Amended in Assembly May 7, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 2632


Introduced by Assembly Member Maienschein

February 21, 2014


An act to amend Sections 1522, 1568.09, 1569.17, and 1596.871, of the Health and Safety Code, relating to care facilities.

LEGISLATIVE COUNSEL’S DIGEST

AB 2632, as amended, Maienschein. Care facilities.

Under existing law, the State Department of Social Services licenses and regulates, among other things, community care facilities,begin insert foster family home or certified family home,end insert residential care facilities for persons withbegin insert aend insert chronic, life-threatening illness, residential care facilities for the elderly, and child day cares. Existing law requires the department, prior to issuing a license or special permit to operate any of those facilities, to secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person, as specified, has been convicted of a crime other than a minor traffic violation, or arrested for certain crimes, or for any crime for which the department cannot grant an exemption if the person was convicted and the person has not been exonerated.begin insert Existing law requires an individual to obtain either a criminal record clearance or a criminal record exemption from the department prior to his or her employment, residence, or initial presence in those facilities listed above.end insert Existing law prohibits the department from using a record of arrest to deny, revoke, or terminate any application, license, employment, or residence unless the department investigates the incident and secures evidence that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client.

This bill would prohibit the department, with regard to those facilities, from issuing a criminal record clearance to abegin delete person with a record of an arrest prior to the department’s completion of an investigation of that arrest record.end deletebegin insert person who has been arrested, and that arrest is pending investigation or conviction, for specified crimes prior to the department’s completion of an investigation of the incident to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client.end insert

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

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

P2    1

SECTION 1.  

Section 1522 of the Health and Safety Code is
2amended to read:

3

1522.  

The Legislature recognizes the need to generate timely
4and accurate positive fingerprint identification of applicants as a
5condition of issuing licenses, permits, or certificates of approval
6for persons to operate or provide direct care services in a
7community care facility, foster family home, or a certified family
8home of a licensed foster family agency. Therefore, the Legislature
9supports the use of the fingerprint live-scan technology, as
10identified in the long-range plan of the Department of Justice for
11fully automating the processing of fingerprints and other data by
12the year 1999, otherwise known as the California Crime
13Information Intelligence System (CAL-CII), to be used for
14applicant fingerprints. It is the intent of the Legislature in enacting
15this section to require the fingerprints of those individuals whose
16contact with community care clients may pose a risk to the clients’
17health and safety. An individual shall be required to obtain either
18a criminal record clearance or a criminal record exemption from
19the State Department of Social Services before his or her initial
20presence in a community care facility.

21(a) (1) Before issuing a license or special permit to any person
22or persons to operate or manage a community care facility, the
23State Department of Social Services shall secure from an
P3    1appropriate law enforcement agency a criminal record to determine
2whether the applicant or any other person specified in subdivision
3(b) has ever been convicted of a crime other than a minor traffic
4violation or arrested for any crime specified in Section 290 of the
5Penal Code, for violating Section 245 or 273.5, of the Penal Code,
6subdivision (b) of Section 273a of the Penal Code, or, prior to
7January 1, 1994, paragraph (2) of Section 273a of the Penal Code,
8or for any crime for which the department cannot grant an
9exemption if the person was convicted and the person has not been
10exonerated.

11(2) The criminal history information shall include the full
12criminal record, if any, of those persons, and subsequent arrest
13information pursuant to Section 11105.2 of the Penal Code.

14(3) Except during the 2003-04 to the 2014-15 fiscal years,
15inclusive, neither the Department of Justice nor the State
16Department of Social Services may charge a fee for the
17fingerprinting of an applicant for a license or special permit to
18operate a facility providing nonmedical board, room, and care for
19six or less children or for obtaining a criminal record of the
20applicant pursuant to this section.

21(4) The following shall apply to the criminal record information:

22(A) If the State Department of Social Services finds that the
23applicant, or any other person specified in subdivision (b), has
24been convicted of a crime other than a minor traffic violation, the
25application shall be denied, unless the director grants an exemption
26pursuant to subdivision (g).

27(B) If the State Department of Social Services finds that the
28applicant, or any other person specified in subdivisionbegin delete (b)end deletebegin insert (b),end insert is
29awaiting trial for a crime other than a minor traffic violation, the
30State Department of Social Services may cease processing the
31application until the conclusion of the trial.

32(C) If no criminal record information has been recorded, the
33Department of Justice shall provide the applicant and the State
34Department of Social Services with a statement of that fact.

35(D) If the State Department of Social Services finds after
36licensure that the licensee, or any other person specified in
37paragraph (1) of subdivision (b), has been convicted of a crime
38other than a minor traffic violation, the license may be revoked,
39unless the director grants an exemption pursuant to subdivision
40(g).

P4    1(E) An applicant and any other person specified in subdivision
2(b) shall submit fingerprint images and related information to the
3Department of Justice for the purpose of searching the criminal
4records of the Federal Bureau of Investigation, in addition to the
5criminal records search required by this subdivision. If an applicant
6and all other persons described in subdivision (b) meet all of the
7conditions for licensure, except receipt of the Federal Bureau of
8Investigation’s criminal offender record information search
9response for the applicant or any of the persons described in
10subdivision (b), the department may issue a license if the applicant
11and each person described in subdivision (b) has signed and
12submitted a statement that he or she has never been convicted of
13a crime in the United States, other than a traffic infraction, as
14prescribed in paragraph (1) of subdivision (a) of Section 42001 of
15the Vehicle Code. If, after licensure, the department determines
16that the licensee or any other person specified in subdivision (b)
17has a criminal record, the license may be revoked pursuant to
18Section 1550. The department may also suspend the license
19pending an administrative hearing pursuant to Section 1550.5.

20(F) The State Department of Social Services shall develop
21procedures to provide the individual’s state and federal criminal
22history information with the written notification of his or her
23exemption denial or revocation based on the criminal record.
24Receipt of the criminal history information shall be optional on
25the part of the individual, as set forth in the agency’s procedures.
26The procedure shall protect the confidentiality and privacy of the
27individual’s record, and the criminal history information shall not
28be made available to the employer.

29(G) Notwithstanding any other law, the department is authorized
30to provide an individual with a copy of his or her state or federal
31level criminal offender record information search response as
32provided to that department by the Department of Justice if the
33 department has denied a criminal background clearance based on
34this information and the individual makes a written request to the
35department for a copy specifying an address to which it is to be
36sent. The state or federal level criminal offender record information
37search response shall not be modified or altered from its form or
38content as provided by the Department of Justice and shall be
39provided to the address specified by the individual in his or her
P5    1written request. The department shall retain a copy of the
2individual’s written request and the response and date provided.

3(b) (1) In addition to the applicant, this section shall be
4applicable to criminal convictions of the following persons:

5(A) Adults responsible for administration or direct supervision
6of staff.

7(B) Any person, other than a client, residing in the facility.

8(C) Any person who provides client assistance in dressing,
9grooming, bathing, or personal hygiene. Any nurse assistant or
10home health aide meeting the requirements of Section 1338.5 or
111736.6, respectively, who is not employed, retained, or contracted
12by the licensee, and who has been certified or recertified on or
13after July 1, 1998, shall be deemed to meet the criminal record
14clearance requirements of this section. A certified nurse assistant
15and certified home health aide who will be providing client
16assistance and who falls under this exemption shall provide one
17copy of his or her current certification, prior to providing care, to
18the community care facility. The facility shall maintain the copy
19of the certification on file as long as care is being provided by the
20certified nurse assistant or certified home health aide at the facility.
21Nothing in this paragraph restricts the right of the department to
22 exclude a certified nurse assistant or certified home health aide
23from a licensed community care facility pursuant to Section 1558.

24(D) Any staff person, volunteer, or employee who has contact
25with the clients.

26(E) If the applicant is a firm, partnership, association, or
27corporation, the chief executive officer or other person serving in
28like capacity.

29(F) Additional officers of the governing body of the applicant,
30or other persons with a financial interest in the applicant, as
31determined necessary by the department by regulation. The criteria
32used in the development of these regulations shall be based on the
33person’s capability to exercise substantial influence over the
34operation of the facility.

35(2) The following persons are exempt from the requirements
36applicable under paragraph (1):

37(A) A medical professional as defined in department regulations
38who holds a valid license or certification from the person’s
39governing California medical care regulatory entity and who is
P6    1not employed, retained, or contracted by the licensee if all of the
2following apply:

3(i) The criminal record of the person has been cleared as a
4condition of licensure or certification by the person’s governing
5California medical care regulatory entity.

6(ii) The person is providing time-limited specialized clinical
7care or services.

8(iii) The person is providing care or services within the person’s
9scope of practice.

10(iv) The person is not a community care facility licensee or an
11employee of the facility.

12(B) A third-party repair person or similar retained contractor if
13all of the following apply:

14(i) The person is hired for a defined, time-limited job.

15(ii) The person is not left alone with clients.

16(iii) When clients are present in the room in which the repair
17person or contractor is working, a staff person who has a criminal
18record clearance or exemption is also present.

19(C) Employees of a licensed home health agency and other
20members of licensed hospice interdisciplinary teams who have a
21contract with a client or resident of the facility and are in the
22facility at the request of that client or resident’s legal
23decisionmaker. The exemption does not apply to a person who is
24a community care facility licensee or an employee of the facility.

25(D) Clergy and other spiritual caregivers who are performing
26services in common areas of the community care facility or who
27are advising an individual client at the request of, or with the
28permission of, the client or legal decisionmaker, are exempt from
29fingerprint and criminal background check requirements imposed
30by community care licensing. This exemption does not apply to a
31person who is a community care licensee or employee of the
32facility.

33(E) Members of fraternal, service, or similar organizations who
34conduct group activities for clients if all of the following apply:

35(i) Members are not left alone with clients.

36(ii) Members do not transport clients off the facility premises.

37(iii) The same organization does not conduct group activities
38for clients more often than defined by the department’s regulations.

39(3) In addition to the exemptions in paragraph (2), the following
40persons in foster family homes, certified family homes, and small
P7    1family homes are exempt from the requirements applicable under
2paragraph (1):

3(A) Adult friends and family of the licensed or certified foster
4parent, who come into the home to visit for a length of time no
5longer than defined by the department in regulations, provided
6that the adult friends and family of the licensee are not left alone
7with the foster children. However, the licensee, acting as a
8reasonable and prudent parent, as defined in paragraph (2) of
9subdivision (a) of Section 362.04 of the Welfare and Institutions
10Code, may allow his or her adult friends and family to provide
11short-term care to the foster child and act as an appropriate
12occasional short-term babysitter for the child.

13(B) Parents of a foster child’s friend when the foster child is
14visiting the friend’s home and the friend, licensed or certified foster
15parent, or both are also present. However, the licensee, acting as
16a reasonable and prudent parent, may allow the parent of the foster
17child’s friend to act as an appropriate short-term babysitter for the
18child without the friend being present.

19(C) Individuals who are engaged by any licensed or certified
20foster parent to provide short-term care to the child for periods not
21to exceed 24 hours. Caregivers shall use a reasonable and prudent
22parent standard in selecting appropriate individuals to act as
23appropriate occasional short-term babysitters.

24(4) In addition to the exemptions specified in paragraph (2), the
25following persons in adult day care and adult day support centers
26are exempt from the requirements applicable under paragraph (1):

27(A) Unless contraindicated by the client’s individualized
28program plan (IPP) or needs and service plan, a spouse, significant
29other, relative, or close friend of a client, or an attendant or a
30facilitator for a client with a developmental disability if the
31attendant or facilitator is not employed, retained, or contracted by
32the licensee. This exemption applies only if the person is visiting
33the client or providing direct care and supervision to the client.

