Amended in Senate August 5, 2014

Amended in Senate June 18, 2014

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

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(Coauthors: Assembly Members Melendez, Quirk-Silva, and Wieckowski)

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(Coauthor: Senator Gaines)

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February 21, 2014


An act to amend Sections 1522, 1568.09, 1569.17, andbegin delete 1596.871,end deletebegin insert 1596.871end insert 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, foster family home or certified family home, residential care facilities for persons with a 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. 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. 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 a person who hasbegin insert violated or who hasend insert been arrested for specified crimes or for any crime for which the department is prohibited from granting a criminal record exemption 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.begin delete Thisend deletebegin insert Theend insert bill would also require the department, subsequent to licensing but prior to a person’s employment, residence, or initial presence in a specified facility, to secure from an appropriate law enforcement agency a criminal record to determine whether a person not exempt from fingerprinting or other person, as specified, has been convicted of a crime other than a minor traffic violation, arrested for certain crimes, or for any crime for which the department cannot grant an exemption.

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

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

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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
P3    1the year 1999, otherwise known as the California Crime
2Information Intelligence System (CAL-CII), to be used for
3applicant fingerprints. It is the intent of the Legislature in enacting
4this section to require the fingerprints 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 community care facility.

10(a) (1) Before and, as applicable, subsequent to issuing a license
11or special permit to any person or persons to operate or manage a
12community care facility, the State Department of Social Services
13shall secure from an appropriate law enforcement agency a criminal
14record to determine whether the applicant or any other person
15specified in subdivision (b) has ever been convicted of a crime
16other than a minor traffic violation or arrested for any crime
17specified in Section 290 of the Penal Code, or for violating Section
18245 or 273.5, of the Penal Code, subdivision (b) of Section 273a
19of the Penal Code, or, prior to January 1, 1994, paragraph (2) of
20Section 273a of the Penal Code, or for any crime for which the
21department is prohibited from granting a criminal record exemption
22pursuant to subdivision (g).

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

26(3) Except during the 2003-04 to the 2014-15 fiscal years,
27inclusive, neither the Department of Justice nor the State
28Department of Social Services may charge a fee for the
29fingerprinting of an applicant for a license or special permit to
30operate a facility providing nonmedical board, room, and care for
31six or less children or for obtaining a criminal record of the
32applicant pursuant to this section.

33(4) The following shall apply to the criminal record information:

34(A) If the State Department of Social Services finds that the
35applicant, or any other person specified in subdivision (b), has
36been convicted of a crime other than a minor traffic violation, the
37application shall be denied, unless the director grants an exemption
38pursuant to subdivision (g).

39(B) If the State Department of Social Services finds that the
40applicant, or any other person specified in subdivision (b), is
P4    1awaiting trial for a crime other than a minor traffic violation, the
2State Department of Social Services may cease processing the
3criminal record information until the conclusion of the trial.

4(C) If no criminal record information has been recorded, the
5Department of Justice shall provide the applicant and the State
6Department of Social Services with a statement of that fact.

7(D) If the State Department of Social Services finds after
8licensure that the licensee, or any other person specified in
9paragraph (1) of subdivision (b), has been convicted of a crime
10other than a minor traffic violation, the license may be revoked,
11unless the director grants an exemption pursuant to subdivision
12(g).

13(E) An applicant and any other person specified in subdivision
14(b) shall submit fingerprint images and related information to the
15Department of Justice for the purpose of searching the criminal
16records of the Federal Bureau of Investigation, in addition to the
17criminal records search required by this subdivision. If an applicant
18and all other persons described in subdivision (b) meet all of the
19conditions for licensure, except receipt of the Federal Bureau of
20Investigation’s criminal offender record information search
21response for the applicant or any of the persons described in
22subdivision (b), the department may issue a license if the applicant
23and each person described in subdivision (b) has signed and
24submitted a statement that he or she has never been convicted of
25 a crime in the United States, other than a traffic infraction, as
26prescribed in paragraph (1) of subdivision (a) of Section 42001 of
27the Vehicle Code. If, after licensure, the department determines
28that the licensee or any other person specified in subdivision (b)
29has a criminal record, the license may be revoked pursuant to
30Section 1550. The department may also suspend the license
31pending an administrative hearing pursuant to Section 1550.5.

32(F) The State Department of Social Services shall develop
33procedures to provide the individual’s state and federal criminal
34history information with the written notification of his or her
35exemption denial or revocation based on the criminal record.
36Receipt of the criminal history information shall be optional on
37the part of the individual, as set forth in the agency’s procedures.
38The procedure shall protect the confidentiality and privacy of the
39individual’s record, and the criminal history information shall not
40be made available to the employer.

P5    1(G) Notwithstanding any other law, the department is authorized
2to provide an individual with a copy of his or her state or federal
3level criminal offender record information search response as
4provided to that department by the Department of Justice if the
5 department has denied a criminal background clearance based on
6this information and the individual makes a written request to the
7department for a copy specifying an address to which it is to be
8sent. The state or federal level criminal offender record information
9search response shall not be modified or altered from its form or
10content as provided by the Department of Justice and shall be
11provided to the address specified by the individual in his or her
12written request. The department shall retain a copy of the
13individual’s written request and the response and date provided.

14(b) (1) In addition to the applicant, this section shall be
15applicable to criminal record clearances and exemptions for the
16following persons:

17(A) Adults responsible for administration or direct supervision
18of staff.

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

20(C) Any person who provides client assistance in dressing,
21grooming, bathing, or personal hygiene. Any nurse assistant or
22home health aide meeting the requirements of Section 1338.5 or
231736.6, respectively, who is not employed, retained, or contracted
24by the licensee, and who has been certified or recertified on or
25after July 1, 1998, shall be deemed to meet the criminal record
26clearance requirements of this section. A certified nurse assistant
27and certified home health aide who will be providing client
28assistance and who falls under this exemption shall provide one
29copy of his or her current certification, prior to providing care, to
30the community care facility. The facility shall maintain the copy
31of the certification on file as long as care is being provided by the
32certified nurse assistant or certified home health aide at the facility.
33Nothing in this paragraph restricts the right of the department to
34 exclude a certified nurse assistant or certified home health aide
35from a licensed community care facility pursuant to Section 1558.

36(D) Any staff person, volunteer, or employee who has contact
37with the clients.

38(E) If the applicant is a firm, partnership, association, or
39corporation, the chief executive officer or other person serving in
40like capacity.

P6    1(F) Additional officers of the governing body of the applicant,
2or other persons with a financial interest in the applicant, as
3determined necessary by the department by regulation. The criteria
4used in the development of these regulations shall be based on the
5person’s capability to exercise substantial influence over the
6operation of the facility.

7(2) The following persons are exempt from the requirements
8applicable under paragraph (1):

9(A) A medical professional as defined in department regulations
10who holds a valid license or certification from the person’s
11governing California medical care regulatory entity and who is
12not employed, retained, or contracted by the licensee if all of the
13following apply:

14(i) The criminal record of the person has been cleared as a
15condition of licensure or certification by the person’s governing
16California medical care regulatory entity.

17(ii) The person is providing time-limited specialized clinical
18care or services.

19(iii) The person is providing care or services within the person’s
20scope of practice.

21(iv) The person is not a community care facility licensee or an
22employee of the facility.

23(B) A third-party repair person or similar retained contractor if
24all of the following apply:

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

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

27(iii) When clients are present in the room in which the repair
28person or contractor is working, a staff person who has a criminal
29record clearance or exemption is also present.

30(C) Employees of a licensed home health agency and other
31members of licensed hospice interdisciplinary teams who have a
32contract with a client or resident of the facility and are in the
33facility at the request of that client or resident’s legal
34decisionmaker. The exemption does not apply to a person who is
35a community care facility licensee or an employee of the facility.

36(D) Clergy and other spiritual caregivers who are performing
37services in common areas of the community care facility or who
38are advising an individual client at the request of, or with the
39permission of, the client or legal decisionmaker, are exempt from
40fingerprint and criminal background check requirements imposed
P7    1by community care licensing. This exemption does not apply to a
2person who is a community care licensee or employee of the
3facility.

4(E) Members of fraternal, service, or similar organizations who
5conduct group activities for clients if all of the following apply:

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

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

8(iii) The same organization does not conduct group activities
9for clients more often than defined by the department’s regulations.

10(3) In addition to the exemptions in paragraph (2), the following
11persons in foster family homes, certified family homes, and small
12family homes are exempt from the requirements applicable under
13paragraph (1):

14(A) Adult friends and family of the licensed or certified foster
15parent, who come into the home to visit for a length of time no
16longer than defined by the department in regulations, provided
17that the adult friends and family of the licensee are not left alone
18with the foster children. However, the licensee, acting as a
19reasonable and prudent parent, as defined in paragraph (2) of
20subdivision (a) of Section 362.04 of the Welfare and Institutions
21Code, may allow his or her adult friends and family to provide
22short-term care to the foster child and act as an appropriate
23occasional short-term babysitter for the child.

24(B) Parents of a foster child’s friend when the foster child is
25visiting the friend’s home and the friend, licensed or certified foster
26parent, or both are also present. However, the licensee, acting as
27a reasonable and prudent parent, may allow the parent of the foster
28child’s friend to act as an appropriate short-term babysitter for the
29child without the friend being present.

30(C) Individuals who are engaged by any licensed or certified
31foster parent to provide short-term care to the child for periods not
32to exceed 24 hours. Caregivers shall use a reasonable and prudent
33parent standard in selecting appropriate individuals to act as
34appropriate occasional short-term babysitters.

35(4) In addition to the exemptions specified in paragraph (2), the
36following persons in adult day care and adult day support centers
37are exempt from the requirements applicable under paragraph (1):

38(A) Unless contraindicated by the client’s individualized
39program plan (IPP) or needs and service plan, a spouse, significant
40other, relative, or close friend of a client, or an attendant or a
P8    1facilitator for a client with a developmental disability if the
2attendant or facilitator is not employed, retained, or contracted by
3the licensee. This exemption applies only if the person is visiting
4the client or providing direct care and supervision to the client.

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

6(i) The volunteer is supervised by the licensee or a facility
7employee with a criminal record clearance or exemption.

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

9(iii) The volunteer does not provide any client assistance with
10dressing, grooming, bathing, or personal hygiene other than
11washing of hands.

12(5) (A) In addition to the exemptions specified in paragraph
13(2), the following persons in adult residential and social
14rehabilitation facilities, unless contraindicated by the client’s
15individualized program plan (IPP) or needs and services plan, are
16exempt from the requirements applicable under paragraph (1): a
17spouse, significant other, relative, or close friend of a client, or an
18attendant or a facilitator for a client with a developmental disability
19if the attendant or facilitator is not employed, retained, or
20contracted by the licensee. This exemption applies only if the
21person is visiting the client or providing direct care and supervision
22to that client.

23(B) Nothing in this subdivision shall prevent a licensee from
24requiring a criminal record clearance of any individual exempt
25from the requirements of this section, provided that the individual
26has client contact.

27(6) Any person similar to those described in this subdivision,
28as defined by the department in regulations.

29(c) (1) Subsequent to initial licensure, a person specified in
30subdivision (b) who is not exempted from fingerprinting shall
31obtain either a criminal record clearance or an exemption from
32disqualification pursuant to subdivision (g) from the State
33Department of Social Services prior to employment, residence, or
34initial presence in the facility. A person specified in subdivision
35(b) who is not exempt from fingerprinting shall be fingerprinted
36and shall sign a declaration under penalty of perjury regarding any
37prior criminal convictions. The licensee shall submit fingerprint
38images and related information to the Department of Justice and
39the Federal Bureau of Investigation, through the Department of
40Justice, for a state and federal level criminal offender record
P9    1information search, or comply with paragraph (1) of subdivision
2(h). These fingerprint images and related information shall be sent
3by electronic transmission in a manner approved by the State
4Department of Social Services and the Department of Justice for
5the purpose of obtaining a permanent set of fingerprints, and shall
6be submitted to the Department of Justice by the licensee. A
7licensee’s failure to prohibit the employment, residence, or initial
8presence of a person specified in subdivision (b) who is not exempt
9from fingerprinting and who has not received either a criminal
10record clearance or an exemption from disqualification pursuant
11to subdivision (g) or to comply with paragraph (1) of subdivision
12(h), as required in this section, shall result in the citation of a
13deficiency and the immediate assessment of civil penalties in the
14amount of one hundred dollars ($100) per violation per day for a
15maximum of five days, unless the violation is a second or
16subsequent violation within a 12-month period in which case the
17civil penalties shall be in the amount of one hundred dollars ($100)
18per violation for a maximum of 30 days, and shall be grounds for
19disciplining the licensee pursuant to Section 1550. The department
20may assess civil penalties for continued violations as permitted by
21Section 1548. The fingerprint images and related information shall
22then be submitted to the Department of Justice for processing.
23Upon request of the licensee, who shall enclose a self-addressed
24stamped postcard for this purpose, the Department of Justice shall
25verify receipt of the fingerprints.

26(2) Within 14 calendar days of the receipt of the fingerprint
27images, the Department of Justice shall notify the State Department
28of Social Services of the criminal record information, as provided
29for in subdivision (a). If no criminal record information has been
30recorded, the Department of Justice shall provide the licensee and
31the State Department of Social Services with a statement of that
32fact within 14 calendar days of receipt of the fingerprint images.
33Documentation of the individual’s clearance or exemption from
34disqualification shall be maintained by the licensee and be available
35for inspection. If new fingerprint images are required for
36processing, the Department of Justice shall, within 14 calendar
37days from the date of receipt of the fingerprints, notify the licensee
38that the fingerprints were illegible, the Department of Justice shall
39notify the State Department of Social Services, as required by
40Section 1522.04, and shall also notify the licensee by mail, within
P10   114 days of electronic transmission of the fingerprints to the
2Department of Justice, if the person has no criminal history
3recorded. A violation of the regulations adopted pursuant to Section
41522.04 shall result in the citation of a deficiency and an immediate
5assessment of civil penalties in the amount of one hundred dollars
6($100) per violation per day for a maximum of five days, unless
7the violation is a second or subsequent violation within a 12-month
8period in which case the civil penalties shall be in the amount of
9one hundred dollars ($100) per violation for a maximum of 30
10days, and shall be grounds for disciplining the licensee pursuant
11to Section 1550. The department may assess civil penalties for
12continued violations as permitted by Section 1548.

13(3) Except for persons specified in subdivision (b) who are
14exempt from fingerprinting, the licensee shall endeavor to ascertain
15the previous employment history of persons required to be
16fingerprinted. If it is determined by the State Department of Social
17Services, on the basis of the fingerprint images and related
18information submitted to the Department of Justice, that subsequent
19to obtaining a criminal record clearance or exemption from
20disqualification pursuant to subdivision (g), the person has been
21convicted of, or is awaiting trial for, a sex offense against a minor,
22or has been convicted for an offense specified in Section 243.4,
23273a, 273d, 273g, or 368 of the Penal Code, or a felony, the State
24Department of Social Services shall notify the licensee to act
25immediately to terminate the person’s employment, remove the
26person from the community care facility, or bar the person from
27entering the community care facility. The State Department of
28Social Services may subsequently grant an exemption from
29disqualification pursuant to subdivision (g). If the conviction or
30arrest was for another crime, except a minor traffic violation, the
31licensee shall, upon notification by the State Department of Social
32Services, act immediately to either (A) terminate the person’s
33employment, remove the person from the community care facility,
34or bar the person from entering the community care facility; or
35(B) seek an exemption from disqualification pursuant to subdivision
36(g). The State Department of Social Services shall determine if
37the person shall be allowed to remain in the facility until a decision
38on the exemption from disqualification is rendered. A licensee’s
39failure to comply with the department’s prohibition of employment,
40contact with clients, or presence in the facility as required by this
P11   1paragraph shall result in a citation of deficiency and an immediate
2assessment of civil penalties in the amount of one hundred dollars
3($100) per violation per day and shall be grounds for disciplining
4the licensee pursuant to Section 1550.

5(4) The department may issue an exemption from
6disqualification on its own motion pursuant to subdivision (g) if
7the person’s criminal history indicates that the person is of good
8character based on the age, seriousness, and frequency of the
9conviction or convictions. The department, in consultation with
10interested parties, shall develop regulations to establish the criteria
11to grant an exemption from disqualification pursuant to this
12paragraph.

