Amended in Assembly July 2, 2014

Amended in Assembly June 19, 2014

Amended in Senate May 27, 2014

Amended in Senate April 30, 2014

Senate BillNo. 1384


Introduced by Senator Mitchell

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(Coauthors: Senators Beall and De León)

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(Coauthor: Assembly Member Ammiano)

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February 21, 2014


An act to amend Sections 1337.9 and 1338.5 of the Health and Safety Code, relating to health facilities.

LEGISLATIVE COUNSEL’S DIGEST

SB 1384, as amended, Mitchell. Certified nurse assistants.

Existing law provides for the certification of nurse assistants by the State Department of Public Health. Existing law authorizes the department to deny an application for, initiate an action to suspend or revoke a certificate for, or deny a training and examination application for a nurse assistant under specified circumstances. Existing law requires, with some exceptions, the department to deny a training and examination application and deny, suspend, or revoke a certificate if the applicant or certificate holder has been convicted of a violation of or attempted violation of one or more specified crimes.

This bill would delete the requirement that the department deny a training and examination application and deny, suspend, or revoke a certificate if the applicant or certificate holder has been convicted of a violation or attempted violation of one or more of the specified crimes. The bill would make findings and declarations related to these provisions, and would make other related and conforming changes.

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

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

P2    1

SECTION 1.  

Section 1337.9 of the Health and Safety Code is
2amended to read:

3

1337.9.  

(a) The Legislature finds and declares all of the
4following:

5(1) Recidivism is reduced when criminal offenders are given
6the opportunity to secure employment and engage in a trade,
7occupation, or profession.

8(2) It is in the interest of public safety to assist in the
9rehabilitation of criminal offenders by removing impediments and
10restrictions uponbegin delete theirend deletebegin insert the offendersend insertbegin insertend insert ability to obtain employment
11or engage in a trade, occupation, or profession based solely upon
12the existence of a criminal record.

13(3) It is the intent of the Legislature that the state department,
14in determining eligibility under this section, have discretion to
15consider a conviction, but that the conviction not operate as an
16automatic bar to certification.

17(b) The state department may deny an application for, initiate
18an action to suspend or revoke a certificate for, or deny a training
19and examination application for, a nurse assistant for any of the
20following:

21(1) Unprofessional conduct, including, but not limited to,
22incompetence, gross negligence, unless due to circumstances
23beyond the nurse assistant’s control, physical, mental, or verbal
24abuse of patients, or misappropriation of property of patients or
25others.

26(2) Conviction of a crime substantially related to the
27qualifications, functions, and duties of a certified nurse assistant
28if the state department determines that the applicant or certificate
29holder has not adequately demonstrated that he or she has been
30rehabilitated and will present a threat to the health, safety, or
31welfare of patients.

32(3) Conviction for, or use of, any controlled substance as defined
33in Division 10 (commencing with Section 11000), or any dangerous
P3    1drug, as defined in Section 4022 of the Business and Professions
2Code, or alcoholic beverages, to an extent or in a manner dangerous
3or injurious to the certified nurse assistant, any other person, or
4the public, to the extent that this use would impair the ability to
5conduct, with safety to the public, the practice authorized by a
6certificate.

7(4) Procuring a certified nurse assistant certificate by fraud or
8misrepresentation or mistake.

9(5) Making or giving any false statement or information in
10conjunction with the application for issuance of a nurse assistant
11certificate or training and examination application.

12(6) Impersonating any applicant, or acting as proxy for an
13applicant, in any examination required under this article for the
14issuance of a certificate.

15(7) Impersonating another certified nurse assistant, a licensed
16vocational nurse, or a registered nurse, or permitting or allowing
17another person to use a certificate for the purpose of providing
18nursing services.

19(8) Violating or attempting to violate, directly or indirectly, or
20assisting in or abetting the violating of, or conspiring to violate
21any provision or term of, this article.

