BILL NUMBER: SB 892 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 27, 2010
AMENDED IN SENATE APRIL 5, 2010
INTRODUCED BY Senator Alquist
JANUARY 25, 2010
An act to amend Section 1569.17 of the Health and Safety Code,
relating to care facilities.
LEGISLATIVE COUNSEL'S DIGEST
SB 892, as amended, Alquist. Care facilities.
Existing law, the California Residential Care Facilities for the
Elderly Act, provides for the licensure of residential care
facilities by the department.
Existing law requires a criminal record check of applicants for a
license, special permit, or certificate of approval to operate a
residential care facility for the elderly, or for other persons,
including nonclients who reside in those facilities and staff and
employees. Existing law requires that an application be denied if it
is found that the applicant or any of the other designated persons
has been convicted of a crime, other than a minor traffic violation.
Existing law authorizes the Director of Social Services to grant an
exemption from disqualification under these provisions, but prohibits
the director from granting an exemption in the case of certain
crimes.
This bill would add additional specified crimes with respect to
which the director is prohibited from granting an exemption.
This bill would also add specified crimes with respect to which the
director is prohibited from granting an exemption within 10 years of
either the date the person was convicted of the offense or the date
the person was released from incarceration for the offense, whichever
is later.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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 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, for
violating Section 245 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 cannot grant an
exemption if the person was convicted and the person has not been
exonerated.
(2) The criminal history information shall include the full
criminal record, 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) 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 an exemption
pursuant to subdivision (f).
(B) 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, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) 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, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
(E) 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
Investigation's 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, 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 convictions 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. Nothing in this paragraph restricts 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
person's 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 may 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 resident's 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 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, any person required
to be fingerprinted pursuant to subdivision (b) shall, as a condition
to employment, residence, or presence in a residential facility for
the elderly, be fingerprinted and sign a declaration under penalty of
perjury regarding any prior criminal convictions. 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 person's 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
licensee's 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 individual's
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, 273d, 273g, or
368 of the Penal Code, or a 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 person's 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 person's 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 or (2) seek an exemption pursuant to subdivision (f). The
department shall determine if the person shall be allowed to remain
in the facility until a decision on the exemption is rendered by the
department. A licensee's failure to comply with the department's
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 person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. 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
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (4).
(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. 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. 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 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 as if the criminal offense was
committed in this state.
(e) The State Department of Social Services may not use a record
of arrest to deny, revoke, or terminate any 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. The State
Department of Social Services is authorized to obtain any 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) 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 may
not be granted pursuant to this subdivision if the conviction was for
any of the following offenses:
(A) Section 187, subdivision (a) of Section 192, Section 203, 205,
206, 207, 209, 210, 210.5, 211, 215, 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, or 289.5, subdivision (c) of Section 290, subdivision (a) of
Section 347, Section 368, subdivision (b) of Section 417,
451, 459, 470, 475, 484, or 484b, Sections 484d to 484j, inclusive,
Section 487, 488, 496, 503, 518, or 666. or Section
451 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code.
(C) Sections 211, 245, 273.5, 459, 470, 475, 484, or 484b,
Sections 484d to 484j, inclusive, or Sections 487, 488, 496, 503,
518, or 666 of the Penal Code, if it is within 10 years of either the
date the person was convicted of the offense or the date the person
was released from incarceration for the offense, whichever is later.
(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 may 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 person's driver's 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 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 employee based on
written notification from the department that the employee has a
prior criminal conviction 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 individual's written request and the response
and date provided.
SEC. 2. The amendments to subdivision (f) of Section 1569.17 of
the Health and Safety Code made by the act that added that section
shall not apply to any person who received an exemption pursuant to
that subdivision prior to January 1, 2011.