13(5) Concurrently with notifying the licensee pursuant to
14paragraph (3), the department shall notify the affected individual
15of his or her right to seek an exemption from disqualification
16pursuant to subdivision (g). The individual may seek an exemption
17from disqualification only if the licensee terminates the person’s
18employment or removes the person from the facility after receiving
19notice from the department pursuant to paragraph (3).

20(d) (1) Before and, as applicable, subsequent to issuing a license
21or certificate of approval to any person or persons to operate a
22foster family home or certified family home as described in Section
231506, the State Department of Social Services or other approving
24authority shall secure California and Federal Bureau of
25Investigation criminal history information to determine whether
26the applicant or any person specified in subdivision (b) who is not
27exempt from fingerprinting has ever been convicted of a crime
28other than a minor traffic violation or arrested for any crime
29specified in subdivision (c) of Section 290 of the Penal Code, for
30violating Section 245 or 273.5, subdivision (b) of Section 273a,
31or, prior to January 1, 1994, paragraph (2) of Section 273a, of the
32Penal Code, or for any crime for which the department is prohibited
33from granting a criminal record exemption pursuant to subdivision
34(g). The State Department of Social Services or other approving
35authority shall not issue a license or certificate of approval to any
36foster family home or certified family home applicant who has not
37obtained both a California and Federal Bureau of Investigation
38criminal record clearance or exemption from disqualification
39pursuant to subdivision (g).

P12   1(2) The criminal history information shall include the full
2criminal record, if any, of those persons.

3(3) Neither the Department of Justice nor the State Department
4of Social Services may charge a fee for the fingerprinting of an
5applicant for a license, special permit, or certificate of approval
6described in this subdivision. The record, if any, shall be taken
7into consideration when evaluating a prospective applicant.

8(4) The following shall apply to the criminal record information:

9(A) If the applicant or other persons specified in subdivision
10(b) who are not exempt from fingerprinting have convictions that
11would make the applicant’s home unfit as a foster family home or
12a certified family home, the license, special permit, certificate of
13approval, or presence shall be denied.

14(B) If the State Department of Social Services finds that the
15applicant, or any person specified in subdivision (b) who is not
16exempt from fingerprinting is awaiting trial for a crime other than
17a minor traffic violation, the State Department of Social Services
18or other approving authority may cease processing the criminal
19record information until the conclusion of the trial.

20(C) For purposes of this subdivision, a criminal record clearance
21provided under Section 8712 of the Family Code may be used by
22the department or other approving agency.

23(D) To the same extent required for federal funding, an applicant
24for a foster family home license or for certification as a family
25home, and any other person specified in subdivision (b) who is
26not exempt from fingerprinting, shall submit a set of 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, in addition to the criminal records search
31required by subdivision (a).

32(5) Any person specified in this subdivision shall, as a part of
33the application, be fingerprinted and sign a declaration under
34penalty of perjury regarding any prior criminal convictions or
35arrests for any crime against a child, spousal or cohabitant abuse,
36or any crime for which the department cannot grant an exemption
37if the person was convicted and shall submit these fingerprints to
38the licensing agency or other approving authority.

39(6) (A) Subsequent to initial licensure or certification, a person
40specified in subdivision (b) who is not exempt from fingerprinting
P13   1shall obtain both a California and Federal Bureau of Investigation
2criminal record clearance, or an exemption from disqualification
3pursuant to subdivision (g), prior to employment, residence, or
4initial presence in the foster family or certified family home. A
5foster family home licensee or foster family agency shall submit
6fingerprint images and related information of persons specified in
7subdivision (b) who are not exempt from fingerprinting to the
8Department of Justice and the Federal Bureau of Investigation,
9through the Department of Justice, for a state and federal level
10criminal offender record information search, or to comply with
11paragraph (1) of subdivision (h). A foster family home licensee’s
12or a foster family agency’s failure to either prohibit the
13employment, residence, or initial presence of a person specified
14in subdivision (b) who is not exempt from fingerprinting and who
15has not received either a criminal record clearance or an exemption
16from disqualification pursuant to subdivision (g), or comply with
17paragraph (1) of subdivision (h), as required in this section, shall
18result in a citation of a deficiency, and the immediate civil penalties
19of one 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 1550. A violation of the regulation
25adopted pursuant to Section 1522.04 shall result in the citation of
26a deficiency and an immediate assessment of civil penalties in the
27amount of one hundred dollars ($100) per violation per day for a
28maximum of five days, unless the violation is a second or
29subsequent violation within a 12-month period in which case the
30civil penalties shall be in the amount of one hundred dollars ($100)
31per violation for a maximum of 30 days, and shall be grounds for
32disciplining the foster family home licensee or the foster family
33agency pursuant to Section 1550. The State Department of Social
34Services may assess penalties for continued violations, as permitted
35by Section 1548. The fingerprint images shall then be submitted
36to the Department of Justice for processing.

37(B) Upon request of the licensee, who shall enclose a
38self-addressed envelope for this purpose, the Department of Justice
39shall verify receipt of the fingerprints. Within five working days
40of the receipt of the criminal record or information regarding
P14   1criminal convictions from the Department of Justice, the
2department shall notify the applicant of any criminal arrests or
3convictions. If no arrests or convictions are recorded, the
4Department of Justice shall provide the foster family home licensee
5or the foster family agency with a statement of that fact concurrent
6with providing the information to the State Department of Social
7 Services.

8(7) If the State Department of Social Services finds that the
9applicant, or any other person specified in subdivision (b) who is
10not exempt from fingerprinting, has been convicted of a crime
11other than a minor traffic violation, the application or presence
12shall be denied, unless the director grants an exemption from
13disqualification pursuant to subdivision (g).

14(8) If the State Department of Social Services finds after
15licensure or the granting of the certificate of approval that the
16licensee, certified foster parent, or any other person specified in
17subdivision (b) who is not exempt from fingerprinting, has been
18convicted of a crime other than a minor traffic violation, the license
19or certificate of approval may be revoked by the department or the
20foster family agency, whichever is applicable, unless the director
21grants an exemption from disqualification pursuant to subdivision
22 (g). A licensee’s failure to comply with the department’s
23prohibition of employment, contact with clients, or presence in
24the facility as required by paragraph (3) of subdivision (c) shall
25be grounds for disciplining the licensee pursuant to Section 1550.

26(e) (1) The State Department of Social Services shall not use
27a record of arrest to deny, revoke, or terminate any application,
28license, employment, or residence unless the department
29investigates the incident and secures evidence, whether or not
30related to the incident of arrest, that is admissible in an
31administrative hearing to establish conduct by the person that may
32pose a risk to the health and safety of any person who is or may
33become a client.

34(2) The department shall not issue a criminal record clearance
35to a person who has been arrested for any crime specified in Section
36290 of the Penal Code, or for violating Section 245 or 273.5,
37subdivision (b) of Section 273a, of the Penal Code, or, prior to
38January 1, 1994, paragraph (2) of Section 273a of the Penal Code,
39or for any crime for which the department is prohibited from
40granting a criminal record exemption pursuant to subdivision (g),
P15   1prior to the department’s completion of an investigation pursuant
2to paragraph (1).

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

8(f) (1) For purposes of this section or any other provision of
9this chapter, a conviction means a plea or verdict of guilty or a
10conviction following a plea of nolo contendere. Any action that
11the State Department of Social Services is permitted to take
12following the establishment of a conviction may be taken when
13the time for appeal has elapsed, when the judgment of conviction
14has been affirmed on appeal, or when an order granting probation
15is made suspending the imposition of sentence, notwithstanding
16a subsequent order pursuant to Sections 1203.4 and 1203.4a of the
17Penal Code permitting the person to withdraw his or her plea of
18guilty and to enter a plea of not guilty, or setting aside the verdict
19of guilty, or dismissing the accusation, information, or indictment.
20For purposes of this section or any other provision of this chapter,
21the record of a conviction, or a copy thereof certified by the clerk
22of the court or by a judge of the court in which the conviction
23occurred, shall be conclusive evidence of the conviction. For
24purposes of this section or any other provision of this chapter, the
25arrest disposition report certified by the Department of Justice, or
26documents admissible in a criminal action pursuant to Section
27969b of the Penal Code, shall be prima facie evidence of the
28conviction, notwithstanding any other law prohibiting the
29admission of these documents in a civil or administrative action.

30(2) For purposes of this section or any other provision of this
31chapter, the department shall consider criminal convictions from
32another state or federal court as if the criminal offense was
33committed in this state.

34(g) (1) After review of the record, the director may grant an
35exemption from disqualification for a license or special permit as
36specified in paragraph (4) of subdivision (a), or for a license,
37special permit, or certificate of approval as specified in paragraphs
38(4), (7), and (8) of subdivision (d), or for employment, residence,
39or presence in a community care facility as specified in paragraphs
40(3), (4), and (5) of subdivision (c), if the director has substantial
P16   1and convincing evidence to support a reasonable belief that the
2applicant and the person convicted of the crime, if other than the
3applicant, are of good character as to justify issuance of the license
4or special permit or granting an exemption for purposes of
5subdivision (c). Except as otherwise provided in this subdivision,
6an exemption shall not be granted pursuant to this subdivision if
7the conviction was for any of the following offenses:

8(A) (i) An offense specified in Section 220, 243.4, or 264.1,
9subdivision (a) of Section 273a, or, prior to January 1, 1994,
10paragraph (1) of Section 273a, Section 273d, 288, or 289,
11subdivision (c) of Section 290, or Section 368, of the Penal Code,
12or was a conviction of another crime against an individual specified
13in subdivision (c) of Section 667.5 of the Penal Code.

14(ii) Notwithstanding clause (i), the director may grant an
15exemption regarding the conviction for an offense described in
16paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5
17of the Penal Code, if the employee or prospective employee has
18been rehabilitated as provided in Section 4852.03 of the Penal
19Code, has maintained the conduct required in Section 4852.05 of
20the Penal Code for at least 10 years, and has the recommendation
21of the district attorney representing the employee’s county of
22residence, or if the employee or prospective employee has received
23a certificate of rehabilitation pursuant to Chapter 3.5 (commencing
24with Section 4852.01) of Title 6 of Part 3 of the Penal Code. This
25clause shall not apply to foster care providers, including relative
26caregivers, nonrelated extended family members, or any other
27person specified in subdivision (b), in those homes where the
28individual has been convicted of an offense described in paragraph
29(1) of subdivision (c) of Section 667.5 of the Penal Code.

30(B) A felony offense specified in Section 729 of the Business
31and Professions Code or Section 206 or 215, subdivision (a) of
32Section 347, subdivision (b) of Section 417, or subdivision (a) of
33Section 451 of the Penal Code.

34(C) Under no circumstances shall an exemption be granted
35pursuant to this subdivision to any foster care provider applicant
36if that applicant, or any other person specified in subdivision (b)
37in those homes, has a felony conviction for either of the following
38offenses:

39(i) A felony conviction for child abuse or neglect, spousal abuse,
40crimes against a child, including child pornography, or for a crime
P17   1involving violence, including rape, sexual assault, or homicide,
2but not including other physical assault and battery. For purposes
3of this subparagraph, a crime involving violence means a violent
4crime specified in clause (i) of subparagraph (A), or subparagraph
5(B).

6(ii) A felony conviction, within the last five years, for physical
7assault, battery, or a drug- or alcohol-related offense.

8(iii) This subparagraph shall not apply to licenses or approvals
9wherein a caregiver was granted an exemption to a criminal
10conviction described in clause (i) or (ii) prior to the enactment of
11this subparagraph.

12(iv) This subparagraph shall remain operative only to the extent
13that compliance with its provisions is required by federal law as
14a condition for receiving funding under Title IV-E of the federal
15Social Security Act (42 U.S.C. Sec. 670 et seq.).

16(2) The department shall not prohibit a person from being
17employed or having contact with clients in a facility on the basis
18of a denied criminal record exemption request or arrest information
19unless the department complies with the requirements of Section
201558.

21(h) (1) For purposes of compliance with this section, the
22department may permit an individual to transfer a current criminal
23record clearance, as defined in subdivision (a), from one facility
24to another, as long as the criminal record clearance has been
25processed through a state licensing district office, and is being
26transferred to another facility licensed by a state licensing district
27office. The request shall be in writing to the State Department of
28Social Services, and shall include a copy of the person’s driver’s
29license or valid identification card issued by the Department of
30Motor Vehicles, or a valid photo identification issued by another
31state or the United States government if the person is not a
32California resident. Upon request of the licensee, who shall enclose
33a self-addressed envelope for this purpose, the State Department
34of Social Services shall verify whether the individual has a
35clearance that can be transferred.

36(2) The State Department of Social Services shall hold criminal
37record clearances in its active files for a minimum of three years
38after an employee is no longer employed at a licensed facility in
39order for the criminal record clearance to be transferred.

P18   1(3) The following shall apply to a criminal record clearance or
2exemption from the department or a county office with
3department-delegated licensing authority:

4(A) A county office with department-delegated licensing
5authority may accept a clearance or exemption from the
6department.

7(B) The department may accept a clearance or exemption from
8any county office with department-delegated licensing authority.

9(C) A county office with department-delegated licensing
10authority may accept a clearance or exemption from any other
11county office with department-delegated licensing authority.

12(4) With respect to notifications issued by the Department of
13Justice pursuant to Section 11105.2 of the Penal Code concerning
14an individual whose criminal record clearance was originally
15processed by the department or a county office with
16department-delegated licensing authority, all of the following shall
17apply:

18(A) The Department of Justice shall process a request from the
19department or a county office with department-delegated licensing
20authority to receive the notice only if all of the following conditions
21are met:

22(i) The request shall be submitted to the Department of Justice
23by the agency to be substituted to receive the notification.

24(ii)  The request shall be for the same applicant type as the type
25for which the original clearance was obtained.

26(iii) The request shall contain all prescribed data elements and
27format protocols pursuant to a written agreement between the
28department and the Department of Justice.

29(B) (i) On or before January 7, 2005, the department shall notify
30the Department of Justice of all county offices that have
31department-delegated licensing authority.

32(ii) The department shall notify the Department of Justice within
3315 calendar days of the date on which a new county office receives
34department-delegated licensing authority or a county’s delegated
35licensing authority is rescinded.

36(C) The Department of Justice shall charge the department, a
37county office with department-delegated licensing authority, or a
38county child welfare agency with criminal record clearance and
39exemption authority, a fee for each time a request to substitute the
P19   1recipient agency is received for purposes of this paragraph. This
2fee shall not exceed the cost of providing the service.

3(5) (A) A county child welfare agency with authority to secure
4clearances pursuant to Section 16504.5 of the Welfare and
5Institutions Code and to grant exemptions pursuant to Section
6361.4 of the Welfare and Institutions Code may accept a clearance
7or exemption from another county with criminal record and
8exemption authority pursuant to these sections.

9(B) With respect to notifications issued by the Department of
10Justice pursuant to Section 11105.2 of the Penal Code concerning
11an individual whose criminal record clearance was originally
12processed by a county child welfare agency with criminal record
13clearance and exemption authority, the Department of Justice shall
14process a request from a county child welfare agency with criminal
15record and exemption authority to receive the notice only if all of
16the following conditions are met:

17(i) The request shall be submitted to the Department of Justice
18by the agency to be substituted to receive the notification.

19(ii) The request shall be for the same applicant type as the type
20for which the original clearance was obtained.

21(iii) The request shall contain all prescribed data elements and
22format protocols pursuant to a written agreement between the State
23Department of Social Services and the Department of Justice.

24(i) The full criminal record obtained for purposes of this section
25may be used by the department or by a licensed adoption agency
26as a clearance required for adoption purposes.

27(j) If a licensee or facility is required by law to deny employment
28or to terminate employment of any employee based on written
29notification from the state department that the employee has a prior
30criminal conviction or is determined unsuitable for employment
31under Section 1558, the licensee or facility shall not incur civil
32liability or unemployment insurance liability as a result of that
33denial or termination.

34(k) The State Department of Social Services may charge a fee
35for the costs of processing electronic fingerprint images and related
36information.

37(l) Amendments to this section made in the 1999 portion of the
381999-2000 Regular Session shall be implemented commencing
3960 days after the effective date of the act amending this section in
40the 1999 portion of the 1999-2000 Regular Session, except that
P20   1those provisions for the submission of fingerprints for searching
2the records of the Federal Bureau of Investigation shall be
3implemented 90 days after the effective date of that act.

end delete
4begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 1522 of the end insertbegin insertHealth and Safety Codeend insertbegin insert is
5amended to read:end insert

6

1522.  

