BILL NUMBER: AB 389 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 21, 2013
INTRODUCED BY Assembly Member Williams
FEBRUARY 15, 2013
An act to amend Section 44237 Sections
44237 and 56366.1 of the Education Code,
relating to private schools.
LEGISLATIVE COUNSEL'S DIGEST
AB 389, as amended, Williams. Private schools: employees.
(1) Existing law sets forth a method for providing special
education and related services to pupils with exceptional needs.
Existing law also permits, under certain circumstances, contracts to
be entered for the provision of those services by nonpublic,
nonsectarian schools or agencies, as defined. Existing law authorizes
a master contract for special education and related services
provided by a nonpublic, nonsectarian school or agency only if the
school or agency has been certified by the Superintendent of Public
Instruction as meeting specified standards. The Superintendent is
prohibited from certifying, or renewing the certification of, a
nonpublic, nonsectarian school or agency, unless certain requirements
are met.
This bill would require a nonpublic, nonsectarian school or agency
to submit evidence of a successful criminal background check
determination, as provided, for each owner, operator, or employee of
the school or agency before the Superintendent may certify or renew
the certification of the school or agency.
Existing
( 2) Existing law
requires every person, firm, association, partnership, or corporation
offering or conducting private school instruction on the elementary
or high school level to require each applicant for employment in a
position requiring contact with minor pupils who does not possess a
valid California state teaching credential, or is not currently
licensed by another state agency that requires a criminal record
summary, to submit 2 sets of fingerprints to the Department of
Justice for the purpose of obtaining a criminal record summary from
the Department of Justice and the Federal Bureau of Investigation.
This bill would delete the exemption for applicants possessing a
valid California state teaching credential or who are currently
licensed by another state agency that requires a criminal record
summary, from submitting 2 sets of fingerprints for the purpose of
obtaining a criminal record summary from the Department of Justice
and the Federal Bureau of Investigation. The bill also would make
technical, nonsubstantive changes.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 44237 of the Education Code is amended to read:
44237. (a) Every person, firm, association, partnership, or
corporation offering or conducting private school instruction on the
elementary or high school level shall require each applicant for
employment in a position requiring contact with minor pupils to
submit two sets of fingerprints prepared for submittal by the
employer to the Department of Justice for the purpose of obtaining
criminal record summary information from the Department of Justice
and the Federal Bureau of Investigation.
(b) (1) As used in this section, "employer" means every person,
firm, association, partnership, or corporation offering or conducting
private school instruction on the elementary or high school level.
(2) As use used in this section,
"employment" means the act of engaging the services of a person, who
will have contact with pupils, to work in a position at a private
school at the elementary or high school level on or after September
30, 1997, on a regular, paid full-time basis, regular, paid part-time
basis, or paid full-time or part-time seasonal basis.
(3) As used in this section, "applicant" means any person who is
seriously being considered for employment by an employer.
(4) This section does not apply to a secondary school pupil
working at the school he or she attends or a parent or legal guardian
working exclusively with his or her children.
(c) (1) Upon receiving the identification cards, the Department of
Justice shall ascertain whether the applicant has been arrested or
convicted of any crime insofar as that fact can be ascertained from
information available to the Department of Justice and forward the
information to the employer submitting the fingerprints no more than
15 working days after receiving the identification cards. The
Department of Justice shall not forward information regarding
criminal proceedings that did not result in a conviction but shall
forward information on arrests pending adjudication.
(2) Upon implementation of an electronic fingerprinting system
with terminals located statewide and managed by the Department of
Justice, the Department of Justice shall ascertain the information
required pursuant to this subdivision within three working days. If
the Department of Justice cannot ascertain the information required
pursuant to this subdivision within three working days, the
Department of Justice shall notify the employer submitting the
fingerprints that it cannot so ascertain the required information.
This notification shall be delivered by telephone or email to the
employer submitting the fingerprints. If the employer submitting the
fingerprints is notified by the Department of Justice that it cannot
ascertain the required information about a person, the employer shall
not employ that person until the Department of Justice ascertains
that information.
(3) The Department of Justice shall review the criminal record
summary it obtains from the Federal Bureau of Investigation to
ascertain whether an applicant for employment has a conviction, or an
arrest pending final adjudication, for any sex offense, controlled
substance offense, crime of violence, or serious or violent felony.
The Department of Justice shall provide written notification to the
private school employer only as to whether an applicant for
employment has any convictions, or arrests pending final
adjudication, for any of these crimes.
(d) An employer shall not employ a person until the Department of
Justice completes its check of the state criminal history file as set
forth in this section.