34(B) A volunteer if all of the following applies:

35(i) The volunteer is supervised by the licensee or a facility
36employee with a criminal record clearance or exemption.

37(ii) The volunteer is never left alone with clients.

38(iii) The volunteer does not provide any client assistance with
39dressing, grooming, bathing, or personal hygiene other than
40washing of hands.

P8    1(5) (A) In addition to the exemptions specified in paragraph
2(2), the following persons in adult residential and social
3rehabilitation facilities, unless contraindicated by the client’s
4individualized program plan (IPP) or needs and services plan, are
5exempt from the requirements applicable under paragraph (1): a
6spouse, significant other, relative, or close friend of a client, or an
7attendant or a facilitator for a client with a developmental disability
8if the attendant or facilitator is not employed, retained, or
9contracted by the licensee. This exemption applies only if the
10person is visiting the client or providing direct care and supervision
11to that client.

12(B) Nothing in this subdivision shall prevent a licensee from
13requiring a criminal record clearance of any individual exempt
14from the requirements of this section, provided that the individual
15has client contact.

16(6) Any person similar to those described in this subdivision,
17as defined by the department in regulations.

18(c) (1) Subsequent to initial licensure, a person specified in
19subdivision (b) who is not exempted from fingerprinting shall
20obtain either a criminal record clearance or an exemption from
21disqualification pursuant to subdivision (g) from the State
22Department of Social Services prior to employment, residence, or
23initial presence in the facility. A person specified in subdivision
24(b) who is not exempt from fingerprinting shall be fingerprinted
25and shall sign a declaration under penalty of perjury regarding any
26prior criminal convictions. The licensee shall submit fingerprint
27images and related information to the Department of Justice and
28the Federal Bureau of Investigation, through the Department of
29Justice, for a state and federal level criminal offender record
30information search, or comply with paragraph (1) of subdivision
31(h). These fingerprint images and related information shall be sent
32by electronic transmission in a manner approved by the State
33Department of Social Services and the Department of Justice for
34the purpose of obtaining a permanent set of fingerprints, and shall
35be submitted to the Department of Justice by the licensee. A
36licensee’s failure to prohibit the employment, residence, or initial
37presence of a person specified in subdivision (b) who is not exempt
38from fingerprinting and who has not received either a criminal
39record clearance or an exemption from disqualification pursuant
40to subdivision (g) or to comply with paragraph (1) of subdivision
P9    1(h), as required in this section, shall result in the citation of a
2deficiency and the immediate assessment of civil penalties in the
3amount of one hundred dollars ($100) per violation per day for a
4maximum of five days, unless the violation is a second or
5subsequent violation within a 12-month period in which case the
6civil penalties shall be in the amount of one hundred dollars ($100)
7per violation for a maximum of 30 days, and shall be grounds for
8disciplining the licensee pursuant to Section 1550. The department
9may assess civil penalties for continued violations as permitted by
10Section 1548. The fingerprint images and related information shall
11then be submitted to the Department of Justice for processing.
12Upon request of the licensee, who shall enclose a self-addressed
13stamped postcard for this purpose, the Department of Justice shall
14verify receipt of the fingerprints.

15(2) Within 14 calendar days of the receipt of the fingerprint
16images, the Department of Justice shall notify the State Department
17of Social Services of the criminal record information, as provided
18for in subdivision (a). If no criminal record information has been
19recorded, the Department of Justice shall provide the licensee and
20the State Department of Social Services with a statement of that
21fact within 14 calendar days of receipt of the fingerprint images.
22Documentation of the individual’s clearance or exemption from
23disqualification shall be maintained by the licensee and be available
24for inspection. If new fingerprint images are required for
25processing, the Department of Justice shall, within 14 calendar
26days from the date of receipt of the fingerprints, notify the licensee
27that the fingerprints were illegible, the Department of Justice shall
28notify the State Department of Social Services, as required by
29Section 1522.04, and shall also notify the licensee by mail, within
3014 days of electronic transmission of the fingerprints to the
31Department of Justice, if the person has no criminal history
32recorded. A violation of the regulations adopted pursuant to Section
331522.04 shall result in the citation of a deficiency and an immediate
34assessment of civil penalties in the amount of one hundred dollars
35($100) per violation per day for a maximum of five days, unless
36the violation is a second or subsequent violation within a 12-month
37period in which case the civil penalties shall be in the amount of
38one hundred dollars ($100) per violation for a maximum of 30
39days, and shall be grounds for disciplining the licensee pursuant
P10   1to Section 1550. The department may assess civil penalties for
2continued violations as permitted by Section 1548.

3(3) Except for persons specified in subdivision (b) who are
4exempt from fingerprinting, the licensee shall endeavor to ascertain
5the previous employment history of persons required to be
6fingerprinted. If it is determined by the State Department of Social
7Services, on the basis of the fingerprint images and related
8information submitted to the Department of Justice, that subsequent
9to obtaining a criminal record clearance or exemption from
10disqualification pursuant to subdivision (g), the person has been
11convicted of, or is awaiting trial for, a sex offense against a minor,
12or has been convicted for an offense specified in Section 243.4,
13273a, 273d, 273g, or 368 of the Penal Code, or a felony, the State
14Department of Social Services shall notify the licensee to act
15immediately to terminate the person’s employment, remove the
16person from the community care facility, or bar the person from
17entering the community care facility. The State Department of
18Social Services may subsequently grant an exemption from
19disqualification pursuant to subdivision (g). If the conviction or
20arrest was for another crime, except a minor traffic violation, the
21licensee shall, upon notification by the State Department of Social
22Services, act immediately to either (A) terminate the person’s
23employment, remove the person from the community care facility,
24or bar the person from entering the community care facility; or
25(B) seek an exemption from disqualification pursuant to subdivision
26(g). The State Department of Social Services shall determine if
27the person shall be allowed to remain in the facility until a decision
28on the exemption from disqualification is rendered. A licensee’s
29failure to comply with the department’s prohibition of employment,
30contact with clients, or presence in the facility as required by this
31paragraph shall result in a citation of deficiency and an immediate
32assessment of civil penalties in the amount of one hundred dollars
33($100) per violation per day and shall be grounds for disciplining
34the licensee pursuant to Section 1550.

35(4) The department may issue an exemption from
36disqualification on its own motion pursuant to subdivision (g) if
37the person’s criminal history indicates that the person is of good
38character based on the age, seriousness, and frequency of the
39conviction or convictions. The department, in consultation with
40interested parties, shall develop regulations to establish the criteria
P11   1to grant an exemption from disqualification pursuant to this
2paragraph.

3(5) Concurrently with notifying the licensee pursuant to
4paragraph (3), the department shall notify the affected individual
5of his or her right to seek an exemption from disqualification
6pursuant to subdivision (g). The individual may seek an exemption
7from disqualification only if the licensee terminates the person’s
8employment or removes the person from the facility after receiving
9notice from the department pursuant to paragraph (3).

10(d) (1) Before issuing a license or certificate of approval to any
11person or persons to operate a foster family home or certified
12family home as described in Section 1506, the State Department
13of Social Services or other approving authority shall secure
14California and Federal Bureau of Investigation criminal history
15information to determine whether the applicant or any person
16specified in subdivision (b) who is not exempt from fingerprinting
17has ever been convicted of a crime other than a minor traffic
18violation or arrested for any crime specified in subdivision (c) of
19Section 290 of the Penal Code, for violating Section 245 or 273.5,
20subdivision (b) of Sectionbegin delete 273aend deletebegin insert 273a,end insert or, prior to January 1, 1994,
21paragraph (2) of Sectionbegin delete 273aend deletebegin insert 273a,end insert of the Penal Code, or for any
22crime for which the department cannot grant an exemption if the
23person was convicted and the person has not been exonerated. The
24State Department of Social Services or other approving authority
25shall not issue a license or certificate of approval to any foster
26family home or certified family home applicant who has not
27obtained both a California and Federal Bureau of Investigation
28criminal record clearance or exemption from disqualification
29pursuant to subdivision (g).

30(2) The criminal history information shall include the full
31criminal record, if any, of those persons.

32(3) Neither the Department of Justice nor the State Department
33of Social Services may charge a fee for the fingerprinting of an
34applicant for a license, special permit, or certificate of approval
35described in this subdivision. The record, if any, shall be taken
36into consideration when evaluating a prospective applicant.

37(4) The following shall apply to the criminal record information:

38(A) If the applicant or other persons specified in subdivision
39(b) who are not exempt from fingerprinting have convictions that
40would make the applicant’s home unfit as a foster family home or
P12   1a certified family home, the license, special permit, or certificate
2of approval shall be denied.

3(B) If the State Department of Social Services finds that the
4applicant, or any person specified in subdivision (b) who is not
5exempt from fingerprinting is awaiting trial for a crime other than
6a minor traffic violation, the State Department of Social Services
7or other approving authority may cease processing the application
8until the conclusion of the trial.

9(C) For purposes of this subdivision, a criminal record clearance
10provided under Section 8712 of the Family Code may be used by
11the department or other approving agency.

12(D) To the same extent required for federal funding, an applicant
13for a foster family home license or for certification as a family
14home, and any other person specified in subdivision (b) who is
15not exempt from fingerprinting, shall submit a set of fingerprint
16images and related information to the Department of Justice and
17the Federal Bureau of Investigation, through the Department of
18Justice, for a state and federal level criminal offender record
19information search, in addition to the criminal records search
20required by subdivision (a).

21(5) Any person specified in this subdivision shall, as a part of
22the application, be fingerprinted and sign a declaration under
23penalty of perjury regarding any prior criminal convictions or
24arrests for any crime against a child, spousal or cohabitantbegin delete abuse
25or,end delete
begin insert abuse, orend insert any crime for which the department cannot grant an
26exemption if the person was convicted and shall submit these
27fingerprints to the licensing agency or other approving authority.

28(6) (A) Subsequent to initial licensure or certification, a person
29specified in subdivision (b) who is not exempt from fingerprinting
30shall obtain both a California and Federal Bureau of Investigation
31criminal record clearance, or an exemption from disqualification
32pursuant to subdivision (g), prior to employment, residence, or
33initial presence in the foster family or certified family home. A
34foster family home licensee or foster family agency shall submit
35fingerprint images and related information of persons specified in
36subdivision (b) who are not exempt from fingerprinting to the
37Department of Justice and the Federal Bureau of Investigation,
38through the Department of Justice, for a state and federal level
39criminal offender record information search, or to comply with
40paragraph (1) of subdivision (h). A foster family home licensee’s
P13   1or a foster family agency’s failure to either prohibit the
2employment, residence, or initial presence of a person specified
3in subdivision (b) who is not exempt from fingerprinting and who
4has not received either a criminal record clearance or an exemption
5from disqualification pursuant to subdivision (g), or comply with
6paragraph (1) of subdivision (h), as required in this section, shall
7result in a citation of a deficiency, and the immediate civil penalties
8of one hundred dollars ($100) per violation per day for a maximum
9of five days, unless the violation is a second or subsequent violation
10within a 12-month period in which case the civil penalties shall
11be in the amount of one hundred dollars ($100) per violation for
12a maximum of 30 days, and shall be grounds for disciplining the
13licensee pursuant to Section 1550. A violation of the regulation
14adopted pursuant to Section 1522.04 shall result in the citation of
15a deficiency and an immediate assessment of civil penalties in the
16amount of one hundred dollars ($100) per violation per day for a
17maximum of five days, unless the violation is a second or
18subsequent violation within a 12-month period in which case the
19civil penalties shall be in the amount of one hundred dollars ($100)
20per violation for a maximum of 30 days, and shall be grounds for
21disciplining the foster family home licensee or the foster family
22agency pursuant to Section 1550. The State Department of Social
23Services may assess penalties for continued violations, as permitted
24by Section 1548. The fingerprint images shall then be submitted
25to the Department of Justice for processing.

