BILL NUMBER: SB 1171 ENROLLED
BILL TEXT
PASSED THE SENATE JUNE 30, 2016
PASSED THE ASSEMBLY JUNE 16, 2016
AMENDED IN ASSEMBLY MAY 16, 2016
INTRODUCED BY Committee on Judiciary (Senators Jackson (Chair),
Anderson, Hertzberg, Leno, Monning, Moorlach, and Wieckowski)
FEBRUARY 18, 2016
An act to amend Sections 655, 1264, 2554, 2556.1, 2715, 2759,
3020, 4430, 6026.7, 6360, 6410.5, 7541.1, 7685, 7818, 19351, and
19861 of the Business and Professions Code, to amend Sections 48a,
52.5, 1770, 1798.29, and 1798.82 of the Civil Code, to amend Sections
437c, 472a, 527.6, 765.030, 832, 835, 1084, 1097, 2025.010,
2031.010, 2033.010, 2035.010, 2036.010, and 2093 of, to amend and
renumber Sections 850, 851, 852, 853, 854, 855, and 856 of, and to
amend the heading of Chapter 8 (commencing with Section 850) of Title
10 of Part 2 of, the Code of Civil Procedure, to amend Sections
2105, 2207, 17708.02, 25100, and 25247 of the Corporations Code, to
amend Sections 221.6, 1313, 8340.4, 17250.25, 17250.35, 33353.7,
41360, 41422, 42925, 44977.5, 44984, 45192, 46392, 48204.2, 51421.5,
51745.6, 66302, 69800.2, 70037, 84750.5, 84916, 87787, 88192, 89090,
89708, 89712, 92630, and 94925 of, and to amend and repeal Section
66749.5 of, the Education Code, to amend Sections 17, 1000, 1301,
2142, 2150, 2155, 2196, 2250, 2263, 2265, 2270, 2600, 3025, 3114,
6850, 6850.5, 6851, 6853, 6854, 6854.5, 6855, 6857, 6859, 6861.5,
6862, 6863, 7901, 7902, 7903, 7904, 7911, 7912, 7913, 7918, 7921,
7922, 7927, 12309.5, 13307, 14026, 14405, 18108, and 18108.1 of, and
to amend the heading of Article 2 (commencing with Section 6851) of
Chapter 5 of Part 1 of Division 6 of, the Elections Code, to amend
Sections 980, 1010, 1106, and 1157 of the Evidence Code, to amend
Sections 7612, 7613.5, 8811, and 8908 of, and to repeal Sections
20024 and 20039 of, the Family Code, to amend Sections 2022, 6440,
7704, and 12029 of the Fish and Game Code, to amend Sections 14651.5,
27581.1, 27583.2, 27583.4, 52332, 55631, 56109, 67132, and 76953.5
of the Food and Agricultural Code, to amend Sections 421, 1225, 5970,
6254.5, 7161, 8594.15, 8670.13, 8670.13.3, 8670.28, 14670.36,
17581.9, 19130, 19241, 22865, 34886, 53515, 56332, 82015, 83123.6,
87207, and 89506 of, to amend and renumber Section 8670.95 of, and to
amend and renumber the heading of Chapter 15 (commencing with
Section 5970) of Division 6 of Title 1 of, the Government Code, to
amend Sections 1204.2, 1262.5, 1266, 1279.7, 1342.71, 1358.18,
1367.005, 1367.27, 1569.2, 1596.8662, 1760.2, 12640, 18080, 25150.7,
25180, 25250.15, 25270.6, 32132.8, 34191.3, 44017, 44559.4, 101853.1,
112895, 113789, 117945, 118330, 120375, and 129160 of, and to amend
and renumber Section 110424 of, the Health and Safety Code, to amend
Sections 38.6, 10082.5, 10112.27, 10123.193, 10133.15, 10169,
10192.18, 10489.2, 10489.3, 10489.96, 10489.99, 10603, and 12389 of
the Insurance Code, to amend Sections 139.2, 1720, 2750.8, 3503, and
4663 of the Labor Code, to amend Section 451 of the Military and
Veterans Code, to amend Sections 136.2, 186.2, 186.11, 186.12, 236.1,
241, 502.8, 670, 679.10, 832.3, 1214.5, 1524.2, 1526, 1546, 1546.1,
1546.2, 3000.08, 3016, 3056, 4030, 4031, 5065.5, 15003, and 33880 of
the Penal Code, to amend Sections 1490, 1510.1, 1828, 1851, 4788,
5203, and 16062 of the Probate Code, to amend Section 20111.6 of the
Public Contract Code, to amend Sections 541.5, 5002.2, 5071.7, 8750,
25401, 26003, 30411, 42023.1, and 71103.5 of the Public Resources
Code, to amend Sections 274, 635, 873, 913.8, 1701, 2833, 2870, 7661,
8282, 21252, and 130350.7 of, and to amend and renumber Section
387.8 of, the Public Utilities Code, to amend Sections 408, 423.3,
12206, 17052.6, 17255, 18805, 18807, 18808, 19136, 19161, 19255,
19533, 19772, 20640.3, 21021, 23156, 23610.5, and 24356 of, to amend
and renumber Section 24355.5 of, to add the heading of Part 13.5
(commencing with Section 31020) to Division 2 of, and to repeal
Sections 18035.6, 18036.6, and 41030 of, the Revenue and Taxation
Code, to amend Sections 13003 and 14200 of the Unemployment Insurance
Code, to amend Sections 2404.5, 11102.6, 16377, 21294, 22507.1, and
40215 of the Vehicle Code, to amend Sections 377, 10608.34, and 50906
of the Water Code, and to amend Sections 290.2, 366.21, 786, 4474.1,
11203, 11469, 11477, 14094.3, 14126.022, 14126.027, 14132.06,
14132.275, 14138.21, 15657.03, 16501.1, 17603, and 24005 of the
Welfare and Institutions Code, to amend Sections 325 and 330 of
Chapter 303 of the Statutes of 2015, and to amend Section 8 of
Chapter 590 of the Statutes of 2015, relating to the maintenance of
the codes.
LEGISLATIVE COUNSEL'S DIGEST
SB 1171, Committee on Judiciary. Maintenance of the codes.
Existing law directs the Legislative Counsel to advise the
Legislature from time to time as to legislation necessary to maintain
the codes.
This bill would make nonsubstantive changes in various provisions
of law to effectuate the recommendations made by the Legislative
Counsel to the Legislature.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 655 of the Business and Professions Code is
amended to read:
655. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Health plan" means a health care service plan licensed
pursuant to the Knox-Keene Health Care Service Plan Act of 1975
(Chapter 2.2 (commencing with Section 1340) of Division 2 of the
Health and Safety Code).
(2) "Optical company" means a person or entity that is engaged in
the manufacture, sale, or distribution to physicians and surgeons,
optometrists, health plans, or dispensing opticians of lenses,
frames, optical supplies, or optometric appliances or devices or
kindred products.
(3) "Optometrist" means a person licensed pursuant to Chapter 7
(commencing with Section 3000) or an optometric corporation, as
described in Section 3160.
(4) "Registered dispensing optician" means a person licensed
pursuant to Chapter 5.5 (commencing with Section 2550).
(5) "Therapeutic ophthalmic product" means lenses or other
products that provide direct treatment of eye disease or visual
rehabilitation for diseased eyes.
(b) An optometrist shall not have any membership, proprietary
interest, coownership, or any profit-sharing arrangement, either by
stock ownership, interlocking directors, trusteeship, mortgage, or
trust deed, with any registered dispensing optician or any optical
company, except as otherwise permitted under this section.
(c) (1) A registered dispensing optician or an optical company may
operate, own, or have an ownership interest in a health plan so long
as the health plan does not directly employ optometrists to provide
optometric services directly to enrollees of the health plan, and may
directly or indirectly provide products and services to the health
plan, its contracted providers or enrollees, or other optometrists.
For purposes of this section, an optometrist may be employed by a
health plan as a clinical director for the health plan pursuant to
Section 1367.01 of the Health and Safety Code or to perform services
related to utilization management, quality assurance, or other
similar related services that do not require the optometrist to
directly provide health care services to enrollees. In addition, an
optometrist serving as a clinical director shall not employ
optometrists to provide health care services to enrollees of the
health plan for which the optometrist is serving as clinical
director. For purposes of this section, the health plan's utilization
management and quality assurance programs that are consistent with
the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code) do not constitute providing health care services to enrollees.
(2) The registered dispensing optician or optical company shall
not interfere with the professional judgment of the optometrist.
(3) The Department of Managed Health Care shall forward to the
State Board of Optometry any complaints received from consumers that
allege an optometrist violated the Optometry Practice Act (Chapter 7
(commencing with Section 3000)). The Department of Managed Health
Care and the State Board of Optometry shall enter into an interagency
agreement regarding the sharing of information related to the
services provided by an optometrist that may be violating the
Optometry Practice Act that the Department of Managed Health Care
encounters in the course of administering the Knox-Keene Health Care
Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340)
of Division 2 of the Health and Safety Code).
(d) An optometrist, a registered dispensing optician, an optical
company, or a health plan may execute a lease or other written
agreement giving rise to a direct or indirect landlord-tenant
relationship with an optometrist, if all of the following conditions
are contained in the written agreement establishing the
landlord-tenant relationship:
(1) (A) The practice shall be owned by the optometrist and in
every phase be under the optometrist's exclusive control, including
the selection and supervision of optometric staff, the scheduling of
patients, the amount of time the optometrist spends with patients,
fees charged for optometric products and services, the examination
procedures and treatment provided to patients, and the optometrist's
contracting with managed care organizations.
(B) Subparagraph (A) does not preclude a lease from including
commercially reasonable terms that: (i) require the provision of
optometric services at the leased space during certain days and
hours, (ii) restrict the leased space from being used for the sale or
offer for sale of spectacles, frames, lenses, contact lenses, or
other ophthalmic products, except that the optometrist shall be
permitted to sell therapeutic ophthalmic products if the registered
dispensing optician, health plan, or optical company located on or
adjacent to the optometrist's leased space does not offer any
substantially similar therapeutic ophthalmic products for sale, (iii)
require the optometrist to contract with a health plan network,
health plan, or health insurer, or (iv) permit the landlord to
directly or indirectly provide furnishings and equipment in the
leased space.
(2) The optometrist's records shall be the sole property of the
optometrist. Only the optometrist and those persons with written
authorization from the optometrist have access to the patient records
and the examination room, except as otherwise provided by law.
(3) The optometrist's leased space shall be definite and distinct
from space occupied by other occupants of the premises, have a sign
designating that the leased space is occupied by an independent
optometrist or optometrists and be accessible to the optometrist
after hours or in the case of an emergency, subject to the facility's
general accessibility. This paragraph does not require a separate
entrance to the optometrist's leased space.
(4) All signs and displays shall be separate and distinct from
that of the other occupants and shall have the optometrist's name and
the word "optometrist" prominently displayed in connection
therewith. This paragraph does not prohibit the optometrist from
advertising the optometrist's practice location with reference to
other occupants or prohibit the optometrist or registered dispensing
optician from advertising his or her participation in any health plan'
s network or the health plan's products in which the optometrist or
registered dispensing optician participates.
(5) There shall be no signs displayed on any part of the premises
or in any advertising indicating that the optometrist is employed or
controlled by the registered dispensing optician, health plan, or
optical company.
(6) Except for a statement that an independent doctor of optometry
is located in the leased space, in-store pricing signs, and as
otherwise permitted by this subdivision, the registered dispensing
optician or optical company shall not link its advertising with the
optometrist's name, practice, or fees.
(7) Notwithstanding paragraphs (4) and (6), this subdivision does
not preclude a health plan from advertising its health plan products
and associated premium costs and any copayments, coinsurance,
deductibles, or other forms of cost-sharing, or the names and
locations of the health plan's providers, including any optometrists
or registered dispensing opticians providing professional services,
in compliance with the Knox-Keene Health Care Service Plan Act of
1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the
Health and Safety Code).
(8) A health plan that advertises its products and services in
accordance with paragraph (7) shall not advertise the optometrist's
fees for products and services that are not included in the health
plan's contract with the optometrist.
(9) The optometrist shall not be precluded from collecting fees
for services that are not included in a health plan's products and
services, subject to any patient disclosure requirements contained in
the health plan's provider agreement with the optometrist or that
are not otherwise prohibited by the Knox-Keene Health Care Service
Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of
Division 2 of the Health and Safety Code).
(10) The term of the lease shall be no less than one year and
shall not require the optometrist to contract exclusively with a
health plan. The optometrist may terminate the lease according to the
terms of the lease. The landlord may terminate the lease for the
following reasons:
(A) The optometrist's failure to maintain a license to practice
optometry, or the imposition of restrictions, suspension, or
revocation of the optometrist's license, or if the optometrist or the
optometrist's employee is or becomes ineligible to participate in
state or federal government-funded programs.
(B) Termination of any underlying lease in which the optometrist
has subleased space or the optometrist's failure to comply with the
underlying lease provisions that apply to the optometrist.
(C) If the health plan is the landlord, the termination of the
provider agreement between the health plan and the optometrist, in
accordance with the Knox-Keene Health Care Service Plan Act of 1975
(Chapter 2.2 (commencing with Section 1340) of Division 2 of the
Health and Safety Code).