(e) (1) An employer shall not employ a person who has been
convicted of a violent or serious felony or a person who would be
prohibited from employment by a public school district pursuant to
any provision of this code because of his or her conviction for any
crime.
(2) A person who would be prohibited from employment by a private
school pursuant to paragraph (1) may shall
not, on or after July 1, 1999, own or operate a private school
offering instruction on the elementary or high school level.
(f) An employer shall request subsequent arrest service from the
Department of Justice as provided under Section 11105.2 of the Penal
Code.
(g) This section applies to any violent or serious offense that,
if committed in this state, would have been punishable as a violent
or serious felony.
(h) For purposes of this section, a violent felony is any felony
listed in subdivision (c) of Section 667.5 of the Penal Code and a
serious felony is any felony listed in subdivision (c) of Section
1192.7 of the Penal Code.
(i) Notwithstanding subdivision (e), a person shall not be denied
employment or terminated from employment solely on the basis that the
person has been convicted of a violent or serious felony if the
person has obtained a certificate of rehabilitation and pardon
pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6
of Part 3 of the Penal Code.
(j) Notwithstanding subdivision (e), a person shall not be denied
employment or terminated from employment solely on the basis that the
person has been convicted of a serious felony that is not also a
violent felony if that person can prove to the sentencing court of
the offense in question, by clear and convincing evidence, that he or
she has been rehabilitated for the purposes of school employment for
at least one year. If the offense in question occurred outside this
state, then the person may seek a finding of rehabilitation from the
court in the county in which he or she is a resident.
(k) The commission shall make available to each private school a
listing of all credentialholders who have had final adverse action
taken against their credential. The information shall be identical to
that made available to public schools in the state. The commission
shall also send on a quarterly basis a complete and updated list of
all teachers who have had their teaching credentials revoked or
suspended, excluding teachers who have had their credentials
reinstated, or who are deceased.
( l ) The Department of Justice may charge a reasonable
fee to cover costs associated with the processing, reviewing, and
supplying of the criminal record summary as required by this section.
The fee shall not exceed the actual costs incurred by the Department
of Justice.
(m) Where reasonable access to the statewide electronic
fingerprinting network is available, the Department of Justice may
mandate electronic submission of the fingerprints and related
information required by this section.
(n) All information obtained from the Department of Justice is
confidential. Agencies handling Department of Justice information
shall ensure the following:
(1) A recipient shall not disclose its contents or provide copies
of information.
(2) Information received shall be stored in a locked file separate
from other files, and shall only be accessible to the custodian of
records.
(3) Information received shall be destroyed upon the hiring
determination in accordance with subdivision (a) of Section 708 of
Title 11 of the California Code of Regulations.
(4) Compliance with destruction, storage, dissemination, auditing,
backgrounding, and training requirements as set forth in Sections
700 to 708, inclusive, of Title 11 of the California Code of
Regulations and Section 11077 of the Penal Code governing the use and
security of criminal offender record information is the
responsibility of the entity receiving the information from the
Department of Justice.
SEC. 2. Section 56366.1 of the
Education Code is amended to read:
56366.1. (a) A nonpublic, nonsectarian school or agency that
seeks certification shall file an application with the Superintendent
on forms provided by the department , and shall
include all of the following information on the
application:
(1) A description of the special education and designated
instruction and services provided to individuals with exceptional
needs if the application is for nonpublic, nonsectarian school
certification.
(2) A description of the designated instruction and services
provided to individuals with exceptional needs if the application is
for nonpublic, nonsectarian agency certification.
(3) A list of appropriately qualified staff, a description of the
credential, license, or registration that qualifies each staff member
rendering special education or designated instruction and services
to do so, and copies of their credentials, licenses, or certificates
of registration with the appropriate state or national organization
that has established standards for the service rendered.
(4) An annual operating budget.
(5) Affidavits and assurances necessary to comply with all
applicable federal, state, and local laws and regulations that
include criminal record summaries required of all nonpublic,
nonsectarian school or agency personnel having contact with minor
children under Section 44237.
(b) (1) The applicant shall provide the special education local
plan area in which the applicant is located with the written
notification of its intent to seek certification or renewal of its
certification. The applicant shall submit on a form, developed by the
department, a signed verification by local educational agency
representatives that they have been notified of the intent to certify
or renew certification. The verification shall include a statement
that representatives of the local educational agency for the area in
which the applicant is located have had the opportunity to review the
application at least 60 calendar days prior to
before submission of an initial application to the
Superintendent, or at least 30 calendar days prior to
before submission of a renewal application to
the Superintendent. The signed verification shall provide assurances
that local educational agency representatives have had the
opportunity to provide input on all required components of the
application.