26(B) Upon request of the licensee, who shall enclose a
27self-addressed envelope for this purpose, the Department of Justice
28shall verify receipt of the fingerprints. Within five working days
29of the receipt of the criminal record or information regarding
30criminal convictions from the Department of Justice, the
31department shall notify the applicant of any criminal arrests or
32convictions. If no arrests or convictions are recorded, the
33Department of Justice shall provide the foster family home licensee
34or the foster family agency with a statement of that fact concurrent
35with providing the information to the State Department of Social
36 Services.

37(7) If the State Department of Social Services finds that the
38applicant, or any other person specified in subdivision (b) who is
39not exempt from fingerprinting, has been convicted of a crime
40other than a minor traffic violation, the application shall be denied,
P14   1unless the director grants an exemption from disqualification
2pursuant to subdivision (g).

3(8) If the State Department of Social Services finds after
4licensure or the granting of the certificate of approval that the
5licensee, certified foster parent, or any other person specified in
6subdivision (b) who is not exempt from fingerprinting, has been
7convicted of a crime other than a minor traffic violation, the license
8or certificate of approval may be revoked by the department or the
9foster family agency, whichever is applicable, unless the director
10grants an exemption from disqualification pursuant to subdivision
11 (g). A licensee’s failure to comply with the department’s
12prohibition of employment, contact with clients, or presence in
13the facility as required by paragraph (3) of subdivision (c) shall
14be grounds for disciplining the licensee pursuant to Section 1550.

15(e) begin insert(1)end insertbegin insertend insertThe State Department of Social Services shall notbegin delete issue
16a criminal record clearance to a person with a record of an arrest
17prior to the department’s completion of an investigation of that
18arrest record. The State Department of Social Services shall notend delete

19 use a record of arrest to deny, revoke, or terminate any application,
20license, employment, or residence unless the department
21investigates the incident and secures evidence, whether or not
22related to the incident of arrest, that is admissible in an
23administrative hearing to establish conduct by the person that may
24pose a risk to the health and safety of any person who is or may
25become a client.begin delete Theend delete

begin insert

26(2) The department shall not issue a criminal record clearance
27to a person who has been arrested, and that arrest is pending
28investigation or conviction, for any crime specified in Section 290
29of the Penal Code, for violating Section 245 or 273.5, subdivision
30(b) of Section 273a, of the Penal Code, or, prior to January 1,
311994, paragraph (2) of Section 273a of the Penal Code, prior to
32the department’s completion of an investigation pursuant to
33paragraph (1).

end insert

34begin insert(3)end insertbegin insertend insertbegin insertTheend insert State Department of Social Services is authorized to
35obtain any arrest or conviction records or reports from any law
36enforcement agency as necessary to the performance of its duties
37to inspect, license, and investigate community care facilities and
38individuals associated with a community care facility.

39(f) (1) For purposes of this section or any other provision of
40this chapter, a conviction means a plea or verdict of guilty or a
P15   1conviction following a plea of nolo contendere. Any action that
2the State Department of Social Services is permitted to take
3following the establishment of a conviction may be taken when
4the time for appeal has elapsed, when the judgment of conviction
5has been affirmed on appeal, or when an order granting probation
6is made suspending the imposition of sentence, notwithstanding
7a subsequent order pursuant to Sections 1203.4 and 1203.4a of the
8Penal Code permitting the person to withdraw his or her plea of
9guilty and to enter a plea of not guilty, or setting aside the verdict
10of guilty, or dismissing the accusation, information, or indictment.
11For purposes of this section or any other provision of this chapter,
12the record of a conviction, or a copy thereof certified by the clerk
13of the court or by a judge of the court in which the conviction
14occurred, shall be conclusive evidence of the conviction. For
15purposes of this section or any other provision of this chapter, the
16arrest disposition report certified by the Department of Justice, or
17documents admissible in a criminal action pursuant to Section
18969b of the Penal Code, shall be prima facie evidence of the
19conviction, notwithstanding any other law prohibiting the
20admission of these documents in a civil or administrative action.

21(2) For purposes of this section or any other provision of this
22chapter, the department shall consider criminal convictions from
23another state or federal court as if the criminal offense was
24committed in this state.

25(g) (1) After review of the record, the director may grant an
26exemption from disqualification for a license or special permit as
27specified in paragraph (4) of subdivision (a), or for a license,
28special permit, or certificate of approval as specified in paragraphs
29(4), (7), and (8) of subdivision (d), or for employment, residence,
30or presence in a community care facility as specified in paragraphs
31(3), (4), and (5) of subdivision (c), if the director has substantial
32and convincing evidence to support a reasonable belief that the
33applicant and the person convicted of the crime, if other than the
34applicant, are of good character as to justify issuance of the license
35or special permit or granting an exemption for purposes of
36subdivision (c). Except as otherwise provided in this subdivision,
37an exemption shall not be granted pursuant to this subdivision if
38the conviction was for any of the following offenses:

39(A) (i) An offense specified in Section 220, 243.4, or 264.1,
40subdivision (a) of Sectionbegin delete 273aend deletebegin insert 273a,end insert or, prior to January 1, 1994,
P16   1paragraph (1) of Section 273a, Section 273d, 288, or 289,
2subdivision (c) of Section 290, or Sectionbegin delete 368end deletebegin insert 368,end insert of the Penal
3Code, or was a conviction of another crime against an individual
4specified in subdivision (c) of Section 667.5 of the Penal Code.

5(ii) Notwithstanding clause (i), the director may grant an
6exemption regarding the conviction for an offense described in
7paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5
8of the Penal Code, if the employee or prospective employee has
9been rehabilitated as provided in Section 4852.03 of the Penal
10Code, has maintained the conduct required in Section 4852.05 of
11the Penal Code for at least 10 years, and has the recommendation
12of the district attorney representing the employee’s county of
13residence, or if the employee or prospective employee has received
14a certificate of rehabilitation pursuant to Chapter 3.5 (commencing
15with Section 4852.01) of Title 6 of Part 3 of the Penal Code. This
16clause shall not apply to foster care providers, including relative
17caregivers, nonrelated extended family members, or any other
18person specified in subdivision (b), in those homes where the
19individual has been convicted of an offense described in paragraph
20(1) of subdivision (c) of Section 667.5 of the Penal Code.

21(B) A felony offense specified in Section 729 of the Business
22and Professions Code or Section 206 or 215, subdivision (a) of
23Section 347, subdivision (b) of Section 417, or subdivision (a) of
24Section 451 of the Penal Code.

25(C) Under no circumstances shall an exemption be granted
26pursuant to this subdivision to any foster care provider applicant
27if that applicant, or any other person specified in subdivision (b)
28in those homes, has a felony conviction for either of the following
29offenses:

30(i) A felony conviction for child abuse or neglect, spousal abuse,
31crimes against a child, including child pornography, or for a crime
32involving violence, including rape, sexual assault, or homicide,
33but not including other physical assault and battery. For purposes
34of this subparagraph, a crime involving violence means a violent
35crime specified in clause (i) of subparagraph (A), or subparagraph
36(B).

37(ii) A felony conviction, within the last five years, for physical
38assault, battery, or a drug- or alcohol-related offense.

39(iii) This subparagraph shall not apply to licenses or approvals
40wherein a caregiver was granted an exemption to a criminal
P17   1conviction described in clause (i) or (ii) prior to the enactment of
2this subparagraph.

3(iv) This subparagraph shall remain operative only to the extent
4that compliance with its provisions is required by federal law as
5a condition for receiving funding under Title IV-E of the federal
6Social Security Act (42 U.S.C. Sec. 670 et seq.).

7(2) The department shall not prohibit a person from being
8employed or having contact with clients in a facility on the basis
9of a denied criminal record exemption request or arrest information
10unless the department complies with the requirements of Section
111558.

12(h) (1) For purposes of compliance with this section, the
13department may permit an individual to transfer a current criminal
14record clearance, as defined in subdivision (a), from one facility
15to another, as long as the criminal record clearance has been
16processed through a state licensing district office, and is being
17transferred to another facility licensed by a state licensing district
18office. The request shall be in writing to the State Department of
19Social Services, and shall include a copy of the person’s driver’s
20license or valid identification card issued by the Department of
21Motor Vehicles, or a valid photo identification issued by another
22state or the United States government if the person is not a
23California resident. Upon request of the licensee, who shall enclose
24a self-addressed envelope for this purpose, the State Department
25of Social Services shall verify whether the individual has a
26clearance that can be transferred.

27(2) The State Department of Social Services shall hold criminal
28record clearances in its active files for a minimum of three years
29after an employee is no longer employed at a licensed facility in
30order for the criminal record clearance to be transferred.

31(3) The following shall apply to a criminal record clearance or
32exemption from the department or a county office with
33department-delegated licensing authority:

34(A) A county office with department-delegated licensing
35authority may accept a clearance or exemption from the
36department.

37(B) The department may accept a clearance or exemption from
38any county office with department-delegated licensing authority.

P18   1(C) A county office with department-delegated licensing
2authority may accept a clearance or exemption from any other
3county office with department-delegated licensing authority.

4(4) With respect to notifications issued by the Department of
5Justice pursuant to Section 11105.2 of the Penal Code concerning
6an individual whose criminal record clearance was originally
7processed by the department or a county office with
8department-delegated licensing authority, all of the following shall
9apply:

10(A) The Department of Justice shall process a request from the
11department or a county office with department-delegated licensing
12authority to receive the notice only if all of the following conditions
13are met:

14(i) The request shall be submitted to the Department of Justice
15by the agency to be substituted to receive the notification.

16(ii)  The request shall be for the same applicant type as the type
17for which the original clearance was obtained.

18(iii) The request shall contain all prescribed data elements and
19format protocols pursuant to a written agreement between the
20department and the Department of Justice.

21(B) (i) On or before January 7, 2005, the department shall notify
22the Department of Justice of all county offices that have
23department-delegated licensing authority.

24(ii) The department shall notify the Department of Justice within
2515 calendar days of the date on which a new county office receives
26department-delegated licensing authority or a county’s delegated
27licensing authority is rescinded.

28(C) The Department of Justice shall charge the department, a
29county office with department-delegated licensing authority, or a
30county child welfare agency with criminal record clearance and
31exemption authority, a fee for each time a request to substitute the
32recipient agency is received for purposes of this paragraph. This
33fee shall not exceed the cost of providing the service.

34(5) (A) A county child welfare agency with authority to secure
35clearances pursuant to Section 16504.5 of the Welfare and
36Institutions Code and to grant exemptions pursuant to Section
37361.4 of the Welfare and Institutions Code may accept a clearance
38or exemption from another county with criminal record and
39exemption authority pursuant to these sections.