The Legislature recognizes the need to generate timely
7and accurate positive fingerprint identification of applicants as a
8condition of issuing licenses, permits, or certificates of approval
9for persons to operate or provide direct care services in a
10community care facility, foster family home, or a certified family
11home of a licensed foster family agency. Therefore, the Legislature
12supports the use of the fingerprint live-scan technology, as
13identified in the long-range plan of the Department of Justice for
14fully automating the processing of fingerprints and other data by
15the year 1999, otherwise known as the California Crime
16Information Intelligence System (CAL-CII), to be used for
17applicant fingerprints. It is the intent of the Legislature in enacting
18this section to require the fingerprints of those individuals whose
19contact with community care clients may pose a risk to the clients’
20health and safety. An individual shall be required to obtain either
21a criminal record clearance or a criminal record exemption from
22the State Department of Social Services before his or her initial
23presence in a community care facility or certified family home.

24(a) (1) Beforebegin insert and, as applicable, subsequent toend insert issuing a license
25or special permit to any person or persons to operate or manage a
26community care facility, the State Department of Social Services
27shall secure from an appropriate law enforcement agency a criminal
28record to determine whether the applicant or any other person
29specified in subdivision (b) has ever been convicted of a crime
30other than a minor traffic violation or arrested for any crime
31specified in Section 290 of the Penal Code,begin insert orend insert for violating Section
32245begin insert, 273ab,end insert orbegin delete 273.5,end deletebegin insert 273.5end insert of the Penal Code, subdivision (b) of
33Section 273a of the Penal Code, or, prior to January 1, 1994,
34paragraph (2) of Section 273a of the Penal Code, or for any crime
35for which the departmentbegin delete cannot grant an exemption if the person
36was convicted and the person has not been exoneratedend delete
begin insert is prohibited
37from granting a criminal record exemption pursuant to subdivision
38(g)end insert
.

P21   1(2) The criminal history information shall include the full
2criminal record, if any, of those persons, and subsequent arrest
3information pursuant to Section 11105.2 of the Penal Code.

4(3) Except during the 2003-04 to the 2014-15 fiscal years,
5inclusive, neither the Department of Justice nor the State
6Department of Social Services may charge a fee for the
7fingerprinting of an applicant for a license or special permit to
8operate a facility providing nonmedical board, room, and care for
9six or less children or for obtaining a criminal record of the
10applicant pursuant to this section.

11(4) The following shall apply to the criminal record information:

12(A) If the State Department of Social Services finds that the
13applicant, or any other person specified in subdivision (b), has
14been convicted of a crime other than a minor traffic violation, the
15application shall be denied, unless the director grants an exemption
16pursuant to subdivision (g).

17(B) If the State Department of Social Services finds that the
18applicant, or any other person specified in subdivisionbegin delete (b)end deletebegin insert (b),end insert is
19awaiting trial for a crime other than a minor traffic violation, the
20State Department of Social Services may cease processing the
21begin delete applicationend deletebegin insert criminal record informationend insert until the conclusion of
22the trial.

23(C) If no criminal record information has been recorded, the
24Department of Justice shall provide the applicant and the State
25Department of Social Services with a statement of that fact.

26(D) If the State Department of Social Services finds after
27licensure that the licensee, or any other person specified in
28paragraph (1) of subdivision (b), has been convicted of a crime
29other than a minor traffic violation, the license may be revoked,
30unless the director grants an exemption pursuant to subdivision
31(g).

32(E) An applicant and any other person specified in subdivision
33(b) shall submit fingerprint images and related information to the
34Department of Justice for the purpose of searching the criminal
35records of the Federal Bureau of Investigation, in addition to the
36criminal records search required by this subdivision. If an applicant
37and all other persons described in subdivision (b) meet all of the
38conditions for licensure, except receipt of the Federal Bureau of
39Investigation’s criminal offender record information search
40response for the applicant or any of the persons described in
P22   1subdivision (b), the department may issue a license if the applicant
2and each person described in subdivision (b) has signed and
3submitted a statement that he or she has never been convicted of
4a crime in the United States, other than a traffic infraction, as
5prescribed in paragraph (1) of subdivision (a) of Section 42001 of
6the Vehicle Code. If, after licensure, or the issuance of a certificate
7of approval of a certified family home by a foster family agency,
8the department determines that the licensee or any other person
9specified in subdivision (b) has a criminal record, the department
10may revoke the license, or require a foster family agency to revoke
11the certificate of approval, pursuant to Section 1550. The
12department may also suspend the license or require a foster family
13agency to suspend the certificate of approval pending an
14administrative hearing pursuant to Section 1550.5.

15(F) The State Department of Social Services shall develop
16procedures to provide the individual’s state and federal criminal
17history information with the written notification of his or her
18exemption denial or revocation based on the criminal record.
19Receipt of the criminal history information shall be optional on
20the part of the individual, as set forth in the agency’s procedures.
21The procedure shall protect the confidentiality and privacy of the
22individual’s record, and the criminal history information shall not
23be made available to the employer.

24(G) Notwithstanding any other law, the department is authorized
25to provide an individual with a copy of his or her state or federal
26level criminal offender record information search response as
27provided to that department by the Department of Justice if the
28department has denied a criminal background clearance based on
29this information and the individual makes a written request to the
30department for a copy specifying an address to which it is to be
31sent. The state or federal level criminal offender record information
32search response shall not be modified or altered from its form or
33content as provided by the Department of Justice and shall be
34provided to the address specified by the individual in his or her
35written request. The department shall retain a copy of the
36individual’s written request and the response and date provided.

37(b) (1) In addition to the applicant, this section shall be
38applicable to criminalbegin delete convictions ofend deletebegin insert record clearances and
39exemptions forend insert
the following persons:

P23   1(A) Adults responsible for administration or direct supervision
2of staff.

3(B) Any person, other than a client, residing in the facility or
4certified family home.

5(C) Any person who provides client assistance in dressing,
6grooming, bathing, or personal hygiene. Any nurse assistant or
7home health aide meeting the requirements of Section 1338.5 or
81736.6, respectively, who is not employed, retained, or contracted
9by the licensee, and who has been certified or recertified on or
10after July 1, 1998, shall be deemed to meet the criminal record
11clearance requirements of this section. A certified nurse assistant
12and certified home health aide who will be providing client
13assistance and who falls under this exemption shall provide one
14copy of his or her current certification, prior to providing care, to
15the community care facility. The facility shall maintain the copy
16of the certification on file as long as care is being provided by the
17certified nurse assistant or certified home health aide at the facility
18or certified family home. Nothing in this paragraph restricts the
19right of the department to exclude a certified nurse assistant or
20certified home health aide from a licensed community care facility
21or certified family home pursuant to Section 1558.

22(D) Any staff person, volunteer, or employee who has contact
23with the clients.

24(E) If the applicant is a firm, partnership, association, or
25corporation, the chief executive officer or other person serving in
26like capacity.

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

33(2) The following persons are exempt from the requirements
34applicable under paragraph (1):

35(A) A medical professional as defined in department regulations
36who holds a valid license or certification from the person’s
37governing California medical care regulatory entity and who is
38not employed, retained, or contracted by the licensee if all of the
39following apply:

P24   1(i) The criminal record of the person has been cleared as a
2condition of licensure or certification by the person’s governing
3California medical care regulatory entity.

4(ii) The person is providing time-limited specialized clinical
5care or services.

6(iii) The person is providing care or services within the person’s
7scope of practice.

8(iv) The person is not a community care facility licensee or an
9employee of the facility.

10(B) A third-party repair person or similar retained contractor if
11all of the following apply:

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

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

14(iii) When clients are present in the room in which the repair
15person or contractor is working, a staff person who has a criminal
16record clearance or exemption is also present.

17(C) Employees of a licensed home health agency and other
18members of licensed hospice interdisciplinary teams who have a
19contract with a client or resident of the facility and are in the
20facility at the request of that client or resident’s legal
21decisionmaker. The exemption does not apply to a person who is
22a community care facility licensee or an employee of the facility.

23(D) Clergy and other spiritual caregivers who are performing
24services in common areas of the community care facility or who
25are advising an individual client at the request of, or with the
26permission of, the client or legal decisionmaker, are exempt from
27fingerprint and criminal background check requirements imposed
28by community care licensing. This exemption does not apply to a
29person who is a community care licensee or employee of the
30facility.

31(E) Members of fraternal, service, or similar organizations who
32conduct group activities for clients if all of the following apply:

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

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

35(iii) The same organization does not conduct group activities
36for clients more often than defined by the department’s regulations.

37(3) In addition to the exemptions in paragraph (2), the following
38persons in foster family homes, certified family homes, and small
39family homes are exempt from the requirements applicable under
40paragraph (1):

P25   1(A) Adult friends and family of the licensed or certified foster
2parent, who come into the home to visit for a length of time no
3longer than defined by the department in regulations, provided
4that the adult friends and family of the licensee or certified parent
5are not left alone with the foster children. However, the licensee
6or certified parent, acting as a reasonable and prudent parent, as
7defined in paragraph (2) of subdivision (a) of Section 362.04 of
8the Welfare and Institutions Code, may allow his or her adult
9friends and family to provide short-term care to the foster child
10and act as an appropriate occasional short-term babysitter for the
11child.

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

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

23(4) In addition to the exemptions specified in paragraph (2), the
24following persons in adult day care and adult day support centers
25are exempt from the requirements applicable under paragraph (1):

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

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

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

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

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

P26   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
P27   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
P28   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,begin insert 273ab,end insert 273d, 273g, or 368 of the Penal Code, or a felony,
14the State Department of Social Services shall notify the licensee
15to act immediately to terminate the person’s employment, remove
16the person from the community care facility, or bar the person
17from entering the community care facility. The State Department
18of Social 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
P29   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) Beforebegin insert and, as applicable, subsequent toend insert issuing a
11license or certificate of approval to any person or persons to operate
12a foster family home or certified family home as described in
13Section 1506, the State Department of Social Services or other
14approving authority shall secure California and Federal Bureau of
15Investigation criminal history information to determine whether
16the applicant or any person specified in subdivision (b) who is not
17exempt from fingerprinting has ever been convicted of a crime
18other than a minor traffic violation or arrested for any crime
19specified in subdivision (c) of Section 290 of the Penal Code, for
20violating Section 245begin insert, 273ab,end insert or 273.5, subdivision (b) of Section
21begin delete 273aend deletebegin insert 273a,end insert or, prior to January 1, 1994, paragraph (2) of Section
22begin delete 273aend deletebegin insert 273a,end insert of the Penal Code, or for any crime for which the
23departmentbegin delete cannot grant an exemption if the person was convicted
24and the person has not been exoneratedend delete
begin insert is prohibited from granting
25a criminal record exemption pursuant to subdivision (g)end insert
. The State
26Department of Social Services or other approving authority shall
27not issue a license or certificate of approval to any foster family
28home or certified family home applicant who has not obtained
29both a California and Federal Bureau of Investigation criminal
30record clearance or exemption from disqualification pursuant to
31subdivision (g).

32(2) The criminal history information shall include the full
33criminal record, if any, of those persons.

34(3) Neither the Department of Justice nor the State Department
35of Social Services may charge a fee for the fingerprinting of an
36applicant for a license, special permit, or certificate of approval
37described in this subdivision. The record, if any, shall be taken
38into consideration when evaluating a prospective applicant.

39(4) The following shall apply to the criminal record information:

P30   1(A) If the applicant or other persons specified in subdivision
2(b) who are not exempt from fingerprinting have convictions that
3would make the applicant’s home unfit as a foster family home or
4a certified family home, the license, special permit,begin delete orend delete certificate
5of approvalbegin insert, or presenceend insert shall be denied.

6(B) If the State Department of Social Services finds that the
7applicant, or any person specified in subdivision (b) who is not
8exempt from fingerprinting is awaiting trial for a crime other than
9a minor traffic violation, the State Department of Social Services
10or other approving authority may cease processing thebegin delete applicationend delete
11begin insert criminal record informationend insert until the conclusion of the trial.

12(C) For purposes of this subdivision, a criminal record clearance
13provided under Section 8712 of the Family Code may be used by
14the department or other approving agency.

15(D) To the same extent required for federal funding, an applicant
16 for a foster family home license or for certification as a family
17home, and any other person specified in subdivision (b) who is
18not exempt from fingerprinting, shall submit a set of fingerprint
19images and related information to the Department of Justice and
20the Federal Bureau of Investigation, through the Department of
21Justice, for a state and federal level criminal offender record
22information search, in addition to the criminal records search
23required by subdivision (a).

24(5) Any person specified in this subdivision shall, as a part of
25the application, be fingerprinted and sign a declaration under
26penalty of perjury regarding any prior criminal convictions or
27arrests for any crime against a child, spousal or cohabitantbegin delete abuse
28or,end delete
begin insert abuse, orend insert any crime for which the department cannot grant an
29exemption if the person was convicted and shall submit these
30fingerprints to the licensing agency or other approving authority.

31(6) (A) Subsequent to initial licensure or certification, a person
32specified in subdivision (b) who is not exempt from fingerprinting
33shall obtain both a California and Federal Bureau of Investigation
34criminal record clearance, or an exemption from disqualification
35pursuant to subdivision (g), prior to employment, residence, or
36initial presence in the foster family or certified family home. A
37foster family home licensee or foster family agency shall submit
38fingerprint images and related information of persons specified in
39subdivision (b) who are not exempt from fingerprinting to the
40Department of Justice and the Federal Bureau of Investigation,
P31   1through the Department of Justice, for a state and federal level
2criminal offender record information search, or to comply with
3paragraph (1) of subdivision (h). A foster family home licensee’s
4or a foster family agency’s failure to either prohibit the
5employment, residence, or initial presence of a person specified
6in subdivision (b) who is not exempt from fingerprinting and who
7has not received either a criminal record clearance or an exemption
8from disqualification pursuant to subdivision (g), or comply with
9paragraph (1) of subdivision (h), as required in this section, shall
10result in a citation of a deficiency, and the immediate civil penalties
11of one hundred dollars ($100) per violation per day for a maximum
12of five days, unless the violation is a second or subsequent violation
13within a 12-month period in which case the civil penalties shall
14be in the amount of one hundred dollars ($100) per violation for
15a maximum of 30 days, and shall be grounds for disciplining the
16licensee pursuant to Section 1550. A violation of the regulation
17adopted pursuant to Section 1522.04 shall result in the citation of
18a deficiency and an immediate assessment of civil penalties in the
19amount of one hundred dollars ($100) per violation per day for a
20maximum of five days, unless the violation is a second or
21subsequent violation within a 12-month period in which case the
22civil penalties shall be in the amount of one hundred dollars ($100)
23per violation for a maximum of 30 days, and shall be grounds for
24disciplining the foster family home licensee or the foster family
25agency pursuant to Section 1550. The State Department of Social
26Services may assess penalties for continued violations, as permitted
27by Section 1548. The fingerprint images shall then be submitted
28to the Department of Justice for processing.

29(B) Upon request of the licensee, who shall enclose a
30self-addressed envelope for this purpose, the Department of Justice
31shall verify receipt of the fingerprints. Within five working days
32of the receipt of the criminal record or information regarding
33criminal convictions from the Department of Justice, the
34department shall notify the applicant of any criminal arrests or
35convictions. If no arrests or convictions are recorded, the
36Department of Justice shall provide the foster family home licensee
37or the foster family agency with a statement of that fact concurrent
38with providing the information to the State Department of Social
39Services.

P32   1(7) If the State Department of Social Services or other approving
2authority finds that the applicant, or any other person specified in
3subdivision (b) who is not exempt from fingerprinting, has been
4convicted of a crime other than a minor traffic violation, the
5applicationbegin insert or presenceend insert shall be denied, unless the director grants
6an exemption from disqualification pursuant to subdivision (g).

7(8) If the State Department of Social Services or other approving
8authority finds after licensure or the granting of the certificate of
9approval that the licensee, certified foster parent, or any other
10person specified in subdivision (b) who is not exempt from
11fingerprinting, has been convicted of a crime other than a minor
12traffic violation, the license or certificate of approval may be
13revoked by the department or the foster family agency, whichever
14is applicable, unless the director grants an exemption from
15disqualification pursuant to subdivision (g). A licensee’s failure
16to comply with the department’s prohibition of employment,
17contact with clients, or presence in the facility as required by
18paragraph (3) of subdivision (c) shall be grounds for disciplining
19the licensee pursuant to Section 1550.