(D) Other reasons pursuant to the terms of the lease or permitted
under the Civil Code.
(11) The landlord shall act in good faith in terminating the
lease, and the landlord shall not terminate the lease for reasons
that constitute interference with the practice of optometry.
(12) Lease or rent terms and payments shall not be based on the
number of eye exams performed, prescriptions written, patient
referrals, or the sale or promotion of the products of a registered
dispensing optician or an optical company.
(13) The landlord shall not terminate the lease solely because of
a report, complaint, or allegation filed by the optometrist against
the landlord, a registered dispensing optician, or a health plan to
the State Board of Optometry or the Department of Managed Health
Care, or any law enforcement or other regulatory agency.
(14) The landlord shall provide the optometrist with written
notice of the scheduled expiration date of a lease at least 60 days
before the scheduled expiration date. This notice obligation does not
affect the ability of either party to terminate the lease pursuant
to this section. The landlord shall not interfere with an outgoing
optometrist's efforts to inform the optometrist's patients, in
accordance with customary practice and professional obligations, of
the relocation of the optometrist's practice.
(15) (A) The State Board of Optometry may inspect, upon request,
an individual lease agreement pursuant to its investigational
authority, and if a request to inspect is made, the landlord or
tenant, as applicable, promptly complies with the request. Failure or
refusal to comply with the request for a lease or agreement within
30 days of receiving the request constitutes unprofessional conduct
and is grounds for disciplinary action by the appropriate regulatory
agency. Only personal information as defined in Section 1798.3 of the
Civil Code may be redacted prior to submission of the lease or
agreement. This section does not affect the Department of Managed
Health Care's authority to inspect all books and records of a health
plan pursuant to Section 1381 of the Health and Safety Code.
(B) Any financial information contained in the lease or agreement
submitted to a regulatory agency, pursuant to this paragraph, is
considered confidential trade secret information that is exempt from
disclosure under the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code).
(16) This subdivision does not apply to the relationship between
any optometrist employee and the employer medical group, or the
relationship between a medical group exclusively contracted with a
health plan regulated by the Department of Managed Health Care and
that health plan.
(e) A registered dispensing optician shall not have any
membership, proprietary interest, coownership, or profit sharing
arrangement either by stock ownership, interlocking directors,
trusteeship, mortgage, or trust deed, with an optometrist, except as
permitted under this section.
(f) This section does not prohibit a person licensed under
Chapter 5 (commencing with Section 2000) or its professional
corporation from contracting with or employing optometrists,
ophthalmologists, or optometric assistants and entering into a
contract or landlord tenant relationship with a health plan, an
optical company, or a registered dispensing optician, in accordance
with Sections 650 and 654.
(g) A violation of this section constitutes a misdemeanor as to a
person licensed under Chapter 7 (commencing with Section 3000) and as
to any and all persons, whether or not licensed under this division,
who participate with the licensed person in violating any provision
of this section.
SEC. 2. Section 1264 of the Business and Professions Code is
amended to read:
1264. (a) The department shall issue a clinical chemist, clinical
microbiologist, clinical toxicologist, clinical genetic molecular
biologist, or clinical cytogeneticist license to each person who has
applied for the license on forms provided by the department, who is a
lawful holder of a master of science or doctoral degree in the
specialty for which the applicant is seeking a license, and who has
met such additional reasonable qualifications of training, education,
and experience as the department may establish by regulations. The
department shall issue an oral and maxillofacial pathologist license
to every applicant for licensure who has applied for the license on
forms provided by the department, who is a registered Diplomate of
the American Board of Oral and Maxillofacial Pathology, and who meets
any additional and reasonable qualifications of training, education,
and experience as the department may establish by regulation.
(b) The graduate education shall have included 30 semester hours
of coursework in the applicant's specialty. Applicants possessing
only a master of science degree shall have the equivalent of one year
of full-time, directed study or training in procedures and
principles involved in the development, modification, or evaluation
of laboratory methods, including training in complex methods
applicable to diagnostic laboratory work. Each applicant shall have
had one year of training in his or her specialty in a clinical
laboratory acceptable to the department and three years of experience
in his or her specialty in a clinical laboratory, two years of which
must have been at a supervisory level. The education shall have been
obtained in one or more established and reputable institutions
maintaining standards equivalent, as determined by the department, to
those institutions accredited by an agency acceptable to the
department. The department shall determine by examination that the
applicant is properly qualified. Examinations, training, or
experience requirements for specialty licenses shall cover only the
specialty concerned.
(c) The department may issue licenses without examination to
applicants who have passed examinations of other states or national
accrediting boards whose requirements are equal to or greater than
those required by this chapter and regulations established by the
department. The evaluation of other state requirements or
requirements of national accrediting boards shall be carried out by
the department with the assistance of representatives from the
licensed groups. This section does not apply to persons who have
passed an examination by another state or national accrediting board
before the establishment of requirements that are equal to or exceed
those of this chapter or regulations of the department.
(d) The department may issue licenses without examination to
applicants who had met standards of education and training, defined
by regulations, before the date of the adoption of implementing
regulations.
(e) The department shall adopt regulations to conform to this
section.
SEC. 3. Section 2554 of the Business and Professions Code is
amended to read:
2554. Each registrant shall conspicuously and prominently display
at each registered location the following consumer information:
"Eye doctors are required to provide patients with a copy of their
ophthalmic lens prescriptions as follows:
Spectacle prescriptions: Release upon completion of exam.
Contact lens prescriptions: Release upon completion of exam or
upon completion of the fitting process.
Patients may take their prescription to any eye doctor or
registered dispensing optician to be filled.
Optometrists and registered dispensing opticians are regulated by
the State Board of Optometry. The State Board of Optometry receives
and investigates all consumer complaints involving the practice of
optometry and registered dispensing opticians. Complaints involving a
California-licensed optometrist or a registered dispensing optician
should be directed to:
California State Board of Optometry
Department of Consumer Affairs
2450 Del Paso Road, Suite 105
Sacramento, CA 95834
Phone: 1-866-585-2666 or (916) 575-7170
Email: optometry@dca.ca.gov
Internet Web site: www.optometry.ca.gov"
SEC. 4. Section 2556.1 of the Business and Professions Code is
amended to read:
2556.1. All licensed optometrists in a setting with a registered
dispensing optician shall report the business relationship to the
State Board of Optometry, as determined by the board. The State Board
of Optometry shall have the authority to inspect any premises at
which the business of a registered dispensing optician is co-located
with the practice of an optometrist, for purposes of determining
compliance with Section 655. The inspection may include the review of
any written lease or agreement between the registered dispensing
optician and the optometrist or between the optometrist and the
health plan. Failure to comply with the inspection or any request for
information by the board may subject the party to disciplinary
action. The board shall provide a copy of its inspection results, if
applicable, to the Department of Managed Health Care.
SEC. 5. Section 2715 of the Business and Professions Code is
amended to read:
2715. (a) The board shall prosecute all persons guilty of
violating this chapter.
(b) Except as provided by Section 159.5, the board, in accordance
with the Civil Service Law, may employ the personnel it deems
necessary to carry into effect this chapter.
(c) The board shall have and use a seal bearing the name "Board of
Registered Nursing." The board may adopt, amend, or repeal, in
accordance with the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code), the rules and regulations that may be
reasonably necessary to enable it to carry into effect this chapter.
SEC. 6. Section 2759 of the Business and Professions Code is
amended to read:
2759. The board shall discipline the holder of any license, whose
default has been entered or who has been heard by the board and
found guilty, by any of the following methods:
(a) Suspending judgment.
(b) Placing him or her upon probation.
(c) Suspending his or her right to practice nursing for a period
not exceeding one year.
(d) Revoking his or her license.
(e) Taking other action in relation to disciplining him or her as
the board in its discretion may deem proper.
SEC. 7. Section 3020 of the Business and Professions Code is
amended to read:
3020. (a) There shall be established under the State Board of
Optometry a dispensing optician committee to advise and make
recommendations to the board regarding the regulation of dispensing
opticians pursuant to Chapter 5.5 (commencing with Section 2550). The
committee shall consist of five members, two of whom shall be
registered dispensing opticians, two of whom shall be public members,
and one of whom shall be a member of the board. Initial appointments
to the committee shall be made by the board. The board shall stagger
the terms of the initial members appointed. The filling of vacancies
on the committee shall be made by the board upon recommendations by
the committee.
(b) The committee shall be responsible for:
(1) Recommending registration standards and criteria for the
registration of dispensing opticians.
(2) Reviewing the disciplinary guidelines relating to registered
dispensing opticians.
(3) Recommending to the board changes or additions to regulations
adopted pursuant to Chapter 5.5 (commencing with Section 2550).
(4) Carrying out and implementing all responsibilities and duties
imposed upon it pursuant to this chapter or as delegated to it by the
board.
(c) The committee shall meet at least twice a year and as needed
in order to conduct its business.
(d) Recommendations by the committee regarding scope of practice
or regulatory changes or additions shall be approved, modified, or
rejected by the board within 90 days of submission of the
recommendation to the board. If the board rejects or significantly
modifies the intent or scope of the recommendation, the committee may
request that the board provide its reasons in writing for rejecting
or significantly modifying the recommendation, which shall be
provided by the board within 30 days of the request.
(e) After the initial appointments by the board pursuant to
subdivision (a), the Governor shall appoint the registered dispensing
optician members and the public members. The committee shall submit
a recommendation to the board regarding which board member should be
appointed to serve on the committee, and the board shall appoint the
member to serve. Committee members shall serve a term of four years
except for the initial staggered terms. A member may be reappointed,
but no person shall serve as a member of the committee for more than
two consecutive terms.
SEC. 8. Section 4430 of the Business and Professions Code is
amended to read:
4430. For purposes of this chapter, the following definitions
shall apply:
(a) "Carrier" means a health care service plan, as defined in
Section 1345 of the Health and Safety Code, or a health insurer that
issues policies of health insurance, as defined in Section 106 of the
Insurance Code.
(b) "Clerical or recordkeeping error" includes a typographical
error, scrivener's error, or computer error in a required document or
record.
(c) "Extrapolation" means the practice of inferring a frequency or
dollar amount of overpayments, underpayments, nonvalid claims, or
other errors on any portion of claims submitted, based on the
frequency or dollar amount of overpayments, underpayments, nonvalid
claims, or other errors actually measured in a sample of claims.
(d) "Health benefit plan" means any plan or program that provides,
arranges, pays for, or reimburses the cost of health benefits.
"Health benefit plan" includes, but is not limited to, a health care
service plan contract issued by a health care service plan, as
defined in Section 1345 of the Health and Safety Code, and a policy
of health insurance, as defined in Section 106 of the Insurance Code,
issued by a health insurer.
(e) "Maximum allowable cost" means the maximum amount that a
pharmacy benefit manager will reimburse a pharmacy for the cost of a
drug.
(f) "Maximum allowable cost list" means a list of drugs for which
a maximum allowable cost has been established by a pharmacy benefit
manager.
(g) "Obsolete" means a drug that may be listed in national drug
pricing compendia but is no longer available to be dispensed based on
the expiration date of the last lot manufactured.
(h) "Pharmacy" has the same meaning as provided in Section 4037.
(i) "Pharmacy audit" means an audit, either onsite or remotely, of
any records of a pharmacy conducted by or on behalf of a carrier or
a pharmacy benefits manager, or a representative thereof, for
prescription drugs that were dispensed by that pharmacy to
beneficiaries of a health benefit plan pursuant to a contract with
the health benefit plan or the issuer or administrator thereof.
"Pharmacy audit" does not include a concurrent review or desk audit
that occurs within three business days of transmission of a claim, or
a concurrent review or desk audit if a chargeback or recoupment is
not demanded.
(j) "Pharmacy benefit manager" means a person, business, or other
entity that, pursuant to a contract or under an employment
relationship with a carrier, health benefit plan sponsor, or other
third-party payer, either directly or through an intermediary,
manages the prescription drug coverage provided by the carrier, plan
sponsor, or other third-party payer, including, but not limited to,
the processing and payment of claims for prescription drugs, the
performance of drug utilization review, the processing of drug prior
authorization requests, the adjudication of appeals or grievances
related to prescription drug coverage, contracting with network
pharmacies, and controlling the cost of covered prescription drugs.
SEC. 9. Section 6026.7 of the Business and Professions Code, as
added by Section 5 of Chapter 537 of the Statutes of 2015, is amended
to read:
6026.7. (a) The State Bar is subject to the Bagley-Keene Open
Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1
of Part 1 of Division 3 of Title 2 of the Government Code) and all
meetings of the State Bar are subject to the Bagley-Keene Open
Meeting Act.
(b) Notwithstanding any other law, the Bagley-Keene Open Meeting
Act shall not apply to the Commission on Judicial Nominees Evaluation
or the Committee of Bar Examiners.
(c) This section shall become operative on April 1, 2016.
SEC. 10. Section 6360 of the Business and Professions Code is
amended to read:
6360. (a) A law library established under this chapter shall be
free to the judiciary, to state and county officials, to members of
the State Bar of California, and to all residents of the county, for
the examination of books and other publications at the library or its
branches.
(b) The board of law library trustees may permit the removal of
the books and other publications from the library and its branches as
it considers proper, subject to those rules, and, in its discretion,
the giving of security, as it may provide to ensure the safekeeping
and prompt return thereof, but security shall not be required of
members of the judiciary or county officials. The board may provide
for the levying of fines
and charges for violation of the rules, and may make charges for
special services, such as the making of photocopies of pages of
library books, electronic delivery, messenger and other delivery
services, educational programs, special events, and provision of
supplies or food services.
