BILL NUMBER: AB 2564 CHAPTERED 09/30/06 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.