(2) If the applicant has not received a response from the local
educational agency 60 calendar days from the date of the return
receipt for initial applications or 30 calendar days from the date of
the return receipt for renewal applications, the applicant may file
the application with the Superintendent. A copy of the return receipt
shall be included with the application as verification of
notification efforts to the local educational agency.
(3) The department shall mail renewal application materials to
certified nonpublic, nonsectarian schools and agencies at least 120
days prior to before the date their
current certification expires.
(c) If the applicant operates a facility or program on more than
one site, each site shall be certified.
(d) If the applicant is part of a larger program or facility on
the same site, the Superintendent shall consider the effect of the
total program on the applicant. A copy of the policies and standards
for the nonpublic, nonsectarian school or agency and the larger
program shall be available to the Superintendent.
(e) Prior to Before certification,
the Superintendent shall conduct an onsite review of the facility and
program for which the applicant seeks certification. The
Superintendent may be assisted by representatives of the special
education local plan area in which the applicant is located and a
nonpublic, nonsectarian school or agency representative who does not
have a conflict of interest with the applicant. The Superintendent
shall conduct an additional onsite review of the facility and program
within three years of the effective date of the certification,
unless the Superintendent conditionally certifies the school or
agency , or unless the Superintendent receives a formal
complaint against the school or agency. In the latter two cases, the
Superintendent shall conduct an onsite review at least annually.
(f) The Superintendent shall make a determination on an
application within 120 days of receipt of the application and shall
certify, conditionally certify, or deny certification to the
applicant. If the Superintendent fails to take one of these actions
within 120 days, the applicant is automatically granted conditional
certification for a period terminating on August 31 of the current
school year. If certification is denied, the Superintendent shall
provide reasons for the denial. The Superintendent may
certify the school or agency shall not certify the
nonpublic, nonsectarian school or agency for a period
of not longer than one year.
(g) Certification becomes effective on the date the nonpublic,
nonsectarian school or agency meets all the application requirements
and is approved by the Superintendent. Certification may be
retroactive if the nonpublic, nonsectarian school or
agency met all the requirements of this section on the date the
retroactive certification is effective. Certification expires on
December 31 of the terminating year.
(h) The Superintendent annually shall review the certification of
each nonpublic, nonsectarian school and agency. For this purpose, a
certified school or agency annually shall update its application
between August 1 and October 31, unless the board grants a waiver
pursuant to Section 56101. The Superintendent may conduct an onsite
review as part of the annual review.
(i) (1) The Superintendent shall conduct an investigation of a
nonpublic, nonsectarian school or agency onsite at any time without
prior notice if there is substantial reason to believe that there is
an immediate danger to the health, safety, or welfare of a child. The
Superintendent shall document the concern and submit it to the
nonpublic, nonsectarian school or agency at the time of the onsite
investigation. The Superintendent shall require a written response to
any noncompliance or deficiency found.
(2) With respect to a nonpublic, nonsectarian school, the
Superintendent shall conduct an investigation, which may include an
unannounced onsite visit, if the Superintendent receives evidence of
a significant deficiency in the quality of educational services
provided, a violation of Section 56366.9, or noncompliance with the
policies expressed by subdivision (b) of Section 1501 of the Health
and Safety Code by the nonpublic, nonsectarian school. The
Superintendent shall document the complaint and the results of the
investigation and shall provide copies of the documentation to the
complainant, the nonpublic, nonsectarian school, and the contracting
local educational agency.
(3) Violations or noncompliance documented pursuant to paragraph
(1) or (2) shall be reflected in the status of the certification of
the school, at the discretion of the Superintendent, pending an
approved plan of correction by the nonpublic, nonsectarian school.
The department shall retain for a period of 10 years all violations
pertaining to certification of the nonpublic, nonsectarian school or
agency.
(j) The Superintendent shall monitor the facilities, the
educational environment, and the quality of the educational program,
including the teaching staff, the credentials authorizing service,
the standards-based core curriculum being employed, and the
standard-focused instructional materials used, of an existing
certified nonpublic, nonsectarian school or agency on a three-year
cycle, as follows:
(1) The nonpublic, nonsectarian school or agency shall complete a
self-review in year one.
(2) The Superintendent shall conduct an onsite review of the
nonpublic, nonsectarian school or agency in year two.
(3) The Superintendent shall conduct a followup visit to the
nonpublic, nonsectarian school or agency in year three.
(k) (1) Notwithstanding any other provision of law, the
Superintendent shall not certify a nonpublic, nonsectarian school or
agency that proposes to initiate or expand services to pupils
currently educated in the immediate prior fiscal year in a juvenile
court program, community school pursuant to Section 56150, or other
nonspecial education program, including independent study or adult
school, or both, unless the nonpublic, nonsectarian school or agency
notifies the county superintendent of schools and the special
education local plan area in which the proposed new or expanded
nonpublic, nonsectarian school or agency is located of its intent to
seek certification.
