but not limited to,
denial of his or her application or exemption or revocation of any
exemption previously granted.
(b) (1) The application for licensure or renewal shall be denied
if the criminal record indicates that the person seeking initial
licensure or renewal of a license referred to in subdivision (a) has
been convicted of a violation or attempted violation of any one or
more of the following Penal Code provisions: Section 187, subdivision
(a) of Section 192, Section 203, 205, 206, 207, 209, 210, 210.5,
211, 220, 222, 243.4, 245, 261, 262, or 264.1, Sections 265 to 267,
inclusive, Section 273a, 273d, 273.5, or 285, subdivisions (c), (d),
(f), and (g) of Section 286, Section 288, subdivisions (c), (d), (f),
and (g) of Section 288a, Section 288.5, 289, 289.5, 368, 451, 459,
470, 475, 484, or 484b, Sections 484d to 484j, inclusive, or Section
487, 488, 496, 503, 518, or 666, unless any of the following applies:
(A) The person was convicted of a felony and has obtained a
certificate of rehabilitation under Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of Part 3 of the Penal Code and the
information or accusation against the person has been dismissed
pursuant to Section 1203.4 of the Penal Code with regard to that
felony.
(B) The person was convicted of a misdemeanor and the information
or accusation against the person has been dismissed pursuant to
Section 1203.4 or 1203.4a of the Penal Code.
(C) The person was convicted of a felony or a misdemeanor, but has
previously disclosed the fact of each conviction to the department
and the department has made a determination in accordance with law
that the conviction does not disqualify the person.
(2) The application for licensure or renewal shall be denied if
the criminal record of the person includes a conviction in another
state for an offense that, if committed or attempted in this state,
would have been punishable as one or more of the offenses set forth
in paragraph (1), unless evidence of rehabilitation comparable to the
dismissal of a misdemeanor or a certificate of rehabilitation as set
forth in subparagraph (A) or (B) of paragraph (1) is provided to the
department.
(c) If the criminal record of a person described in subdivision
(a) indicates any conviction other than a minor traffic violation or
other than a conviction listed in subdivision (b), the department may
deny the application for licensure or renewal. In determining
whether or not to deny the application for licensure or renewal
pursuant to this subdivision, the department shall take into
consideration the following factors as evidence of good character and
rehabilitation:
(1) The nature and seriousness of the offense under consideration
and its relationship to their employment duties and responsibilities.
(2) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(3) The time that has elapsed since the commission of the conduct
or offense referred to in paragraph (1) or (2) and the number of
offenses.
(4) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(5) Any rehabilitation evidence, including character references,
submitted by the person.
(6) Employment history and current employer recommendations.
(7) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(8) The granting by the Governor of a full and unconditional
pardon.
(9) A certificate of rehabilitation from a superior court.
(d) Nothing in this section shall be construed to require a
criminal record check of a person receiving services in an
intermediate care facility/developmentally disabled habilitative,
intermediate care facility/developmentally disabled-nursing, or
intermediate care facility/developmentally disabled.
(e) For purposes of this section, "direct care staff" means all
facility staff who are trained and experienced in the care of persons
with developmental disabilities and who directly provide program and
nursing services to clients. Administrative and licensed personnel
shall be considered direct care staff when directly providing program
and nursing services to clients. Persons employed as consultants and
acting as direct care staff shall be subject to the same
requirements for a criminal record clearance as other direct care
staff. However, the employing facility shall not be required to pay
any costs associated with that criminal record clearance.
(f) Upon the employment of any person specified in subdivision
(a), and prior to any contact with clients or residents, the facility
shall ensure that electronic fingerprint images are submitted to the
Department of Justice for the purpose of obtaining a criminal record
check.
(g) The department shall develop procedures to ensure that any
licensee, direct care staff, or certificate holder for whom a
criminal record has been obtained pursuant to this section or Section
1338.5 or 1736 shall not be required to obtain multiple criminal
record clearances.
(h) In addition to the persons who are not required to obtain
multiple criminal record clearances pursuant to subdivision (g), a
person shall not be required to obtain a separate criminal record
clearance if the person meets all of the following criteria:
(1) The person is employed as a consultant and acts as direct care
staff.
(2) The person is a registered nurse, licensed vocational nurse,
physical therapist, occupational therapist, or speech-language
pathologist.
(3) The person has obtained a criminal record clearance as a
prerequisite to holding a license or certificate to provide direct
care services.