(c) The board of law library trustees may require persons other
than members of the judiciary, county officials, and members of the
bar resident in the county, to pay dues as the board may fix for the
privilege of removing books and other publications from the library.
With the approval of the board of supervisors, the board of law
library trustees may charge individual members of the bar resident in
the county fees for the removal of books and other publications from
the library. These fees shall not exceed the cost of providing the
service.
SEC. 11. Section 6410.5 of the Business and Professions Code is
amended to read:
6410.5. (a) It is unlawful for any legal document assistant or
unlawful detainer assistant, in the first contact with a prospective
client of legal document or unlawful detainer assistant services, to
enter into a contract or agreement for services or accept any
compensation unless the legal document assistant or the unlawful
detainer assistant states orally, clearly, affirmatively, and
expressly all of the following, before making any other statement,
except statements required by law in telephonic or home
solicitations, and a greeting, or asking the prospective client any
questions:
(1) The identity of the person making the solicitation.
(2) The trade name of the person represented by the person making
the solicitation, if any.
(3) The kind of services being offered for sale.
(4) The statement: "I am not an attorney" and, if the person
offering legal document assistant or unlawful detainer assistant
services is a partnership or a corporation, or uses a fictitious
business name, " name] is not a law firm. I/we cannot represent
you in court, advise you about your legal rights or the law, or
select legal forms for you."
(5) The county in which the legal document assistant or unlawful
detainer assistant is registered and his or her registration number.
(6) The expiration date of the legal document assistant's or
unlawful detainer assistant's current registration period.
(b) After the legal document assistant or unlawful detainer
assistant makes the oral statements required pursuant to subdivision
(a), and before the legal document assistant or unlawful detainer
assistant enters into a contract or agreement for services or accepts
any compensation, the legal document assistant or unlawful detainer
assistant shall provide the prospective client with a "Notice to
Consumer" set forth below. After allowing the prospective client time
to read the notice, the legal document assistant or unlawful
detainer assistant shall ask the prospective client to sign and date
the notice. If the first contact is not in person, the legal document
assistant or unlawful detainer assistant shall provide the notice to
the prospective client at the first in-person meeting or mail the
notice to the prospective client before entering into a contract or
agreement for services or accepting any compensation. The notice
shall be set forth in black, bold, 12-point type on a separate,
white, 81/2 by 11 inch sheet of paper that contains no other print or
graphics, and shall be in the form set forth below. The notice shall
contain only the appropriate name or other designation from those
indicated in brackets below. At the time a prospective client signs
the notice and before that prospective client is offered any contract
or agreement for signature, the legal document assistant or unlawful
detainer assistant shall give the prospective client a clearly
legible copy of the signed notice. A legal document assistant or
unlawful detainer assistant shall not ask or require a prospective
client or a client to sign any other form of acknowledgment regarding
this notice.
NOTICE TO CONSUMER
DO NOT SIGN ANYTHING BEFORE YOU READ
THIS PAGE
In the first conversation when you
contacted (the unlawful detainer
assistant or the legal document
assistant), did (he or she) explain . .
. . . . . . .
(Name of unlawful detainer assistant or
legal document assistant) is not an
attorney.
(Name of corporation or partnership, if
any, that is offering legal document
assistant services or unlawful detainer
assistant services) is not a law firm.
(He/she/name of the business) cannot
represent you in court.
(He/she/name of the business) cannot
advise you about your legal rights or
the law.
(He/she/name of the business) cannot
select legal forms for you.
(He/she/name of the business) is
registered in (county name) and the
registration number is (registration
number).
(He/she/name of the business)'s
registration is valid until (date of
expiration of registration), after which
it must be renewed.
To confirm that (he/she/name of
business) is registered, you may contact
the (county name) clerk's office
at (office address), (or) (office phone
number), (or) (if available, office
Internet Web site).
Choose one:
Yes, (he/she) explained.
No, (he/she) did not explain.
Date:
Signature:
(c) The legal document assistant or unlawful detainer assistant
shall be responsible for translating, if necessary, the "Notice to
Consumer" required pursuant to subdivision (b) into the language
principally used in any oral sales presentation or negotiation.
SEC. 12. Section 7541.1 of the Business and Professions Code is
amended to read:
7541.1. (a) Notwithstanding any other law, experience for
purposes of taking the examination for licensure as a private
investigator shall be limited to those activities actually performed
in connection with investigations, as described in Section 7521, and
only if those activities are performed by persons who are employed or
managed in the following capacities:
(1) Sworn law enforcement officers possessing powers of arrest and
employed by agencies in the federal, state, or local government.
(2) Military police of the Armed Forces of the United States or
the National Guard.
(3) An insurance adjuster or its employees subject to Chapter 1
(commencing with Section 14000) of Division 5 of the Insurance Code.
(4) Persons employed by a private investigator who are duly
licensed in accordance with this chapter, or managed by a qualified
manager in accordance with Section 7536.
(5) Persons employed by repossessors duly licensed in accordance
with Chapter 11 (commencing with Section 7500), only to the extent
that those persons are routinely and regularly engaged in the
location of debtors or the location of personal property using
methods commonly known as "skip tracing." For purposes of this
section, only that experience acquired in skip tracing shall be
credited toward qualification to take the examination.
(6) Persons duly trained and certified as an arson investigator
and employed by a public agency engaged in fire suppression.
(7) Persons trained as investigators and employed by a public
defender to conduct investigations.
(b) For purposes of Section 7541, persons possessing an associate
of arts degree in police science, criminal law or justice from an
accredited college shall be credited with 1,000 hours of experience
in investigative activities.
(c) The following activities shall not be deemed to constitute
acts of investigation for purposes of experience toward licensure:
(1) The serving of legal process or other documents.
(2) Activities relating to the search for heirs or similar
searches which involve only a search of public records or other
reference sources in the public domain.
(3) The transportation or custodial attendance of persons in the
physical custody of a law enforcement agency.
(4) The provision of bailiff or other security services to a court
of law.
(5) The collection or attempted collection of debts by telephone
or written solicitation after the debtor has been located.
(6) The repossession or attempted repossession of personal
property after that property has been located and identified.
(d) If the activities of employment of an applicant include those
which qualify as bona fide experience as stated in this section as
well as those which do not qualify, the director may, by delegation
to the bureau, determine and apportion that percentage of experience
for which an applicant is entitled to credit.
SEC. 13. Section 7685 of the Business and Professions Code is
amended to read:
7685. (a) (1) Every funeral director shall provide to any person,
upon beginning discussion of prices or of the funeral goods and
services offered, a written or printed list containing, but not
necessarily limited to, the price for professional services offered,
that may include the funeral director's services, the preparation of
the body, the use of facilities, and the use of automotive equipment.
All services included in this price or prices shall be enumerated.
The funeral director shall also provide a statement on that list that
gives the price range for all caskets offered for sale.
(2) The list shall also include a statement indicating that the
survivor of the deceased who is handling the funeral arrangements, or
the responsible party, is entitled to receive, before the drafting
of any contract, a copy of any preneed agreement that has been signed
and paid for, in full or in part, by or on behalf of the deceased,
and that is in the possession of the funeral establishment.
(3) The funeral director shall also provide a written statement or
list that, at a minimum, specifically identifies a particular casket
or caskets by price and by thickness of metal, or type of wood, or
other construction, interior and color, in addition to other casket
identification requirements under Part 453 of Title 16 of the Code of
Federal Regulations and any subsequent version of this regulation,
when a request for specific information on a casket or caskets is
made in person by an individual. Prices of caskets and other
identifying features such as thickness of metal, or type of wood, or
other construction, interior and color, in addition to other casket
identification requirements required to be given over the telephone
by Part 453 of Title 16 of the Code of Federal Regulations and any
subsequent version of this regulation, shall be provided over the
telephone, if requested.
(b) (1) Each licensed funeral establishment that maintains an
Internet Web site shall post on its Internet Web site the list of
funeral goods and services that are required to be included in the
establishment's general price list, pursuant to federal rule, and a
statement that the general price list is available upon request.
(2) Information posted pursuant to paragraph (1) shall be provided
by a link from the Internet Web site homepage with a word or
combination of words, including, but not limited to, "goods,"
"merchandise," "products," or "services."
(3) An establishment that posts on its Internet Web site homepage
the words "price information" or a similar phrase that includes the
word "price," with a link that leads to the establishment's general
price list, need not comply with paragraphs (1) or (2).
(4) This subdivision shall not be construed to affect an
establishment's obligations under federal or state law effective
before January 1, 2013.
(5) This subdivision shall become operative on January 1, 2013.
SEC. 14. Section 7818 of the Business and Professions Code is
amended to read:
7818. The board, pursuant to the provisions contained in Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code, may adopt, amend, or repeal rules and
regulations to carry out this chapter.
SEC. 15. Section 19351 of the Business and Professions Code is
amended to read:
19351. (a) The Medical Marijuana Regulation and Safety Act Fund
is hereby established within the State Treasury. Moneys in the fund
shall be available upon appropriation by the Legislature.
Notwithstanding Section 16305.7 of the Government Code, the fund
shall include any interest and dividends earned on the moneys in the
fund.
(b) (1) Funds for the establishment and support of the regulatory
activities pursuant to this chapter shall be advanced as a General
Fund or special fund loan, and shall be repaid by the initial
proceeds from fees collected pursuant to this chapter or any rule or
regulation adopted pursuant to this chapter, by January 1, 2022.
Should the initial proceeds from fees not be sufficient to repay the
loan, moneys from the Medical Marijuana Fines and Penalties Account
shall be made available to the bureau, by appropriation of the
Legislature, to repay the loan.
(2) Funds advanced pursuant to this subdivision shall be
appropriated to the bureau, which shall distribute the moneys to the
appropriate licensing authorities, as necessary to implement this
chapter.
(3) The Director of Finance may provide an initial operating loan
from the General Fund to the Medical Marijuana Regulation and Safety
Act Fund that does not exceed ten million dollars ($10,000,000).
(c) Except as otherwise provided, all moneys collected pursuant to
this chapter as a result of fines or penalties imposed under this
chapter shall be deposited directly into the Medical Marijuana Fines
and Penalties Account, which is hereby established within the fund,
and shall be available, upon appropriation by the Legislature to the
bureau, for the purpose of funding the enforcement grant program
pursuant to subdivision (d).
(d) (1) The bureau shall establish a grant program to allocate
moneys from the Medical Marijuana Fines and Penalties Account to
state and local entities for the following purposes:
(A) To assist with medical cannabis regulation and the enforcement
of this chapter and other state and local laws applicable to
cannabis activities.
(B) For allocation to state and local agencies and law enforcement
to remedy the environmental impacts of cannabis cultivation.
(2) The costs of the grant program under this subdivision shall,
upon appropriation by the Legislature, be paid for with moneys in the
Medical Marijuana Fines and Penalties Account.
(3) The grant program established by this subdivision shall only
be implemented after the loan specified in this section is repaid.
SEC. 16. Section 19861 of the Business and Professions Code is
amended to read:
19861. (a) Notwithstanding subdivision (j) of Section 19801, the
commission shall not deny a license to a gambling establishment
solely because it is not open to the public, if all of the following
are true:
(1) The gambling establishment is situated in a local jurisdiction
that has an ordinance allowing only private clubs, the gambling
establishment was in operation as a private club under that ordinance
on December 31, 1997, and it met all applicable state and local
gaming registration requirements.
(2) The gambling establishment consists of no more than five
gaming tables.
(3) Video recordings of the entrance to the gambling room or rooms
and all tables situated therein are made during all hours of
operation by means of closed-circuit television cameras, and these
recordings are retained for a period of 30 days and are made
available for review by the department upon request.
(4) The gambling establishment is open to members of the private
club and their spouses in accordance with membership criteria in
effect as of December 31, 1997.
(b) A gambling establishment meeting the criteria set forth in
subdivision (a), in addition to the other requirements of this
chapter, may be licensed to operate as a private club gambling
establishment until November 30, 2003, or until the ownership or
operation of the gambling establishment changes from the ownership or
operation as of January 1, 1998, whichever occurs first. Operation
of the gambling establishments after this date shall only be
permitted if the local jurisdiction approves an ordinance, pursuant
to Sections 19961 and 19962, authorizing the operation of gambling
establishments that are open to the public. The commission shall
adopt regulations implementing this section. Before the commission's
issuance of a license to a private club, the department shall ensure
that the ownership of the gambling establishment has remained
constant since January 1, 1998, and the operation of the gambling
establishment has not been leased to a third party.
SEC. 17. Section 48a of the Civil Code is amended to read:
48a. (a) In any action for damages for the publication of a libel
in a daily or weekly news publication, or of a slander by radio
broadcast, plaintiff shall only recover special damages unless a
correction is demanded and is not published or broadcast, as provided
in this section. Plaintiff shall serve upon the publisher at the
place of publication, or broadcaster at the place of broadcast, a
written notice specifying the statements claimed to be libelous and
demanding that those statements be corrected. The notice and demand
must be served within 20 days after knowledge of the publication or
broadcast of the statements claimed to be libelous.