P19   1(B) With respect to notifications issued by the Department of
2Justice pursuant to Section 11105.2 of the Penal Code concerning
3an individual whose criminal record clearance was originally
4processed by a county child welfare agency with criminal record
5clearance and exemption authority, the Department of Justice shall
6process a request from a county child welfare agency with criminal
7record and exemption authority to receive the notice only if all of
8the following conditions are met:

9(i) The request shall be submitted to the Department of Justice
10by the agency to be substituted to receive the notification.

11(ii) The request shall be for the same applicant type as the type
12for which the original clearance was obtained.

13(iii) The request shall contain all prescribed data elements and
14format protocols pursuant to a written agreement between the State
15Department of Social Services and the Department of Justice.

16(i) The full criminal record obtained for purposes of this section
17may be used by the department or by a licensed adoption agency
18as a clearance required for adoption purposes.

19(j) If a licensee or facility is required by law to deny employment
20or to terminate employment of any employee based on written
21notification from the state department that the employee has a prior
22criminal conviction or is determined unsuitable for employment
23under Section 1558, the licensee or facility shall not incur civil
24liability or unemployment insurance liability as a result of that
25denial or termination.

26(k) The State Department of Social Services may charge a fee
27for the costs of processing electronic fingerprint images and related
28information.

29(l) Amendments to this section made in the 1999 portion of the
301999-2000 Regular Session shall be implemented commencing
3160 days after the effective date of the act amending this section in
32the 1999 portion of the 1999-2000 Regular Session, except that
33those provisions for the submission of fingerprints for searching
34the records of the Federal Bureau of Investigation shall be
35implemented 90 days after the effective date of that act.

36

SEC. 2.  

Section 1568.09 of the Health and Safety Code is
37amended to read:

38

1568.09.  

It is the intent of the Legislature in enacting this
39section to require the electronic fingerprint images of those
40individuals whose contact with residents of residential care
P20   1facilities for persons with a chronic, life-threatening illness may
2pose a risk to the residents’ health and safety.

3It is the intent of the Legislature, in enacting this section, to
4require the electronic fingerprint images of those individuals whose
5contact with community care clients may pose a risk to the clients’
6health and safety. An individual shall be required to obtain either
7a criminal record clearance or a criminal record exemption from
8the State Department of Social Services before his or her initial
9presence in a residential care facility for persons withbegin insert aend insert chronic,
10life-threatening illness.

11(a) (1) Before issuing a license to a person or persons to operate
12or manage a residential care facility, the department shall secure
13from an appropriate law enforcement agency a criminal record to
14determine whether the applicant or any other person specified in
15subdivision (b) has ever been convicted of a crime other than a
16minor traffic violation or arrested for any crime specified in
17subdivision (c) of Section 290 of the Penal Code, for violating
18Section 245 or 273.5, subdivision (b) of Sectionbegin delete 273aend deletebegin insert 273a,end insert or,
19prior to January 1, 1994, paragraph (2) of Sectionbegin delete 273aend deletebegin insert 273a,end insert of
20the Penal Code, or for any crime for which the department cannot
21grant an exemption if the person was convicted and the person has
22not been exonerated.

23(2) The criminal history information shall include the full
24criminalbegin delete recordend deletebegin insert record,end insert if any, of those persons, and subsequent
25arrest information pursuant to Section 11105.2 of the Penal Code.

26(3) The following shall apply to the criminal record information:

27(A) If the State Department of Social Services finds that the
28applicant or another person specified in subdivisionbegin delete (b)end deletebegin insert (b),end insert has
29been convicted of a crime, other than a minor traffic violation, the
30application shall be denied, unless the director grants an exemption
31pursuant to subdivision (f).

32(B) If the State Department of Social Services finds that the
33applicant, or another person specified in subdivision (b) is awaiting
34trial for a crime other than a minor traffic violation, the State
35Department of Social Services may cease processing the application
36until the conclusion of the trial.

37(C) If no criminal record information has been recorded, the
38Department of Justice shall provide the applicant and the State
39Department of Social Services with a statement of that fact.

P21   1(D) If the State Department of Social Services finds after
2licensure that the licensee, or any other person specified in
3 paragraph (2) of subdivision (b), has been convicted of a crime
4other than a minor traffic violation, the license may be revoked,
5unless the director grants an exemption pursuant to subdivision
6(f).

7(E) An applicant and any other person specified in subdivision
8(b) shall submit fingerprint images and related information to the
9Department of Justice and the Federal Bureau of Investigation,
10through the Department of Justice, for a state and federal level
11criminal offender record information search, in addition to the
12search required by this subdivision. If an applicant meets all other
13conditions for licensure, except receipt of the Federal Bureau of
14Investigation’s criminal history information for the applicant and
15persons listed in subdivision (b), the department may issue a license
16if the applicant and each person described by subdivision (b) has
17signed and submitted a statement that he or she has never been
18convicted of a crime in the United States, other than a traffic
19infraction as defined in paragraph (1) of subdivision (a) of Section
2042001 of the Vehicle Code. If, after licensure, the department
21determines that the licensee or person specified in subdivision (b)
22has a criminal record, the license may be revoked pursuant to
23subdivision (a) of Section 1568.082. The department may also
24suspend the license pending an administrative hearing pursuant to
25subdivision (b) of Section 1568.082.

26(b) In addition to the applicant, this section shall be applicable
27to criminal convictions of the following persons:

28(1) Adults responsible for administration or direct supervision
29of staff of the facility.

30(2) A person, other than a resident, residing in the facility.

31(3) A person who provides resident assistance in dressing,
32grooming, bathing, or personal hygiene. A nurse assistant or home
33health aide meeting the requirements of Section 1338.5 or 1736.6,
34respectively, who is not employed, retained, or contracted by the
35licensee, and who has been certified or recertified on or after July
361, 1998, shall be deemed to meet the criminal record clearance
37requirements of this section. A certified nurse assistant and certified
38home health aide who will be providing client assistance and who
39falls under this exemption shall provide one copy of his or her
40current certification, prior to providing care, to the residential care
P22   1facility for persons withbegin insert aend insert chronic, life-threatening illness. The
2facility shall maintain the copy of the certification on file as long
3as care is being provided by the certified nurse assistant or certified
4home health aide at the facility. This paragraph does not restrict
5the right of the department to exclude a certified nurse assistant
6or certified home health aide from a licensed residential care
7facility for persons withbegin insert aend insert chronic, life-threatening illness pursuant
8to Section 1568.092.

9(4) (A) A staff person, volunteer, or employee who has contact
10with the residents.

11(B) A volunteer shall be exempt from the requirements of this
12subdivision if he or she is a relative, significant other, or close
13friend of a client receiving care in the facility and the volunteer
14does not provide direct care and supervision of residents. A
15volunteer who provides direct care and supervision shall be exempt
16if the volunteer is a resident’s spouse, significant other, close
17friend, or family member and provides direct care and supervision
18to that resident only at the request of the resident. The department
19may define in regulations persons similar to those described in this
20subparagraph who may be exempt from the requirements of this
21subdivision.

22(5) If the applicant is a firm, partnership, association, or
23corporation, the chief executive officer or other person serving in
24that capacity.

25(6) Additional officers of the governing body of the applicant,
26or other persons with a financial interest in the applicant, as
27determined necessary by the department by regulation. The criteria
28used in the development of these regulations shall be based on the
29person’s capability to exercise substantial influence over the
30operation of the facility.

31(c) (1) (A) Subsequent to initial licensure, a person specified
32in subdivision (b) and not exempted from fingerprinting shall, as
33a condition to employment, residence, or presence in a residential
34care facility, be fingerprinted and sign a declaration under penalty
35of perjury regarding any prior criminal convictions. The licensee
36shall submit fingerprint images and related information to the
37Department of Justice and the Federal Bureau of Investigation,
38through the Department of Justice, for a state and federal level
39criminal offender record information search, or to comply with
P23   1paragraph (1) of subdivision (g), prior to the person’s employment,
2residence, or initial presence in the residential care facility.

3(B) These fingerprint images and related information shall be
4electronically submitted to the Department of Justice in a manner
5approved by the State Department of Social Services and the
6Department of Justice, for the purpose of obtaining a permanent
7set of fingerprints. A licensee’s failure to submit fingerprint images
8 and related information to the Department of Justice, or to comply
9with paragraph (1) of subdivision (g), as required in this section,
10shall result in the citation of a deficiency and an immediate
11assessment of civil penalties in the amount of one hundred dollars
12($100) per violation per day for a maximum of five days, unless
13the violation is a second or subsequent violation within a 12-month
14period in which case the civil penalties shall be in the amount of
15one hundred dollars ($100) per violation for a maximum of 30
16days, and shall be grounds for disciplining the licensee pursuant
17to Section 1568.082. The State Department of Social Services may
18assess civil penalties for continued violations as allowed in Section
191568.0822. The fingerprint images and related information shall
20then be submitted to the Department of Justice for processing. The
21licensee shall maintain and make available for inspection
22documentation of the individual’s clearance or exemption.

23(2) A violation of the regulations adopted pursuant to Section
241522.04 shall result in the citation of a deficiency and an immediate
25assessment of civil penalties in the amount of one hundred dollars
26($100) per violation per day for a maximum of five days, unless
27the violation is a second or subsequent violation within a 12-month
28period in which case the civil penalties shall be in the amount of
29one hundred dollars ($100) per violation for a maximum of 30
30days, and shall be grounds for disciplining the licensee pursuant
31to Section 1568.082. The department may assess civil penalties
32for continued violations as permitted by Section 1568.0822.

33(3) Within 14 calendar days of the receipt of the fingerprint
34images, the Department of Justice shall notify the State Department
35of Social Services of the criminal record information, as provided
36for in this subdivision. If no criminal record information has been
37recorded, the Department of Justice shall provide the licensee and
38the State Department of Social Services with a statement of that
39fact within 14 calendar days of receipt of the fingerprint images.
40If new fingerprint images are required for processing, the
P24   1Department of Justice shall, within 14 calendar days from the date
2of receipt of the fingerprint images, notify the licensee that the
3fingerprint images were illegible. The Department of Justice shall
4notify the department, as required by Section 1522.04, and shall
5notify the licensee by mail within 14 days of electronic
6transmission of the fingerprint images to the Department of Justice,
7if the person has no criminal history record.

8(4) Except for persons specified in paragraph (2) of subdivision
9(b), the licensee shall endeavor to ascertain the previous
10employment history of persons required to be fingerprinted under
11this subdivision. If it is determined by the State Department of
12Social Services, on the basis of the fingerprint images submitted
13to the Department of Justice, that the person has been convicted
14of a sex offense against a minor, an offense specified in Section
15243.4, 273a, 273d, 273g, or 368 of the Penal Code, or a felony,
16the department shall notify the licensee to act immediately to
17terminate the person’s employment, remove the person from the
18residential care facility, or bar the person from entering the
19residential care facility. The department may subsequently grant
20an exemption pursuant to subdivision (f). If the conviction was for
21another crime, except a minor traffic violation, the licensee shall,
22upon notification by the department, act immediately to either (A)
23terminate the person’s employment, remove the person from the
24residential care facility, or bar the person from entering the
25residential care facility; or (B) seek an exemption pursuant to
26subdivision (f). The department shall determine if the person shall
27be allowed to remain in the facility until a decision on the
28exemption is rendered. A licensee’s failure to comply with the
29department’s prohibition of employment, contact with clients, or
30presence in the facility as required by this paragraph shall result
31in a citation of deficiency and an immediate assessment of civil
32penalties by the department against the licensee, in the amount of
33one hundred dollars ($100) per violation per day for a maximum
34of five days, unless the violation is a second or subsequent violation
35within a 12-month period in which case the civil penalties shall
36be in the amount of one hundred dollars ($100) per violation for
37a maximum of 30 days, and shall be grounds for disciplining the
38licensee pursuant to Section 1568.082.