20(e) begin insert(1)end insertbegin insertend insertThe State Department of Social Services shall not use
21a record of arrest to deny, revoke, or terminate any application,
22license, employment, or residence unless the department
23investigates the incident and secures evidence, whether or not
24related to the incident of arrest, that is admissible in an
25administrative hearing to establish conduct by the person that may
26pose a risk to the health and safety of any person who is or may
27become a client. begin delete The State Department of Social Services is
28authorized to obtain any arrest or conviction records or reports
29from any law enforcement agency as necessary to the performance
30of its duties to inspect, license, and investigate community care
31facilities and individuals associated with a community care facility.end delete

begin insert

32(2) The department shall not issue a criminal record clearance
33to a person who has been arrested for any crime specified in
34Section 290 of the Penal Code, or for violating Section 245, 273ab,
35or 273.5, or subdivision (b) of Section 273a, of the Penal Code,
36or, prior to January 1, 1994, paragraph (2) of Section 273a of the
37Penal Code, or for any crime for which the department is
38prohibited from granting a criminal record exemption pursuant
39to subdivision (g), prior to the department’s completion of an
40investigation pursuant to paragraph (1).

end insert
begin insert

P33   1(3) The State Department of Social Services is authorized to
2obtain any arrest or conviction records or reports from any law
3enforcement agency as necessary to the performance of its duties
4to inspect, license, and investigate community care facilities and
5individuals associated with a community care facility.

end insert

6(f) (1) For purposes of this section or any other provision of
7this chapter, a conviction means a plea or verdict of guilty or a
8conviction following a plea of nolo contendere. Any action that
9the State Department of Social Services is permitted to take
10following the establishment of a conviction may be taken when
11the time for appeal has elapsed, when the judgment of conviction
12has been affirmed on appeal, or when an order granting probation
13is made suspending the imposition of sentence, notwithstanding
14a subsequent order pursuant to Sections 1203.4 and 1203.4a of the
15Penal Code permitting the person to withdraw his or her plea of
16guilty and to enter a plea of not guilty, or setting aside the verdict
17of guilty, or dismissing the accusation, information, or indictment.
18For purposes of this section or any other provision of this chapter,
19the record of a conviction, or a copy thereof certified by the clerk
20of the court or by a judge of the court in which the conviction
21occurred, shall be conclusive evidence of the conviction. For
22purposes of this section or any other provision of this chapter, the
23arrest disposition report certified by the Department of Justice, or
24documents admissible in a criminal action pursuant to Section
25969b of the Penal Code, shall be prima facie evidence of the
26conviction, notwithstanding any other law prohibiting the
27admission of these documents in a civil or administrative action.

28(2) For purposes of this section or any other provision of this
29 chapter, the department shall consider criminal convictions from
30another state or federal court as if the criminal offense was
31committed in this state.

32(g) (1) After review of the record, the director may grant an
33exemption from disqualification for a license or special permit as
34specified in paragraph (4) of subdivision (a), or for a license,
35special permit, or certificate of approval as specified in paragraphs
36(4), (7), and (8) of subdivision (d), or for employment, residence,
37or presence in a community care facility as specified in paragraphs
38(3), (4), and (5) of subdivision (c), if the director has substantial
39and convincing evidence to support a reasonable belief that the
40applicant and the person convicted of the crime, if other than the
P34   1applicant, are of good character as to justify issuance of the license
2or special permit or granting an exemption for purposes of
3subdivision (c). Except as otherwise provided in this subdivision,
4an exemption shall not be granted pursuant to this subdivision if
5the conviction was for any of the following offenses:

6(A) (i) An offense specified in Section 220, 243.4, or 264.1,
7subdivision (a) of Sectionbegin delete 273aend deletebegin insert 273a,end insert or, prior to January 1, 1994,
8paragraph (1) of Section 273a, Sectionbegin insert 273ab,end insert 273d, 288, or 289,
9subdivision (c) of Section 290, or Sectionbegin delete 368end deletebegin insert 368,end insert of the Penal
10Code, or was a conviction of another crime against an individual
11specified in subdivision (c) of Section 667.5 of the Penal Code.

12(ii) Notwithstanding clause (i), the director may grant an
13exemption regarding the conviction for an offense described in
14paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5
15of the Penal Code, if the employee or prospective employee has
16been rehabilitated as provided in Section 4852.03 of the Penal
17Code, has maintained the conduct required in Section 4852.05 of
18the Penal Code for at least 10 years, and has the recommendation
19of the district attorney representing the employee’s county of
20residence, or if the employee or prospective employee has received
21a certificate of rehabilitation pursuant to Chapter 3.5 (commencing
22with Section 4852.01) of Title 6 of Part 3 of the Penal Code. This
23clause shall not apply to foster care providers, including relative
24caregivers, nonrelated extended family members, or any other
25person specified in subdivision (b), in those homes where the
26individual has been convicted of an offense described in paragraph
27(1) of subdivision (c) of Section 667.5 of the Penal Code.

28(B) A felony offense specified in Section 729 of the Business
29and Professions Code or Section 206 or 215, subdivision (a) of
30Section 347, subdivision (b) of Section 417, or subdivision (a) of
31Section 451 of the Penal Code.

32(C) Under no circumstances shall an exemption be granted
33pursuant to this subdivision to any foster care provider applicant
34if that applicant, or any other person specified in subdivision (b)
35in those homes, has a felony conviction for either of the following
36offenses:

37(i) A felony conviction for child abuse or neglect, spousal abuse,
38crimes against a child, including child pornography, or for a crime
39involving violence, including rape, sexual assault, or homicide,
40but not including other physical assault and battery. For purposes
P35   1of this subparagraph, a crime involving violence means a violent
2crime specified in clause (i) of subparagraph (A), or subparagraph
3(B).

4(ii) A felony conviction, within the last five years, for physical
5assault, battery, or a drug- or alcohol-related offense.

6(iii) This subparagraph shall not apply to licenses or approvals
7wherein a caregiver was granted an exemption to a criminal
8conviction described in clause (i) or (ii) prior to the enactment of
9this subparagraph.

10(iv) This subparagraph shall remain operative only to the extent
11that compliance with its provisions is required by federal law as
12a condition for receiving funding under Title IV-E of the federal
13Social Security Act (42 U.S.C. Sec. 670 et seq.).

14(2) The department shall not prohibit a person from being
15employed or having contact with clients in a facility on the basis
16of a denied criminal record exemption request or arrest information
17unless the department complies with the requirements of Section
181558.

19(h) (1) For purposes of compliance with this section, the
20department may permit an individual to transfer a current criminal
21record clearance, as defined in subdivision (a), from one facility
22to another, as long as the criminal record clearance has been
23processed through a state licensing district office, and is being
24transferred to another facility licensed by a state licensing district
25office. The request shall be in writing to the State Department of
26Social Services, and shall include a copy of the person’s driver’s
27license or valid identification card issued by the Department of
28Motor Vehicles, or a valid photo identification issued by another
29state or the United States government if the person is not a
30California resident. Upon request of the licensee, who shall enclose
31a self-addressed envelope for this purpose, the State Department
32of Social Services shall verify whether the individual has a
33clearance that can be transferred.

34(2) The State Department of Social Services shall hold criminal
35record clearances in its active files for a minimum of three years
36after an employee is no longer employed at a licensed facility in
37order for the criminal record clearance to be transferred.

38(3) The following shall apply to a criminal record clearance or
39exemption from the department or a county office with
40department-delegated licensing authority:

P36   1(A) A county office with department-delegated licensing
2authority may accept a clearance or exemption from the
3department.

4(B) The department may accept a clearance or exemption from
5any county office with department-delegated licensing authority.

6(C) A county office with department-delegated licensing
7authority may accept a clearance or exemption from any other
8county office with department-delegated licensing authority.

9(4) With respect to notifications issued by the Department of
10Justice pursuant to Section 11105.2 of the Penal Code concerning
11an individual whose criminal record clearance was originally
12processed by the department or a county office with
13department-delegated licensing authority, all of the following shall
14apply:

15(A) The Department of Justice shall process a request from the
16department or a county office with department-delegated licensing
17authority to receive the notice only if all of the following conditions
18are met:

19(i) The request shall be submitted to the Department of Justice
20by the agency to be substituted to receive the notification.

21(ii)  The request shall be for the same applicant type as the type
22for which the original clearance was obtained.

23(iii) The request shall contain all prescribed data elements and
24format protocols pursuant to a written agreement between the
25department and the Department of Justice.

26(B) (i) On or before January 7, 2005, the department shall notify
27the Department of Justice of all county offices that have
28department-delegated licensing authority.

29(ii) The department shall notify the Department of Justice within
3015 calendar days of the date on which a new county office receives
31department-delegated licensing authority or a county’s delegated
32licensing authority is rescinded.

33(C) The Department of Justice shall charge the department, a
34county office with department-delegated licensing authority, or a
35county child welfare agency with criminal record clearance and
36exemption authority, a fee for each time a request to substitute the
37recipient agency is received for purposes of this paragraph. This
38fee shall not exceed the cost of providing the service.

39(5) (A) A county child welfare agency with authority to secure
40clearances pursuant to Section 16504.5 of the Welfare and
P37   1Institutions Code and to grant exemptions pursuant to Section
2361.4 of the Welfare and Institutions Code may accept a clearance
3or exemption from another county with criminal record and
4exemption authority pursuant to these sections.

5(B) With respect to notifications issued by the Department of
6Justice pursuant to Section 11105.2 of the Penal Code concerning
7an individual whose criminal record clearance was originally
8processed by a county child welfare agency with criminal record
9clearance and exemption authority, the Department of Justice shall
10process a request from a county child welfare agency with criminal
11record and exemption authority to receive the notice only if all of
12the following conditions are met:

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

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

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

20(i) The full criminal record obtained for purposes of this section
21may be used by the department or by a licensed adoption agency
22as a clearance required for adoption purposes.

23(j) If a licensee or facility is required by law to deny employment
24or to terminate employment of any employee based on written
25notification from the state department that the employee has a prior
26criminal conviction or is determined unsuitable for employment
27under Section 1558, the licensee or facility shall not incur civil
28liability or unemployment insurance liability as a result of that
29denial or termination.

30(k) The State Department of Social Services may charge a fee
31for the costs of processing electronic fingerprint images and related
32information.

33(l) Amendments to this section made in the 1999 portion of the
341999-2000 Regular Session shall be implemented commencing
3560 days after the effective date of the act amending this section in
36the 1999 portion of the 1999-2000 Regular Session, except that
37those provisions for the submission of fingerprints for searching
38the records of the Federal Bureau of Investigation shall be
39implemented 90 days after the effective date of that act.

P38   1

SEC. 2.  

Section 1568.09 of the Health and Safety Code is
2amended to read:

3

1568.09.  

It is the intent of the Legislature in enacting this
4section to require the electronic fingerprint images of those
5individuals whose contact with residents of residential care
6facilities for persons with a chronic, life-threatening illness may
7pose a risk to the residents’ health and safety.

8It is the intent of the Legislature, in enacting this section, to
9require the electronic fingerprint images of those individuals whose
10contact with community care clients may pose a risk to the clients’
11health and safety. An individual shall be required to obtain either
12a criminal record clearance or a criminal record exemption from
13the State Department of Social Services before his or her initial
14presence in a residential care facility for persons with a chronic,
15life-threatening illness.

16(a) (1) Before and, as applicable, subsequent to issuing a license
17to a person or persons to operate or manage a residential care
18facility, the department shall secure from an appropriate law
19enforcement agency a criminal record to determine whether the
20applicant or any other person specified in subdivision (b) has ever
21been convicted of a crime other than a minor traffic violation or
22arrested for any crime specified in subdivision (c) of Section 290
23of the Penal Code, or for violating Section 245begin insert, 273ab,end insert or 273.5,
24subdivision (b) of Section 273a, or, prior to January 1, 1994,
25paragraph (2) of Section 273a, of the Penal Code, or for any crime
26for which the department is prohibited from granting a criminal
27record exemption pursuant to subdivision (f).

28(2) The criminal history information shall include the full
29criminal record, if any, of those persons, and subsequent arrest
30information pursuant to Section 11105.2 of the Penal Code.

31(3) The following shall apply to the criminal record information:

32(A) If the State Department of Social Services finds that the
33applicant or another person specified in subdivision (b), has been
34convicted of a crime, other than a minor traffic violation, the
35application shall be denied, unless the director grants an exemption
36pursuant to subdivision (f).

37(B) If the State Department of Social Services finds that the
38applicant, or another person specified in subdivision (b), is awaiting
39trial for a crime other than a minor traffic violation, the State
P39   1Department of Social Services may cease processing the criminal
2record information until the conclusion of the trial.

3(C) If no criminal record information has been recorded, the
4Department of Justice shall provide the applicant and the State
5Department of Social Services with a statement of that fact.

6(D) If the State Department of Social Services finds after
7licensure that the licensee, or any other person specified in
8 paragraph (2) of subdivision (b), has been convicted of a crime
9other than a minor traffic violation, the license may be revoked,
10unless the director grants an exemption pursuant to subdivision
11(f).

12(E) An applicant and any other person specified in subdivision
13(b) shall submit fingerprint images and related information to the
14Department of Justice and the Federal Bureau of Investigation,
15through the Department of Justice, for a state and federal level
16criminal offender record information search, in addition to the
17search required by this subdivision. If an applicant meets all other
18conditions for licensure, except receipt of the Federal Bureau of
19Investigation’s criminal history information for the applicant and
20persons listed in subdivision (b), the department may issue a license
21if the applicant and each person described by subdivision (b) has
22signed and submitted a statement that he or she has never been
23convicted of a crime in the United States, other than a traffic
24infraction as defined in paragraph (1) of subdivision (a) of Section
2542001 of the Vehicle Code. If, after licensure, the department
26determines that the licensee or person specified in subdivision (b)
27has a criminal record, the license may be revoked pursuant to
28subdivision (a) of Section 1568.082. The department may also
29suspend the license pending an administrative hearing pursuant to
30subdivision (b) of Section 1568.082.

31(b) In addition to the applicant, this section shall be applicable
32to criminal record clearances and exemptions for the following
33persons:

34(1) Adults responsible for administration or direct supervision
35of staff of the facility.

36(2) A person, other than a resident, residing in the facility.

37(3) A person who provides resident assistance in dressing,
38grooming, bathing, or personal hygiene. A nurse assistant or home
39health aide meeting the requirements of Section 1338.5 or 1736.6,
40respectively, who is not employed, retained, or contracted by the
P40   1licensee, and who has been certified or recertified on or after July
21, 1998, shall be deemed to meet the criminal record clearance
3requirements of this section. A certified nurse assistant and certified
4home health aide who will be providing client assistance and who
5falls under this exemption shall provide one copy of his or her
6current certification, prior to providing care, to the residential care
7facility for persons with a chronic, life-threatening illness. The
8facility shall maintain the copy of the certification on file as long
9as care is being provided by the certified nurse assistant or certified
10home health aide at the facility. This paragraph does not restrict
11the right of the department to exclude a certified nurse assistant
12or certified home health aide from a licensed residential care
13facility for persons with a chronic, life-threatening illness pursuant
14to Section 1568.092.

15(4) (A) A staff person, volunteer, or employee who has contact
16with the residents.

17(B) A volunteer shall be exempt from the requirements of this
18subdivision if he or she is a relative, significant other, or close
19friend of a client receiving care in the facility and the volunteer
20does not provide direct care and supervision of residents. A
21volunteer who provides direct care and supervision shall be exempt
22if the volunteer is a resident’s spouse, significant other, close
23friend, or family member and provides direct care and supervision
24to that resident only at the request of the resident. The department
25may define in regulations persons similar to those described in this
26subparagraph who may be exempt from the requirements of this
27subdivision.

28(5) If the applicant is a firm, partnership, association, or
29corporation, the chief executive officer or other person serving in
30that capacity.

31(6) Additional officers of the governing body of the applicant,
32or other persons with a financial interest in the applicant, as
33determined necessary by the department by regulation. The criteria
34used in the development of these regulations shall be based on the
35person’s capability to exercise substantial influence over the
36operation of the facility.

37(c) (1) (A) Subsequent to initial licensure, a person specified
38in subdivision (b) and not exempted from fingerprinting shall
39obtain either a criminal record clearance or an exemption from
40disqualification, pursuant to subdivision (f), from the State
P41   1Department of Social Services prior to employment, residence, or
2initial presence in the facility. A person specified in subdivision
3(b) who is not exempt from fingerprinting shall be fingerprinted
4and shall sign a declaration under penalty of perjury regarding any
5prior criminal convictions. The licensee shall submit fingerprint
6images and related information to the Department of Justice and
7the Federal Bureau of Investigation, through the Department of
8Justice, for a state and federal level criminal offender record
9information search, or to comply with paragraph (1) of subdivision
10(g), prior to the person’s employment, residence, or initial presence
11in the residential care facility.

