Amended in Senate June 19, 2013

Amended in Assembly April 11, 2013

Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 389

Introduced by Assembly Member Williams

February 15, 2013

An act to amend 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 begin insert : criminal background checks end insert .

(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. begin delete The Superintendent is prohibited from certifying, or renewing the certification of, a nonpublic, nonsectarian school or agency, unless certain requirements are met. end delete begin insert Existing law requires the Superintendent, before certification, to conduct an onsite review of the facility and program seeking certification, as provided. Existing law further requires the Superintendent to 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, as provided. end insert

begin insert

This bill would authorize the Superintendent, when conducting an onsite review or investigation, to verify that the nonpublic, nonsectarian school or agency has received a successful criminal background check clearance and has enrolled in subsequent arrest notice service, as specified, for each owner, operator, and employee of the nonpublic, nonsectarian school or agency.

end insert begin delete

This bill would require a nonpublic, nonsectarian school or agency to submit evidence of a successful criminal background check determination and the successful monitoring of subsequent arrest notices, 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.

end delete

(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. begin insert Existing law requires a recipient of the summary to not disclose its contents or provide copies of the information, and requires the information received to be destroyed upon hiring. end insert

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. begin delete The bill also would make technical, nonsubstantive changes. end delete begin insert The bill would, notwithstanding the restrictions on sharing and destroying criminal background check information, require a nonpublic, nonsectarian school or agency, upon demand, to make available to the Superintendent evidence of a successful criminal background check clearance and enrollment in subsequent arrest notice service, as provided, for each owner, operator, and employee of the nonpublic, nonsectarian school or agency. The bill would require the nonpublic, nonsectarian school or agency to retain the evidence, as specified. The bill also would make technical, nonsubstantive changes. end insert

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . 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 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) 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 before submission of an
initial application to the Superintendent, or at least 30 calendar
days 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 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)  begin insert (1) end insert begin insert   end insert 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.

begin insert

(2) In carrying out this subdivision, the Superintendent may
verify that the nonpublic, nonsectarian school or agency has
received a successful criminal background check clearance and
has enrolled in subsequent arrest notice service, pursuant to
Section 44237, for each owner, operator, and employee of the
nonpublic, nonsectarian school or agency.

end insert

(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 shall not certify the nonpublic,
nonsectarian school or agency for a period 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 state
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.

begin insert

(4) In carrying out this subdivision, the Superintendent may
verify that the nonpublic, nonsectarian school or agency received
a successful criminal background check clearance and has enrolled
in subsequent arrest notice service, pursuant to Section 44237, for
each owner, operator, and employee of the nonpublic, nonsectarian
school or agency.

end insert

(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 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
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 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 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.

begin delete

(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.

(F) Evidence of successful monitoring of subsequent arrest
notices provided by the Department of Justice pursuant to Section
11105.2 of the Penal Code, for each owner, operator, and employee
of the nonpublic, nonsectarian school or agency is submitted to
the Superintendent.

end delete

(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. A fee shall not be refunded if the application is
withdrawn or is denied by the Superintendent.

(n) (1) Notwithstanding any other law, only those nonpublic,
nonsectarian schools and agencies that provide special education
and designated instruction and services using 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 state board shall develop regulations to implement this
subdivision.

(o) In addition to meeting the standards adopted by the state
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.

begin insert

(p) (1) Notwithstanding subdivision (n) of Section 44237, and
for purposes of enabling the Superintendent to carry out his or
her duties pursuant to this section, a nonpublic, nonsectarian
school or agency shall, upon demand, make available to the
Superintendent evidence of a successful criminal background check
clearance and enrollment in subsequent arrest notice service,
conducted pursuant to Section 44237, for each owner, operator,
and employee of the nonpublic, nonsectarian school or agency.

end insert begin insert

(2) The nonpublic, nonsectarian school or agency shall retain
the evidence and store it in a locked file separate from other files.

end insert