39(5) The department may issue an exemption on its own motion
40pursuant to subdivision (f) if the person’s criminal history indicates
P25   1that the person is of good character based on the age, seriousness,
2and frequency of the conviction or convictions. The department,
3in consultation with interested parties, shall develop regulations
4to establish the criteria to grant an exemption pursuant to this
5paragraph.

6(6) Concurrently with notifying the licensee pursuant to
7paragraph (4), the department shall notify the affected individual
8of his or her right to seek an exemption pursuant to subdivision
9(f). The individual may seek an exemption only if the licensee
10terminates the person’s employment or removes the person from
11the facility after receiving notice from the department pursuant to
12paragraph (4).

13(d) (1) For purposes of this section or any other provision of
14this chapter, a conviction means a plea or verdict of guilty or a
15conviction following a plea of nolo contendere. An action that the
16department is permitted to take following the establishment of a
17conviction may be taken when the time for appeal has elapsed,
18when the judgment of conviction has been affirmed on appeal, or
19when an order granting probation is made suspending the
20imposition of the sentence, notwithstanding a subsequent order
21pursuant to Sections 1203.4 and 1203.4a of the Penal Code
22permitting that person to withdraw his or her plea of guilty and to
23enter a plea of not guilty, setting aside the verdict of guilty, or
24dismissing the accusation, information, or indictment. For purposes
25of this chapter, the record of a conviction, or a copy thereof
26certified by the clerk of the court or by a judge of the court in
27which the conviction occurred, shall be conclusive evidence of the
28conviction. For purposes of this section or any other provision of
29this chapter, the arrest disposition report certified by the
30Department of Justice, or documents admissible in a criminal action
31pursuant to Section 969b of the Penal Code, shall be prima facie
32evidence of the conviction, notwithstanding any other provision
33of law prohibiting the admission of these documents in a civil or
34 administrative action.

35(2) For purposes of this section or any other provision of this
36chapter, the department shall consider criminal convictions from
37another state or federal court as if the criminal offense was
38committed in this state.

39(e) begin insert(1)end insertbegin insertend insertThe State Department of Social Services shall not begin delete issue
40a criminal record clearance to a person with a record of an arrest
P26   1prior to the department’s completion of an investigation of that
2arrest record. The State Department of Social Services shall notend delete

3 use a record of arrest to deny, revoke, or terminate any application,
4license, employment, or residence unless the department
5investigates the incident and secures evidence, whether or not
6related to the incident of arrest, that is admissible in an
7administrative hearing to establish conduct by the person that may
8pose a risk to the health and safety of any person who is or may
9become a client.begin delete Theend delete

begin insert

10(2) The department shall not issue a criminal record clearance
11to a person who has been arrested, and that arrest is pending
12investigation or conviction, for any crime specified in Section 290
13of the Penal Code, for violating Section 245 or 273.5, subdivision
14(b) of Section 273a, of the Penal Code, or, prior to January 1,
151994, paragraph (2) of Section 273a of the Penal Code, prior to
16the department’s completion of an investigation pursuant to
17paragraph (1).

end insert

18begin insert (3)end insertbegin insertend insertbegin insertTheend insert State Department of Social Services is authorized to
19obtain arrest or conviction records or reports from a law
20enforcement agency as necessary to the performance of its duties
21to inspect, license, and investigate community care facilities and
22individuals associated with a community care facility.

23(f) (1) After review of the record, the director may grant an
24exemption from disqualification for a license as specified in
25paragraphs (1) and (4) of subdivision (a), or for employment,
26residence, or presence in a residential care facility as specified in
27paragraphs (4), (5), and (6) of subdivision (c) if the director has
28substantial and convincing evidence to support a reasonable belief
29that the applicant and the person convicted of the crime, if other
30than the applicant, are of such good character as to justify issuance
31of the license or special permit or granting an exemption for
32purposes of subdivision (c). However, an exemption shall not be
33granted pursuant to this subdivision if the conviction was for any
34of the following offenses:

35(A) An offense specified in Section 220, 243.4, or 264.1,
36subdivision (a) of Sectionbegin delete 273aend deletebegin insert 273a,end insert or, prior to January 1, 1994,
37paragraph (1) of Section 273a, Section 273d, 288, or 289,
38subdivision (c) of Section 290, or Sectionbegin delete 368end deletebegin insert 368,end insert of the Penal
39Code, or was a conviction of another crime against an individual
40specified in subdivision (c) of Section 667.5 of the Penal Code.

P27   1(B) A felony offense specified in Section 729 of the Business
2and Professions Code or Section 206 or 215, subdivision (a) of
3Section 347, subdivision (b) of Section 417, or subdivision (a) of
4Section 451 of the Penal Code.

5(2) The department shall not prohibit a person from being
6employed or having contact with clients in a facility on the basis
7of a denied criminal record exemption request or arrest information
8unless the department complies with Section 1568.092.

9(g) (1) For purposes of compliance with this section, the
10department may permit an individual to transfer a current criminal
11record clearance, as defined in subdivision (a), from one facility
12to another, as long as the criminal record clearance has been
13processed through a state licensing district office, and is being
14transferred to another facility licensed by a state licensing district
15office. The request shall be in writing to the department, and shall
16include a copy of the person’s driver’s license or valid
17identification card issued by the Department of Motor Vehicles,
18or a valid photo identification issued by another state or the United
19States government if the person is not a California resident. Upon
20request of the licensee, who shall enclose a self-addressed stamped
21envelope for this purpose, the department shall verify whether the
22individual has a clearance that can be transferred.

23(2) The State Department of Social Services shall hold criminal
24record clearances in its active files for a minimum of two years
25after an employee is no longer employed at a licensed facility in
26order for the criminal record clearance to be transferred.

27(h) If a licensee or facility is required by law to deny
28employment or to terminate employment of any employee based
29on written notification from the state department that the employee
30has a prior criminal conviction or is determined unsuitable for
31employment under Section 1568.092, the licensee or facility shall
32not incur civil liability or unemployment insurance liability as a
33result of that denial or termination.

34(i) (1) The Department of Justice shall charge a fee sufficient
35to cover its cost in providing services to comply with the 14-day
36requirement contained in subdivision (c) for provision to the
37department of criminal record information.

38(2) Paragraph (1) shall cease to be implemented when the
39department adopts emergency regulations pursuant to Section
P28   11522.04, and shall become inoperative when permanent regulations
2are adopted under that section.

3(j) Notwithstanding any otherbegin delete provision ofend delete law, the department
4may provide an individual with a copy of his or her state or federal
5level criminal offender record information search response as
6provided to that department by the Department of Justice if the
7department has denied a criminal background clearance based on
8this information and the individual makes a written request to the
9department for a copy specifying an address to which it is to be
10sent. The state or federal level criminal offender record information
11search response shall not be modified or altered from its form or
12content as provided by the Department of Justice and shall be
13provided to the address specified by the individual in his or her
14written request. The department shall retain a copy of the
15individual’s written request and the response and date provided.

16

SEC. 3.  

Section 1569.17 of the Health and Safety Code is
17amended to read:

18

1569.17.  

The Legislature recognizes the need to generate timely
19and accurate positive fingerprint identification of applicants as a
20condition of issuing licenses, permits, or certificates of approval
21for persons to operate or provide direct care services in a residential
22care facility for the elderly. It is the intent of the Legislature in
23enacting this section to require the fingerprints of those individuals
24whose contact with clients of residential care facilities for the
25elderly may pose a risk to the clients’ health and safety. An
26individual shall be required to obtain either a criminal record
27clearance or a criminal record exemption from the State Department
28of Social Services before his or her initial presence in a residential
29care facility for the elderly.

30(a) (1) Before issuing a license to any person or persons to
31operate or manage a residential care facility for the elderly, the
32department shall secure from an appropriate law enforcement
33agency a criminal record to determine whether the applicant or
34any other person specified in subdivision (b) has ever been
35convicted of a crime other than a minor traffic violation or arrested
36for any crime specified in subdivision (c) of Section 290 of the
37Penal Code, for violating Section 245 or 273.5, subdivision (b) of
38Sectionbegin delete 273aend deletebegin insert 273a,end insert or, prior to January 1, 1994, paragraph (2) of
39Section begin delete273aend deletebegin insert 273a,end insert of the Penal Code, or for any crime for which
P29   1the department cannot grant an exemption if the person was
2convicted and the person has not been exonerated.

3(2) The criminal history information shall include the full
4criminal record, if any, of those persons, and subsequent arrest
5information pursuant to Section 11105.2 of the Penal Code.

6(3) The following shall apply to the criminal record information:

7(A) If the State Department of Social Services finds that the
8applicant or any other person specified in subdivision (b) has been
9convicted of a crime, other than a minor traffic violation, the
10application shall be denied, unless the director grants an exemption
11pursuant to subdivision (f).

12(B) If the State Department of Social Services finds that the
13applicant, or any other person specified in subdivisionbegin delete (b)end deletebegin insert end insertbegin insert(b),end insert is
14awaiting trial for a crime other than a minor traffic violation, the
15State Department of Social Services may cease processing the
16application until the conclusion of the trial.

17(C) If no criminal record information has been recorded, the
18Department of Justice shall provide the applicant and the State
19Department of Social Services with a statement of that fact.

20(D) If the State Department of Social Services finds after
21licensure that the licensee, or any other person specified in
22paragraph (2) of subdivision (b), has been convicted of a crime
23other than a minor traffic violation, the license may be revoked,
24unless the director grants an exemption pursuant to subdivision
25(f).

26(E) An applicant and any other person specified in subdivision
27(b) shall submit fingerprint images and related information to the
28Department of Justice and the Federal Bureau of Investigation,
29through the Department of Justice, for a state and federal level
30criminal offender record information search, in addition to the
31search required by subdivision (a). If an applicant meets all other
32conditions for licensure, except receipt of the Federal Bureau of
33Investigation’s criminal history information for the applicant and
34persons listed in subdivision (b), the department may issue a license
35if the applicant and each person described by subdivision (b) has
36signed and submitted a statement that he or she has never been
37convicted of a crime in the United States, other than a traffic
38infraction as defined in paragraph (1) of subdivision (a) of Section
3942001 of the Vehicle Code. If, after licensure, the department
40determines that the licensee or person specified in subdivision (b)
P30   1has a criminal record, the license may be revoked pursuant to
2Section 1569.50. The department may also suspend the license
3pending an administrative hearing pursuant to Sections 1569.50
4and 1569.51.

5(b) In addition to the applicant, the provisions of this section
6shall apply to criminal convictions of the following persons:

7(1) (A) Adults responsible for administration or direct
8supervision of staff.

9(B) Any person, other than a client, residing in the facility.
10Residents of unlicensed independent senior housing facilities that
11are located in contiguous buildings on the same property as a
12residential care facility for the elderly shall be exempt from these
13requirements.