12(B) These fingerprint images and related information shall be
13electronically submitted to the Department of Justice in a manner
14approved by the State Department of Social Services and the
15Department of Justice, for the purpose of obtaining a permanent
16set of fingerprints. A licensee’s failure to submit fingerprint images
17 and related information to the Department of Justice, or to comply
18with paragraph (1) of subdivision (g), as required in this section,
19shall result in the citation of a deficiency and an immediate
20assessment of civil penalties in the amount of one hundred dollars
21($100) per violation per day for a maximum of five days, unless
22the violation is a second or subsequent violation within a 12-month
23period in which case the civil penalties shall be in the amount of
24one hundred dollars ($100) per violation for a maximum of 30
25days, and shall be grounds for disciplining the licensee pursuant
26to Section 1568.082. The State Department of Social Services may
27assess civil penalties for continued violations as allowed in Section
281568.0822. The fingerprint images and related information shall
29then be submitted to the Department of Justice for processing. The
30licensee shall maintain and make available for inspection
31documentation of the individual’s clearance or exemption.

32(2) 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
P42   1to Section 1568.082. The department may assess civil penalties
2for continued violations as permitted by Section 1568.0822.

3(3) Within 14 calendar days of the receipt of the fingerprint
4images, the Department of Justice shall notify the State Department
5of Social Services of the criminal record information, as provided
6for in this subdivision. If no criminal record information has been
7recorded, the Department of Justice shall provide the licensee and
8the State Department of Social Services with a statement of that
9fact within 14 calendar days of receipt of the fingerprint images.
10If new fingerprint images are required for processing, the
11Department of Justice shall, within 14 calendar days from the date
12of receipt of the fingerprint images, notify the licensee that the
13fingerprint images were illegible. The Department of Justice shall
14notify the department, as required by Section 1522.04, and shall
15notify the licensee by mail within 14 days of electronic
16transmission of the fingerprint images to the Department of Justice,
17if the person has no criminal history record.

18(4) Except for persons specified in paragraph (2) of subdivision
19(b), the licensee shall endeavor to ascertain the previous
20employment history of persons required to be fingerprinted under
21this subdivision. If it is determined by the State Department of
22Social Services, on the basis of the fingerprint images submitted
23to the Department of Justice, that the person has been convicted
24of a sex offense against a minor, an offense specified in Section
25243.4, 273a,begin insert 273ab,end insert 273d, 273g, or 368 of the Penal Code, or a
26felony, the department shall notify the licensee to act immediately
27to terminate the person’s employment, remove the person from
28the residential care facility, or bar the person from entering the
29residential care facility. The department may subsequently grant
30an exemption pursuant to subdivision (f). If the conviction was for
31another crime, except a minor traffic violation, the licensee shall,
32upon notification by the department, act immediately to either (A)
33terminate the person’s employment, remove the person from the
34residential care facility, or bar the person from entering the
35residential care facility; or (B) seek an exemption pursuant to
36subdivision (f). The department shall determine if the person shall
37be allowed to remain in the facility until a decision on the
38exemption is rendered. A licensee’s failure to comply with the
39department’s prohibition of employment, contact with clients, or
40presence in the facility as required by this paragraph shall result
P43   1in a citation of deficiency and an immediate assessment of civil
2penalties by the department against the licensee, in the amount of
3one hundred dollars ($100) per violation per day for a maximum
4of five days, unless the violation is a second or subsequent violation
5within a 12-month period in which case the civil penalties shall
6be in the amount of one hundred dollars ($100) per violation for
7a maximum of 30 days, and shall be grounds for disciplining the
8licensee pursuant to Section 1568.082.

9(5) The department may issue an exemption on its own motion
10pursuant to subdivision (f) if the person’s criminal history indicates
11that the person is of good character based on the age, seriousness,
12and frequency of the conviction or convictions. The department,
13in consultation with interested parties, shall develop regulations
14to establish the criteria to grant an exemption pursuant to this
15paragraph.

16(6) Concurrently with notifying the licensee pursuant to
17paragraph (4), the department shall notify the affected individual
18of his or her right to seek an exemption pursuant to subdivision
19(f). The individual may seek an exemption only if the licensee
20terminates the person’s employment or removes the person from
21the facility after receiving notice from the department pursuant to
22paragraph (4).

23(d) (1) For purposes of this section or any other provision of
24this chapter, a conviction means a plea or verdict of guilty or a
25conviction following a plea of nolo contendere. An action that the
26department is permitted to take following the establishment of a
27conviction may be taken when the time for appeal has elapsed,
28when the judgment of conviction has been affirmed on appeal, or
29when an order granting probation is made suspending the
30imposition of the sentence, notwithstanding a subsequent order
31pursuant to Sections 1203.4 and 1203.4a of the Penal Code
32permitting that person to withdraw his or her plea of guilty and to
33enter a plea of not guilty, setting aside the verdict of guilty, or
34dismissing the accusation, information, or indictment. For purposes
35of this chapter, the record of a conviction, or a copy thereof
36certified by the clerk of the court or by a judge of the court in
37which the conviction occurred, shall be conclusive evidence of the
38conviction. For purposes of this section or any other provision of
39this chapter, the arrest disposition report certified by the
40Department of Justice, or documents admissible in a criminal action
P44   1pursuant to Section 969b of the Penal Code, shall be prima facie
2evidence of the conviction, notwithstanding any other provision
3of law prohibiting the admission of these documents in a civil or
4 administrative action.

5(2) For purposes of this section or any other provision of this
6chapter, the department shall consider criminal convictions from
7another state or federal court as if the criminal offense was
8committed in this state.

9(e) (1) The State Department of Social Services shall not use
10a record of arrest to deny, revoke, or terminate any application,
11license, employment, or residence unless the department
12investigates the incident and secures evidence, whether or not
13related to the incident of arrest, that is admissible in an
14administrative hearing to establish conduct by the person that may
15pose a risk to the health and safety of any person who is or may
16become a client.

17(2) The department shall not issue a criminal record clearance
18to a person who has been arrested for any crime specified in Section
19290 of the Penal Code, for violating Section 245begin insert, 273ab,end insert or 273.5,
20or subdivision (b) of Section 273a, of the Penal Code, or, prior to
21January 1, 1994, paragraph (2) of Section 273a of the Penal Code,
22or for any crime for which the department is prohibited from
23granting a criminal record exemption pursuant to subdivision (f),
24prior to the department’s completion of an investigation pursuant
25to paragraph (1).

26 (3) The State Department of Social Services is authorized to
27obtain arrest or conviction records or reports from a law
28enforcement agency as necessary to the performance of its duties
29to inspect, license, and investigate community care facilities and
30individuals associated with a community care facility.

31(f) (1) After review of the record, the director may grant an
32exemption from disqualification for a license as specified in
33paragraphs (1) and (4) of subdivision (a), or for employment,
34residence, or presence in a residential care facility as specified in
35paragraphs (4), (5), and (6) of subdivision (c) if the director has
36substantial and convincing evidence to support a reasonable belief
37that the applicant and the person convicted of the crime, if other
38than the applicant, are of such good character as to justify issuance
39of the license or special permit or granting an exemption for
40purposes of subdivision (c). However, an exemption shall not be
P45   1granted pursuant to this subdivision if the conviction was for any
2of the following offenses:

3(A) An offense specified in Section 220, 243.4, or 264.1,
4subdivision (a) of Section 273a, or, prior to January 1, 1994,
5paragraph (1) of Section 273a, Sectionbegin insert 273ab,end insert 273d, 288, or 289,
6subdivision (c) of Section 290, or Section 368, of the Penal Code,
7or was a conviction of another crime against an individual specified
8in subdivision (c) of Section 667.5 of the Penal Code.

9(B) A felony offense specified in Section 729 of the Business
10and Professions Code or Section 206 or 215, subdivision (a) of
11Section 347, subdivision (b) of Section 417, or subdivision (a) of
12Section 451 of the Penal Code.

13(2) The department shall not prohibit a person from being
14employed or having contact with clients in a facility on the basis
15of a denied criminal record exemption request or arrest information
16unless the department complies with Section 1568.092.

17(g) (1) For purposes of compliance with this section, the
18department may permit an individual to transfer a current criminal
19record clearance, as defined in subdivision (a), from one facility
20to another, as long as the criminal record clearance has been
21processed through a state licensing district office, and is being
22transferred to another facility licensed by a state licensing district
23office. The request shall be in writing to the department, and shall
24include a copy of the person’s driver’s license or valid
25identification card issued by the Department of Motor Vehicles,
26or a valid photo identification issued by another state or the United
27States government if the person is not a California resident. Upon
28request of the licensee, who shall enclose a self-addressed stamped
29envelope for this purpose, the department shall verify whether the
30individual has a clearance that can be transferred.

31(2) The State Department of Social Services shall hold criminal
32record clearances in its active files for a minimum of two years
33after an employee is no longer employed at a licensed facility in
34order for the criminal record clearance to be transferred.

35(h) If a licensee or facility is required by law to deny
36employment or to terminate employment of any employee based
37on written notification from the state department that the employee
38has a prior criminal conviction or is determined unsuitable for
39employment under Section 1568.092, the licensee or facility shall
P46   1not incur civil liability or unemployment insurance liability as a
2result of that denial or termination.

3(i) (1) The Department of Justice shall charge a fee sufficient
4to cover its cost in providing services to comply with the 14-day
5requirement contained in subdivision (c) for provision to the
6department of criminal record information.

7(2) Paragraph (1) shall cease to be implemented when the
8department adopts emergency regulations pursuant to Section
91522.04, and shall become inoperative when permanent regulations
10are adopted under that section.

11(j) Notwithstanding any other law, the department may provide
12an individual with a copy of his or her state or federal level criminal
13offender record information search response as provided to that
14department by the Department of Justice if the department has
15denied a criminal background clearance based on this information
16and the individual makes a written request to the department for
17a copy specifying an address to which it is to be sent. The state or
18federal level criminal offender record information search response
19shall not be modified or altered from its form or content as provided
20by the Department of Justice and shall be provided to the address
21specified by the individual in his or her written request. The
22department shall retain a copy of the individual’s written request
23and the response and date provided.

24

SEC. 3.  

Section 1569.17 of the Health and Safety Code is
25amended to read:

26

1569.17.  

The Legislature recognizes the need to generate timely
27and accurate positive fingerprint identification of applicants as a
28condition of issuing licenses, permits, or certificates of approval
29for persons to operate or provide direct care services in a residential
30care facility for the elderly. It is the intent of the Legislature in
31enacting this section to require the fingerprints of those individuals
32whose contact with clients of residential care facilities for the
33elderly may pose a risk to the clients’ health and safety. An
34individual shall be required to obtain either a criminal record
35clearance or a criminal record exemption from the State Department
36of Social Services before his or her initial presence in a residential
37care facility for the elderly.

38(a) (1) Before and, as applicable, subsequent to issuing a license
39to any person or persons to operate or manage a residential care
40facility for the elderly, the department shall secure from an
P47   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 subdivision (c) of
5Section 290 of the Penal Code, or for violating Section 245begin insert, 273ab,end insert
6 or 273.5, subdivision (b) of Section 273a, or, prior to January 1,
71994, paragraph (2) of Section 273a, of the Penal Code, or for any
8crime for which the department is prohibited from granting a
9criminal record exemption pursuant to subdivision (f).

10(2) The criminal history information shall include the full
11criminal record, if any, of those persons, and subsequent arrest
12information pursuant to Section 11105.2 of the Penal Code.

13(3) The following shall apply to the criminal record information:

14(A) If the State Department of Social Services finds that the
15applicant or any other person specified in subdivision (b) has been
16convicted of a crime, other than a minor traffic violation, the
17application or presence shall be denied, unless the director grants
18an exemption pursuant to subdivision (f).

19(B) If the State Department of Social Services finds that the
20applicant, or any other person specified in subdivision (b), is
21awaiting trial for a crime other than a minor traffic violation, the
22State Department of Social Services may cease processing the
23criminal record information until the conclusion of the trial.

24(C) If no criminal record information has been recorded, the
25Department of Justice shall provide the applicant and the State
26Department of Social Services with a statement of that fact.

27(D) If the State Department of Social Services finds after
28licensure that the licensee, or any other person specified in
29paragraph (2) of subdivision (b), has been convicted of a crime
30other than a minor traffic violation, the license may be revoked,
31unless the director grants an exemption pursuant to subdivision
32(f).

33(E) An applicant and any other person specified in subdivision
34(b) shall submit fingerprint images and related information to the
35Department of Justice and the Federal Bureau of Investigation,
36through the Department of Justice, for a state and federal level
37criminal offender record information search, in addition to the
38search required by subdivision (a). If an applicant meets all other
39conditions for licensure, except receipt of the Federal Bureau of
40Investigation’s criminal history information for the applicant and
P48   1persons listed in subdivision (b), the department may issue a license
2if the applicant and each person described by subdivision (b) has
3signed and submitted a statement that he or she has never been
4convicted of a crime in the United States, other than a traffic
5infraction as defined in paragraph (1) of subdivision (a) of Section
642001 of the Vehicle Code. If, after licensure, the department
7determines that the licensee or person specified in subdivision (b)
8has a criminal record, the license may be revoked pursuant to
9Section 1569.50. The department may also suspend the license
10pending an administrative hearing pursuant to Sections 1569.50
11and 1569.51.

12(b) In addition to the applicant, the provisions of this section
13shall apply to criminal record clearances and exemptions for the
14following persons:

15(1) (A) Adults responsible for administration or direct
16supervision of staff.

17(B) Any person, other than a client, residing in the facility.
18Residents of unlicensed independent senior housing facilities that
19are located in contiguous buildings on the same property as a
20 residential care facility for the elderly shall be exempt from these
21requirements.

22(C) Any person who provides client assistance in dressing,
23grooming, bathing, or personal hygiene. Any nurse assistant or
24home health aide meeting the requirements of Section 1338.5 or
251736.6, respectively, who is not employed, retained, or contracted
26by the licensee, and who has been certified or recertified on or
27after July 1, 1998, shall be deemed to meet the criminal record
28clearance requirements of this section. A certified nurse assistant
29and certified home health aide who will be providing client
30assistance and who falls under this exemption shall provide one
31copy of his or her current certification, prior to providing care, to
32the residential care facility for the elderly. The facility shall
33maintain the copy of the certification on file as long as the care is
34being provided by the certified nurse assistant or certified home
35health aide at the facility. Nothing in this paragraph restricts the
36right of the department to exclude a certified nurse assistant or
37certified home health aide from a licensed residential care facility
38for the elderly pursuant to Section 1569.58.

39(D) Any staff person, volunteer, or employee who has contact
40with the clients.

P49   1(E) If the applicant is a firm, partnership, association, or
2corporation, the chief executive officer or other person serving in
3a similar capacity.

4(F) Additional officers of the governing body of the applicant
5or other persons with a financial interest in the applicant, as
6determined necessary by the department by regulation. The criteria
7used in the development of these regulations shall be based on the
8person’s capability to exercise substantial influence over the
9operation of the facility.

10(2) The following persons are exempt from requirements
11applicable under paragraph (1):

12(A) A spouse, relative, significant other, or close friend of a
13client shall be exempt if this person is visiting the client or provides
14direct care and supervision to that client only.

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

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

17(ii) The volunteer is directly supervised by the licensee or a
18facility employee with a criminal record clearance or exemption.

19(iii) The volunteer spends no more than 16 hours per week at
20the facility.

21(iv) The volunteer does not provide clients with assistance in
22dressing, grooming, bathing, or personal hygiene.

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

24(C) A third-party contractor retained by the facility if the
25contractor is not left alone with clients in care.

26(D) A third-party contractor or other business professional
27retained by a client and at the facility at the request or by
28permission of that client. These individuals shall not be left alone
29with other clients.

30(E) Licensed or certified medical professionals are exempt from
31fingerprint and criminal background check requirements imposed
32by community care licensing. This exemption does not apply to a
33person who is a community care facility licensee or an employee
34of the facility.

35(F) Employees of licensed home health agencies and members
36of licensed hospice interdisciplinary teams who have contact with
37a resident of a residential care facility at the request of the resident
38or resident’s legal decisionmaker are exempt from fingerprint and
39criminal background check requirements imposed by community
P50   1care licensing. This exemption does not apply to a person who is
2a community care facility licensee or an employee of the facility.

