Amended in Senate July 11, 2013

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 BillNo. 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: criminal background checks.

(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. 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.

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.

(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. 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.

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 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Section 44237 of the Education Code is amended
2to read:

3

44237.  

(a) Every person, firm, association, partnership, or
4corporation offering or conducting private school instruction on
5the elementary or high school level shall require each applicant
6for employment in a position requiring contact with minor pupils
7to submit two sets of fingerprints prepared for submittal by the
8employer to the Department of Justice for the purpose of obtaining
9criminal record summary information from the Department of
10Justice and the Federal Bureau of Investigation.

11(b) (1) As used in this section, “employer” means every person,
12firm, association, partnership, or corporation offering or conducting
13private school instruction on the elementary or high school level.

14(2) As used in this section, “employment” means the act of
15engaging the services of a person, who will have contact with
16pupils, to work in a position at a private school at the elementary
17or high school level on or after September 30, 1997, on a regular,
18paid full-time basis, regular, paid part-time basis, or paid full-time
19or part-time seasonal basis.

20(3) As used in this section, “applicant” means any person who
21is seriously being considered for employment by an employer.

22(4) This section does not apply to a secondary school pupil
23working at the school he or she attends or a parent or legal guardian
24working exclusively with his or her children.

25(c) (1) Upon receiving the identification cards, the Department
26of Justice shall ascertain whether the applicant has been arrested
27or convicted of any crime insofar as that fact can be ascertained
28from information available to the Department of Justice and
29forward the information to the employer submitting the fingerprints
30no more than 15 working days after receiving the identification
31cards. The Department of Justice shall not forward information
32regarding criminal proceedings that did not result in a conviction
33but shall forward information on arrests pending adjudication.

34(2) Upon implementation of an electronic fingerprinting system
35with terminals located statewide and managed by the Department
36of Justice, the Department of Justice shall ascertain the information
37required pursuant to this subdivision within three working days.
38If the Department of Justice cannot ascertain the information
P4    1required pursuant to this subdivision within three working days,
2the Department of Justice shall notify the employer submitting the
3fingerprints that it cannot so ascertain the required information.
4This notification shall be delivered by telephone or email to the
5employer submitting the fingerprints. If the employer submitting
6the fingerprints is notified by the Department of Justice that it
7cannot ascertain the required information about a person, the
8employer shall not employ that person until the Department of
9Justice ascertains that information.

10(3) The Department of Justice shall review the criminal record
11summary it obtains from the Federal Bureau of Investigation to
12ascertain whether an applicant for employment has a conviction,
13or an arrest pending final adjudication, for any sex offense,
14controlled substance offense, crime of violence, or serious or
15violent felony. The Department of Justice shall provide written
16notification to the private school employer only as to whether an
17applicant for employment has any convictions, or arrests pending
18final adjudication, for any of these crimes.

19(d) An employer shall not employ a person until the Department
20of Justice completes its check of the state criminal history file as
21set forth in this section.

22(e) (1) An employer shall not employ a person who has been
23convicted of a violent or serious felony or a person who would be
24prohibited from employment by a public school district pursuant
25to any provision of this code because of his or her conviction for
26any crime.

27(2) A person who would be prohibited from employment by a
28private school pursuant to paragraph (1) shall not, on or after July
291, 1999, own or operate a private school offering instruction on
30the elementary or high school level.

31(f) An employer shall request subsequent arrest service from
32the Department of Justice as provided under Section 11105.2 of
33the Penal Code.

34(g) This section applies to any violent or serious offense that,
35if committed in this state, would have been punishable as a violent
36or serious felony.

37(h) For purposes of this section, a violent felony is any felony
38listed in subdivision (c) of Section 667.5 of the Penal Code and a
39serious felony is any felony listed in subdivision (c) of Section
401192.7 of the Penal Code.

P5    1(i) Notwithstanding subdivision (e), a person shall not be denied
2employment or terminated from employment solely on the basis
3that the person has been convicted of a violent or serious felony
4if the person has obtained a certificate of rehabilitation and pardon
5pursuant to Chapter 3.5 (commencing with Section 4852.01) of
6Title 6 of Part 3 of the Penal Code.