22(c) In determining whether or not to deny the application for
23licensure or renewal pursuant to paragraph (2) of subdivision (b),
24the department shall take into consideration the following factors
25as evidence of good character and rehabilitation:

26(1) The nature and seriousness of the conduct or crime under
27consideration and its relationship to their employment duties and
28responsibilities.

29(2) Activities since conviction, including employment or
30participation in therapy or education, that would indicate changed
31behavior.

32(3) The period of time that has elapsed since the commission
33of the conduct or offense referred to in paragraph (1) or (2) and
34the number of offenses.

35(4) The extent to which the person has complied with any terms
36of parole, probation, restitution, or any other sanction lawfully
37imposed against the person.

38(5) Any rehabilitation evidence, including character references,
39submitted by the person.

40(6) Employment history and current employer recommendations.

P4    1(7) Circumstances surrounding the commission of the offense
2that would demonstrate the unlikelihood of repetition.

3(8) An order from a superior court pursuant to Section 1203.4,
41203.4a, or 1203.41 of the Penal Code.

5(9) The granting by the Governor of a full and unconditional
6pardon.

7(10) A certificate of rehabilitation from a superior court.

8(d) When the state department determines that a certificate shall
9be suspended, the state department shall specify the period of actual
10suspension. The state department may stay the suspension and
11place the certificate holder on probation with specified conditions
12for a period not to exceed two years. If the state department
13determines that probation is the appropriate action, the certificate
14holder shall be notified that in lieu of the state department
15proceeding with a formal action to suspend the certification and
16in lieu of an appeal pursuant to subdivision (g), the certificate
17holder may request to enter into a diversion program agreement.
18A diversion program agreement shall specify terms and conditions
19related to matters, including, but not limited to, work performance,
20rehabilitation, training, counseling, progress reports, and treatment
21programs. If a certificate holder successfully completes a diversion
22program, no action shall be taken upon the allegations that were
23the basis for the diversion agreement. Upon failure of the certificate
24holder to comply with the terms and conditions of an agreement,
25the state department may proceed with a formal action to suspend
26or revoke the certification.

27(e) A plea or verdict of guilty, or a conviction following a plea
28of nolo contendere shall be deemed a conviction within the
29meaning of this article. The state department may deny an
30application or deny, suspend, or revoke a certification based on a
31conviction as provided in this article when the judgment of
32conviction is entered or when an order granting probation is made
33suspending the imposition of sentence.

34(f) Upon determination to deny an application or deny, revoke,
35or suspend a certificate, the state department shall notify the
36applicant or certificate holder in writing by certified mail of all of
37the following:

38(1) The reasons for the determination.

39(2) The applicant’s or certificate holder’s right to appeal the
40 determination.

P5    1(g) (1) Upon written notification that the state department has
2determined that an application shall be denied or a certificate shall
3be denied, suspended, or revoked, the applicant or certificate holder
4may request an administrative hearing by submitting a written
5request to the state department within 20 business days of receipt
6of the written notification. Upon receipt of a written request, the
7state department shall hold an administrative hearing pursuant to
8the procedures specified in Section 100171, except where those
9procedures are inconsistent with this section.

10(2) A hearing under this section shall be conducted within 60
11days of the receipt of the written request of the applicant or
12certificate holder submitted pursuant to paragraph (1) by a hearing
13officer or administrative law judge designated by the director at a
14location, other than the work facility, convenient to the applicant
15or certificate holder unless the applicant or certificate holder agrees
16to an extension. The hearing shall be tape recorded and a written
17decision shall be sent by certified mail to the applicant or certificate
18holder within 30 calendar days of the hearing. Except as specified
19in subdivision (h), the effective date of an action to revoke or
20suspend a certificate shall be specified in the written decision, or
21if no administrative hearing is timely requested, the effective date
22shall be 21 business days from written notification of the
23department’s determination to revoke or suspend.