(b) If a correction is demanded within 20 days and is not
published or broadcast in substantially as conspicuous a manner in
the same daily or weekly news publication, or on the same
broadcasting station as were the statements claimed to be libelous,
in a regular issue thereof published or broadcast within three weeks
after service, plaintiff, if he or she pleads and proves notice,
demand and failure to correct, and if his or her cause of action is
maintained, may recover general, special, and exemplary damages.
Exemplary damages shall not be recovered unless the plaintiff proves
that defendant made the publication or broadcast with actual malice
and then only in the discretion of the court or jury, and actual
malice shall not be inferred or presumed from the publication or
broadcast.
(c) A correction published or broadcast in substantially as
conspicuous a manner in the daily or weekly news publication, or on
the broadcasting station as the statements claimed in the complaint
to be libelous, before receipt of a demand for correction, shall be
of the same force and effect as though the correction had been
published or broadcast within three weeks after a demand for
correction.
(d) As used in this section, the following definitions shall
apply:
(1) "General damages" means damages for loss of reputation, shame,
mortification, and hurt feelings.
(2) "Special damages" means all damages that plaintiff alleges and
proves that he or she has suffered in respect to his or her
property, business, trade, profession, or occupation, including the
amounts of money the plaintiff alleges and proves he or she has
expended as a result of the alleged libel, and no other.
(3) "Exemplary damages" means damages that may in the discretion
of the court or jury be recovered in addition to general and special
damages for the sake of example and by way of punishing a defendant
who has made the publication or broadcast with actual malice.
(4) "Actual malice" means that state of mind arising from hatred
or ill will toward the plaintiff; provided, however, that a state of
mind occasioned by a good faith belief on the part of the defendant
in the truth of the libelous publication or broadcast at the time it
is published or broadcast shall not constitute actual malice.
(5) "Daily or weekly news publication" means a publication, either
in print or electronic form, that contains news on matters of public
concern and that publishes at least once a week.
SEC. 18. Section 52.5 of the Civil Code is amended to read:
52.5. (a) A victim of human trafficking, as defined in Section
236.1 of the Penal Code, may bring a civil action for actual damages,
compensatory damages, punitive damages, injunctive relief, any
combination of those, or any other appropriate relief. A prevailing
plaintiff may also be awarded attorney's fees and costs.
(b) In addition to the remedies specified in this section, in an
action under subdivision (a), the plaintiff may be awarded up to
three times his or her actual damages or ten thousand dollars
($10,000), whichever is greater. In addition, punitive damages may be
awarded upon proof of the defendant's malice, oppression, fraud, or
duress in committing the act of human trafficking.
(c) An action brought pursuant to this section shall be commenced
within seven years of the date on which the trafficking victim was
freed from the trafficking situation or, if the victim was a minor
when the act of human trafficking against the victim occurred, within
10 years after the date the plaintiff attains the age of majority.
(d) If a person entitled to sue is under a disability at the time
the cause of action accrues so that it is impossible or impracticable
for him or her to bring an action, the time of the disability is not
part of the time limited for the commencement of the action.
Disability will toll the running of the statute of limitations for
this action.
(1) Disability includes being a minor, lacking legal capacity to
make decisions, imprisonment, or other incapacity or incompetence.
(2) The statute of limitations shall not run against a plaintiff
who is a minor or who lacks the legal competence to make decisions
simply because a guardian ad litem has been appointed. A guardian ad
litem's failure to bring a plaintiff's action within the applicable
limitation period will not prejudice the plaintiff's right to bring
an action after his or her disability ceases.
(3) A defendant is estopped from asserting a defense of the
statute of limitations when the expiration of the statute is due to
conduct by the defendant inducing the plaintiff to delay the filing
of the action, or due to threats made by the defendant causing the
plaintiff duress.
(4) The suspension of the statute of limitations due to
disability, lack of knowledge, or estoppel applies to all other
related claims arising out of the trafficking situation.
(5) The running of the statute of limitations is postponed during
the pendency of criminal proceedings against the victim.
(e) The running of the statute of limitations may be suspended if
a person entitled to sue could not have reasonably discovered the
cause of action due to circumstances resulting from the trafficking
situation, such as psychological trauma, cultural and linguistic
isolation, and the inability to access services.
(f) A prevailing plaintiff may also be awarded reasonable attorney'
s fees and litigation costs including, but not limited to, expert
witness fees and expenses as part of the costs.
(g) Restitution paid by the defendant to the victim shall be
credited against a judgment, award, or settlement obtained pursuant
to an action under this section. A judgment, award, or settlement
obtained pursuant to an action under this section is subject to
Section 13963 of the Government Code.
(h) A civil action filed under this section shall be stayed during
the pendency of any criminal action arising out of the same
occurrence in which the claimant is the victim. As used in this
section, a "criminal action" includes investigation and prosecution,
and is pending until a final adjudication in the trial court or
dismissal.
SEC. 19. Section 1770 of the Civil Code is amended to read:
1770. (a) The following unfair methods of competition and unfair
or deceptive acts or practices undertaken by any person in a
transaction intended to result or that results in the sale or lease
of goods or services to any consumer are unlawful:
(1) Passing off goods or services as those of another.
(2) Misrepresenting the source, sponsorship, approval, or
certification of goods or services.
(3) Misrepresenting the affiliation, connection, or association
with, or certification by, another.
(4) Using deceptive representations or designations of geographic
origin in connection with goods or services.
(5) Representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits, or quantities
that they do not have or that a person has a sponsorship, approval,
status, affiliation, or connection that he or she does not have.
(6) Representing that goods are original or new if they have
deteriorated unreasonably or are altered, reconditioned, reclaimed,
used, or secondhand.
(7) Representing that goods or services are of a particular
standard, quality, or grade, or that goods are of a particular style
or model, if they are of another.
(8) Disparaging the goods, services, or business of another by
false or misleading representation of fact.
(9) Advertising goods or services with intent not to sell them as
advertised.
(10) Advertising goods or services with intent not to supply
reasonably expectable demand, unless the advertisement discloses a
limitation of quantity.
(11) Advertising furniture without clearly indicating that it is
unassembled if that is the case.
(12) Advertising the price of unassembled furniture without
clearly indicating the assembled price of that furniture if the same
furniture is available assembled from the seller.
(13) Making false or misleading statements of fact concerning
reasons for, existence of, or amounts of, price reductions.
(14) Representing that a transaction confers or involves rights,
remedies, or obligations that it does not have or involve, or that
are prohibited by law.
(15) Representing that a part, replacement, or repair service is
needed when it is not.
(16) Representing that the subject of a transaction has been
supplied in accordance with a previous representation when it has
not.
(17) Representing that the consumer will receive a rebate,
discount, or other economic benefit, if the earning of the benefit is
contingent on an event to occur subsequent to the consummation of
the transaction.
(18) Misrepresenting the authority of a salesperson,
representative, or agent to negotiate the final terms of a
transaction with a consumer.
(19) Inserting an unconscionable provision in the contract.
(20) Advertising that a product is being offered at a specific
price plus a specific percentage of that price unless (A) the total
price is set forth in the advertisement, which may include, but is
not limited to, shelf tags, displays, and media advertising, in a
size larger than any other price in that advertisement, and (B) the
specific price plus a specific percentage of that price represents a
markup from the seller's costs or from the wholesale price
of the product. This subdivision
shall not apply to in-store advertising by businesses that are open
only to members or cooperative organizations organized pursuant to
Division 3 (commencing with Section 12000) of Title 1 of the
Corporations Code where more than 50 percent of purchases are made at
the specific price set forth in the advertisement.
(21) Selling or leasing goods in violation of Chapter 4
(commencing with Section 1797.8) of Title 1.7.
(22) (A) Disseminating an unsolicited prerecorded message by
telephone without an unrecorded, natural voice first informing the
person answering the telephone of the name of the caller or the
organization being represented, and either the address or the
telephone number of the caller, and without obtaining the consent of
that person to listen to the prerecorded message.
(B) This subdivision does not apply to a message disseminated to a
business associate, customer, or other person having an established
relationship with the person or organization making the call, to a
call for the purpose of collecting an existing obligation, or to any
call generated at the request of the recipient.
(23) (A) The home solicitation, as defined in subdivision (h) of
Section 1761, of a consumer who is a senior citizen where a loan is
made encumbering the primary residence of that consumer for purposes
of paying for home improvements and where the transaction is part of
a pattern or practice in violation of either subsection (h) or (i) of
Section 1639 of Title 15 of the United States Code or paragraphs
(1), (2), and (4) of subdivision (a) of Section 226.34 of Title 12 of
the Code of Federal Regulations.
(B) A third party shall not be liable under this subdivision
unless (i) there was an agency relationship between the party who
engaged in home solicitation and the third party, or (ii) the third
party had actual knowledge of, or participated in, the unfair or
deceptive transaction. A third party who is a holder in due course
under a home solicitation transaction shall not be liable under this
subdivision.
(24) (A) Charging or receiving an unreasonable fee to prepare,
aid, or advise any prospective applicant, applicant, or recipient in
the procurement, maintenance, or securing of public social services.
(B) For purposes of this paragraph, the following definitions
shall apply:
(i) "Public social services" means those activities and functions
of state and local government administered or supervised by the State
Department of Health Care Services, the State Department of Public
Health, or the State Department of Social Services, and involved in
providing aid or services, or both, including health care services,
and medical assistance, to those persons who, because of their
economic circumstances or social condition, are in need of that aid
or those services and may benefit from them.
(ii) "Public social services" also includes activities and
functions administered or supervised by the United States Department
of Veterans Affairs or the California Department of Veterans Affairs
involved in providing aid or services, or both, to veterans,
including pension benefits.
(iii) "Unreasonable fee" means a fee that is exorbitant and
disproportionate to the services performed. Factors to be considered,
if appropriate, in determining the reasonableness of a fee, are
based on the circumstances existing at the time of the service and
shall include, but not be limited to, all of the following:
(I) The time and effort required.
(II) The novelty and difficulty of the services.
(III) The skill required to perform the services.
(IV) The nature and length of the professional relationship.
(V) The experience, reputation, and ability of the person
providing the services.
(C) This paragraph shall not apply to attorneys licensed to
practice law in California, who are subject to the California Rules
of Professional Conduct and to the mandatory fee arbitration
provisions of Article 13 (commencing with Section 6200) of Chapter 4
of Division 3 of the Business and Professions Code, when the fees
charged or received are for providing representation in
administrative agency appeal proceedings or court proceedings for
purposes of procuring, maintaining, or securing public social
services on behalf of a person or group of persons.
(25) (A) Advertising or promoting any event, presentation,
seminar, workshop, or other public gathering regarding veterans'
benefits or entitlements that does not include the following
statement in the same type size and font as the term "veteran" or any
variation of that term:
(i) "I am not authorized to file an initial application for
Veterans' Aid and Attendance benefits on your behalf, or to represent
you before the Board of Veterans' Appeals within the United States
Department of Veterans Affairs in any proceeding on any matter,
including an application for such benefits. It would be illegal for
me to accept a fee for preparing that application on your behalf."
The requirements of this clause do not apply to a person licensed to
act as an agent or attorney in proceedings before the Agency of
Original Jurisdiction and the Board of Veterans' Appeals within the
United States Department of Veterans Affairs when that person is
offering those services at the advertised event.
(ii) The statement in clause (i) shall also be disseminated, both
orally and in writing, at the beginning of any event, presentation,
seminar, workshop, or public gathering regarding veterans' benefits
or entitlements.
(B) Advertising or promoting any event, presentation, seminar,
workshop, or other public gathering regarding veterans' benefits or
entitlements that is not sponsored by, or affiliated with, the United
States Department of Veterans Affairs, the California Department of
Veterans Affairs, or any other congressionally chartered or
recognized organization of honorably discharged members of the Armed
Forces of the United States, or any of their auxiliaries that does
not include the following statement, in the same type size and font
as the term "veteran" or the variation of that term:
"This event is not sponsored by, or affiliated with, the United
States Department of Veterans Affairs, the California Department of
Veterans Affairs, or any other congressionally chartered or
recognized organization of honorably discharged members of the Armed
Forces of the United States, or any of their auxiliaries. None of the
insurance products promoted at this sales event are endorsed by
those organizations, all of which offer free advice to veterans about
how to qualify and apply for benefits."
(i) The statement in this subparagraph shall be disseminated, both
orally and in writing, at the beginning of any event, presentation,
seminar, workshop, or public gathering regarding veterans' benefits
or entitlements.
(ii) The requirements of this subparagraph shall not apply in a
case where the United States Department of Veterans Affairs, the
California Department of Veterans Affairs, or other congressionally
chartered or recognized organization of honorably discharged members
of the Armed Forces of the United States, or any of their auxiliaries
have granted written permission to the advertiser or promoter for
the use of its name, symbol, or insignia to advertise or promote the
event, presentation, seminar, workshop, or other public gathering.
(26) Advertising, offering for sale, or selling a financial
product that is illegal under state or federal law, including any
cash payment for the assignment to a third party of the consumer's
right to receive future pension or veteran's benefits.
(27) Representing that a product is made in California by using a
Made in California label created pursuant to Section 12098.10 of the
Government Code, unless the product complies with Section 12098.10 of
the Government Code.