7(j) Notwithstanding subdivision (e), a person shall not be denied
8employment or terminated from employment solely on the basis
9that the person has been convicted of a serious felony that is not
10also a violent felony if that person can prove to the sentencing
11court of the offense in question, by clear and convincing evidence,
12that he or she has been rehabilitated for the purposes of school
13employment for at least one year. If the offense in question
14occurred outside this state, then the person may seek a finding of
15rehabilitation from the court in the county in which he or she is a
16resident.

17(k) The commission shall make available to each private school
18a listing of all credentialholders who have had final adverse action
19taken against their credential. The information shall be identical
20to that made available to public schools in the state. The
21commission shall also send on a quarterly basis a complete and
22updated list of all teachers who have had their teaching credentials
23revoked or suspended, excluding teachers who have had their
24credentials reinstated, or who are deceased.

25(l) The Department of Justice may charge a reasonable fee to
26cover costs associated with the processing, reviewing, and
27supplying of the criminal record summary as required by this
28section. The fee shall not exceed the actual costs incurred by the
29Department of Justice.

30(m) Where reasonable access to the statewide electronic
31fingerprinting network is available, the Department of Justice may
32mandate electronic submission of the fingerprints and related
33information required by this section.

34(n) All information obtained from the Department of Justice is
35confidential. Agencies handling Department of Justice information
36shall ensure the following:

37(1) A recipient shall not disclose its contents or provide copies
38of information.

P6    1(2) Information received shall be stored in a locked file separate
2from other files, and shall only be accessible to the custodian of
3records.

4(3) Information received shall be destroyed upon the hiring
5determination in accordance with subdivision (a) of Section 708
6of Title 11 of the California Code of Regulations.

7(4) Compliance with destruction, storage, dissemination,
8auditing, backgrounding, and training requirements as set forth in
9Sections 700 to 708, inclusive, of Title 11 of the California Code
10of Regulations and Section 11077 of the Penal Code governing
11the use and security of criminal offender record information is the
12 responsibility of the entity receiving the information from the
13Department of Justice.

begin delete
14

SEC. 2.  

Section 56366.1 of the Education Code is amended to
15read:

16

56366.1.  

(a) A nonpublic, nonsectarian school or agency that
17seeks certification shall file an application with the Superintendent
18on forms provided by the department, and shall include all of the
19following information on the application:

20(1) A description of the special education and designated
21instruction and services provided to individuals with exceptional
22needs if the application is for nonpublic, nonsectarian school
23certification.

24(2) A description of the designated instruction and services
25provided to individuals with exceptional needs if the application
26is for nonpublic, nonsectarian agency certification.

27(3) A list of appropriately qualified staff, a description of the
28credential, license, or registration that qualifies each staff member
29rendering special education or designated instruction and services
30to do so, and copies of their credentials, licenses, or certificates of
31registration with the appropriate state or national organization that
32has established standards for the service rendered.

33(4) An annual operating budget.

34(5) Affidavits and assurances necessary to comply with all
35applicable federal, state, and local laws and regulations that include
36criminal record summaries required of all nonpublic, nonsectarian
37school or agency personnel having contact with minor children
38under Section 44237.

39(b) (1) The applicant shall provide the special education local
40plan area in which the applicant is located with the written
P7    1notification of its intent to seek certification or renewal of its
2certification. The applicant shall submit on a form, developed by
3the department, a signed verification by local educational agency
4representatives that they have been notified of the intent to certify
5or renew certification. The verification shall include a statement
6that representatives of the local educational agency for the area in
7which the applicant is located have had the opportunity to review
8the application at least 60 calendar days before submission of an
9initial application to the Superintendent, or at least 30 calendar
10days before submission of a renewal application to the
11Superintendent. The signed verification shall provide assurances
12that local educational agency representatives have had the
13opportunity to provide input on all required components of the
14application.