(2) The notification shall occur no later than the December 1
prior to before the new fiscal year in
which the proposed or expanding school or agency intends to initiate
services. The notice shall include the following:
(A) The specific date upon which the proposed nonpublic,
nonsectarian school or agency is to be established.
(B) The location of the proposed program or facility.
(C) The number of pupils proposed for services, the number of
pupils currently served in the juvenile court, community school, or
other nonspecial education program, the current school services
including special education and related services provided for these
pupils, and the specific program of special education and related
services to be provided under the proposed program.
(D) The reason for the proposed change in services.
(E) The number of staff who will provide special education and
designated instruction and services and hold a current valid
California credential or license in the service rendered.
(3) In addition to the requirements in subdivisions (a) to (f),
inclusive, the Superintendent shall require and consider the
following in determining whether to certify a nonpublic, nonsectarian
school or agency as described in this subdivision:
(A) A complete statement of the information required as part of
the notice under paragraph (1).
(B) Documentation of the steps taken in preparation for the
conversion to a nonpublic, nonsectarian school or agency, including
information related to changes in the population to be served and the
services to be provided pursuant to each pupil's individualized
education program.
(4) Notwithstanding any other provision of law, the certification
becomes effective no earlier than July 1 if the nonpublic,
nonsectarian school or agency provided the notification
required pursuant to paragraph (1).
( l ) (1) Notwithstanding any other provision of law,
the Superintendent shall not certify or renew the certification of a
nonpublic, nonsectarian school or agency, unless all of the following
conditions are met:
(A) The entity operating the nonpublic, nonsectarian school or
agency maintains separate financial records for each entity that it
operates, with each nonpublic, nonsectarian school or agency
identified separately from any licensed children's institution that
it operates.
(B) The entity submits an annual budget that identifies the
projected costs and revenues for each entity and demonstrates that
the rates to be charged are reasonable to support the operation of
the entity.
(C) The entity submits an entitywide annual audit that identifies
its costs and revenues, by entity, in accordance with generally
accepted accounting and auditing principles. The audit shall clearly
document the amount of moneys received and expended on the education
program provided by the nonpublic, nonsectarian school or agency
.
(D) The relationship between various entities operated by the same
entity are documented, defining the responsibilities of the
entities. The documentation shall clearly identify the services to be
provided as part of each program, for example, the residential or
medical program, the mental health program, or the educational
program. The entity shall not seek funding from a public agency for a
service, either separately or as part of a package of services, if
the service is funded by another public agency, either separately or
as part of a package of services.
(E) Evidence of a successful criminal background check
determination, conducted pursuant to Section 44237, for each owner,
operator, and employee of the nonpublic, nonsectarian school or
agency is submitted to the Superintendent.
(2) For purposes of this section, "licensed children's institution"
has the same meaning as it is defined by Section 56155.5.
(m) The nonpublic, nonsectarian school or agency shall
be charged a reasonable fee for certification. The Superintendent may
adjust the fee annually commensurate with the statewide average
percentage inflation adjustment computed for revenue limits of
unified school districts with greater than 1,500 units of average
daily attendance if the percentage increase is reflected in the
district revenue limit for inflation purposes. For purposes of this
section, the base fee shall be the following:
(1) 1-5 pupils ........................... $ 300
(2) 6-10 pupils .......................... 500
(3) 11-24 pupils ......................... 1,000
(4) 25-75 pupils ......................... 1,500
(5) 76 pupils and over ................... 2,000
The nonpublic, nonsectarian school or agency shall pay
this fee when it applies for certification and when it updates its
application for annual renewal by the Superintendent. The
Superintendent shall use these fees to conduct onsite reviews, which
may include field experts. No fee shall A fee
shall not be refunded if the application is withdrawn or is
denied by the Superintendent.
(n) (1) Notwithstanding any other provision of law, only those
nonpublic, nonsectarian schools and agencies that provide special
education and designated instruction and services utilizing staff who
hold a certificate, permit, or other document equivalent to that
which staff in a public school are required to hold in the service
rendered are eligible to receive certification. Only those nonpublic,
nonsectarian schools or agencies located outside of California that
employ staff who hold a current valid credential or license to render
special education and related services as required by that state
shall be eligible to be certified.
(2) The board shall develop regulations to implement this
subdivision.
(o) In addition to meeting the standards adopted by the board, a
nonpublic, nonsectarian school or agency shall provide written
assurances that it meets all applicable standards relating to fire,
health, sanitation, and building safety.