(4) The person has a license or certificate to provide direct care
service that is in good standing with the appropriate licensing or
certification board.
(5) The person is providing time-limited specialized clinical care
or services.
(6) The person is not left alone with a client.
(i) If, at any time, the department determines that it does not
meet the standards specified in clauses (i) and (ii) of subparagraph
(A) of paragraph (3) of subdivision (a), for a period of 90
consecutive days, the requirements in paragraph (3) of subdivision
(a) shall be suspended until the department determines that it has
met those standards for a period of 90 consecutive days.
(j) During any period of time in which the requirements of
paragraph (3) of subdivision (a) are inoperative, facilities may
allow newly hired facility administrators, managers, direct care
staff, or any other adult living in the same location to have direct
contact with clients or residents of the facility after those persons
have submitted livescan fingerprint images to the Department of
Justice, and the department shall issue an AFL advising of this
change in the statutory requirement.
(k) Notwithstanding any other provision of law, the State
Department of Health Services is authorized to 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 individual's written request and the response
and date provided.
SEC. 2. Section 1265.6 is added to the Health and Safety Code, to
read:
1265.6. Notwithstanding any other provision of law, a registered
nurse within his or her scope of practice may require direct care
staff in an intermediate care facility/developmentally disabled
habilitative or an intermediate care facility/developmentally
disabled nursing to administer blood glucose testing for a person
with developmental disabilities who resides at the facility and who
has diabetes, if all of the following criteria are met:
(a) The blood glucose testing is specifically ordered by a
physician. The results of the testing shall be reported to a
registered nurse as specified in the physician's order.
(b) Prior to performing the blood glucose testing, the direct care
staff shall be trained by the registered nurse to perform the
testing and shall demonstrate proficiency in performing the testing
while under the immediate supervision of the registered nurse.
(c) Training of direct care staff to perform blood glucose testing
shall include, but not be limited to, an overview of the basic
disease process of type I and type II diabetes, recognition of the
signs and symptoms of hypoglycemia and hyperglycemia, the role of
nutrition management in diabetes, diabetes and blood sugar control,
long-term complications of diabetes, specific instruction in
utilizing and the use of specific over-the-counter glucose monitoring
device that is approved by the FDA, including the cleaning and
maintaining the accuracy of the client-specific glucose monitoring
device, proper infection control practices related to the use of the
device, including the handling and disposal of infectious waste, and
recording accurate records of blood glucose readings in the client
medical record. Records of blood glucose readings shall be reviewed
by the facility registered nurse at least monthly.
(d) A signed written statement shall be prepared by the registered
nurse that includes a certification of the direct care staff's
competence to perform the testing and that identifies the clients
residing at the facility for whom the certification is applicable.
This certification shall be placed and maintained in the direct care
staff's training record.
(e) The certification of competence to perform the blood glucose
testing shall be procedure and client specific, and shall not be
transferred between clients residing at the facility or other
facilities.
(f) The registered nurse shall be responsible for monitoring and
implementing the direct care staff blood glucose testing. At least
once every three months, the registered nurse shall observe and
confirm the direct care staff person's proficiency in performing the
approved testing and shall update the certification. The proficiency
determination shall include a determination by the registered nurse
that the direct care staff remains proficient in demonstrating the
specified method for cleaning and recalibration of the glucose
monitoring device.
(g) A registered nurse shall provide continuing in-service
education on the management of diabetes and the use of blood glucose
monitoring devices not less than once per year and include
documentation of the content of the training and the staff who were
in attendance.
(h) A facility shall develop a written policy and procedure
governing blood glucose testing for clients residing at the facility
that shall include procedures for the training
and competency assessment of direct care staff
as required by this section.
(i) A facility shall have received a certificate of waiver
pursuant to subdivision (n) of Section 483.460 of Title 42 of the
Code of Federal Regulations prior to the implementation of blood
glucose testing and shall retain a copy of the CLIA waiver for
inspection by the department.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
SEC. 4. Section 1.5 of this bill incorporates amendments to
Section 1265.5 of the Health and Safety Code proposed by both this
bill and Senate Bill 1759. It shall only become operative if (1) both
bills are enacted and become effective on or before January 1, 2007,
(2) each bill amends Section 1265.5 of the Health and Safety Code,
and (3) this bill is enacted after Senate Bill 1759, in which case
Section 1 of this bill shall not become operative.