(b) (1) It is an unfair or deceptive act or practice for a
mortgage broker or lender, directly or indirectly, to use a home
improvement contractor to negotiate the terms of any loan that is
secured, whether in whole or in part, by the residence of the
borrower and that is used to finance a home improvement contract or
any portion of a home improvement contract. For purposes of this
subdivision, "mortgage broker or lender" includes a finance lender
licensed pursuant to the California Finance Lenders Law (Division 9
(commencing with Section 22000) of the Financial Code), a residential
mortgage lender licensed pursuant to the California Residential
Mortgage Lending Act (Division 20 (commencing with Section 50000) of
the Financial Code), or a real estate broker licensed under the Real
Estate Law (Division 4 (commencing with Section 10000) of the
Business and Professions Code).
(2) This section shall not be construed to either authorize or
prohibit a home improvement contractor from referring a consumer to a
mortgage broker or lender by this subdivision. However, a home
improvement contractor may refer a consumer to a mortgage lender or
broker if that referral does not violate Section 7157 of the Business
and Professions Code or any other law. A mortgage lender or broker
may purchase an executed home improvement contract if that purchase
does not violate Section 7157 of the Business and Professions Code or
any other law. Nothing in this paragraph shall have any effect on
the application of Chapter 1 (commencing with Section 1801) of Title
2 to a home improvement transaction or the financing of a home
improvement transaction.
SEC. 20. Section 1798.29 of the Civil Code is amended to read:
1798.29. (a) An agency that owns or licenses computerized data
that includes personal information shall disclose any breach of the
security of the system following discovery or notification of the
breach in the security of the data to any resident of California
whose unencrypted personal information was, or is reasonably believed
to have been, acquired by an unauthorized person. The disclosure
shall be made in the most expedient time possible and without
unreasonable delay, consistent with the legitimate needs of law
enforcement, as provided in subdivision (c), or any measures
necessary to determine the scope of the breach and restore the
reasonable integrity of the data system.
(b) An agency that maintains computerized data that includes
personal information that the agency does not own shall notify the
owner or licensee of the information of any breach of the security of
the data immediately following discovery, if the personal
information was, or is reasonably believed to have been, acquired by
an unauthorized person.
(c) The notification required by this section may be delayed if a
law enforcement agency determines that the notification will impede a
criminal investigation. The notification required by this section
shall be made after the law enforcement agency determines that it
will not compromise the investigation.
(d) An agency that is required to issue a security breach
notification pursuant to this section shall meet all of the following
requirements:
(1) The security breach notification shall be written in plain
language, shall be titled "Notice of Data Breach," and shall present
the information described in paragraph (2) under the following
headings: "What Happened," "What Information Was Involved," "What We
Are Doing," "What You Can Do," and "For More Information." Additional
information may be provided as a supplement to the notice.
(A) The format of the notice shall be designed to call attention
to the nature and significance of the information it contains.
(B) The title and headings in the notice shall be clearly and
conspicuously displayed.
(C) The text of the notice and any other notice provided pursuant
to this section shall be no smaller than 10-point type.
(D) For a written notice described in paragraph (1) of subdivision
(i), use of the model security breach notification form prescribed
below, or use of the headings described in this paragraph with the
information described in paragraph (2), written in plain language,
shall be deemed to be in compliance with this subdivision.
+--------------------------------------------------+
|(NAME OF INSTITUTION / LOGO) Date: (insert date)|
| |
+--------------------------------------------------+
| NOTICE OF DATA BREACH |
+------------+-------------------------------------+
| What | |
| Happened | |
| | |
| | |
+------------+-------------------------------------+
| What | |
| Information| |
| Was | |
| Involved | |
+------------+-------------------------------------+
| | |
| What We Are| |
| Doing | |
| | |
+------------+-------------------------------------+
| What You | |
| Can Do | |
| | |
| | |
+------------+-------------------------------------+
|Other Important Information |
|(insert other important information) |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
+------------+-------------------------------------+
| | |
| | |
|For More |Call (telephone number) or go to |
|Information |(Internet Web site) |
| | |
| | |
+------------+-------------------------------------+
(E) For an electronic notice described in paragraph (2) of
subdivision (i), use of the headings described in this paragraph with
the information described in paragraph (2), written in plain
language, shall be deemed to be in compliance with this subdivision.
(2) The security breach notification described in paragraph (1)
shall include, at a minimum, the following information:
(A) The name and contact information of the reporting agency
subject to this section.
(B) A list of the types of personal information that were or are
reasonably believed to have been the subject of a breach.
(C) If the information is possible to determine at the time the
notice is provided, any of the following:
(i) The date of the breach.
(ii) The estimated date of the breach.
(iii) The date range within which the breach occurred.
(D) The date of notice.
(E) Whether the notification was delayed as a result of a law
enforcement investigation, if that information is possible to
determine at the time the notice is provided.
(F) A general description of the breach incident, if that
information is possible to determine at the time the notice is
provided.
(G) The toll-free telephone numbers and addresses of the major
credit reporting agencies, if the breach exposed a social security
number or a driver's license or California identification card
number.
(3) At the discretion of the agency, the security breach
notification may also include any of the following:
(A) Information about what the agency has done to protect
individuals whose information has been breached.
(B) Advice on steps that the person whose information has been
breached may take to protect himself or herself.
(e) An agency that is required to issue a security breach
notification pursuant to this section to more than 500 California
residents as a result of a single breach of the security system shall
electronically submit a single sample copy of the security breach
notification, excluding any personally identifiable information, to
the Attorney General. A single sample copy of the security breach
notification shall not be deemed to be within subdivision (f) of
Section 6254 of the Government Code.
(f) For purposes of this section, "breach of the security of the
system" means unauthorized acquisition of computerized data that
compromises the security, confidentiality, or integrity of personal
information maintained by the agency. Good faith acquisition of
personal information by an employee or agent of the agency for the
purposes of the agency is not a breach of the security of the system,
if the personal information is not used or subject to further
unauthorized disclosure.
(g) For purposes of this section, "personal information" means
either of the following:
(1) An individual's first name or first initial and last name in
combination with any one or more of the following data elements, if
either the name or the data elements are not encrypted:
(A) Social security number.
(B) Driver's license number or California identification card
number.
(C) Account number, credit or debit card number, in combination
with any required security code, access code, or password that would
permit access to an individual's financial account.
(D) Medical information.
(E) Health insurance information.
(F) Information or data collected through the use or operation of
an automated license plate recognition system, as defined in Section
1798.90.5.
(2) A user name or email address, in combination with a password
or security question and answer that would permit access to an online
account.
(h) (1) For purposes of this section, "personal information" does
not include publicly available information that is lawfully made
available to the general public from federal, state, or local
government records.
(2) For purposes of this section, "medical information" means any
information regarding an individual's medical history, mental or
physical condition, or medical treatment or diagnosis by a health
care professional.
(3) For purposes of this section, "health insurance information"
means an individual's health insurance policy number or subscriber
identification number, a unique identifier used by a health insurer
to identify the individual, or any information in an individual's
application and claims history, including any appeals records.
(4) For purposes of this section, "encrypted" means rendered
unusable, unreadable, or indecipherable to an unauthorized person
through a security technology or methodology generally accepted in
the field of information security.
(i) For purposes of this section, "notice" may be provided by one
of the following methods:
(1) Written notice.
(2) Electronic notice, if the notice provided is consistent with
the provisions regarding electronic records and signatures set forth
in Section 7001 of Title 15 of the United States Code.
(3) Substitute notice, if the agency demonstrates that the cost of
providing notice would exceed two hundred fifty thousand dollars
($250,000), that the affected class of subject persons to be notified
exceeds 500,000, or the agency does not have sufficient contact
information. Substitute notice shall consist of all of the following:
(A) Email notice when the agency has an email address for the
subject persons.
(B) Conspicuous posting, for a minimum of 30 days, of the notice
on the agency's Internet Web site, if the agency maintains one. For
purposes of this subparagraph, conspicuous posting on the agency's
Internet Web site means providing a link to the notice on the home
page or first significant page after entering the Internet Web site
that is in larger type than the surrounding text, in contrasting
type, font, or color to the surrounding text of the same size, or set
off from the surrounding text of the same size by symbols or other
marks that call attention to the link.
(C) Notification to major statewide media and the Office of
Information Security within the Department of Technology.
(4) In the case of a breach of the security of the system
involving personal information defined in paragraph (2) of
subdivision (g) for an online account, and no other personal
information defined in paragraph (1) of subdivision (g), the agency
may comply with this section by providing the security breach
notification in electronic or other form that directs the person
whose personal information has been breached to promptly change his
or her password and security question or answer, as applicable, or to
take other steps appropriate to protect the online account with the
agency and all other online accounts for which the person uses the
same user name or email address and password or security question or
answer.
(5) In the case of a breach of the security of the system
involving personal information defined in paragraph (2) of
subdivision (g) for login credentials of an email account furnished
by the agency, the agency shall not comply with this section by
providing the security breach notification to that email address, but
may, instead, comply with this section by providing notice by
another method described in this subdivision or by clear and
conspicuous notice delivered to the resident online when the resident
is connected to the online account from an Internet Protocol address
or online location from which the agency knows the resident
customarily accesses the account.
(j) Notwithstanding subdivision (i), an agency that maintains its
own notification procedures as part of an information security policy
for the treatment of personal information and is otherwise
consistent with the timing requirements of this part shall be deemed
to be in compliance with the notification requirements of this
section if it notifies subject persons in accordance with its
policies in the event of a breach of security of the system.
(k) Notwithstanding the exception specified in paragraph (4) of
subdivision (b) of Section 1798.3, for purposes of this section,
"agency" includes a local agency, as defined in subdivision (a) of
Section 6252 of the Government Code.
SEC. 21. Section 1798.82 of the Civil Code is amended to read:
1798.82. (a) A person or business that conducts business in
California, and that owns or licenses computerized data that includes
personal information, shall disclose a breach of the security of the
system following discovery or notification of the breach in the
security of the data to a resident of California whose unencrypted
personal information was, or is reasonably believed to have been,
acquired by an unauthorized person. The disclosure shall be made in
the most expedient time possible and without unreasonable delay,
consistent with the legitimate needs of law enforcement, as provided
in subdivision (c), or any measures necessary to determine the scope
of the breach and restore the reasonable integrity of the data
system.
(b) A person or business that maintains computerized data that
includes personal information that the person or business does not
own shall notify the owner or licensee of the information of the
breach of the security of the data immediately following discovery,
if the personal information was, or is reasonably believed to have
been, acquired by an unauthorized person.
(c) The notification required by this section may be delayed if a
law enforcement agency determines that the notification will impede a
criminal investigation. The notification required by this section
shall be made promptly after the law enforcement agency determines
that it will not compromise the investigation.
(d) A person or business that is required to issue a security
breach notification pursuant to this section shall meet all of the
following requirements:
(1) The security breach notification shall be written in plain
language, shall be titled "Notice of Data Breach," and shall present
the information described in paragraph (2) under the following
headings: "What Happened," "What Information Was Involved," "What We
Are Doing," "What You Can Do," and "For More Information." Additional
information may be provided as a supplement to the notice.
(A) The format of the notice shall be designed to call attention
to the nature and significance of the information it contains.
(B) The title and headings in the notice shall be clearly and
conspicuously displayed.
(C) The text of the notice and any other notice provided pursuant
to this section shall be no smaller than 10-point type.
(D) For a written notice described in paragraph (1) of subdivision
(j), use of the model security breach notification form prescribed
below or use of the headings described in this paragraph with the
information described in paragraph (2), written in plain language,
shall be deemed to be in compliance with this subdivision.
+--------------------------------------------------+
|(NAME OF INSTITUTION / LOGO) Date: (insert date)|
| |
+--------------------------------------------------+
| NOTICE OF DATA BREACH |
+------------+-------------------------------------+
| What | |
| Happened | |
| | |
| | |
+------------+-------------------------------------+
| What | |
| Information| |
|Was Involved| |
+------------+-------------------------------------+
| | |
| What We Are| |
| Doing | |
| | |
+------------+-------------------------------------+
| What You | |
| Can Do | |
| | |
| | |
+------------+-------------------------------------+
|Other Important Information |
|(insert other important information) |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
| |
+------------+-------------------------------------+
| | |
| | |
|For More |Call (telephone number) or go to |
|Information |(Internet Web site) |
| | |
| | |
+------------+-------------------------------------+
(E) For an electronic notice described in paragraph (2) of
subdivision (j), use of the headings described in this paragraph with
the information described in paragraph (2), written in plain
language, shall be deemed to be in compliance with this subdivision.
(2) The security breach notification described in paragraph (1)
shall include, at a minimum, the following information:
(A) The name and contact information of the reporting person or
business subject to this section.
(B) A list of the types of personal information that were or are
reasonably believed to have been the subject of a breach.
(C) If the information is possible to determine at the time the
notice is provided, any of the following:
(i) The date of the breach.
(ii) The estimated date of the breach.
(iii) The date range within which the breach occurred.
(D) The date of notice.
(E) Whether notification was delayed as a result of a law
enforcement investigation, if that information is possible to
determine at the time the notice is provided.
(F) A general description of the breach incident, if that
information is possible to determine at the time the notice is
provided.
(G) The toll-free telephone numbers and addresses of the major
credit reporting agencies if the breach exposed a social security
number or a driver's license or California identification card
number.