24(h) The state department may revoke or suspend a certificate
25prior to any hearing when immediate action is necessary in the
26judgment of the director to protect the public welfare. Notice of
27this action, including a statement of the necessity of immediate
28action to protect the public welfare, shall be sent in accordance
29with subdivision (d). If the certificate holder requests an
30administrative hearing pursuant to subdivision (g), the state
31department shall hold the administrative hearing as soon as possible
32but not later than 30 calendar days from receipt of the request for
33a hearing. A written hearing decision upholding or setting aside
34the action shall be sent by certified mail to the certificate holder
35within 30 calendar days of the hearing.

36(i) Upon the expiration of the term of suspension, he or she shall
37be reinstated by the state department and shall be entitled to resume
38practice unless it is established to the satisfaction of the state
39department that the person has practiced as a certified nurse
P6    1assistant in this state during the term of suspension. In this event,
2the state department shall revoke the person’s certificate.

3(j) Upon a determination to deny an application or deny, revoke,
4or suspend a certificate, the state department shall notify the
5employer of the applicant and certificate holder in writing of that
6determination, and whether the determination is final, or whether
7a hearing is pending relating to this determination. If a licensee or
8facility is required to deny employment or terminate employment
9of the employee based upon notice from the state that the employee
10is determined to be unsuitable for employment under this section,
11the licensee or facility shall not incur criminal, civil, unemployment
12insurance, workers’ compensation, or administrative liability as a
13result of that denial or termination.

14

SEC. 2.  

Section 1338.5 of the Health and Safety Code is
15amended to read:

16

1338.5.  

(a) (1) (A) A criminal record clearance shall be
17conducted for all nurse assistants by the submission of fingerprint
18images and related information to the state department for
19processing at the Department of Justice. The licensing and
20certification program shall issue an All Facilities Letter (AFL) to
21facility licensees when both of the following criteria are met:

22(i) The program receives, within three business days, 95 percent
23of its total responses indicating no evidence of recorded criminal
24information from the Department of Justice.

25(ii) The program processes 95 percent of its total responses
26requiring disqualification in accordance with subparagraph (C) of
27paragraph (2) of subdivision (a) of Section 1337.9, as that section
28read on January 1, 2014, no later than 45 days after the date that
29the report is received from the Department of Justice.

30(B) After the AFL is issued, licensees shall not allow nurse
31assistant trainees or newly hired nurse assistants to have direct
32contact with clients or residents of the facility prior to completion
33of the criminal record clearance. A criminal record clearance shall
34be complete when the department has obtained the person’s
35criminal offender record information search response information
36from the Department of Justice and has determined that the person
37is not disqualified from engaging in the activity for which clearance
38is required. Notwithstanding any other provision of law, the
39department may, without taking regulatory action pursuant to
40Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
P7    13 of Title 2 of the Government Code, implement, interpret, or make
2specific this paragraph by means of an AFL or similar instruction.
3The fee to cover the processing costs of the Department of Justice,
4not including the costs associated with capturing or transmitting
5the fingerprint images and related information, shall not exceed
6thirty-two dollars ($32) per submission.

7(C) An applicant or certificate holder who may be disqualified
8on the basis of a criminal conviction shall provide the department
9with a certified copy of the judgment of each conviction. In
10addition, the individual may, during a period of two years after
11the department receives the criminal record report, provide the
12department with evidence of good character and rehabilitation in
13accordance with subdivision (c) of Section 1337.9. Upon receipt
14of a new application for certification of the individual, the
15department may receive and consider the evidence during the
16two-year period without requiring additional fingerprint imaging
17to clear the individual.

18(D) The department’s Licensing and Certification Program shall
19explore and implement methods for maximizing its efficiency in
20processing criminal record clearances within the requirements of
21law, including a streamlined clearance process for persons who
22have been disqualified on the basis of criminal convictions.