15(2) If the applicant has not received a response from the local
16educational agency 60 calendar days from the date of the return
17receipt for initial applications or 30 calendar days from the date
18of the return receipt for renewal applications, the applicant may
19file the application with the Superintendent. A copy of the return
20receipt shall be included with the application as verification of
21notification efforts to the local educational agency.

22(3) The department shall mail renewal application materials to
23certified nonpublic, nonsectarian schools and agencies at least 120
24days before the date their current certification expires.

25(c) If the applicant operates a facility or program on more than
26one site, each site shall be certified.

27(d) If the applicant is part of a larger program or facility on the
28same site, the Superintendent shall consider the effect of the total
29program on the applicant. A copy of the policies and standards for
30the nonpublic, nonsectarian school or agency and the larger
31program shall be available to the Superintendent.

32(e) (1) Before certification, the Superintendent shall conduct
33an onsite review of the facility and program for which the applicant
34seeks certification. The Superintendent may be assisted by
35representatives of the special education local plan area in which
36the applicant is located and a nonpublic, nonsectarian school or
37agency representative who does not have a conflict of interest with
38the applicant. The Superintendent shall conduct an additional onsite
39review of the facility and program within three years of the
40effective date of the certification, unless the Superintendent
P8    1conditionally certifies the school or agency, or unless the
2Superintendent receives a formal complaint against the school or
3agency. In the latter two cases, the Superintendent shall conduct
4an onsite review at least annually.

5(2) In carrying out this subdivision, the Superintendent may
6verify that the nonpublic, nonsectarian school or agency has
7received a successful criminal background check clearance and
8has enrolled in subsequent arrest notice service, pursuant to Section
944237, for each owner, operator, and employee of the nonpublic,
10nonsectarian school or agency.

11(f) The Superintendent shall make a determination on an
12application within 120 days of receipt of the application and shall
13certify, conditionally certify, or deny certification to the applicant.
14If the Superintendent fails to take one of these actions within 120
15days, the applicant is automatically granted conditional certification
16for a period terminating on August 31 of the current school year.
17If certification is denied, the Superintendent shall provide reasons
18for the denial. The Superintendent shall not certify the nonpublic,
19nonsectarian school or agency for a period longer than one year.

20(g) Certification becomes effective on the date the nonpublic,
21nonsectarian school or agency meets all the application
22requirements and is approved by the Superintendent. Certification
23may be retroactive if the nonpublic, nonsectarian school or agency
24met all the requirements of this section on the date the retroactive
25certification is effective. Certification expires on December 31 of
26the terminating year.

27(h) The Superintendent annually shall review the certification
28of each nonpublic, nonsectarian school and agency. For this
29purpose, a certified school or agency annually shall update its
30application between August 1 and October 31, unless the state
31board grants a waiver pursuant to Section 56101. The
32Superintendent may conduct an onsite review as part of the annual
33review.

34(i) (1) The Superintendent shall conduct an investigation of a
35nonpublic, nonsectarian school or agency onsite at any time without
36prior notice if there is substantial reason to believe that there is an
37immediate danger to the health, safety, or welfare of a child. The
38Superintendent shall document the concern and submit it to the
39nonpublic, nonsectarian school or agency at the time of the onsite
P9    1investigation. The Superintendent shall require a written response
2to any noncompliance or deficiency found.

3(2) With respect to a nonpublic, nonsectarian school, the
4Superintendent shall conduct an investigation, which may include
5an unannounced onsite visit, if the Superintendent receives
6evidence of a significant deficiency in the quality of educational
7services provided, a violation of Section 56366.9, or
8noncompliance with the policies expressed by subdivision (b) of
9Section 1501 of the Health and Safety Code by the nonpublic,
10nonsectarian school. The Superintendent shall document the
11complaint and the results of the investigation and shall provide
12copies of the documentation to the complainant, the nonpublic,
13nonsectarian school, and the contracting local educational agency.

14(3) Violations or noncompliance documented pursuant to
15paragraph (1) or (2) shall be reflected in the status of the
16certification of the school, at the discretion of the Superintendent,
17pending an approved plan of correction by the nonpublic,
18nonsectarian school. The department shall retain for a period of
1910 years all violations pertaining to certification of the nonpublic,
20nonsectarian school or agency.