14(C) Any person who provides client assistance in dressing,
15grooming, bathing, or personal hygiene. Any nurse assistant or
16home health aide meeting the requirements of Section 1338.5 or
171736.6, respectively, who is not employed, retained, or contracted
18by the licensee, and who has been certified or recertified on or
19after July 1, 1998, shall be deemed to meet the criminal record
20clearance requirements of this section. A certified nurse assistant
21and certified home health aide who will be providing client
22assistance and who falls under this exemption shall provide one
23copy of his or her current certification, prior to providing care, to
24the residential care facility for the elderly. The facility shall
25maintain the copy of the certification on file as long as the care is
26being provided by the certified nurse assistant or certified home
27health aide at the facility. Nothing in this paragraph restricts the
28right of the department to exclude a certified nurse assistant or
29certified home health aide from a licensed residential care facility
30for the elderly pursuant to Section 1569.58.

31(D) Any staff person, volunteer, or employee who has contact
32with the clients.

33(E) If the applicant is a firm, partnership, association, or
34corporation, the chief executive officer or other person serving in
35a similar capacity.

36(F) Additional officers of the governing body of the applicant
37or other persons with a financial interest in the applicant, as
38determined necessary by the department by regulation. The criteria
39used in the development of these regulations shall be based on the
P31   1person’s capability to exercise substantial influence over the
2operation of the facility.

3(2) The following persons are exempt from requirements
4applicable under paragraph (1):

5(A) A spouse, relative, significant other, or close friend of a
6client shall be exempt if this person is visiting the client or provides
7direct care and supervision to that client only.

8(B) A volunteer to whom all of the following apply:

9(i) The volunteer is at the facility during normal waking hours.

10(ii) The volunteer is directly supervised by the licensee or a
11facility employee with a criminal record clearance or exemption.

12(iii) The volunteer spends no more than 16 hours per week at
13the facility.

14(iv) The volunteer does not provide clients with assistance in
15dressing, grooming, bathing, or personal hygiene.

16(v) The volunteer is not left alone with clients in care.

17(C) A third-party contractor retained by the facility if the
18contractor is not left alone with clients in care.

19(D) A third-party contractor or other business professional
20retained by a client and at the facility at the request or by
21permission of that client. These individualsbegin delete mayend deletebegin insert shallend insert not be left
22alone with other clients.

23(E) Licensed or certified medical professionals are exempt from
24fingerprint and criminal background check requirements imposed
25by community care licensing. This exemption does not apply to a
26person who is a community care facility licensee or an employee
27of the facility.

28(F) Employees of licensed home health agencies and members
29of licensed hospice interdisciplinary teams who have contact with
30a resident of a residential care facility at the request of the resident
31or resident’s legal decisionmaker are exempt from fingerprint and
32criminal background check requirements imposed by community
33care licensing. This exemption does not apply to a person who is
34a community care facility licensee or an employee of the facility.

35(G) Clergy and other spiritual caregivers who are performing
36services in common areas of the residential care facility, or who
37are advising an individual resident at the request of, or with
38permission of, the resident, are exempt from fingerprint and
39criminal background check requirements imposed by community
P32   1care licensing. This exemption does not apply to a person who is
2a community care facility licensee or an employee of the facility.

3(H) Any person similar to those described in this subdivision,
4as defined by the department in regulations.

5(I) Nothing in this paragraph shall prevent a licensee from
6requiring a criminal record clearance of any individual exempt
7from the requirements of this section, provided that the individual
8has client contact.

9(c) (1) (A) Subsequent to initial licensure, any person required
10to be fingerprinted pursuant to subdivision (b) shall, as a condition
11to employment, residence, or presence in a residential facility for
12the elderly, be fingerprinted and sign a declaration under penalty
13of perjury regarding any prior criminal convictions. The licensee
14shall submit these fingerprint images and related information to
15the Department of Justice and the Federal Bureau of Investigation,
16through the Department of Justice, for a state and federal level
17criminal offender record information search, or to comply with
18paragraph (1) of subdivision (g) prior to the person’s employment,
19residence, or initial presence in the residential care facility for the
20elderly.

21(B) These fingerprint images and related information shall be
22electronically transmitted in a manner approved by the State
23Department of Social Services and the Department of Justice. A
24licensee’s failure to submit fingerprint images and related
25 information to the Department of Justice, or to comply with
26paragraph (1) of subdivision (g), as required in this section, shall
27result in the citation of a deficiency and an immediate assessment
28of civil penalties in the amount of one hundred dollars ($100) per
29violation per day for a maximum of five days, unless the violation
30is a second or subsequent violation within a 12-month period in
31which case the civil penalties shall be in the amount of one hundred
32dollars ($100) per violation for a maximum of 30 days, and shall
33be grounds for disciplining the licensee pursuant to Section
341569.50. The State Department of Social Services may assess civil
35penalties for continued violations as permitted by Section 1569.49.
36The licensee shall then submit these fingerprint images to the State
37Department of Social Services for processing. Documentation of
38the individual’s clearance or exemption shall be maintained by the
39licensee and be available for inspection. The Department of Justice
40shall notify the department, as required by Section 1522.04, and
P33   1notify the licensee by mail within 14 days of electronic
2transmission of the fingerprints to the Department of Justice, if
3the person has no criminal record. A violation of the regulations
4adopted pursuant to Section 1522.04 shall result in the citation of
5a deficiency and an immediate assessment of civil penalties in the
6amount of one hundred dollars ($100) per violation per day for a
7maximum of five days, unless the violation is a second or
8subsequent violation within a 12-month period in which case the
9civil penalties shall be in the amount of one hundred dollars ($100)
10per violation for a maximum of 30 days, and shall be grounds for
11disciplining the licensee pursuant to Section 1569.50. The
12department may assess civil penalties for continued violations as
13permitted by Section 1569.49.

14(2) Within 14 calendar days of the receipt of the fingerprint
15images, the Department of Justice shall notify the State Department
16of Social Services of the criminal record information, as provided
17for in this subdivision. If no criminal record information has been
18recorded, the Department of Justice shall provide the licensee and
19the State Department of Social Services with a statement of that
20fact within 14 calendar days of receipt of the fingerprint images.
21If new fingerprint images are required for processing, the
22Department of Justice shall, within 14 calendar days from the date
23of receipt of the fingerprint images, notify the licensee that the
24fingerprint images were illegible.

25(3) Except for persons specified in paragraph (2) of subdivision
26(b), the licensee shall endeavor to ascertain the previous
27employment history of persons required to be fingerprinted under
28this subdivision. If the State Department of Social Services
29determines, on the basis of the fingerprint images submitted to the
30Department of Justice, that the person has been convicted of a sex
31 offense against a minor, an offense specified in Section 243.4,
32273a, 273d, 273g, or 368 of the Penal Code, or a felony, the State
33Department of Social Services shall notify the licensee in writing
34within 15 calendar days of the receipt of the notification from the
35Department of Justice to act immediately to terminate the person’s
36employment, remove the person from the residential care facility
37for the elderly, or bar the person from entering the residential care
38facility for the elderly. The State Department of Social Services
39may subsequently grant an exemption pursuant to subdivision (f).
40If the conviction was for another crime, except a minor traffic
P34   1violation, the licensee shall, upon notification by the State
2Department of Social Services, act immediately to either (1)
3terminate the person’s employment, remove the person from the
4residential care facility for the elderly, or bar the person from
5entering the residential care facility for the elderly or (2) seek an
6exemption pursuant to subdivision (f). The department shall
7determine if the person shall be allowed to remain in the facility
8until a decision on the exemption is rendered by the department.
9A licensee’s failure to comply with the department’s prohibition
10of employment, contact with clients, or presence in the facility as
11required by this paragraph shall result in a citation of deficiency
12and an immediate assessment of civil penalties by the department
13against the licensee, in the amount of one hundred dollars ($100)
14per violation per day for a maximum of five days, unless the
15violation is a second or subsequent violation within a 12-month
16period in which case the civil penalties shall be in the amount of
17one hundred dollars ($100) per violation for a maximum of 30
18days, and shall be grounds for disciplining the licensee pursuant
19to Section 1569.50.

20(4) The department may issue an exemption on its own motion
21pursuant to subdivision (f) if the person’s criminal history indicates
22 that the person is of good character based on the age, seriousness,
23and frequency of the conviction or convictions. The department,
24in consultation with interested parties, shall develop regulations
25to establish the criteria to grant an exemption pursuant to this
26paragraph.

27(5) Concurrently with notifying the licensee pursuant to
28paragraph (4), the department shall notify the affected individual
29of his or her right to seek an exemption pursuant to subdivision
30(f). The individual may seek an exemption only if the licensee
31terminates the person’s employment or removes the person from
32the facility after receiving notice from the department pursuant to
33paragraph (4).

34(d) (1) For purposes of this section or any other provision of
35this chapter, a conviction means a plea or verdict of guilty or a
36conviction following a plea of nolo contendere. Any action that
37the department is permitted to take following the establishment of
38a conviction may be taken when the time for appeal has elapsed,
39when the judgment of conviction has been affirmed on appeal or
40when an order granting probation is made suspending the
P35   1imposition of the sentence, notwithstanding a subsequent order
2pursuant to the provisions of Sections 1203.4 and 1203.4a of the
3Penal Code permitting a person to withdraw his or her plea of
4guilty and to enter a plea of not guilty, or setting aside the verdict
5of guilty, or dismissing the accusation, information, or indictment.
6For purposes of this section or any other provision of this chapter,
7the record of a conviction, or a copy thereof certified by the clerk
8of the court or by a judge of the court in which the conviction
9occurred, shall be conclusive evidence of the conviction. For
10purposes of this section or any other provision of this chapter, the
11arrest disposition report certified by the Department of Justice or
12documents admissible in a criminal action pursuant to Section
13969b of the Penal Code shall be prima facie evidence of the
14conviction, notwithstanding any otherbegin delete provision ofend delete law prohibiting
15the admission of these documents in a civil or administrative action.

16(2) For purposes of this section or any other provision of this
17chapter, the department shall consider criminal convictions from
18another state or federal court as if the criminal offense was
19committed in this state.

20(e) begin insert(1)end insertbegin insertend insertThe State Department of Social Services shall not begin deleteissue
21a criminal record clearance to a person with a record of an arrest
22prior to the department’s completion of an investigation of that
23arrest record. The State Department of Social Services may not end delete

24use a record of arrest to deny, revoke, or terminate any application,
25license, employment, or residence unless the department
26investigates the incident and secures evidence, whether or not
27related to the incident of arrest, that is admissible in an
28administrative hearing to establish conduct by the person that may
29pose a risk to the health and safety of any person who is or may
30become a client.begin delete Theend delete

begin insert

31(2) The department shall not issue a criminal record clearance
32to a person who has been arrested, and that arrest is pending
33investigation or conviction, for any crime specified in Section 290
34of the Penal Code, for violating Section 245 or 273.5, subdivision
35(b) of Section 273a, of the Penal Code, or, prior to January 1,
361994, paragraph (2) of Section 273a, of the Penal Code prior to
37the department’s completion of an investigation pursuant to
38paragraph (1).

end insert

39begin insert (3)end insertbegin insertend insertbegin insertTheend insert State Department of Social Services is authorized to
40obtain any arrest or conviction records or reports from any law
P36   1enforcement agency as necessary to the performance of its duties
2to inspect, license, and investigate community care facilities and
3individuals associated with a community care facility.