3(G) Clergy and other spiritual caregivers who are performing
4services in common areas of the residential care facility, or who
5are advising an individual resident at the request of, or with
6permission of, the resident, are exempt from fingerprint and
7criminal background check requirements imposed by community
8care licensing. This exemption does not apply to a person who is
9a community care facility licensee or an employee of the facility.

10(H) Any person similar to those described in this subdivision,
11as defined by the department in regulations.

12(I) Nothing in this paragraph 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(c) (1) (A) Subsequent to initial licensure, a person specified
17in subdivision (b) who is not exempted from fingerprinting shall
18obtain either a criminal record clearance or an exemption, pursuant
19to subdivision (f), from the State Department of Social Services
20prior to employment, residence, or initial presence in a facility. A
21person specified in subdivision (b) who is not exempt from
22fingerprinting shall be fingerprinted and shall sign a declaration
23under penalty of perjury regarding any prior criminal convictions.
24The licensee shall submit these fingerprint images and related
25information to the Department of Justice and the Federal Bureau
26of Investigation, through the Department of Justice, for a state and
27federal level criminal offender record information search, or to
28comply with paragraph (1) of subdivision (g) prior to the person’s
29employment, residence, or initial presence in the residential care
30facility for the elderly.

31(B) These fingerprint images and related information shall be
32electronically transmitted in a manner approved by the State
33Department of Social Services and the Department of Justice. A
34licensee’s failure to submit fingerprint images and related
35 information to the Department of Justice, or to comply with
36paragraph (1) of subdivision (g), as required in this section, shall
37result in the citation of a deficiency and an immediate assessment
38of civil penalties in the amount of one hundred dollars ($100) per
39violation per day for a maximum of five days, unless the violation
40is a second or subsequent violation within a 12-month period in
P51   1which case the civil penalties shall be in the amount of one hundred
2dollars ($100) per violation for a maximum of 30 days, and shall
3be grounds for disciplining the licensee pursuant to Section
41569.50. The State Department of Social Services may assess civil
5penalties for continued violations as permitted by Section 1569.49.
6The licensee shall then submit these fingerprint images to the State
7Department of Social Services for processing. Documentation of
8the individual’s clearance or exemption shall be maintained by the
9licensee and be available for inspection. The Department of Justice
10shall notify the department, as required by Section 1522.04, and
11notify the licensee by mail within 14 days of electronic
12transmission of the fingerprints to the Department of Justice, if
13the person has no criminal record. A violation of the regulations
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 licensee pursuant to Section 1569.50. The
22department may assess civil penalties for continued violations as
23permitted by Section 1569.49.

24(2) Within 14 calendar days of the receipt of the fingerprint
25images, the Department of Justice shall notify the State Department
26of Social Services of the criminal record information, as provided
27for in this subdivision. If no criminal record information has been
28recorded, the Department of Justice shall provide the licensee and
29the State Department of Social Services with a statement of that
30fact within 14 calendar days of receipt of the fingerprint images.
31If new fingerprint images are required for processing, the
32Department of Justice shall, within 14 calendar days from the date
33of receipt of the fingerprint images, notify the licensee that the
34fingerprint images were illegible.

35(3) Except for persons specified in paragraph (2) of subdivision
36(b), the licensee shall endeavor to ascertain the previous
37employment history of persons required to be fingerprinted under
38this subdivision. If the State Department of Social Services
39determines, on the basis of the fingerprint images submitted to the
40Department of Justice, that the person has been convicted of a sex
P52   1 offense against a minor, an offense specified in Section 243.4,
2273a,begin insert 273ab,end insert 273d, 273g, or 368 of the Penal Code, or a felony,
3the State Department of Social Services shall notify the licensee
4in writing within 15 calendar days of the receipt of the notification
5from the Department of Justice to act immediately to terminate
6the person’s employment, remove the person from the residential
7care facility for the elderly, or bar the person from entering the
8residential care facility for the elderly. The State Department of
9Social Services may subsequently grant an exemption pursuant to
10subdivision (f). If the conviction was for another crime, except a
11minor traffic violation, the licensee shall, upon notification by the
12State Department of Social Services, act immediately to either (1)
13terminate the person’s employment, remove the person from the
14residential care facility for the elderly, or bar the person from
15entering the residential care facility for the elderly or (2) seek an
16exemption pursuant to subdivision (f). The department shall
17determine if the person shall be allowed to remain in the facility
18until a decision on the exemption is rendered by the department.
19A licensee’s failure to comply with the department’s prohibition
20of employment, contact with clients, or presence in the facility as
21required by this paragraph shall result in a citation of deficiency
22and an immediate assessment of civil penalties by the department
23against the licensee, in the amount of one hundred dollars ($100)
24per violation per day for a maximum of five days, unless the
25violation is a second or subsequent violation within a 12-month
26period in which case the civil penalties shall be in the amount of
27one hundred dollars ($100) per violation for a maximum of 30
28days, and shall be grounds for disciplining the licensee pursuant
29to Section 1569.50.

30(4) The department may issue an exemption on its own motion
31pursuant to subdivision (f) if the person’s criminal history indicates
32 that the person is of good character based on the age, seriousness,
33and frequency of the conviction or convictions. The department,
34in consultation with interested parties, shall develop regulations
35to establish the criteria to grant an exemption pursuant to this
36paragraph.

37(5) Concurrently with notifying the licensee pursuant to
38paragraph (4), the department shall notify the affected individual
39of his or her right to seek an exemption pursuant to subdivision
40(f). The individual may seek an exemption only if the licensee
P53   1terminates the person’s employment or removes the person from
2the facility after receiving notice from the department pursuant to
3paragraph (4).

4(d) (1) For purposes of this section or any other provision of
5this chapter, a conviction means a plea or verdict of guilty or a
6conviction following a plea of nolo contendere. Any action that
7the department is permitted to take following the establishment of
8a conviction may be taken when the time for appeal has elapsed,
9when the judgment of conviction has been affirmed on appeal or
10when an order granting probation is made suspending the
11imposition of the sentence, notwithstanding a subsequent order
12pursuant to the provisions of Sections 1203.4 and 1203.4a of the
13Penal Code permitting a person to withdraw his or her plea of
14guilty and to enter a plea of not guilty, or setting aside the verdict
15of guilty, or dismissing the accusation, information, or indictment.
16For purposes of this section or any other provision of this chapter,
17the record of a conviction, or a copy thereof certified by the clerk
18of the court or by a judge of the court in which the conviction
19occurred, shall be conclusive evidence of the conviction. For
20purposes of this section or any other provision of this chapter, the
21arrest disposition report certified by the Department of Justice or
22documents admissible in a criminal action pursuant to Section
23969b of the Penal Code shall be prima facie evidence of the
24conviction, notwithstanding any other law prohibiting the
25admission of these documents in a civil or administrative action.

26(2) For purposes of this section or any other provision of this
27chapter, the department shall consider criminal convictions from
28another state or federal court as if the criminal offense was
29committed in this state.

30(e) (1) The State Department of Social Services shall not use
31a record of arrest to deny, revoke, or terminate any application,
32license, employment, or residence unless the department
33investigates the incident and secures evidence, whether or not
34related to the incident of arrest, that is admissible in an
35administrative hearing to establish conduct by the person that may
36pose a risk to the health and safety of any person who is or may
37become a client.

38(2) The department shall not issue a criminal record clearance
39to a person who has been arrested for any crime specified in Section
40290 of the Penal Code, or for violating Section 245begin insert, 273ab,end insert or
P54   1273.5,begin insert orend insert subdivision (b) of Sectionbegin delete 273a,end deletebegin insert 273aend insert of the Penal Code,
2or, prior to January 1, 1994, paragraph (2) of Section 273abegin delete,end delete of the
3Penal Code, or for any crime for which the department is prohibited
4from granting a record exemption pursuant to subdivision (f), prior
5to the department’s completion of an investigation pursuant to
6paragraph (1).

7 (3) The State Department of Social Services is authorized to
8obtain any arrest or conviction records or reports from any law
9enforcement agency as necessary to the performance of its duties
10to inspect, license, and investigate community care facilities and
11individuals associated with a community care facility.

12(f) (1) After review of the record, the director may grant an
13exemption from disqualification for a license as specified in
14paragraphs (1) and (4) of subdivision (a), or for employment,
15residence, or presence in a residential care facility for the elderly
16as specified in paragraphs (4), (5), and (6) of subdivision (c) if the
17director has substantial and convincing evidence to support a
18reasonable belief that the applicant and the person convicted of
19the crime, if other than the applicant, are of such good character
20as to justify issuance of the license or special permit or granting
21an exemption for purposes of subdivision (c). However, an
22exemption shall not be granted pursuant to this subdivision if the
23conviction was for any of the following offenses:

24(A) An offense specified in Section 220, 243.4, or 264.1,
25subdivision (a) of Section 273a, or, prior to January 1, 1994,
26paragraph (1) of Section 273a, Sectionbegin insert 273ab,end insert 273d, 288, or 289,
27subdivision (c) of Section 290, or Section 368, of the Penal Code,
28or was a conviction of another crime against an individual specified
29in subdivision (c) of Section 667.5 of the Penal Code.

30(B) A felony offense specified in Section 729 of the Business
31and Professions Code or Section 206 or 215, subdivision (a) of
32Section 347, subdivision (b) of Section 417, or subdivision (a) of
33Section 451 of the Penal Code.

34(2) The director shall notify in writing the licensee or the
35applicant of his or her decision within 60 days of receipt of all
36information from the applicant and other sources determined
37necessary by the director for the rendering of a decision pursuant
38to this subdivision.

39(3) The department shall not prohibit a person from being
40employed or having contact with clients in a facility on the basis
P55   1of a denied criminal record exemption request or arrest information
2unless the department complies with the requirements of Section
31569.58.

4(g) (1) For purposes of compliance with this section, the
5department may permit an individual to transfer a current criminal
6record clearance, as defined in subdivision (a), from one facility
7to another, as long as the criminal record clearance has been
8processed through a state licensing district office, and is being
9transferred to another facility licensed by a state licensing district
10office. The request shall be submitted in writing to the department,
11and shall include a copy of the person’s driver’s license or valid
12identification card issued by the Department of Motor Vehicles,
13or a valid photo identification issued by another state or the United
14States government if the person is not a California resident. Upon
15request of the licensee, who shall enclose a self-addressed stamped
16envelope for this purpose, the department shall verify whether the
17individual has a clearance that can be transferred.

18(2) The State Department of Social Services shall hold criminal
19record clearances in its active files for a minimum of two years
20after an employee is no longer employed at a licensed facility in
21order for the criminal record clearances to be transferred under
22this section.

23(h) If a licensee or facility is required by law to deny
24employment or to terminate employment of any employee based
25on written notification from the department that the employee has
26a prior criminal conviction or is determined unsuitable for
27employment under Section 1569.58, the licensee or facility shall
28not incur civil liability or unemployment insurance liability as a
29result of that denial or termination.

30(i) Notwithstanding any other law, the department may provide
31an individual with a copy of his or her state or federal level criminal
32offender record information search response as provided to that
33department by the Department of Justice if the department has
34denied a criminal background clearance based on this information
35and the individual makes a written request to the department for
36a copy specifying an address to which it is to be sent. The state or
37federal level criminal offender record information search response
38shall not be modified or altered from its form or content as provided
39by the Department of Justice and shall be provided to the address
40specified by the individual in his or her written request. The
P56   1department shall retain a copy of the individual’s written request
2and the response and date provided.

begin delete
3

SEC. 4.  

Section 1596.871 of the Health and Safety Code is
4amended to read:

5

1596.871.  

The Legislature recognizes the need to generate
6timely and accurate positive fingerprint identification of applicants
7as a condition of issuing licenses, permits, or certificates of
8approval for persons to operate or provide direct care services in
9a child care center or family child care home. It is the intent of the
10Legislature in enacting this section to require the fingerprints of
11those individuals whose contact with child day care facility clients
12may pose a risk to the children’s health and safety. An individual
13shall be required to obtain either a criminal record clearance or a
14criminal record exemption from the State Department of Social
15Services before his or her initial presence in a child day care
16facility.

17(a) (1) Before and, as applicable, subsequent to issuing a license
18or special permit to any person to operate or manage a day care
19facility, the department shall secure from an appropriate law
20enforcement agency a criminal record to determine whether the
21applicant or any other person specified in subdivision (b) has ever
22been convicted of a crime other than a minor traffic violation or
23arrested for any crime specified in subdivision (c) of Section 290
24of the Penal Code, or for violating Section 245 or 273.5,
25subdivision (b) of Section 273a, or, prior to January 1, 1994,
26paragraph (2) of Section 273a, of the Penal Code, or for any crime
27for which the department is prohibited from granting a criminal
28record exemption pursuant to subdivision (f).

29(2) The criminal history information shall include the full
30criminal record, if any, of those persons, and subsequent arrest
31information pursuant to Section 11105.2 of the Penal Code.

32(3) Except during the 2003-04 to the 2014-15 fiscal years,
33inclusive, neither the Department of Justice nor the department
34may charge a fee for the fingerprinting of an applicant who will
35serve six or fewer children or any family day care applicant for a
36license, or for obtaining a criminal record of an applicant pursuant
37to this section.

38(4) The following shall apply to the criminal record information:

39(A) If the State Department of Social Services finds that the
40applicant or any other person specified in subdivision (b) has been
P57   1convicted of a crime, other than a minor traffic violation, the
2application shall be denied, unless the director grants an exemption
3pursuant to subdivision (f).

4(B) If the State Department of Social Services finds that the
5applicant, or any other person specified in subdivision (b), is
6awaiting trial for a crime other than a minor traffic violation, the
7State Department of Social Services may cease processing the
8 criminal record information until the conclusion of the trial.

9(C) If no criminal record information has been recorded, the
10Department of Justice shall provide the applicant and the State
11Department of Social Services with a statement of that fact.

12(D) If the State Department of Social Services finds after
13licensure that the licensee, or any other person specified in
14paragraph (2) of subdivision (b), has been convicted of a crime
15other than a minor traffic violation, the license may be revoked,
16unless the director grants an exemption pursuant to subdivision
17(f).

18(E) An applicant and any other person specified in subdivision
19(b) shall submit fingerprint images and related information to the
20 Department of Justice and the Federal Bureau of Investigation,
21through the Department of Justice, for a state and federal level
22criminal offender record information search, in addition to the
23search required by subdivision (a). If an applicant meets all other
24conditions for licensure, except receipt of the Federal Bureau of
25Investigation’s criminal history information for the applicant and
26persons listed in subdivision (b), the department may issue a license
27if the applicant and each person described by subdivision (b) has
28signed and submitted a statement that he or she has never been
29convicted of a crime in the United States, other than a traffic
30infraction as defined in paragraph (1) of subdivision (a) of Section
3142001 of the Vehicle Code. If, after licensure, the department
32determines that the licensee or person specified in subdivision (b)
33has a criminal record, the license may be revoked pursuant to
34Section 1596.885. The department may also suspend the license
35pending an administrative hearing pursuant to Section 1596.886.

36(b) (1) In addition to the applicant, this section shall be
37applicable to criminal record clearances and exemptions for the
38following persons:

39(A) Adults responsible for administration or direct supervision
40of staff.

P58   1(B) Any person, other than a child, residing in the facility.

2(C) Any person who provides care and supervision to the
3children.

4(D) Any staff person, volunteer, or employee who has contact
5with the children.

6(i) A volunteer providing time-limited specialized services shall
7be exempt from the requirements of this subdivision if this person
8is directly supervised by the licensee or a facility employee with
9a criminal record clearance or exemption, the volunteer spends no
10more than 16 hours per week at the facility, and the volunteer is
11not left alone with children in care.

12(ii) A student enrolled or participating at an accredited
13educational institution shall be exempt from the requirements of
14this subdivision if the student is directly supervised by the licensee
15 or a facility employee with a criminal record clearance or
16exemption, the facility has an agreement with the educational
17institution concerning the placement of the student, the student
18spends no more than 16 hours per week at the facility, and the
19student is not left alone with children in care.

20(iii) A volunteer who is a relative, legal guardian, or foster parent
21of a client in the facility shall be exempt from the requirements of
22this subdivision.

23(iv) A contracted repair person retained by the facility, if not
24left alone with children in care, shall be exempt from the
25requirements of this subdivision.

26(v) Any person similar to those described in this subdivision,
27as defined by the department in regulations.