21(4) In carrying out this subdivision, the Superintendent may
22verify that the nonpublic, nonsectarian school or agency received
23a successful criminal background check clearance and has enrolled
24in subsequent arrest notice service, pursuant to Section 44237, for
25each owner, operator, and employee of the nonpublic, nonsectarian
26school or agency.

27(j) The Superintendent shall monitor the facilities, the
28educational environment, and the quality of the educational
29program, including the teaching staff, the credentials authorizing
30service, the standards-based core curriculum being employed, and
31the standard-focused instructional materials used, of an existing
32certified nonpublic, nonsectarian school or agency on a three-year
33cycle, as follows:

34(1) The nonpublic, nonsectarian school or agency shall complete
35a self-review in year one.

36(2) The Superintendent shall conduct an onsite review of the
37nonpublic, nonsectarian school or agency in year two.

38(3) The Superintendent shall conduct a followup visit to the
39nonpublic, nonsectarian school or agency in year three.

P10   1(k) (1) Notwithstanding any other law, the Superintendent shall
2not certify a nonpublic, nonsectarian school or agency that proposes
3to initiate or expand services to pupils currently educated in the
4immediate prior fiscal year in a juvenile court program, community
5school pursuant to Section 56150, or other nonspecial education
6program, including independent study or adult school, or both,
7unless the nonpublic, nonsectarian school or agency notifies the
8county superintendent of schools and the special education local
9plan area in which the proposed new or expanded nonpublic,
10nonsectarian school or agency is located of its intent to seek
11certification.

12(2) The notification shall occur no later than the December 1
13before the new fiscal year in which the proposed or expanding
14school or agency intends to initiate services. The notice shall
15include the following:

16(A) The specific date upon which the proposed nonpublic,
17nonsectarian school or agency is to be established.

18(B) The location of the proposed program or facility.

19(C) The number of pupils proposed for services, the number of
20pupils currently served in the juvenile court, community school,
21or other nonspecial education program, the current school services
22including special education and related services provided for these
23pupils, and the specific program of special education and related
24services to be provided under the proposed program.

25(D) The reason for the proposed change in services.

26(E) The number of staff who will provide special education and
27designated instruction and services and hold a current valid
28California credential or license in the service rendered.

29(3) In addition to the requirements in subdivisions (a) to (f),
30inclusive, the Superintendent shall require and consider the
31following in determining whether to certify a nonpublic,
32nonsectarian school or agency as described in this subdivision:

33(A) A complete statement of the information required as part
34of the notice under paragraph (1).

35(B) Documentation of the steps taken in preparation for the
36conversion to a nonpublic, nonsectarian school or agency, including
37information related to changes in the population to be served and
38the services to be provided pursuant to each pupil’s individualized
39education program.

P11   1(4) Notwithstanding any other law, the certification becomes
2effective no earlier than July 1 if the nonpublic, nonsectarian school
3or agency provided the notification required pursuant to paragraph
4(1).

5(l) (1) Notwithstanding any other law, the Superintendent shall
6not certify or renew the certification of a nonpublic, nonsectarian
7school or agency, unless all of the following conditions are met:

8(A) The entity operating the nonpublic, nonsectarian school or
9agency maintains separate financial records for each entity that it
10operates, with each nonpublic, nonsectarian school or agency
11identified separately from any licensed children’s institution that
12it operates.

13(B) The entity submits an annual budget that identifies the
14projected costs and revenues for each entity and demonstrates that
15the rates to be charged are reasonable to support the operation of
16the entity.

17(C) The entity submits an entitywide annual audit that identifies
18its costs and revenues, by entity, in accordance with generally
19accepted accounting and auditing principles. The audit shall clearly
20document the amount of moneys received and expended on the
21education program provided by the nonpublic, nonsectarian school
22or agency.