(H) If the person or business providing the notification was the
source of the breach, an offer to provide appropriate identity theft
prevention and mitigation services, if any, shall be provided at no
cost to the affected person for not less than 12 months along with
all information necessary to take advantage of the offer to any
person whose information was or may have been breached if the breach
exposed or may have exposed personal information defined in
subparagraphs (A) and (B) of paragraph (1) of subdivision (h).
(3) At the discretion of the person or business, the security
breach notification may also include any of the following:
(A) Information about what the person or business has done to
protect individuals whose information has been breached.
(B) Advice on steps that the person whose information has been
breached may take to protect himself or herself.
(e) A covered entity under the federal Health Insurance
Portability and Accountability Act of 1996 (42 U.S.C. Sec. 1320d et
seq.) will be deemed to have complied with the notice requirements in
subdivision (d) if it has complied completely with Section 13402(f)
of the federal Health Information Technology for Economic and
Clinical Health Act (Public Law 111-5). This subdivision shall not be
construed to exempt a covered entity from any other provision of
this section.
(f) A person or business that is required to issue a security
breach notification pursuant to this section to more than 500
California residents as a result of a single breach of the security
system shall electronically submit a single sample copy of the
security breach notification, excluding any personally identifiable
information, to the Attorney General. A single sample copy of the
security breach notification shall not be deemed to be within
subdivision (f) of Section 6254 of the Government Code.
(g) For purposes of this section, "breach of the security of the
system" means unauthorized acquisition of computerized data that
compromises the security, confidentiality, or integrity of personal
information maintained by the person or business. Good faith
acquisition of personal information by an employee or agent of the
person or business for the purposes of the person or business is not
a breach of the security of the system, if the personal information
is not used or subject to further unauthorized disclosure.
(h) For purposes of this section, "personal information" means
either of the following:
(1) An individual's first name or first initial and last name in
combination with any one or more of the following data elements, if
either the name or the data elements are not encrypted:
(A) Social security number.
(B) Driver's license number or California identification card
number.
(C) Account number, credit or debit card number, in combination
with any required security code, access code, or password that would
permit access to an individual's financial account.
(D) Medical information.
(E) Health insurance information.
(F) Information or data collected through the use or operation of
an automated license plate recognition system, as defined in Section
1798.90.5.
(2) A user name or email address, in combination with a password
or security question and answer that would permit access to an online
account.
(i) (1) For purposes of this section, "personal information" does
not include publicly available information that is lawfully made
available to the general public from federal, state, or local
government records.
(2) For purposes of this section, "medical information" means any
information regarding an individual's medical history, mental or
physical condition, or medical treatment or diagnosis by a health
care professional.
(3) For purposes of this section, "health insurance information"
means an individual's health insurance policy number or subscriber
identification number, a unique identifier used by a health insurer
to identify the individual, or information in an individual's
application and claims history, including any appeals records.
(4) For purposes of this section, "encrypted" means rendered
unusable, unreadable, or indecipherable to an unauthorized person
through a security technology or methodology generally accepted in
the field of information security.
(j) For purposes of this section, "notice" may be provided by one
of the following methods:
(1) Written notice.
(2) Electronic notice, if the notice provided is consistent with
the provisions regarding electronic records and signatures set forth
in Section 7001 of Title 15 of the United States Code.
(3) Substitute notice, if the person or business demonstrates that
the cost of providing notice would exceed two hundred fifty thousand
dollars ($250,000), that the affected class of subject persons to be
notified exceeds 500,000, or the person or business does not have
sufficient contact information. Substitute notice shall consist of
all of the following:
(A) Email notice when the person or business has an email address
for the subject persons.
(B) Conspicuous posting, for a minimum of 30 days, of the notice
on the Internet Web site of the person or business, if the person or
business maintains one. For purposes of this subparagraph,
conspicuous posting on the person's or business's Internet Web site
means providing a link to the notice on the home page or first
significant page after entering the Internet Web site that is in
larger type than the surrounding text, in contrasting type, font, or
color to the surrounding text of the same size, or set off from the
surrounding text of the same size by symbols or other marks that call
attention to the link.
(C) Notification to major statewide media.
(4) In the case of a breach of the security of the system
involving personal information defined in paragraph (2) of
subdivision (h) for an online account, and no other personal
information defined in paragraph (1) of subdivision (h), the person
or business may comply with this section by providing the security
breach notification in electronic or other form that directs the
person whose personal information has been breached promptly to
change his or her password and security question or answer, as
applicable, or to take other steps appropriate to protect the online
account with the person or business and all other online accounts for
which the person whose personal information has been breached uses
the same user name or email address and password or security question
or answer.
(5) In the case of a breach of the security of the system
involving personal information defined in paragraph (2) of
subdivision (h) for login credentials of an email account furnished
by the person or business, the person or business shall not comply
with this section by providing the security breach notification to
that email address, but may, instead, comply with this section by
providing notice by another method described in this subdivision or
by clear and conspicuous notice delivered to the resident online if
the resident is connected to the online account from an Internet
Protocol address or online location from which the person or business
knows the resident customarily accesses the account.
(k) Notwithstanding subdivision (j), a person or business that
maintains its own notification procedures as part of an information
security policy for the treatment of personal information and is
otherwise consistent with the timing requirements of this part, shall
be deemed to be in compliance with the notification requirements of
this section if the person or business notifies subject persons in
accordance with its policies in the event of a breach of security of
the system.
SEC. 22. Section 437c of the Code of Civil Procedure is amended to
read:
437c. (a) (1) A party may move for summary judgment in an action
or proceeding if it is contended that the action has no merit or that
there is no defense to the action or proceeding. The motion may be
made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the
motion is directed or at any earlier time after the general
appearance that the court, with or without notice and upon good cause
shown, may direct.
(2) Notice of the motion and supporting papers shall be served on
all other parties to the action at least 75 days before the time
appointed for hearing. If the notice is served by mail, the required
75-day period of notice shall be increased by 5 days if the place of
address is within the State of California, 10 days if the place of
address is outside the State of California but within the United
States, and 20 days if the place of address is outside the United
States. If the notice is served by facsimile transmission, express
mail, or another method of delivery providing for overnight delivery,
the required 75-day period of notice shall be increased by two court
days.
(3) The motion shall be heard no later than 30 days before the
date of trial, unless the court for good cause orders otherwise. The
filing of the motion shall not extend the time within which a party
must otherwise file a responsive pleading.
(b) (1) The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of
which judicial notice shall or may be taken. The supporting papers
shall include a separate statement setting forth plainly and
concisely all material facts that the moving party contends are
undisputed. Each of the material facts stated shall be followed by a
reference to the supporting evidence. The failure to comply with this
requirement of a separate statement may in the court's discretion
constitute a sufficient ground for denying the motion.
(2) An opposition to the motion shall be served and filed not less
than 14 days preceding the noticed or continued date of hearing,
unless the court for good cause orders otherwise. The opposition,
where appropriate, shall consist of affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of
which judicial notice shall or may be taken.
(3) The opposition papers shall include a separate statement that
responds to each of the material facts contended by the moving party
to be undisputed, indicating if the opposing party agrees or
disagrees that those facts are undisputed. The statement also shall
set forth plainly and concisely any other material facts the opposing
party contends are disputed. Each material fact contended by the
opposing party to be disputed shall be followed by a reference to the
supporting evidence. Failure to comply with this requirement of a
separate statement may constitute a sufficient ground, in the court's
discretion, for granting the motion.
(4) A reply to the opposition shall be served and filed by the
moving party not less than five days preceding the noticed or
continued date of hearing, unless the court for good cause orders
otherwise.
(5) Evidentiary objections not made at the hearing shall be deemed
waived.
(6) Except for subdivision (c) of Section 1005 relating to the
method of service of opposition and reply papers, Sections 1005 and
1013, extending the time within which a right may be exercised or an
act may be done, do not apply to this section.
(7) An incorporation by reference of a matter in the court's file
shall set forth with specificity the exact matter to which reference
is being made and shall not incorporate the entire file.
(c) The motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as
a matter of law. In determining if the papers show that there is no
triable issue as to any material fact, the court shall consider all
of the evidence set forth in the papers, except the evidence to which
objections have been made and sustained by the court, and all
inferences reasonably deducible from the evidence, except summary
judgment shall not be granted by the court based on inferences
reasonably deducible from the evidence if contradicted by other
inferences or evidence that raise a triable issue as to any material
fact.
(d) Supporting and opposing affidavits or declarations shall be
made by a person on personal knowledge, shall set forth admissible
evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated in the affidavits or declarations.
An objection based on the failure to comply with the requirements of
this subdivision, if not made at the hearing, shall be deemed waived.
(e) If a party is otherwise entitled to summary judgment pursuant
to this section, summary judgment shall not be denied on grounds of
credibility or for want of cross-examination of witnesses furnishing
affidavits or declarations in support of the summary judgment, except
that summary judgment may be denied in the discretion of the court
if the only proof of a material fact offered in support of the
summary judgment is an affidavit or declaration made by an individual
who was the sole witness to that fact; or if a material fact is an
individual's state of mind, or lack thereof, and that fact is sought
to be established solely by the individual's affirmation thereof.
(f) (1) A party may move for summary adjudication as to one or
more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of
duty, if the party contends that the cause of action has no merit,
that there is no affirmative defense to the cause of action, that
there is no merit to an affirmative defense as to any cause of
action, that there is no merit to a claim for damages, as specified
in Section 3294 of the Civil Code, or that one or more defendants
either owed or did not owe a duty to the plaintiff or plaintiffs. A
motion for summary adjudication shall be granted only if it
completely disposes of a cause of action, an affirmative defense, a
claim for damages, or an issue of duty.
(2) A motion for summary adjudication may be made by itself or as
an alternative to a motion for summary judgment and shall proceed in
all procedural respects as a motion for summary judgment. A party
shall not move for summary judgment based on issues asserted in a
prior motion for summary adjudication and denied by the court unless
that party establishes, to the satisfaction of the court, newly
discovered facts or circumstances or a change of law supporting the
issues reasserted in the summary judgment motion.
(g) Upon the denial of a motion for summary judgment on the ground
that there is a triable issue as to one or more material facts, the
court shall, by written or oral order, specify one or more material
facts raised by the motion that the court has determined there exists
a triable controversy. This determination shall specifically refer
to the evidence proffered in support of and in opposition to the
motion that indicates that a triable controversy exists. Upon the
grant of a motion for summary judgment on the ground that there is no
triable issue of material fact, the court shall, by written or oral
order, specify the reasons for its determination. The order shall
specifically refer to the evidence proffered in support of and, if
applicable, in opposition to the motion that indicates no triable
issue exists. The court shall also state its reasons for any other
determination. The court shall record its determination by court
reporter or written order.
(h) If it appears from the affidavits submitted in opposition to a
motion for summary judgment or summary adjudication, or both, that
facts essential to justify opposition may exist but cannot, for
reasons stated, be presented, the court shall deny the motion, order
a continuance to permit affidavits to be obtained or discovery to be
had, or make any other order as may be just. The application to
continue the motion to obtain necessary discovery may also be made by
ex parte motion at any time on or before the date the opposition
response to the motion is due.
(i) If, after granting a continuance to allow specified additional
discovery, the court determines that the party seeking summary
judgment has unreasonably failed to allow the discovery to be
conducted, the court shall grant a continuance to permit the
discovery to go forward or deny the motion for summary judgment or
summary adjudication. This section does not affect or limit the
ability of a party to compel discovery under the Civil Discovery Act
(Title 4 (commencing with Section 2016.010) of Part 4).
(j) If the court determines at any time that an affidavit was
presented in bad faith or solely for the purpose of delay, the court
shall order the party who presented the affidavit to pay the other
party the amount of the reasonable expenses the filing of the
affidavit caused the other party to incur. Sanctions shall not be
imposed pursuant to this subdivision except on notice contained in a
party's papers or on the court's own noticed motion, and after an
opportunity to be heard.
(k) Unless a separate judgment may properly be awarded in the
action, a final judgment shall not be entered on a motion for summary
judgment before the termination of the action, but the final
judgment shall, in addition to any matters determined in the action,
award judgment as established by the summary proceeding provided for
in this section.
(l) In an action arising out of an injury to the person or to
property, if a motion for summary judgment is granted on the basis
that the defendant was without fault, no other defendant during
trial, over plaintiff's objection, may attempt to attribute fault to,
or comment on, the absence or involvement of the defendant who was
granted the motion.
(m) (1) A summary judgment entered under this section is an
appealable judgment as in other cases. Upon entry of an order
pursuant to this section, except the entry of summary judgment, a
party may, within 20 days after service upon him or her of a written
notice of entry of the order, petition an appropriate reviewing court
for a peremptory writ. If the notice is served by mail, the initial
period within which to file the petition shall be increased by five
days if the place of address is within the State of California, 10
days if the place of address is outside the State of California but
within the United States, and 20 days if the place of address is
outside the United States. If the notice is served by facsimile
transmission, express mail, or another method of delivery providing
for overnight delivery, the initial period within which to file the
petition shall be increased by two court days. The superior court
may, for good cause, and before the expiration of the initial period,
extend the time for one additional period not to exceed 10 days.