28(E) If the applicant is a firm, partnership, association, or
29corporation, the chief executive officer, other person serving in
30like capacity, or a person designated by the chief executive officer
31as responsible for the operation of the facility, as designated by
32the applicant agency.

33(F) If the applicant is a local educational agency, the president
34of the governing board, the school district superintendent, or a
35person designated to administer the operation of the facility, as
36designated by the local educational agency.

37(G) Additional officers of the governing body of the applicant,
38or other persons with a financial interest in the applicant, as
39determined necessary by the department by regulation. The criteria
40used in the development of these regulations shall be based on the
P59   1person’s capability to exercise substantial influence over the
2operation of the facility.

3(H) This section does not apply to employees of child care and
4development programs under contract with the State Department
5of Education who have completed a criminal record clearance as
6part of an application to the Commission on Teacher Credentialing,
7and who possess a current credential or permit issued by the
8commission, including employees of child care and development
9programs that serve both children subsidized under, and children
10not subsidized under, a State Department of Education contract.
11The Commission on Teacher Credentialing shall notify the
12department upon revocation of a current credential or permit issued
13to an employee of a child care and development program under
14contract with the State Department of Education.

15(I) This section does not apply to employees of a child care and
16development program operated by a school district, county office
17of education, or community college district under contract with
18the State Department of Education who have completed a criminal
19record clearance as a condition of employment. The school district,
20county office of education, or community college district upon
21receiving information that the status of an employee’s criminal
22record clearance has changed shall submit that information to the
23department.

24(2) Nothing in this subdivision shall prevent a licensee from
25requiring a criminal record clearance of any individuals exempt
26from the requirements under this subdivision.

27(c) (1) (A) Subsequent to initial licensure, a person specified
28in subdivision (b) who is not exempt from fingerprinting shall
29obtain either a criminal record clearance or an exemption from
30disqualification, pursuant to subdivision (f), from the State
31Department of Social Services prior to employment, residence, or
32initial presence in the facility. A person specified in subdivision
33(b) who is not exempt from fingerprinting shall be fingerprinted
34and shall sign a declaration under penalty of perjury regarding any
35prior criminal convictions. The licensee shall submit fingerprint
36images and related information to the Department of Justice and
37the Federal Bureau of Investigation, through the Department of
38Justice, or to comply with paragraph (1) of subdivision (h), prior
39to the person’s employment, residence, or initial presence in the
40child day care facility.

P60   1(B) These fingerprint images for the purpose of obtaining a
2permanent set of fingerprints shall be electronically submitted to
3the Department of Justice in a manner approved by the State
4Department of Social Services and to the Department of Justice,
5or to comply with paragraph (1) of subdivision (h), as required in
6this section, shall result in the citation of a deficiency, and an
7immediate assessment of civil penalties in the amount of one
8hundred dollars ($100) per violation per day for a maximum of
9five 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 1596.885 or 1596.886. The State
14Department of Social Services may assess civil penalties for
15continued violations permitted by Sections 1596.99 and 1597.62.
16The fingerprint images and related information shall then be
17submitted to the department for processing. Within 14 calendar
18days of the receipt of the fingerprint images, the Department of
19Justice shall notify the State Department of Social Services of the
20criminal record information, as provided in this subdivision. If no
21criminal record information has been recorded, the Department of
22Justice shall provide the licensee and the State Department of
23Social Services with a statement of that fact within 14 calendar
24days of receipt of the fingerprint images. If new fingerprint images
25are required for processing, the Department of Justice shall, within
2614 calendar days from the date of receipt of the fingerprint images,
27notify the licensee that the fingerprints were illegible.

28(C) Documentation of the individual’s clearance or exemption
29shall be maintained by the licensee, and shall be available for
30inspection. When live-scan technology is operational, as defined
31in Section 1522.04, the Department of Justice shall notify the
32department, as required by that section, and notify the licensee by
33mail within 14 days of electronic transmission of the fingerprints
34to the Department of Justice, if the person has no criminal record.
35Any violation of the regulations adopted pursuant to Section
361522.04 shall result in the citation of a deficiency and an immediate
37assessment of civil penalties in the amount of one hundred dollars
38($100) per violation per day for a maximum of five days, unless
39the violation is a second or subsequent violation within a 12-month
40period in which case the civil penalties shall be in the amount of
P61   1one hundred dollars ($100) per violation for a maximum of 30
2days, and shall be grounds for disciplining the licensee pursuant
3to Section 1596.885 or 1596.886. The department may assess civil
4penalties for continued violations, as permitted by Sections 1596.99
5and 1597.62.

6(2) Except for persons specified in paragraph (2) of subdivision
7(b), the licensee shall endeavor to ascertain the previous
8employment history of persons required to be fingerprinted under
9this subdivision. If it is determined by the department, on the basis
10of fingerprints submitted to the Department of Justice, that the
11person has been convicted of a sex offense against a minor, an
12offense specified in Section 243.4, 273a, 273d, 273g, or 368 of
13the Penal Code, or a felony, the State Department of Social
14Services shall notify the licensee to act immediately to terminate
15the person’s employment, remove the person from the child day
16care facility, or bar the person from entering the child day care
17facility. The department may subsequently grant an exemption
18pursuant to subdivision (f). If the conviction was for another crime
19except a minor traffic violation, the licensee shall, upon notification
20by the State Department of Social Services, act immediately to
21either (1) terminate the person’s employment, remove the person
22from the child day care facility, or bar the person from entering
23the child day care facility; or (2) seek an exemption pursuant to
24subdivision (f). The department shall determine if the person shall
25be allowed to remain in the facility until a decision on the
26exemption is rendered. A licensee’s failure to comply with the
27department’s prohibition of employment, contact with clients, or
28presence in the facility as required by this paragraph shall result
29in a citation of deficiency and an immediate assessment of civil
30penalties by the department against the licensee, in the amount of
31one hundred dollars ($100) per violation per day for a maximum
32of five days, unless the violation is a second or subsequent violation
33within a 12-month period in which case the civil penalties shall
34be in the amount of one hundred dollars ($100) per violation for
35a maximum of 30 days, and shall be grounds for disciplining the
36licensee pursuant to Section 1596.885 or 1596.886.

37(3) The department may issue an exemption on its own motion
38pursuant to subdivision (f) if the person’s criminal history indicates
39that the person is of good character based on the age, seriousness,
40and frequency of the conviction or convictions. The department,
P62   1in consultation with interested parties, shall develop regulations
2to establish the criteria to grant an exemption pursuant to this
3paragraph.

4(4) Concurrently with notifying the licensee pursuant to
5paragraph (3), the department shall notify the affected individual
6of his or her right to seek an exemption pursuant to subdivision
7(f). The individual may seek an exemption only if the licensee
8terminates the person’s employment or removes the person from
9the facility after receiving notice from the department pursuant to
10paragraph (3).

11(d) (1) For purposes of this section or any other provision of
12this chapter, a conviction means a plea or verdict of guilty or a
13conviction following a plea of nolo contendere. Any action that
14the department is permitted to take following the establishment of
15a conviction may be taken when the time for appeal has elapsed,
16when the judgment of conviction has been affirmed on appeal, or
17when an order granting probation is made suspending the
18imposition of sentence, notwithstanding a subsequent order
19pursuant to Sections 1203.4 and 1203.4a of the Penal Code
20permitting the person to withdraw his or her plea of guilty and to
21enter a plea of not guilty, or setting aside the verdict of guilty, or
22dismissing the accusation, information, or indictment. For purposes
23of this section or any other provision of this chapter, the record of
24a conviction, or a copy thereof certified by the clerk of the court
25or by a judge of the court in which the conviction occurred, shall
26be conclusive evidence of the conviction. For purposes of this
27section or any other provision of this chapter, the arrest disposition
28report certified by the Department of Justice, or documents
29admissible in a criminal action pursuant to Section 969b of the
30Penal Code, shall be prima facie evidence of conviction,
31notwithstanding any other law prohibiting the admission of these
32documents in a civil or administrative action.

33(2) For purposes of this section or any other provision of this
34chapter, the department shall consider criminal convictions from
35another state or federal court as if the criminal offense was
36committed in this state.

37(e) (1) The State Department of Social Services shall not use
38a record of arrest to deny, revoke, or terminate any application,
39license, employment, or residence unless the department
40investigates the incident and secures evidence, whether or not
P63   1related to the incident of arrest, that is admissible in an
2administrative hearing to establish conduct by the person that may
3pose a risk to the health and safety of any person who is or may
4become a client.

5(2) The department shall not issue a criminal record clearance
6to a person who has been arrested for any crime specified in Section
7290 of the Penal Code, or for violating Section 245 or 273.5,
8subdivision (b) of Section 273a, of the Penal Code, or, prior to
9January 1, 1994, paragraph (2) of Section 273a, of the Penal Code,
10or for any crime for which the department is prohibited from
11granting a criminal record exemption pursuant to subdivision (f),
12 prior to the department’s completion of an investigation pursuant
13to paragraph (1).

14(3) The State Department of Social Services is authorized to
15obtain any arrest or conviction records or reports from any law
16enforcement agency as necessary to the performance of its duties
17to inspect, license, and investigate community care facilities and
18individuals associated with a community care facility.

19(f) (1) After review of the record, the director may grant an
20exemption from disqualification for a license or special permit as
21specified in paragraphs (1) and (4) of subdivision (a), or for
22employment, residence, or presence in a child day care facility as
23specified in paragraphs (3), (4), and (5) of subdivision (c) if the
24director has substantial and convincing evidence to support a
25reasonable belief that the applicant and the person convicted of
26the crime, if other than the applicant, are of good character so as
27to justify issuance of the license or special permit or granting an
28exemption for purposes of subdivision (c). However, an exemption
29shall not be granted pursuant to this subdivision if the conviction
30was for any of the following offenses:

31(A) An offense specified in Section 220, 243.4, or 264.1,
32subdivision (a) of Section 273a, or, prior to January 1, 1994,
33paragraph (1) of Section 273a, Section 273d, 288, or 289,
34 subdivision (c) of Section 290, or Section 368, of the Penal Code,
35or was a conviction of another crime against an individual specified
36in subdivision (c) of Section 667.5 of the Penal Code.

37(B) A felony offense specified in Section 729 of the Business
38and Professions Code or Section 206 or 215, subdivision (a) of
39Section 347, subdivision (b) of Section 417, or subdivision (a) or
40(b) of Section 451 of the Penal Code.

P64   1(2) The department shall not prohibit a person from being
2employed or having contact with clients in a facility on the basis
3of a denied criminal record exemption request or arrest information
4unless the department complies with the requirements of Section
51596.8897.

6(g) Upon request of the licensee, who shall enclose a
7self-addressed stamped postcard for this purpose, the Department
8of Justice shall verify receipt of the fingerprint images.

9(h) (1) For the 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 clearances to be transferred.

27(3) The following shall apply to a criminal record clearance or
28exemption from the department or a county office with
29department-delegated licensing authority:

30(A) A county office with department-delegated licensing
31authority may accept a clearance or exemption from the
32department.

33(B) The department may accept a clearance or exemption from
34any county office with department-delegated licensing authority.

35(C) A county office with department-delegated licensing
36authority may accept a clearance or exemption from any other
37county office with department-delegated licensing authority.

38(4) With respect to notifications issued by the Department of
39Justice pursuant to Section 11105.2 of the Penal Code concerning
40an individual whose criminal record clearance was originally
P65   1processed by the department or a county office with
2department-delegated licensing authority, all of the following shall
3apply:

4(A) The Department of Justice shall process a request from the
5department or a county office with department-delegated licensing
6authority to receive the notice, only if all of the following
7conditions are met:

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

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

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

15(B) (i) On or before January 7, 2005, the department shall notify
16the Department of Justice of all county offices that have
17department-delegated licensing authority.

18(ii) The department shall notify the Department of Justice within
1915 calendar days of the date on which a new county office receives
20department-delegated licensing authority or a county’s delegated
21licensing authority is rescinded.

22(C) The Department of Justice shall charge the department or
23a county office with department-delegated licensing authority a
24fee for each time a request to substitute the recipient agency is
25received for purposes of this paragraph. This fee shall not exceed
26the cost of providing the service.

27(i) Notwithstanding any other law, the department may provide
28an individual with a copy of his or her state or federal level criminal
29offender record information search response as provided to that
30department by the Department of Justice if the department has
31denied a criminal background clearance based on this information
32and the individual makes a written request to the department for
33a copy specifying an address to which it is to be sent. The state or
34federal level criminal offender record information search response
35shall not be modified or altered from its form or content as provided
36by the Department of Justice and shall be provided to the address
37specified by the individual in his or her written request. The
38department shall retain a copy of the individual’s written request
39and the response and date provided.

end delete
P66   1begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 1596.871 of the end insertbegin insertHealth and Safety Codeend insertbegin insert is
2amended to read:end insert

3

1596.871.  

The Legislature recognizes the need to generate
4timely and accurate positive fingerprint identification of applicants
5as a condition of issuing licenses, permits, or certificates of
6approval for persons to operate or provide direct care services in
7a child care center or family child care home. It is the intent of the
8Legislature in enacting this section to require the fingerprints of
9those individuals whose contact with child day care facility clients
10may pose a risk to the children’s health and safety. An individual
11shall be required to obtain either a criminal record clearance or a
12criminal record exemption from the State Department of Social
13Services before his or her initial presence in a child day care
14facility.

15(a) (1) Beforebegin insert and, as applicable, subsequent toend insert issuing a license
16or special permit to any person to operate or manage a day care
17facility, the department shall secure from an appropriate law
18enforcement agency a criminal record to determine whether the
19applicant or any other person specified in subdivision (b) has ever
20been convicted of a crime other than a minor traffic violation or
21arrested for any crime specified in subdivision (c) of Section 290
22of the Penal Code,begin insert orend insert for violating Section 245begin insert, 273ab,end insert or 273.5,
23subdivision (b) of Sectionbegin delete 273aend deletebegin insert 273a,end insert or, prior to January 1, 1994,
24paragraph (2) of Sectionbegin delete 273aend deletebegin insert 273a,end insert of the Penal Code, or for any
25crime for which the departmentbegin delete cannot grant an exemption if the
26person was convicted and the person has not been exoneratedend delete
begin insert is
27prohibited from granting a criminal record exemption pursuant
28to subdivision (f)end insert
.

29(2) The criminal history information shall include the full
30criminal record, if any, of those persons, and subsequent arrest
31information pursuant to Section 11105.2 of the Penal Code.

32(3) Except during the 2003-04 to the 2014-15 fiscal years,
33inclusive, neither the Department of Justice nor the department
34may charge a fee for the fingerprinting of an applicant who will
35serve six or fewer children or any family day care applicant for a
36 license, or for obtaining a criminal record of an applicant pursuant
37to this section.

38(4) The following shall apply to the criminal record information:

39(A) If the State Department of Social Services finds that the
40applicant or any other person specified in subdivision (b) has been
P67   1convicted of a crime, other than a minor traffic violation, the
2application shall be denied, unless the director grants an exemption
3pursuant to subdivision (f).

4(B) If the State Department of Social Services finds that the
5applicant, or any other person specified in subdivision (b), is
6awaiting trial for a crime other than a minor traffic violation, the
7State Department of Social Services may cease processing the
8begin delete applicationend deletebegin insert criminal record informationend insert until the conclusion of
9the trial.

10(C) If no criminal record information has been recorded, the
11Department of Justice shall provide the applicant and the State
12Department of Social Services with a statement of that fact.

13(D) If the State Department of Social Services finds after
14licensure that the licensee, or any other person specified in
15paragraph (2) of subdivision (b), has been convicted of a crime
16other than a minor traffic violation, the license may be revoked,
17unless the director grants an exemption pursuant to subdivision
18(f).

19(E) An applicant and any other person specified in subdivision
20(b) shall submit fingerprint images and related information to the
21Department of Justice and the Federal Bureau of Investigation,
22through the Department of Justice, for a state and federal level
23criminal offender record information search, in addition to the
24search required by subdivision (a). If an applicant meets all other
25conditions for licensure, except receipt of the Federal Bureau of
26Investigation’s criminal history information for the applicant and
27persons listed in subdivision (b), the department may issue a license
28if the applicant and each person described by subdivision (b) has
29signed and submitted a statement that he or she has never been
30convicted of a crime in the United States, other than a traffic
31infraction as defined in paragraph (1) of subdivision (a) of Section
3242001 of the Vehicle Code. If, after licensure, the department
33determines that the licensee or person specified in subdivision (b)
34has a criminal record, the license may be revoked pursuant to
35Section 1596.885. The department may also suspend the license
36pending an administrative hearing pursuant to Section 1596.886.