23(D) The relationship between various entities operated by the
24same entity are documented, defining the responsibilities of the
25entities. The documentation shall clearly identify the services to
26be provided as part of each program, for example, the residential
27or medical program, the mental health program, or the educational
28program. The entity shall not seek funding from a public agency
29for a service, either separately or as part of a package of services,
30if the service is funded by another public agency, either separately
31or as part of a package of services.

32(2) For purposes of this section, “licensed children’s institution”
33has the same meaning as it is defined by Section 56155.5.

34(m) The nonpublic, nonsectarian school or agency shall be
35charged a reasonable fee for certification. The Superintendent may
36adjust the fee annually commensurate with the statewide average
37percentage inflation adjustment computed for revenue limits of
38unified school districts with greater than 1,500 units of average
39daily attendance if the percentage increase is reflected in the district
P12   1revenue limit for inflation purposes. For purposes of this section,
2the base fee shall be the following:


3

 

(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

P12   9

 

10The nonpublic, nonsectarian school or agency shall pay this fee
11when it applies for certification and when it updates its application
12for annual renewal by the Superintendent. The Superintendent
13shall use these fees to conduct onsite reviews, which may include
14field experts. A fee shall not be refunded if the application is
15withdrawn or is denied by the Superintendent.

16(n) (1) Notwithstanding any other law, only those nonpublic,
17nonsectarian schools and agencies that provide special education
18and designated instruction and services using staff who hold a
19certificate, permit, or other document equivalent to that which staff
20in a public school are required to hold in the service rendered are
21eligible to receive certification. Only those nonpublic, nonsectarian
22schools or agencies located outside of California that employ staff
23who hold a current valid credential or license to render special
24education and related services as required by that state shall be
25eligible to be certified.

26(2) The state board shall develop regulations to implement this
27subdivision.

28(o) In addition to meeting the standards adopted by the state
29board, a nonpublic, nonsectarian school or agency shall provide
30written assurances that it meets all applicable standards relating
31to fire, health, sanitation, and building safety.

32(p) (1) Notwithstanding subdivision (n) of Section 44237, and
33for purposes of enabling the Superintendent to carry out his or her
34duties pursuant to this section, a nonpublic, nonsectarian school
35or agency shall, upon demand, make available to the
36Superintendent evidence of a successful criminal background check
37clearance and enrollment in subsequent arrest notice service,
38conducted pursuant to Section 44237, for each owner, operator,
39and employee of the nonpublic, nonsectarian school or agency.

P13   1(2) The nonpublic, nonsectarian school or agency shall retain
2the evidence and store it in a locked file separate from other files.

end delete
3begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 56366.1 of the end insertbegin insertEducation Codeend insertbegin insert is amended to
4read:end insert

5

56366.1.  

(a) A nonpublic, nonsectarian school or agency that
6seeks certification shall file an application with the Superintendent
7on forms provided by thebegin delete departmentend deletebegin insert department,end insert andbegin insert shallend insert include
8begin insert all ofend insert the following information on the application:

9(1) A description of the special education and designated
10instruction and services provided to individuals with exceptional
11needs if the application is for nonpublic, nonsectarian school
12certification.

13(2) A description of the designated instruction and services
14provided to individuals with exceptional needs if the application
15is for nonpublic, nonsectarian agency certification.

16(3) A list of appropriately qualified staff, a description of the
17credential, license, or registration that qualifies each staff member
18rendering special education or designated instruction and services
19to do so, and copies of their credentials, licenses, or certificates of
20registration with the appropriate state or national organization that
21has established standards for the service rendered.

22(4) An annual operating budget.

23(5) Affidavits and assurances necessary to comply with all
24 applicable federal, state, and local laws and regulations that include
25criminal record summaries required of all nonpublic, nonsectarian
26school or agency personnel having contact with minor children
27under Section 44237.