(2) Before a reviewing court affirms an order granting summary
judgment or summary adjudication on a ground not relied upon by the
trial court, the reviewing court shall afford the parties an
opportunity to present their views on the issue by submitting
supplemental briefs. The supplemental briefs may include an argument
that additional evidence relating to that ground exists, but the
party has not had an adequate opportunity to present the evidence or
to conduct discovery on the issue. The court may reverse or remand
based upon the supplemental briefs to allow the parties to present
additional evidence or to conduct discovery on the issue. If the
court fails to allow supplemental briefs, a rehearing shall be
ordered upon timely petition of a party.
(n) (1) If a motion for summary adjudication is granted, at the
trial of the action, the cause or causes of action within the action,
affirmative defense or defenses, claim for damages, or issue or
issues of duty as to the motion that has been granted shall be deemed
to be established and the action shall proceed as to the cause or
causes of action, affirmative defense or defenses, claim for damages,
or issue or issues of duty remaining.
(2) In the trial of the action, the fact that a motion for summary
adjudication is granted as to one or more causes of action,
affirmative defenses, claims for damages, or issues of duty within
the action shall not bar any cause of action, affirmative defense,
claim for damages, or issue of duty as to which summary adjudication
was either not sought or denied.
(3) In the trial of an action, neither a party, a witness, nor the
court shall comment to a jury upon the grant or denial of a motion
for summary adjudication.
(o) A cause of action has no merit if either of the following
exists:
(1) One or more of the elements of the cause of action cannot be
separately established, even if that element is separately pleaded.
(2) A defendant establishes an affirmative defense to that cause
of action.
(p) For purposes of motions for summary judgment and summary
adjudication:
(1) A plaintiff or cross-complainant has met his or her burden of
showing that there is no defense to a cause of action if that party
has proved each element of the cause of action entitling the party to
judgment on the cause of action. Once the plaintiff or
cross-complainant has met that burden, the burden shifts to the
defendant or cross-defendant to show that a triable issue of one or
more material facts exists as to the cause of action or a defense
thereto. The defendant or cross-defendant shall not rely upon the
allegations or denials of its pleadings to show that a triable issue
of material fact exists but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists as to the
cause of action or a defense thereto.
(2) A defendant or cross-defendant has met his or her burden of
showing that a cause of action has no merit if the party has shown
that one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there is a
complete defense to the cause of action. Once the defendant or
cross-defendant has met that burden, the burden shifts to the
plaintiff or cross-complainant to show that a triable issue of one or
more material facts exists as to the cause of action or a defense
thereto. The plaintiff or cross-complainant shall not rely upon the
allegations or denials of its pleadings to show that a triable issue
of material fact exists but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists as to the
cause of action or a defense thereto.
(q) In granting or denying a motion for summary judgment or
summary adjudication, the court need rule only on those objections to
evidence that it deems material to its disposition of the motion.
Objections to evidence that are not ruled on for purposes of the
motion shall be preserved for appellate review.
(r) This section does not extend the period for trial provided by
Section 1170.5.
(s) Subdivisions (a) and (b) do not apply to actions brought
pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of
Part 3.
(t) Notwithstanding subdivision (f), a party may move for summary
adjudication of a legal issue or a claim for damages other than
punitive damages that does not completely dispose of a cause of
action, affirmative defense, or issue of duty pursuant to this
subdivision.
(1) (A) Before filing a motion pursuant to this subdivision, the
parties whose claims or defenses are put at issue by the motion shall
submit to the court both of the following:
(i) A joint stipulation stating the issue or issues to be
adjudicated.
(ii) A declaration from each stipulating party that the motion
will further the interest of judicial economy by decreasing trial
time or significantly increasing the likelihood of settlement.
(B) The joint stipulation shall be served on any party to the civil
action who is not also a party to the motion.
(2) Within 15 days of receipt of the stipulation and declarations,
unless the court has good cause for extending the time, the court
shall notify the stipulating parties if the motion may be filed. In
making this determination, the court may consider objections by a
nonstipulating party made within 10 days of the submission of the
stipulation and declarations.
(3) If the court elects not to allow the filing of the motion, the
stipulating parties may request, and upon request the court shall
conduct, an informal conference with the stipulating parties to
permit further evaluation of the proposed stipulation. The
stipulating parties shall not file additional papers in support of
the motion.
(4) (A) A motion for summary adjudication made pursuant to this
subdivision shall contain a statement in the notice of motion that
reads substantially similar to the following: "This motion is made
pursuant to subdivision (t) of Section 437c of the Code of Civil
Procedure. The parties to this motion stipulate that the court shall
hear this motion and that the resolution of this motion will further
the interest of judicial economy by decreasing trial time or
significantly increasing the likelihood of settlement."
(B) The notice of motion shall be signed by counsel for all
parties, and by those parties in propria persona, to the motion.
(5) A motion filed pursuant to this subdivision may be made by
itself or as an alternative to a motion for summary judgment and
shall proceed in all procedural respects as a motion for summary
judgment.
(u) For purposes of this section, a change in law does not include
a later enacted statute without retroactive application.
SEC. 23. Section 472a of the Code of Civil Procedure, as added by
Section 5 of Chapter 418 of the Statutes of 2015, is amended to read:
472a. (a) A demurrer is not waived by an answer filed at the same
time.
(b) Except as otherwise provided by rule adopted by the Judicial
Council, if a demurrer to a complaint or to a cross-complaint is
overruled and an answer is not filed, the court shall allow an answer
to be filed upon such terms as may be just. If a demurrer to the
answer is overruled, the action shall proceed as if no demurrer had
been interposed, and the facts alleged in the answer shall be
considered as denied to the extent mentioned in Section 431.20.
(c) If a demurrer is sustained, the court may grant leave to amend
the pleading upon any terms as may be just and shall fix the time
within which the amendment or amended pleading shall be filed. If a
demurrer is stricken pursuant to Section 436 and no answer is filed,
the court shall allow an answer to be filed on terms that are just.
(d) If a motion to strike is granted pursuant to Section 436, the
court may order that an amendment or amended pleading be filed upon
terms it deems proper. If a motion to strike a complaint or
cross-complaint, or portion thereof, is denied, the court shall allow
the party filing the motion to strike to file an answer.
(e) If a motion to dismiss an action pursuant to Article 2
(commencing with Section 583.210) of Chapter 1.5 of Title 8 is
denied, the court shall allow a pleading to be filed.
(f) This section shall become operative on January 1, 2021.
SEC. 24. Section 527.6 of the Code of Civil Procedure is amended
to read:
527.6. (a) (1) A person who has suffered harassment as defined in
subdivision (b) may seek a temporary restraining order and an order
after hearing prohibiting harassment as provided in this section.
(2) A minor, under 12 years of age, accompanied by a duly
appointed and acting guardian ad litem, shall be permitted to appear
in court without counsel for the limited purpose of requesting or
opposing a request for a temporary restraining order or order after
hearing, or both, under this section as provided in Section 374.
(b) For purposes of this section:
(1) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an individual,
making harassing telephone calls to an individual, or sending
harassing correspondence to an individual by any means, including,
but not limited to, the use of public or private mails, interoffice
mail, facsimile, or email. Constitutionally protected activity is not
included within the meaning of "course of conduct."
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Harassment" is unlawful violence, a credible threat of
violence, or a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, or harasses the
person, and that serves no legitimate purpose. The course of conduct
must be that which would cause a reasonable person to suffer
substantial emotional distress, and must actually cause substantial
emotional distress to the petitioner.
(4) "Petitioner" means the person to be protected by the temporary
restraining order and order after hearing and, if the court grants
the petition, the protected person.
(5) "Respondent" means the person against whom the temporary
restraining order and order after hearing are sought and, if the
petition is granted, the restrained person.
(6) "Temporary restraining order" and "order after hearing" mean
orders that include any of the following restraining orders, whether
issued ex parte or after notice and hearing:
(A) An order enjoining a party from harassing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, abusing, telephoning, including, but not
limited to, making annoying telephone calls, as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of, the petitioner.
On a showing of good cause, in an order issued pursuant to this
subparagraph in connection with an animal owned, possessed, leased,
kept, or held by the petitioner, or residing in the residence or
household of the petitioner, the court may do either or both of the
following:
(i) Grant the petitioner exclusive care, possession, or control of
the animal.
(ii) Order the respondent to stay away from the animal and refrain
from taking, transferring, encumbering, concealing, molesting,
attacking, striking, threatening, harming, or otherwise disposing of
the animal.
(B) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A).
(7) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but does not include
lawful acts of self-defense or defense of others.
(c) In the discretion of the court, on a showing of good cause, a
temporary restraining order or order after hearing issued under this
section may include other named family or household members.
(d) Upon filing a petition for orders under this section, the
petitioner may obtain a temporary restraining order in accordance
with Section 527, except to the extent this section provides an
inconsistent rule. The temporary restraining order may include any of
the restraining orders described in paragraph (6) of subdivision
(b). A temporary restraining order may be issued with or without
notice, based on a declaration that, to the satisfaction of the
court, shows reasonable proof of harassment of the petitioner by the
respondent, and that great or irreparable harm would result to the
petitioner.
(e) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court. If the petition
is filed too late in the day to permit effective review, the order
shall be granted or denied on the next day of judicial business in
sufficient time for the order to be filed that day with the clerk of
the court.
(f) A temporary restraining order issued under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 21 days, or, if the court extends the time for hearing under
subdivision (g), not to exceed 25 days, unless otherwise modified or
terminated by the court.
(g) Within 21 days, or, if good cause appears to the court, 25
days from the date that a petition for a temporary order is granted
or denied, a hearing shall be held on the petition. If a request for
a temporary order is not made, the hearing shall be held within 21
days, or, if good cause appears to the court, 25 days, from the date
that the petition is filed.
(h) The respondent may file a response that explains, excuses,
justifies, or denies the alleged harassment, or may file a
cross-petition under this section.
(i) At the hearing, the judge shall receive any testimony that is
relevant, and may make an independent inquiry. If the judge finds by
clear and convincing evidence that unlawful harassment exists, an
order shall issue prohibiting the harassment.
(j) (1) In the discretion of the court, an order issued after
notice and hearing under this section may have a duration of no more
than five years, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. The order may be renewed, upon the
request of a party, for a duration of no more than five additional
years, without a showing of any further harassment since the issuance
of the original order, subject to termination or modification by
further order of the court either on written stipulation filed with
the court or on the motion of a party. A request for renewal may be
brought any time within the three months before the order expires.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order before the expiration date specified in
the order by a party other than the protected party, the party who is
protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005, of the proceeding by personal
service or, if the protected party has satisfied the requirements of
Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1
of the Government Code, by service on the Secretary of State. If the
party who is protected by the order cannot be notified before the
hearing for modification or termination of the protective order, the
court shall deny the motion to modify or terminate the order without
prejudice or continue the hearing until the party who is protected
can be properly noticed and may, upon a showing of good cause,
specify another method for service of process that is reasonably
designed to afford actual notice to the protected party. The
protected party may waive his or her right to notice if he or she is
physically present in court and does not challenge the sufficiency of
the notice.
(k) This section does not preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) In a proceeding under this section, if there are allegations
of unlawful violence or credible threats of violence, a support
person may accompany a party in court and, if the party is not
represented by an attorney, may sit with the party at the table that
is generally reserved for the party and the party's attorney. The
support person is present to provide moral and emotional support for
a person who alleges he or she is a victim of violence. The support
person is not present as a legal adviser and may not provide legal
advice. The support person may assist the person who alleges he or
she is a victim of violence in feeling more confident that he or she
will not be injured or threatened by the other party during the
proceedings if the person who alleges he or she is a victim of
violence and the other party are required to be present in close
proximity. This subdivision does not preclude the court from
exercising its discretion to remove the support person from the
courtroom if the court believes the support person is prompting,
swaying, or influencing the party assisted by the support person.
(m) Upon the filing of a petition under this section, the
respondent shall be personally served with a copy of the petition,
temporary restraining order, if any, and notice of hearing of the
petition. Service shall be made at least five days before the
hearing. The court may for good cause, on motion of the petitioner or
on its own motion, shorten the time for service on the respondent.
(n) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to five years.
(o) The respondent shall be entitled, as a matter of course, to
one continuance, for a reasonable period, to respond to the petition.
(p) (1) Either party may request a continuance of the hearing,
which the court shall grant on a showing of good cause. The request
may be made in writing before or at the hearing, or orally at the
hearing. The court may also grant a continuance on its own motion.
(2) If the court grants a continuance, any temporary restraining
order that has been granted shall remain in effect until the end of
the continued hearing, unless otherwise ordered by the court. In
granting a continuance, the court may modify or terminate a temporary
restraining order.
(q) (1) If a respondent named in a restraining order issued after
a hearing has not been served personally with the order but has
received actual notice of the existence and substance of the order
through personal appearance in court to hear the terms of the order
from the court, additional proof of service is not required for
enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, the restraining order or protective order issued at
the hearing may be served on the respondent by first-class mail sent
to the respondent at the most current address for the respondent
available to the court.
(3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:
"If you have been personally served with this temporary
restraining order and notice of hearing, but you do not appear at the
hearing either in person or by a lawyer, and a restraining order
that is the same as this temporary restraining order except for the
expiration date is issued at the hearing, a copy of the restraining
order will be served on you by mail at the following address: ____.