4(f) (1) After review of the record, the director may grant an
5exemption from disqualification for a license as specified in
6paragraphs (1) and (4) of subdivision (a), or for employment,
7residence, or presence in a residential care facility for the elderly
8as specified in paragraphs (4), (5), and (6) of subdivision (c) if the
9director has substantial and convincing evidence to support a
10 reasonable belief that the applicant and the person convicted of
11the crime, if other than the applicant, are of such good character
12as to justify issuance of the license or special permit or granting
13an exemption for purposes of subdivision (c). However, an
14exemptionbegin delete mayend deletebegin insert shallend insert not be granted pursuant to this subdivision
15if the conviction was for any of the following offenses:

16(A) An offense specified in Section 220, 243.4, or 264.1,
17subdivision (a) of Sectionbegin delete 273aend deletebegin insert 273a,end insert or, prior to January 1, 1994,
18paragraph (1) of Section 273a, Section 273d, 288, or 289,
19subdivision (c) of Section 290, or Sectionbegin delete 368end deletebegin insert 368,end insert of the Penal
20Code, or was a conviction of another crime against an individual
21specified in subdivision (c) of Section 667.5 of the Penal Code.

22(B) A felony offense specified in Section 729 of the Business
23and Professions Code or Section 206 or 215, subdivision (a) of
24Section 347, subdivision (b) of Section 417, or subdivision (a) of
25Section 451 of the Penal Code.

26(2) The director shall notify in writing the licensee or the
27applicant of his or her decision within 60 days of receipt of all
28information from the applicant and other sources determined
29necessary by the director for the rendering of a decision pursuant
30to this subdivision.

31(3) The departmentbegin delete mayend deletebegin insert shallend insert not prohibit a person from being
32employed or having contact with clients in a facility on the basis
33of a denied criminal record exemption request or arrest information
34unless the department complies with the requirements of Section
351569.58.

36(g) (1) For purposes of compliance with this section, the
37department may permit an individual to transfer a current criminal
38record clearance, as defined in subdivision (a), from one facility
39to another, as long as the criminal record clearance has been
40processed through a state licensing district office, and is being
P37   1transferred to another facility licensed by a state licensing district
2office. The request shall be submitted in writing to the department,
3and shall include a copy of the person’s driver’s license or valid
4identification card issued by the Department of Motor Vehicles,
5or a valid photo identification issued by another state or the United
6States government if the person is not a California resident. Upon
7request of the licensee, who shall enclose a self-addressed stamped
8envelope for this purpose, the department shall verify whether the
9individual has a clearance that can be transferred.

10(2) The State Department of Social Services shall hold criminal
11record clearances in its active files for a minimum of two years
12after an employee is no longer employed at a licensed facility in
13order for the criminal record clearances to be transferred under
14this section.

15(h) If a licensee or facility is required by law to deny
16employment or to terminate employment of any employee based
17on written notification from the department that the employee has
18a prior criminal conviction or is determined unsuitable for
19employment under Section 1569.58, the licensee or facility shall
20not incur civil liability or unemployment insurance liability as a
21result of that denial or termination.

22(i) Notwithstanding any otherbegin delete provision ofend delete law, the department
23may provide an individual with a copy of his or her state or federal
24level criminal offender record information search response as
25provided to that department by the Department of Justice if the
26department has denied a criminal background clearance based on
27this information and the individual makes a written request to the
28department for a copy specifying an address to which it is to be
29sent. The state or federal level criminal offender record information
30search response shall not be modified or altered from its form or
31content as provided by the Department of Justice and shall be
32provided to the address specified by the individual in his or her
33written request. The department shall retain a copy of the
34individual’s written request and the response and date provided.

35

SEC. 4.  

Section 1596.871 of the Health and Safety Code is
36amended to read:

37

1596.871.  

The Legislature recognizes the need to generate
38timely and accurate positive fingerprint identification of applicants
39as a condition of issuing licenses, permits, or certificates of
40approval for persons to operate or provide direct care services in
P38   1a child care center or family child care home. It is the intent of the
2Legislature in enacting this section to require the fingerprints of
3those individuals whose contact with child day care facility clients
4may pose a risk to the children’s health and safety. An individual
5shall be required to obtain either a criminal record clearance or a
6criminal record exemption from the State Department of Social
7Services before his or her initial presence in a child day care
8facility.

9(a) (1) Before issuing a license or special permit to any person
10to operate or manage a day care facility, the department shall secure
11from an appropriate law enforcement agency a criminal record to
12determine whether the applicant or any other person specified in
13subdivision (b) has ever been convicted of a crime other than a
14minor traffic violation or arrested for any crime specified in
15subdivision (c) of Section 290 of the Penal Code, for violating
16Section 245 or 273.5, subdivision (b) of Sectionbegin delete 273aend deletebegin insert 273a,end insert or,
17prior to January 1, 1994, paragraph (2) of Sectionbegin delete 273aend deletebegin insert 273a,end insert of
18the Penal Code, or for any crime for which the department cannot
19grant an exemption if the person was convicted and the person has
20not been exonerated.

21(2) The criminal history information shall include the full
22criminal record, if any, of those persons, and subsequent arrest
23information pursuant to Section 11105.2 of the Penal Code.

24(3) Except during the 2003-04 to the 2014-15 fiscal years,
25inclusive, neither the Department of Justice nor the department
26may charge a fee for the fingerprinting of an applicant who will
27serve six or fewer children or any family day care applicant for a
28license, or for obtaining a criminal record of an applicant pursuant
29to this section.

30(4) The following shall apply to the criminal record information:

31(A) If the State Department of Social Services finds that the
32applicant or any other person specified in subdivision (b) has been
33convicted of a crime, other than a minor traffic violation, the
34application shall be denied, unless the director grants an exemption
35pursuant to subdivision (f).

36(B) If the State Department of Social Services finds that the
37applicant, or any other person specified in subdivision (b), is
38awaiting trial for a crime other than a minor traffic violation, the
39State Department of Social Services may cease processing the
40application until the conclusion of the trial.

P39   1(C) If no criminal record information has been recorded, the
2Department of Justice shall provide the applicant and the State
3Department of Social Services with a statement of that fact.

4(D) If the State Department of Social Services finds after
5licensure that the licensee, or any other person specified in
6paragraph (2) of subdivision (b), has been convicted of a crime
7other than a minor traffic violation, the license may be revoked,
8unless the director grants an exemption pursuant to subdivision
9(f).

10(E) An applicant and any other person specified in subdivision
11(b) shall submit fingerprint images and related information to the
12Department of Justice and the Federal Bureau of Investigation,
13through the Department of Justice, for a state and federal level
14criminal offender record information search, in addition to the
15search required by subdivision (a). If an applicant meets all other
16conditions for licensure, except receipt of the Federal Bureau of
17Investigation’s criminal history information for the applicant and
18persons listed in subdivision (b), the department may issue a license
19if the applicant and each person described by subdivision (b) has
20signed and submitted a statement that he or she has never been
21convicted of a crime in the United States, other than a traffic
22infraction as defined in paragraph (1) of subdivision (a) of Section
2342001 of the Vehicle Code. If, after licensure, the department
24determines that the licensee or person specified in subdivision (b)
25has a criminal record, the license may be revoked pursuant to
26Section 1596.885. The department may also suspend the license
27pending an administrative hearing pursuant to Section 1596.886.

28(b) (1) In addition to the applicant, this section shall be
29applicable to criminal convictions of the following persons:

30(A) Adults responsible for administration or direct supervision
31of staff.

32(B) Any person, other than a child, residing in the facility.

33(C) Any person who provides care and supervision to the
34children.

35(D) Any staff person, volunteer, or employee who has contact
36with the children.

37(i) A volunteer providing time-limited specialized services shall
38be exempt from the requirements of this subdivision if this person
39is directly supervised by the licensee or a facility employee with
40a criminal record clearance or exemption, the volunteer spends no
P40   1more than 16 hours per week at the facility, and the volunteer is
2not left alone with children in care.

3(ii) A student enrolled or participating at an accredited
4educational institution shall be exempt from the requirements of
5this subdivision if the student is directly supervised by the licensee
6 or a facility employee with a criminal record clearance or
7exemption, the facility has an agreement with the educational
8institution concerning the placement of the student, the student
9spends no more than 16 hours per week at the facility, and the
10student is not left alone with children in care.

11(iii) A volunteer who is a relative, legal guardian, or foster parent
12of a client in the facility shall be exempt from the requirements of
13this subdivision.

14(iv) A contracted repair person retained by the facility, if not
15left alone with children in care, shall be exempt from the
16requirements of this subdivision.

17(v) Any person similar to those described in this subdivision,
18as defined by the department in regulations.

19(E) If the applicant is a firm, partnership, association, or
20corporation, the chief executive officer, other person serving in
21like capacity, or a person designated by the chief executive officer
22as responsible for the operation of the facility, as designated by
23the applicant agency.

24(F) If the applicant is a local educational agency, the president
25of the governing board, the school district superintendent, or a
26person designated to administer the operation of the facility, as
27designated by the local educational agency.

28(G) Additional officers of the governing body of the applicant,
29or other persons with a financial interest in the applicant, as
30determined necessary by the department by regulation. The criteria
31used in the development of these regulations shall be based on the
32person’s capability to exercise substantial influence over the
33operation of the facility.

34(H) This section does not apply to employees of child care and
35development programs under contract with the State Department
36of Education who have completed a criminal record clearance as
37part of an application to the Commission on Teacher Credentialing,
38and who possess a current credential or permit issued by the
39commission, including employees of child care and development
40programs that serve both children subsidized under, and children
P41   1not subsidized under, a State Department of Education contract.
2The Commission on Teacher Credentialing shall notify the
3department upon revocation of a current credential or permit issued
4to an employee of a child care and development program under
5contract with the State Department of Education.

6(I) This section does not apply to employees of a child care and
7development program operated by a school district, county office
8of education, or community college district under contract with
9the State Department of Education who have completed a criminal
10record clearance as a condition of employment. The school district,
11county office of education, or community college district upon
12receiving information that the status of an employee’s criminal
13record clearance has changed shall submit that information to the
14department.

15(2) Nothing in this subdivision shall prevent a licensee from
16requiring a criminal record clearance of any individuals exempt
17from the requirements under this subdivision.

18(c) (1) (A) Subsequent to initial licensure, any person specified
19in subdivision (b) and not exempted from fingerprinting shall, as
20a condition to employment, residence, or presence in a child day
21carebegin delete facilityend deletebegin insert facility,end insert be fingerprinted and sign a declaration under
22penalty of perjury regarding any prior criminal conviction. The
23licensee shall submit fingerprint images and related information
24to the Department of Justice and the Federal Bureau of
25Investigation, through the Department of Justice, or to comply
26with paragraph (1) of subdivision (h), prior to the person’s
27employment, residence, or initial presence in the child day care
28facility.

29(B) These fingerprint images for the purpose of obtaining a
30permanent set of fingerprints shall be electronically submitted to
31the Department of Justice in a manner approved by the State
32Department of Social Services and to the Department of Justice,
33or to comply with paragraph (1) of subdivision (h), as required in
34this section, shall result in the citation of a deficiency, and an
35immediate assessment of civil penalties in the amount of one
36hundred dollars ($100) per violation per day for a maximum of
37five days, unless the violation is a second or subsequent violation
38within a 12-month period in which case the civil penalties shall
39be in the amount of one hundred dollars ($100) per violation for
40a maximum of 30 days, and shall be grounds for disciplining the
P42   1licensee pursuant to Section 1596.885 orbegin delete Sectionend delete 1596.886. The
2State Department of Social Services may assess civil penalties for
3continued violations permitted by Sections 1596.99 and 1597.62.
4The fingerprint images and related information shall then be
5submitted to the department for processing. Within 14 calendar
6days of the receipt of the fingerprint images, the Department of
7Justice shall notify the State Department of Social Services of the
8criminal record information, as provided in this subdivision. If no
9criminal record information has been recorded, the Department of
10Justice shall provide the licensee and the State Department of
11Social Services with a statement of that fact within 14 calendar
12days of receipt of the fingerprint images. If new fingerprint images
13are required for processing, the Department of Justice shall, within
1414 calendar days from the date of receipt of the fingerprint images,
15notify the licensee that the fingerprints were illegible.