28(b) (1) The applicant shall provide the special education local
29plan area in which the applicant is located with the written
30notification of its intent to seek certification or renewal of its
31certification. The applicant shall submit on a form, developed by
32the department, a signed verification by local educational agency
33representatives that they have been notified of the intent to certify
34or renew certification. The verification shall include a statement
35that representatives of the local educational agency for the area in
36which the applicant is located have had the opportunity to review
37the application at least 60 calendar daysbegin delete prior toend deletebegin insert beforeend insert submission
38of an initial application to the Superintendent, or at least 30
39calendar daysbegin delete prior toend deletebegin insert beforeend insert submission of a renewal application
40to the Superintendent. The signed verification shall provide
P14   1assurances that local educational agency representatives have had
2the opportunity to provide input on all required components of the
3application.

4(2) If the applicant has not received a response from the local
5educational agency 60 calendar days from the date of the return
6receipt for initial applications or 30 calendar days from the date
7of the return receipt for renewal applications, the applicant may
8file the application with the Superintendent. A copy of the return
9receipt shall be included with the application as verification of
10notification efforts to the local educational agency.

11(3) The department shall mail renewal application materials to
12certified nonpublic, nonsectarian schools and agencies at least 120
13days before the date their current certification expires.

14(c) If the applicant operates a facility or program on more than
15one site, each site shall be certified.

16(d) If the applicant is part of a larger program or facility on the
17same site, the Superintendent shall consider the effect of the total
18program on the applicant. A copy of the policies and standards for
19the nonpublic, nonsectarian school or agency and the larger
20program shall be available to the Superintendent.

21(e) begin insert(1)end insertbegin insertend insert Before certification, the Superintendent shall conduct
22an onsite review of the facility and program for which the applicant
23seeks certification. The Superintendent may be assisted by
24representatives of the special education local plan area in which
25the applicant is located and a nonpublic, nonsectarian school or
26agency representative who does not have a conflict of interest with
27the applicant. The Superintendent shall conduct an additional onsite
28review of the facility and program within three years of the
29effective date of the certification, unless the Superintendent
30conditionally certifies thebegin insert nonpublic, nonsectarianend insert school orbegin delete agencyend delete
31begin insert agency,end insert or unless the Superintendent receives a formal complaint
32against thebegin insert nonpublic, nonsectarianend insert school or agency. In the latter
33two cases, the Superintendent shall conduct an onsite review at
34least annually.

begin insert

35(2) In carrying out this subdivision, the Superintendent may
36verify that the nonpublic, nonsectarian school or agency has
37received a successful criminal background check clearance and
38has enrolled in subsequent arrest notice service, pursuant to
39Section 44237, for each owner, operator, and employee of the
40nonpublic, nonsectarian school or agency.

end insert

P15   1(f) The Superintendent shall make a determination on an
2application within 120 days of receipt of the application and shall
3certify, conditionally certify, or deny certification to the applicant.
4If the Superintendent fails to take one of these actions within 120
5days, the applicant is automatically granted conditional certification
6for a period terminating on August 31 of the current school year.
7If certification is denied, the Superintendent shall provide reasons
8for the denial. The Superintendentbegin delete mayend deletebegin insert shall notend insert certify the
9begin insert nonpublic, nonsectarianend insert school or agency for a periodbegin delete of notend delete longer
10than one year.

11(g) Certification becomes effective on the date the nonpublic,
12nonsectarian school or agency meets all the application
13requirements and is approved by the Superintendent. Certification
14may be retroactive if thebegin insert nonpublic, nonsectarianend insert school or agency
15met all the requirements of this section on the date the retroactive
16certification is effective. Certification expires on December 31 of
17the terminating year.

18(h) The Superintendent annually shall review the certification
19of each nonpublic, nonsectarian school and agency. For this
20purpose, a certifiedbegin insert nonpublic, nonsectarianend insert school or agency
21annually shall update its application between August 1 and October
2231, unless thebegin insert stateend insert board grants a waiver pursuant to Section
2356101. The Superintendent may conduct an onsite review as part
24of the annual review.

25(i) (1) The Superintendent shall conduct an investigation of a
26nonpublic, nonsectarian school or agency onsite at any time without
27prior notice if there is substantial reason to believe that there is an
28immediate danger to the health, safety, or welfare of a child. The
29Superintendent shall document the concern and submit it to the
30nonpublic, nonsectarian school or agency at the time of the onsite
31investigation. The Superintendent shall require a written response
32to any noncompliance or deficiency found.