37(b) (1) In addition to the applicant, this section shall be
38applicable to criminalbegin delete convictions ofend deletebegin insert record clearances and
39exemptions forend insert
the following persons:

P68   1(A) Adults responsible for administration or direct supervision
2of staff.

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

4(C) Any person who provides care and supervision to the
5children.

6(D) Any staff person, volunteer, or employee who has contact
7with the children.

8(i) A volunteer providing time-limited specialized services shall
9be exempt from the requirements of this subdivision if this person
10is directly supervised by the licensee or a facility employee with
11a criminal record clearance or exemption, the volunteer spends no
12more than 16 hours per week at the facility, and the volunteer is
13not left alone with children in care.

14(ii) A student enrolled or participating at an accredited
15educational institution shall be exempt from the requirements of
16this subdivision if the student is directly supervised by the licensee
17or a facility employee with a criminal record clearance or
18exemption, the facility has an agreement with the educational
19institution concerning the placement of the student, the student
20spends no more than 16 hours per week at the facility, and the
21student is not left alone with children in care.

22(iii) A volunteer who is a relative, legal guardian, or foster parent
23of a client in the facility shall be exempt from the requirements of
24this subdivision.

25(iv) A contracted repair person retained by the facility, if not
26left alone with children in care, shall be exempt from the
27requirements of this subdivision.

28(v) Any person similar to those described in this subdivision,
29as defined by the department in regulations.

30(E) If the applicant is a firm, partnership, association, or
31corporation, the chief executive officer, other person serving in
32like capacity, or a person designated by the chief executive officer
33as responsible for the operation of the facility, as designated by
34the applicant agency.

35(F) If the applicant is a local educational agency, the president
36of the governing board, the school district superintendent, or a
37person designated to administer the operation of the facility, as
38designated by the local educational agency.

39(G) Additional officers of the governing body of the applicant,
40or other persons with a financial interest in the applicant, as
P69   1determined necessary by the department by regulation. The criteria
2used in the development of these regulations shall be based on the
3person’s capability to exercise substantial influence over the
4operation of the facility.

5(H) This section does not apply to employees of child care and
6development programs under contract with the State Department
7of Education who have completed a criminal record clearance as
8part of an application to the Commission on Teacher Credentialing,
9and who possess a current credential or permit issued by the
10commission, including employees of child care and development
11programs that serve both children subsidized under, and children
12not subsidized under, a State Department of Education contract.
13The Commission on Teacher Credentialing shall notify the
14department upon revocation of a current credential or permit issued
15to an employee of a child care and development program under
16 contract with the State Department of Education.

17(I) This section does not apply to employees of a child care and
18development program operated by a school district, county office
19of education, or community college district under contract with
20the State Department of Education who have completed a criminal
21record clearance as a condition of employment. The school district,
22county office of education, or community college district upon
23receiving information that the status of an employee’s criminal
24record clearance has changed shall submit that information to the
25department.

26(2) Nothing in this subdivision shall prevent a licensee from
27requiring a criminal record clearance of any individuals exempt
28from the requirements under this subdivision.

29(c) (1) (A) Subsequent to initial licensure,begin delete anyend deletebegin insert aend insert person
30specified in subdivision (b)begin delete andend deletebegin insert who isend insert notbegin delete exemptedend deletebegin insert exemptend insert from
31fingerprinting shallbegin delete, as a condition toend deletebegin insert obtain either a criminal
32record clearance or an exemption from disqualification, pursuant
33to subdivision (f), from the State Department of Social Services
34prior toend insert
employment, residence, orbegin delete presence in a child day care
35facilityend delete
begin insert initial presence in the facility. A person specified in
36subdivision (b) who is not exempt from fingerprinting shallend insert
be
37fingerprinted andbegin insert shallend insert sign a declaration under penalty of perjury
38regarding any prior criminalbegin delete convictionend deletebegin insert convictionsend insert. The licensee
39shall submit fingerprint images and related information to the
40Department of Justice and the Federal Bureau of Investigation,
P70   1through the Department of Justice, or comply with paragraph (1)
2of subdivision (h), prior to the person’s employment, residence,
3or initial presence in the child day care facility.

4(B) These fingerprint images and related information shall be
5electronically submitted to the Department of Justice in a manner
6approved by the State Department of Social Services and the
7Department of Justice for the purpose of obtaining a permanent
8set of fingerprints. A licensee’s failure to submit fingerprint images
9and related information to the Department of Justice or to comply
10with paragraph (1) of subdivision (h), as required in this section,
11shall result in the citation of a deficiency, and an immediate
12assessment of civil penalties in the amount of one hundred dollars
13($100) per violation per day for a maximum of five days, unless
14the violation is a second or subsequent violation within a 12-month
15period in which case the civil penalties shall be in the amount of
16one hundred dollars ($100) per violation for a maximum of 30
17days, and shall be grounds for disciplining the licensee pursuant
18to Section 1596.885 orbegin delete Sectionend delete 1596.886. The State Department
19of Social Services may assess civil penalties for repeated or
20continued violations permitted by Sections 1596.99 and 1597.58.
21The fingerprint images and related information shall then be
22submitted to the department for processing. Within 14 calendar
23days of the receipt of the fingerprint images, the Department of
24Justice shall notify the State Department of Social Services of the
25criminal record information, as provided in this subdivision. If no
26criminal record information has been recorded, the Department of
27Justice shall provide the licensee and the State Department of
28Social Services with a statement of that fact within 14 calendar
29days of receipt of the fingerprint images. If new fingerprint images
30are required for processing, the Department of Justice shall, within
31 14 calendar days from the date of receipt of the fingerprint images,
32notify the licensee that the fingerprints were illegible.

33(C) Documentation of the individual’s clearance or exemption
34shall be maintained by the licensee, and shall be available for
35inspection. When live-scan technology is operational, as defined
36in Section 1522.04, the Department of Justice shall notify the
37department, as required by that section, and notify the licensee by
38mail within 14 days of electronic transmission of the fingerprints
39to the Department of Justice, if the person has no criminal record.
40Any violation of the regulations adopted pursuant to Section
P71   11522.04 shall result in the citation of a deficiency and an immediate
2 assessment of civil penalties in the amount of one hundred dollars
3($100) per violation per day for a maximum of five days, unless
4the violation is a second or subsequent violation within a 12-month
5period in which case the civil penalties shall be in the amount of
6one hundred dollars ($100) per violation for a maximum of 30
7days, and shall be grounds for disciplining the licensee pursuant
8to Section 1596.885 orbegin delete Sectionend delete 1596.886. The department may
9assess civil penalties for repeated or continued violations, as
10permitted by Sections 1596.99 and 1597.58.

11(2) Except for persons specified in paragraph (2) of subdivision
12(b), the licensee shall endeavor to ascertain the previous
13employment history of persons required to be fingerprinted under
14this subdivision. If it is determined by the department, on the basis
15of fingerprints submitted to the Department of Justice, that the
16person has been convicted of a sex offense against a minor, an
17offense specified in Section 243.4, 273a,begin insert 273ab,end insert 273d, 273g, or
18368 of the Penal Code, or a felony, the State Department of Social
19Services shall notify the licensee to act immediately to terminate
20the person’s employment, remove the person from the child day
21care facility, or bar the person from entering the child day care
22facility. The department may subsequently grant an exemption
23pursuant to subdivision (f). If the conviction was for another crime
24except a minor traffic violation, the licensee shall, upon notification
25by the State Department of Social Services, act immediately to
26either (1) terminate the person’s employment, remove the person
27from the child day care facility, or bar the person from entering
28the child day care facility; or (2) seek an exemption pursuant to
29subdivision (f). The department shall determine if the person shall
30be allowed to remain in the facility until a decision on the
31exemption is rendered. A licensee’s failure to comply with the
32department’s prohibition of employment, contact with clients, or
33presence in the facility as required by this paragraph shall result
34in a citation of deficiency and an immediate assessment of civil
35penalties by the department against the licensee, in the amount of
36one hundred dollars ($100) per violation per day for a maximum
37of five 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
P72   1a maximum of 30 days, and shall be grounds for disciplining the
2licensee pursuant to Section 1596.885 or 1596.886.

3(3) The department may issue an exemption on its own motion
4pursuant to subdivision (f) if the person’s criminal history indicates
5that the person is of good character based on the age, seriousness,
6and frequency of the conviction or convictions. The department,
7in consultation with interested parties, shall develop regulations
8to establish the criteria to grant an exemption pursuant to this
9paragraph.

10(4) Concurrently with notifying the licensee pursuant to
11paragraph (3), the department shall notify the affected individual
12of his or her right to seek an exemption pursuant to subdivision
13(f). The individual may seek an exemption only if the licensee
14terminates the person’s employment or removes the person from
15the facility after receiving notice from the department pursuant to
16paragraph (3).

17(d) (1) For purposes of this section or any other provision of
18this chapter, a conviction means a plea or verdict of guilty or a
19conviction following a plea of nolo contendere. Any action that
20the department is permitted to take following the establishment of
21a conviction may be taken when the time for appeal has elapsed,
22when the judgment of conviction has been affirmed on appeal, or
23when an order granting probation is made suspending the
24imposition of sentence, notwithstanding a subsequent order
25pursuant to Sections 1203.4 and 1203.4a of the Penal Code
26permitting the person to withdraw his or her plea of guilty and to
27enter a plea of not guilty, or setting aside the verdict of guilty, or
28dismissing the accusation, information, or indictment. For purposes
29of this section or any other provision of this chapter, the record of
30a conviction, or a copy thereof certified by the clerk of the court
31or by a judge of the court in which the conviction occurred, shall
32be conclusive evidence of the conviction. For purposes of this
33section or any other provision of this chapter, the arrest disposition
34report certified by the Department of Justice, or documents
35admissible in a criminal action pursuant to Section 969b of the
36Penal Code, shall be prima facie evidence of conviction,
37notwithstanding any otherbegin delete provision ofend delete law prohibiting the
38admission of these documents in a civil or administrative action.

39(2) For purposes of this section or any other provision of this
40chapter, the department shall consider criminal convictions from
P73   1another state or federal court as if the criminal offense was
2committed in this state.

3(e) begin insert(1)end insertbegin insertend insertThe State Department of Social Servicesbegin delete mayend deletebegin insert shallend insert not
4use a record of arrest to deny, revoke, or terminate any application,
5license, employment, or residence unless the department
6investigates the incident and secures evidence, whether or not
7 related to the incident of arrest, that is admissible in an
8administrative hearing to establish conduct by the person that may
9pose a risk to the health and safety of any person who is or may
10become a client.begin delete The State Department of Social Services is
11authorized to obtain any arrest or conviction records or reports
12from any law enforcement agency as necessary to the performance
13of its duties to inspect, license, and investigate community care
14facilities and individuals associated with a community care facility.end delete

begin insert

15(2) The department shall not issue a criminal record clearance
16to a person who has been arrested for any crime specified in
17Section 290 of the Penal Code, or for violating Section 245, 273ab,
18or 273.5, or subdivision (b) of Section 273a of the Penal Code, or,
19prior to January 1, 1994, paragraph (2) of Section 273a of the
20Penal Code, or for any crime for which the department is
21prohibited from granting a criminal record exemption pursuant
22to subdivision (f), prior to the department’s completion of an
23investigation pursuant to paragraph (1).

end insert
begin insert

24(3) The State Department of Social Services is authorized to
25obtain any arrest or conviction records or reports from any law
26enforcement agency as necessary to the performance of its duties
27to inspect, license, and investigate community care facilities and
28individuals associated with a community care facility.

end insert

29(f) (1) After review of the record, the director may grant an
30exemption from disqualification for a license or special permit as
31specified in paragraphs (1) and (4) of subdivision (a), or for
32employment, residence, or presence in a child day care facility as
33specified in paragraphs (3), (4), and (5) of subdivision (c) if the
34director has substantial and convincing evidence to support a
35reasonable belief that the applicant and the person convicted of
36the crime, if other than the applicant, are of good character so as
37to justify issuance of the license or special permit or granting an
38exemption for purposes of subdivision (c). However, an exemption
39begin delete mayend deletebegin insert shallend insert not be granted pursuant to this subdivision if the
40conviction was for any of the following offenses:

P74   1(A) An offense specified in Section 220, 243.4, or 264.1,
2subdivision (a) of Sectionbegin delete 273aend deletebegin insert 273a,end insert or, prior to January 1, 1994,
3paragraph (1) of Section 273a, Sectionbegin insert 273ab,end insert 273d, 288, or 289,
4subdivision (c) of Section 290, or Sectionbegin delete 368end deletebegin insert 368,end insert of the Penal
5Code, or was a conviction of another crime against an individual
6specified in subdivision (c) of Section 667.5 of the Penal Code.

7(B) A felony offense specified in Section 729 of the Business
8and Professions Code or Section 206 or 215, subdivision (a) of
9Section 347, subdivision (b) of Section 417, or subdivision (a) or
10(b) of Section 451 of the Penal Code.

11(2) The departmentbegin delete mayend deletebegin insert shallend insert not prohibit a person from being
12employed or having contact with clients in a facility on the basis
13of a denied criminal record exemption request or arrest information
14unless the department complies with the requirements of Section
151596.8897.

16(g) Upon request of the licensee, who shall enclose a
17self-addressed stamped postcard for this purpose, the Department
18of Justice shall verify receipt of the fingerprint images.

19(h) (1) For the purposes of compliance with this section, the
20department may permit an individual to transfer a current criminal
21record clearance, as defined in subdivision (a), from one facility
22to another, as long as the criminal record clearance has been
23processed through a state licensing district office, and is being
24transferred to another facility licensed by a state licensing district
25 office. The request shall be in writing to the department, and shall
26include a copy of the person’s driver’s license or valid
27identification card issued by the Department of Motor Vehicles,
28or a valid photo identification issued by another state or the United
29States government if the person is not a California resident. Upon
30request of the licensee, who shall enclose a self-addressed stamped
31envelope for this purpose, the department shall verify whether the
32individual has a clearance that can be transferred.

33(2) The State Department of Social Services shall hold criminal
34record clearances in its active files for a minimum of two years
35after an employee is no longer employed at a licensed facility in
36order for the criminal record clearances to be transferred.

37(3) The following shall apply to a criminal record clearance or
38exemption from the department or a county office with
39 department-delegated licensing authority:

P75   1(A) A county office with department-delegated licensing
2authority may accept a clearance or exemption from the
3department.

4(B) The department may accept a clearance or exemption from
5any county office with department-delegated licensing authority.

6(C) A county office with department-delegated licensing
7authority may accept a clearance or exemption from any other
8county office with department-delegated licensing authority.

9(4) With respect to notifications issued by the Department of
10Justice pursuant to Section 11105.2 of the Penal Code concerning
11an individual whose criminal record clearance was originally
12processed by the department or a county office with
13department-delegated licensing authority, all of the following shall
14apply:

15(A) The Department of Justice shall process a request from the
16department or a county office with department-delegated licensing
17authority to receive the notice, only if all of the following
18conditions are met:

19(i) The request shall be submitted to the Department of Justice
20by the agency to be substituted to receive the notification.

21(ii) The request shall be for the same applicant type as the type
22for which the original clearance was obtained.

23(iii) The request shall contain all prescribed data elements and
24format protocols pursuant to a written agreement between the
25department and the Department of Justice.

26(B) (i) On or before January 7, 2005, the department shall notify
27the Department of Justice of all county offices that have
28department-delegated licensing authority.

29(ii) The department shall notify the Department of Justice within
3015 calendar days of the date on which a new county office receives
31department-delegated licensing authority or a county’s delegated
32licensing authority is rescinded.

33(C) The Department of Justice shall charge the department or
34a county office with department-delegated licensing authority a
35fee for each time a request to substitute the recipient agency is
36received for purposes of this paragraph. This fee shall not exceed
37the cost of providing the service.

38(i) Notwithstanding any otherbegin delete provision ofend delete law, the department
39may provide an individual with a copy of his or her state or federal
40level criminal offender record information search response as
P76   1provided to that department by the Department of Justice if the
2department has denied a criminal background clearance based on
3this information and the individual makes a written request to the
4department for a copy specifying an address to which it is to be
5sent. The state or federal level criminal offender record information
6search response shall not be modified or altered from its form or
7content as provided by the Department of Justice and shall be
8provided to the address specified by the individual in his or her
9written request. The department shall retain a copy of the
10individual’s written request and the response and date provided.



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