16(C) Documentation of the individual’s clearance or exemption
17shall be maintained by the licensee, and shall be available for
18inspection. When live-scan technology is operational, as defined
19in Section 1522.04, the Department of Justice shall notify the
20department, as required by that section, and notify the licensee by
21mail within 14 days of electronic transmission of the fingerprints
22to the Department of Justice, if the person has no criminal record.
23Any violation of the regulations adopted pursuant to Section
241522.04 shall result in the citation of a deficiency and an immediate
25assessment of civil penalties in the amount of one hundred dollars
26($100) per violation per day for a maximum of five days, unless
27the violation is a second or subsequent violation within a 12-month
28period in which case the civil penalties shall be in the amount of
29one hundred dollars ($100) per violation for a maximum of 30
30days, and shall be grounds for disciplining the licensee pursuant
31to Section 1596.885 orbegin delete Sectionend delete 1596.886. The department may
32assess civil penalties for continued violations, as permitted by
33Sections 1596.99 and 1597.62.

34(2) Except for persons specified in paragraph (2) of subdivision
35(b), the licensee shall endeavor to ascertain the previous
36employment history of persons required to be fingerprinted under
37this subdivision. If it is determined by the department, on the basis
38of fingerprints submitted to the Department of Justice, that the
39person has been convicted of a sex offense against a minor, an
40offense specified in Section 243.4, 273a, 273d, 273g, or 368 of
P43   1the Penal Code, or a felony, the State Department of Social
2Services shall notify the licensee to act immediately to terminate
3the person’s employment, remove the person from the child day
4care facility, or bar the person from entering the child day care
5facility. The department may subsequently grant an exemption
6pursuant to subdivision (f). If the conviction was for another crime
7except a minor traffic violation, the licensee shall, upon notification
8by the State Department of Social Services, act immediately to
9either (1) terminate the person’s employment, remove the person
10from the child day care facility, or bar the person from entering
11the child day care facility; or (2) seek an exemption pursuant to
12subdivision (f). The department shall determine if the person shall
13be allowed to remain in the facility until a decision on the
14exemption is rendered. A licensee’s failure to comply with the
15department’s prohibition of employment, contact with clients, or
16presence in the facility as required by this paragraph shall result
17in a citation of deficiency and an immediate assessment of civil
18penalties by the department against the licensee, in the amount of
19one hundred dollars ($100) per violation per day for a maximum
20of five days, unless the violation is a second or subsequent violation
21within a 12-month period in which case the civil penalties shall
22be in the amount of one hundred dollars ($100) per violation for
23a maximum of 30 days, and shall be grounds for disciplining the
24licensee pursuant to Section 1596.885 or 1596.886.

25(3) The department may issue an exemption on its own motion
26pursuant to subdivision (f) if the person’s criminal history indicates
27that the person is of good character based on the age, seriousness,
28and frequency of the conviction or convictions. The department,
29in consultation with interested parties, shall develop regulations
30to establish the criteria to grant an exemption pursuant to this
31paragraph.

32(4) Concurrently with notifying the licensee pursuant to
33paragraph (3), the department shall notify the affected individual
34of his or her right to seek an exemption pursuant to subdivision
35(f). The individual may seek an exemption only if the licensee
36terminates the person’s employment or removes the person from
37the facility after receiving notice from the department pursuant to
38paragraph (3).

39(d) (1) For purposes of this section or any other provision of
40this chapter, a conviction means a plea or verdict of guilty or a
P44   1conviction following a plea of nolo contendere. Any action that
2the department is permitted to take following the establishment of
3a conviction may be taken when the time for appeal has elapsed,
4when the judgment of conviction has been affirmed on appeal, or
5when an order granting probation is made suspending the
6imposition of sentence, notwithstanding a subsequent order
7pursuant to Sections 1203.4 and 1203.4a of the Penal Code
8permitting the person to withdraw his or her plea of guilty and to
9enter a plea of not guilty, or setting aside the verdict of guilty, or
10dismissing the accusation, information, or indictment. For purposes
11of this section or any other provision of this chapter, the record of
12a conviction, or a copy thereof certified by the clerk of the court
13or by a judge of the court in which the conviction occurred, shall
14be conclusive evidence of the conviction. For purposes of this
15section or any other provision of this chapter, the arrest disposition
16report certified by the Department of Justice, or documents
17admissible in a criminal action pursuant to Section 969b of the
18Penal Code, shall be prima facie evidence of conviction,
19notwithstanding any other begin delete provision ofend delete law prohibiting the
20admission of these documents in a civil or administrative action.

21(2) For purposes of this section or any other provision of this
22chapter, the department shall consider criminal convictions from
23another state or federal court as if the criminal offense was
24committed in this state.

25(e) begin insert(1)end insertbegin insertend insertThe State Department of Social Services shall notbegin delete issue
26a criminal record clearance to a person with a record of an arrest
27prior to the department’s completion of an investigation of that
28arrest record. The State Department of Social Services may notend delete

29 use a record of arrest to deny, revoke, or terminate any application,
30license, employment, or residence unless the department
31investigates the incident and secures evidence, whether or not
32related to the incident of arrest, that is admissible in an
33administrative hearing to establish conduct by the person that may
34pose a risk to the health and safety of any person who is or may
35become a client.begin delete Theend delete

begin insert

36(2) The department shall not issue a criminal record clearance
37to a person who has been arrested, and that arrest is pending
38investigation or conviction, for any crime specified in Section 290
39of the Penal Code, for violating Section 245 or 273.5, subdivision
40(b) of Section 273a, of the Penal Code, or, prior to January 1,
P45   11994, paragraph (2) of Section 273a, of the Penal Code, prior to
2the department’s completion of an investigation pursuant to
3paragraph (1).

end insert

4begin insert(3)end insertbegin insertend insertbegin insertTheend insert State Department of Social Services is authorized to
5obtain any arrest or conviction records or reports from any law
6enforcement agency as necessary to the performance of its duties
7to inspect, license, and investigate community care facilities and
8individuals associated with a community care facility.

9(f) (1) After review of the record, the director may grant an
10exemption from disqualification for a license or special permit as
11specified in paragraphs (1) and (4) of subdivision (a), or for
12employment, residence, or presence in a child day care facility as
13specified in paragraphs (3), (4), and (5) of subdivision (c) if the
14director has substantial and convincing evidence to support a
15reasonable belief that the applicant and the person convicted of
16the crime, if other than the applicant, are of good character so as
17to justify issuance of the license or special permit or granting an
18exemption for purposes of subdivision (c). However, an exemption
19begin delete mayend deletebegin insert shallend insert not be granted pursuant to this subdivision if the
20conviction was for any of the following offenses:

21(A) An offense specified in Section 220, 243.4, or 264.1,
22subdivision (a) of Sectionbegin delete 273aend deletebegin insert 273a,end insert or, prior to January 1, 1994,
23paragraph (1) of Section 273a, Section 273d, 288, or 289,
24 subdivision (c) of Section 290, or Sectionbegin delete 368end deletebegin insert 368,end insert of the Penal
25Code, or was a conviction of another crime against an individual
26specified in subdivision (c) of Section 667.5 of the Penal Code.

27(B) A felony offense specified in Section 729 of the Business
28and Professions Code or Section 206 or 215, subdivision (a) of
29Section 347, subdivision (b) of Section 417, or subdivision (a) or
30(b) of Section 451 of the Penal Code.

31(2) The departmentbegin delete mayend deletebegin insert shallend insert not prohibit a person from being
32employed or having contact with clients in a facility on the basis
33of a denied criminal record exemption request or arrest information
34unless the department complies with the requirements of Section
351596.8897.

36(g) Upon request of the licensee, who shall enclose a
37self-addressed stamped postcard for this purpose, the Department
38of Justice shall verify receipt of the fingerprint images.

39(h) (1) For the purposes of compliance with this section, the
40department may permit an individual to transfer a current criminal
P46   1record clearance, as defined in subdivision (a), from one facility
2to another, as long as the criminal record clearance has been
3processed through a state licensing district office, and is being
4transferred to another facility licensed by a state licensing district
5office. The request shall be in writing to the department, and shall
6include a copy of the person’s driver’s license or valid
7identification card issued by the Department of Motor Vehicles,
8or a valid photo identification issued by another state or the United
9States government if the person is not a California resident. Upon
10request of the licensee, who shall enclose a self-addressed stamped
11envelope for this purpose, the department shall verify whether the
12individual has a clearance that can be transferred.

13(2) The State Department of Social Services shall hold criminal
14record clearances in its active files for a minimum of two years
15after an employee is no longer employed at a licensed facility in
16order for the criminal record clearances to be transferred.

17(3) The following shall apply to a criminal record clearance or
18exemption from the department or a county office with
19department-delegated licensing authority:

20(A) A county office with department-delegated licensing
21authority may accept a clearance or exemption from the
22department.

23(B) The department may accept a clearance or exemption from
24any county office with department-delegated licensing authority.

25(C) A county office with department-delegated licensing
26authority may accept a clearance or exemption from any other
27county office with department-delegated licensing authority.

28(4) With respect to notifications issued by the Department of
29Justice pursuant to Section 11105.2 of the Penal Code concerning
30an individual whose criminal record clearance was originally
31processed by the department or a county office with
32department-delegated licensing authority, all of the following shall
33apply:

34(A) The Department of Justice shall process a request from the
35department or a county office with department-delegated licensing
36authority to receive the notice, only if all of the following
37conditions are met:

38(i) The request shall be submitted to the Department of Justice
39by the agency to be substituted to receive the notification.

P47   1(ii) The request shall be for the same applicant type as the type
2for which the original clearance was obtained.

3(iii) The request shall contain all prescribed data elements and
4format protocols pursuant to a written agreement between the
5department and the Department of Justice.

6(B) (i) On or before January 7, 2005, the department shall notify
7the Department of Justice of all county offices that have
8department-delegated licensing authority.

9(ii) The department shall notify the Department of Justice within
1015 calendar days of the date on which a new county office receives
11department-delegated licensing authority or a county’s delegated
12licensing authority is rescinded.

13(C) The Department of Justice shall charge the department or
14a county office with department-delegated licensing authority a
15fee for each time a request to substitute the recipient agency is
16received for purposes of this paragraph. This fee shall not exceed
17the cost of providing the service.

18(i) Notwithstanding any otherbegin delete provision ofend delete law, the department
19may provide an individual with a copy of his or her state or federal
20level criminal offender record information search response as
21provided to that department by the Department of Justice if the
22department has denied a criminal background clearance based on
23this information and the individual makes a written request to the
24department for a copy specifying an address to which it is to be
25sent. The state or federal level criminal offender record information
26search response shall not be modified or altered from its form or
27content as provided by the Department of Justice and shall be
28provided to the address specified by the individual in his or her
29written request. The department shall retain a copy of the
30individual’s written request and the response and date provided.



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