33(2) With respect to a nonpublic, nonsectarian school, the
34Superintendent shall conduct an investigation, which may include
35an unannounced onsite visit, if the Superintendent receives
36evidence of a significant deficiency in the quality of educational
37services provided, a violation of Section 56366.9, or
38noncompliance with the policies expressed by subdivision (b) of
39Section 1501 of the Health and Safety Code by the nonpublic,
40nonsectarian school. The Superintendent shall document the
P16   1complaint and the results of the investigation and shall provide
2copies of the documentation to the complainant, the nonpublic,
3nonsectarian school, and the contracting local educational agency.

4(3) Violations or noncompliance documented pursuant to
5paragraph (1) or (2) shall be reflected in the status of the
6certification of thebegin insert nonpublic, nonsectarianend insert schoolbegin insert or agencyend insert, at
7the discretion of the Superintendent, pending an approved plan of
8correction by the nonpublic, nonsectarian schoolbegin insert or agencyend insert. The
9department shall retain for a period of 10 years all violations
10pertaining to certification of the nonpublic, nonsectarian school
11or agency.

begin insert

12(4) In carrying out this subdivision, the Superintendent may
13verify that the nonpublic, nonsectarian school or agency received
14a successful criminal background check clearance and has enrolled
15in subsequent arrest notice service, pursuant to Section 44237, for
16each owner, operator, and employee of the nonpublic, nonsectarian
17school or agency.

end insert

18(j) The Superintendent shall monitor the facilities, the
19educational environment, and the quality of the educational
20program, including the teaching staff, the credentials authorizing
21service, the standards-based core curriculum being employed, and
22the standard-focused instructional materials used, of an existing
23certified nonpublic, nonsectarian school or agency on a three-year
24cycle, as follows:

25(1) The nonpublic, nonsectarian school or agency shall complete
26a self-review in year one.

27(2) The Superintendent shall conduct an onsite review of the
28nonpublic, nonsectarian school or agency in year two.

29(3) The Superintendent shall conduct a followup visit to the
30nonpublic, nonsectarian school or agency in year three.

31(k) (1) Notwithstanding any other law, the Superintendent shall
32not certify a nonpublic, nonsectarian school or agency that proposes
33to initiate or expand services to pupils currently educated in the
34immediate prior fiscal year in a juvenile court program, community
35school pursuant to Section 56150, or other nonspecial education
36program, including independent study or adult school, or both,
37unless the nonpublic, nonsectarian school or agency notifies the
38county superintendent of schools and the special education local
39plan area in which the proposed new or expanded nonpublic,
P17   1nonsectarian school or agency is located of its intent to seek
2certification.

3(2) The notification shall occur no later than the December 1
4before the new fiscal year in which the proposed or expanding
5school or agency intends to initiate services. The notice shall
6include the following:

7(A) The specific date upon which the proposed nonpublic,
8nonsectarian school or agency is to be established.

9(B) The location of the proposed program or facility.

10(C) The number of pupils proposed for services, the number of
11pupils currently served in the juvenile court, community school,
12or other nonspecial education program, the current school services
13including special education and related services provided for these
14pupils, and the specific program of special education and related
15services to be provided under the proposed program.

16(D) The reason for the proposed change in services.

17(E) The number of staff who will provide special education and
18designated instruction and services and hold a current valid
19California credential or license in the service rendered.

20(3) In addition to the requirements in subdivisions (a) to (f),
21inclusive, the Superintendent shall require and consider the
22following in determining whether to certify a nonpublic,
23nonsectarian school or agency as described in this subdivision:

24(A) A complete statement of the information required as part
25of the notice under paragraph (1).

26(B) Documentation of the steps taken in preparation for the
27conversion to a nonpublic, nonsectarian school or agency, including
28information related to changes in the population to be served and
29the services to be provided pursuant to each pupil’s individualized
30education program.