23(2) (A) Upon enrollment in a training program for nurse
24assistant certification, and prior to direct contact with residents, a
25candidate for training shall submit a training and examination
26application and the fingerprint cards to the state department to
27receive a criminal record review through the Department of Justice.
28Submission of the fingerprints to the Federal Bureau of
29Investigation shall be at the discretion of the state department.

30(B) An applicant and any other person specified in this
31subdivision, as part of the background clearance process, shall
32provide information as to whether or not the person has any prior
33criminal convictions, has had any arrests within the past 12-month
34period, or has any active arrests, and shall certify that, to the best
35of his or her knowledge, the information provided is true. This
36requirement is not intended to duplicate existing requirements for
37individuals who are required to submit fingerprint images as part
38of a criminal background clearance process. Every applicant shall
39provide information on any prior administrative action taken
40against him or her by any federal, state, or local government agency
P8    1and shall certify that, to the best of his or her knowledge, the
2information provided is true. An applicant or other person required
3to provide information pursuant to this section that knowingly or
4willfully makes false statements, representations, or omissions
5may be subject to administrative action, including, but not limited
6to, denial of his or her application or exemption or revocation of
7any exemption previously granted.

8(3) Each health facility that operates and is used as a clinical
9skills site for certification training, and each health facility, prior
10to hiring a nurse assistant applicant certified in another state or
11country, shall arrange for and pay the cost of the fingerprint live
12scan service and the Department of Justice processing costs for
13each applicant. Health facilities may not pass these costs through
14to nurse assistant applicants unless allowed by federal law enacted
15subsequent to the effective date of this paragraph.

16(b) The use of fingerprint live scan technology implemented by
17the Department of Justice by the year 1999 shall be used by the
18Department of Justice to generate timely and accurate positive
19fingerprint identification prior to nurse assistant certification and
20prior to direct contact with residents by the nurse assistant
21applicant. The department shall explore options to work with
22private and governmental agencies to ensure that licensees have
23adequate access to electronic transmission sites, including requiring
24the department to maintain a contract for electronic transmission
25services in each of the district offices where facilities have
26indicated problems with timely access to electronic transmission
27sites or consistent delays of more than three business days in
28obtaining appointments for electronic transmission services through
29a private entity, government agency, or law enforcement agency.

30(c) The state department shall develop procedures to ensure that
31any licensee, direct care staff, or certificate holder for whom a
32criminal record has been obtained pursuant to this section or
33Section 1265.5 or 1736 shall not be required to obtain multiple
34criminal record clearances.

35(d) If the department is experiencing a delay in processing the
36renewal of the certified nursing assistant’s certification at the time
37of the expiration of the certified nursing assistant’s certification,
38the department may extend the expiration of the certified nursing
39assistant’s certification for six months.

P9    1(e) If, at any time, the department determines that it does not
2meet the standards specified in clauses (i) and (ii) of subparagraph
3(A) of paragraph (1) of subdivision (a), for a period of 90
4consecutive days, the requirements in paragraph (1) of subdivision
5(a) shall be inoperative until the department can demonstrate it has
6met those standards for a period of 90 consecutive days.

7(f) During any time in which the requirements of paragraph (1)
8of subdivision (a) are inoperative, facilities may allow newly hired
9nurse assistants to have direct contact with clients or residents of
10the facility after those persons have submitted live scan fingerprint
11images to the Department of Justice, and the department shall issue
12an AFL advising facilities of this change in the statutory
13requirements.

14(g) Notwithstanding any other law, the department is authorized
15to provide an individual with a copy of his or her state or federal
16level criminal offender record information search response as
17provided to that department by the Department of Justice if the
18department has denied a criminal background clearance based on
19this information and the individual makes a written request to the
20department for a copy specifying an address to which it is to be
21sent. The state or federal level criminal offender record information
22search response shall not be modified or altered from its form or
23content as provided by the Department of Justice and shall be
24provided to the address specified by the individual in their written
25request. The department shall retain a copy of the individual’s
26written request and the response and date provided.



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