31(4) Notwithstanding any other law, the certification becomes
32effective no earlier than July 1 if thebegin insert nonpublic, nonsectarianend insert
33 school or agency provided the notification required pursuant to
34paragraph (1).

35(l) (1) Notwithstanding any other law, the Superintendent shall
36not certify or renew the certification of a nonpublic, nonsectarian
37school or agency, unless all of the following conditions are met:

38(A) The entity operating the nonpublic, nonsectarian school or
39agency maintains separate financial records for each entity that it
40operates, with each nonpublic, nonsectarian school or agency
P18   1identified separately from any licensed children’s institution that
2it operates.

3(B) The entity submits an annual budget that identifies the
4projected costs and revenues for each entity and demonstrates that
5the rates to be charged are reasonable to support the operation of
6the entity.

7(C) The entity submits an entitywide annual audit that identifies
8its costs and revenues, by entity, in accordance with generally
9accepted accounting and auditing principles. The audit shall clearly
10document the amount of moneys received and expended on the
11begin delete educationend deletebegin insert educationalend insert program provided by the nonpublic,
12nonsectarian school.

13(D) The relationship between various entities operated by the
14same entity are documented, defining the responsibilities of the
15entities. The documentation shall clearly identify the services to
16be provided as part of each program, for example, the residential
17or medical program, the mental health program, or the educational
18program. The entity shall not seek funding from a public agency
19for a service, either separately or as part of a package of services,
20if the service is funded by another public agency, either separately
21or as part of a package of services.

22(2) For purposes of this section, “licensed children’s institution”
23has the same meaning as it is defined by Section 56155.5.

24(m) Thebegin insert nonpublic, nonsectarianend insert school or agency shall be
25charged a reasonable fee for certification. The Superintendent may
26adjust the fee annually commensurate with the statewide average
27percentage inflation adjustment computed for local control funding
28formula allocations pursuant to Section 42238.02, as implemented
29by Section 42238.03, of unified school districts with greater than
301,500 units of average daily attendance if the percentage increase
31is reflected in the school district local control funding formula
32allocation pursuant to Section 42238.02, as implemented by Section
3342238.03, for inflation purposes. For purposes of this section, the
34base fee shall be the following:


35

 

(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

 

P19   1Thebegin insert nonpublic, nonsectarianend insert school or agency shall pay this fee
2when it applies for certification and when it updates its application
3for annual renewal by the Superintendent. The Superintendent
4shall use these fees to conduct onsite reviews, which may include
5field experts.begin delete Noend deletebegin insert Aend insert fee shallbegin insert notend insert be refunded if the application is
6withdrawn or is denied by the Superintendent.

7(n) (1) Notwithstanding any other law, only those nonpublic,
8nonsectarian schools and agencies that provide special education
9and designated instruction and servicesbegin delete utilizingend deletebegin insert usingend insert staff who
10hold a certificate, permit, or other document equivalent to that
11which staff in a public school are required to hold in the service
12rendered are eligible to receive certification. Only those nonpublic,
13nonsectarian schools or agencies located outside of California that
14employ staff who hold a current valid credential or license to render
15special education and related services as required by that state shall
16be eligible to be certified.

17(2) Thebegin insert stateend insert board shall develop regulations to implement this
18subdivision.

19(o) In addition to meeting the standards adopted by thebegin insert stateend insert
20 board, a nonpublic, nonsectarian school or agency shall provide
21written assurances that it meets all applicable standards relating
22to fire, health, sanitation, and building safety.

begin insert

23(p) (1) Notwithstanding subdivision (n) of Section 44237, and
24for purposes of enabling the Superintendent to carry out his or
25her duties pursuant to this section, a nonpublic, nonsectarian
26school or agency shall, upon demand, make available to the
27Superintendent evidence of a successful criminal background check
28clearance and enrollment in subsequent arrest notice service,
29conducted pursuant to Section 44237, for each owner, operator,
30and employee of the nonpublic, nonsectarian school or agency.

end insert
begin insert

31(2) The nonpublic, nonsectarian school or agency shall retain
32the evidence and store it in a locked file separate from other files.

end insert


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