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(r) (1) Information on a temporary restraining order or order
after hearing relating to civil harassment issued by a court pursuant
to this section shall be transmitted to the Department of Justice in
accordance with either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of an order issued under this section,
or reissuance, extension, modification, or termination of the order,
and any subsequent proof of service, by the close of the business day
on which the order, reissuance, extension, modification, or
termination was made, to a law enforcement agency having jurisdiction
over the residence of the petitioner and to any additional law
enforcement agencies within the court's discretion as are requested
by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order or proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of orders issued
under this section to law enforcement officers responding to the
scene of reported harassment.
(5) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported harassment involving
the parties to the proceeding. The petitioner shall provide the
officer with an endorsed copy of the order and a proof of service
that the officer shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
harassment that a protective order has been issued under this
section, or that a person who has been taken into custody is the
subject of an order, if the protected person cannot produce a
certified copy of the order, a law enforcement officer shall
immediately attempt to verify the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued but not served, the officer shall immediately
notify the respondent of the terms of the order and shall at that
time also enforce the order. Verbal notice of the terms of the order
shall constitute service of the order and is sufficient notice for
purposes of this section and for purposes of Section 29825 of the
Penal Code.
(s) The prevailing party in an action brought under this section
may be awarded court costs and attorney's fees, if any.
(t) Willful disobedience of a temporary restraining order or order
after hearing granted under this section is punishable pursuant to
Section 273.6 of the Penal Code.
(u) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm or ammunition while the protective
order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9.
(3) A person who owns, possesses, purchases, or receives, or
attempts to purchase or receive, a firearm or ammunition while the
protective order is in effect is punishable pursuant to Section 29825
of the Penal Code.
(v) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code or by Division 10 (commencing with
Section 6200) of the Family Code. This section does not preclude a
petitioner from using other existing civil remedies.
(w) (1) The Judicial Council shall develop forms, instructions,
and rules relating to matters governed by this section. The petition
and response forms shall be simple and concise, and their use by
parties in actions brought pursuant to this section is mandatory.
(2) A temporary restraining order or order after hearing relating
to civil harassment issued by a court pursuant to this section shall
be issued on forms adopted by the Judicial Council and that have been
approved by the Department of Justice pursuant to subdivision (i) of
Section 6380 of the Family Code. However, the fact that an order
issued by a court pursuant to this section was not issued on forms
adopted by the Judicial Council and approved by the Department of
Justice shall not, in and of itself, make the order unenforceable.
(x) There is no filing fee for a petition that alleges that a
person has inflicted or threatened violence against the petitioner,
stalked the petitioner, or acted or spoken in any other manner that
has placed the petitioner in reasonable fear of violence, and that
seeks a protective or restraining order restraining stalking, future
violence, or threats of violence, in an action brought pursuant to
this section. A fee shall not be paid for a subpoena filed in
connection with a petition alleging these acts. A fee shall not be
paid for filing a response to a petition alleging these acts.
(y) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall not be a fee for the
service of process by a sheriff or marshal of a protective or
restraining order to be issued, if either of the following conditions
apply:
(A) The protective or restraining order issued pursuant to this
section is based upon stalking, as prohibited by Section 646.9 of the
Penal Code.
(B) The protective or restraining order issued pursuant to this
section is based upon unlawful violence or a credible threat of
violence.
(2) The Judicial Council shall prepare and develop forms for
persons who wish to avail themselves of the services described in
this subdivision.
SEC. 25. Section 765.030 of the Code of Civil Procedure is amended
to read:
765.030. If the court determines that the lien or other
encumbrance is in violation of Section 765.010, the court shall issue
an order striking and releasing the lien or other encumbrance and
may award costs and reasonable attorney's fees to the petitioner to
be paid by the lien or other encumbrance claimant. If the court
determines that the lien or other encumbrance is valid, the court
shall issue an order so stating and may award costs and reasonable
attorney's fees to the encumbrance claimant to be paid by the
petitioner. The court may direct that an order issued pursuant to
this section be recorded.
SEC. 26. Section 832 of the Code of Civil Procedure is amended to
read:
832. For purposes of this chapter, the following definitions
apply:
(a) "Basin" has the same meaning as defined in Section 10721 of
the Water Code.
(b) "Complaint" means a complaint filed in superior court to
determine rights to extract groundwater and includes any
cross-complaint that initiates a comprehensive adjudication in
response to a plaintiff's complaint or other cross-complaint.
(c) "Comprehensive adjudication" means an action filed in superior
court to comprehensively determine rights to extract groundwater in
a basin.
(d) "Condition of long-term overdraft" means the condition of a
groundwater basin where the average annual amount of water extracted
for a long-term period, generally 10 years or more, exceeds the
long-term average annual supply of water to the basin, plus any
temporary surplus. Overdraft during a period of drought is not
sufficient to establish a condition of long-term overdraft if
extractions and recharge are managed as necessary to ensure that
reductions in groundwater levels or storage during a period of
drought are offset by increases in groundwater levels or storage
during other periods.
(e) "Department" means the Department of Water Resources.
(f) "Expert witness" means a witness qualified pursuant to Section
720 of the Evidence Code.
(g) "Groundwater" means water beneath the surface of the earth
within the zone below the water table in which the soil is completely
saturated with water, but does not include water that flows in known
and definite channels.
(h) "Groundwater extraction facility" means a device or method for
extracting groundwater in a basin.
(i) "Groundwater recharge" means the augmentation of groundwater,
by natural or artificial means.
(j) "Person" includes, but is not limited to, counties, local
agencies, state agencies, federal agencies, tribes, business
entities, and individuals.
(k) "Plaintiff" means the person filing the complaint initiating a
comprehensive adjudication and includes a cross-complainant who
initiates a comprehensive adjudication by cross-complaint.
(l) "Public water system" has the same meaning as defined in
Section 116275 of the Health and Safety Code.
(m) "State small water system" has the same meaning as defined in
Section 116275 of the Health and Safety Code.
(n) "Sustainable Groundwater Management Act" means Part 2.74
(commencing with Section 10720) of Division 6 of the Water Code.
SEC. 27. Section 835 of the Code of Civil Procedure is amended to
read:
835. (a) The plaintiff shall provide notice of the comprehensive
adjudication to all of the following:
(1) A groundwater sustainability agency that overlies the basin or
a portion of the basin.
(2) A city, county, or city and county that overlies the basin or
a portion of the basin.
(3) A district with authority to manage or replenish groundwater
resources of the basin in whole or in part.
(4) The operator of a public water system or state small water
system that uses groundwater from the basin to supply water service.
(5) A California Native American tribe that is on the contact list
maintained by the Native American Heritage Commission.
(6) The Attorney General, the State Water Resources Control Board,
the department, and the Department of Fish and Wildlife.
(7) A federal department or agency that manages a federal
reservation that overlies the basin or a portion of the basin.
(8) A person identified under Section 836.5 who is not a party to
the comprehensive adjudication.
(9) A person who is on a list, maintained by a groundwater
management agency, of interested parties that have requested notice
under the Sustainable Groundwater Management Act.
(b) The plaintiff may provide notice under this section by first
class mail or electronic mail.
(c) (1) Except as provided in paragraph (2), the plaintiff shall
provide notice under this section as follows:
(A) To any person entitled to notice under paragraphs (1) to (7),
inclusive, of subdivision (a) within 15 days of the filing of the
complaint.
(B) To any person entitled to notice under paragraphs (8) and (9)
of subdivision (a) within 30 days of receipt of the name and address
of the person entitled to notice.
(2) The plaintiff may take additional time as is reasonably
necessary before providing notice under this section if the plaintiff
determines that additional time is necessary to identify a person
entitled to notice under this section, confirm the accuracy of the
name or address of a person, or to determine if the conditions
requiring notice have been satisfied.
(d) The plaintiff is not required to provide notice under this
section to a person who has already been served or intervened in the
action.
SEC. 28. Section 850 of the Code of Civil Procedure, as added by
Section 1 of Chapter 672 of the Statutes of 2015, is amended to read:
850. (a) The court may enter a judgment in a comprehensive
adjudication if the court finds that the judgment meets all of the
following criteria:
(1) It is consistent with Section 2 of Article X of the California
Constitution.
(2) It is consistent with the water right priorities of all
non-stipulating parties and any persons who have claims that are
exempted pursuant to Section 833 in the basin.
(3) It treats all objecting parties and any persons who have
claims that are exempted pursuant to Section 833 equitably as
compared to the stipulating parties.
(b) If a party or group of parties submits a proposed stipulated
judgment that is supported by more than 50 percent of all parties who
are groundwater extractors in the basin or use the basin for
groundwater storage and is supported by groundwater extractors
responsible for at least 75 percent of the groundwater extracted in
the basin during the five calendar years before the filing of the
complaint, the court may adopt the proposed stipulated judgment, as
applied to the stipulating parties, if the proposed stipulated
judgment meets the criteria described in subdivision (a). A party
objecting to a proposed stipulated judgment shall demonstrate, by a
preponderance of evidence, that the proposed stipulated judgment does
not satisfy one or more criteria described in subdivision (a) or
that it substantially violates the water rights of the objecting
party. If the objecting party is unable to make this showing, the
court may impose the proposed stipulated judgment on the objecting
party. An objecting party may be subject to a preliminary injunction
issued pursuant to Section 847 while his or her objections are being
resolved.
SEC. 29. Section 850 of the Code of Civil Procedure, as added by
Chapter 52 of the Statutes of 1953, is amended and renumbered to
read:
853. Upon the failure of a coowner of a mine or mining claim to
contribute his proportionate share of the taxes that have been levied
and assessed upon the mine or mining claim for the period of five
years, a coowner who has paid that share may, at the expiration of
the five years, serve upon the delinquent coowner notice thereof.
SEC. 30. The heading of Chapter 8 (commencing with Section 850) of
Title 10 of Part 2 of the Code of Civil Procedure is amended to
read:
CHAPTER 8. ACTIONS AGAINST COOWNERS OF MINES
SEC. 31. Section 851 of the Code of Civil Procedure, as added by
Section 1 of Chapter 672 of the Statutes of 2015, is amended to read:
851. The judgment in a comprehensive adjudication conducted
pursuant to this chapter shall be binding on the parties to the
comprehensive adjudication and all their successors in interest,
including, but not limited to, heirs, executors, administrators,
assigns, lessees, licensees, the agents and employees of the parties
to the comprehensive adjudication and all their successors in
interest, and all landowners or other persons claiming rights to
extract groundwater from the basin whose claims have not been
exempted and are covered by the notice provided in the comprehensive
adjudication.
SEC. 32. Section 851 of the Code of Civil Procedure, as amended by
Chapter 1611 of the Statutes of 1969, is amended and renumbered to
read:
854. The notice shall be served in the manner provided by law for
the service of a summons in a civil action, but where service is by
publication, the publication shall be in a newspaper of general
circulation published in the county in which the mine or mining claim
is situated or if there is no such newspaper, in such a newspaper in
an adjoining county, and the publication shall be at least once a
week for 90 days.
SEC. 33. Section 852 of the Code of Civil Procedure, as added by
Section 1 of Chapter 672 of the Statutes of 2015, is amended to read:
852. The court shall have continuing jurisdiction to modify or
amend a final judgment in a comprehensive adjudication in response to
new information, changed circumstances, the interests of justice, or
to ensure that the criteria of subdivision (a) of Section 850 are
met. If feasible, the judge who heard the original comprehensive
adjudication shall preside over actions or motions to modify or amend
the final judgment.
SEC. 34. Section 852 of the Code of Civil Procedure, as added by
Chapter 52 of the Statutes of 1953, is amended and renumbered to
read:
855. If before the expiration of 90 days from the service the
delinquent fails or refuses to contribute his proportionate share of
the taxes, the coowner contributing such share may file in the
superior court of the county in which the mine or mining claim is
situated a verified petition setting forth the facts and particularly
describing the mine or mining claim.
SEC. 35. Section 853 of the Code of Civil Procedure is amended and
renumbered to read:
856. If the mine or mining claim is situated in more than one
county, the petition may be filed in the superior court of either
county.
SEC. 36. Section 854 of the Code of Civil Procedure is amended and
renumbered to read:
857. The clerk shall set the petition for hearing by the court
and give notice of the hearing by causing a notice of the time and
place of the hearing to be posted at the county courthouse at least
10 days before the hearing. The court may order such further notice
as it deems proper.
SEC. 37. Section 855 of the Code of Civil Procedure is amended and
renumbered to read:
858. The court shall hear evidence for or against the petition
and may order judgment on the petition vesting the interest of the
delinquent in the mine or mining claim in the petitioner.
SEC. 38. Section 856 of the Code of Civil Procedure is amended and
renumbered to read:
859. A certified copy of the decree may be recorded in the office
of the recorder of each county in which any part of the mine or
mining claim is situated.
SEC. 39. Section 1084 of the Code of Civil Procedure is amended to
read:
1084. The writ of mandamus may be denominated a writ of mandate.
SEC. 40. Section 1097 of the Code of Civil Procedure is amended to
read:
1097. If a peremptory mandate has been issued and directed to an
inferior tribunal, corporation, board, or person, and it appears to
the court that a member of the tribunal, corporation, or board, or
the person upon whom the writ has been personally served, has,
without just excuse, refused or neglected to obey the writ, the court
may, upon motion, impose a fine not exceeding one thousand dollars.
In case of persistence in a refusal of obedience, the court may order
the party to be imprisoned until the writ is obeyed, and may make
any orders necessary and proper for the complete enforcement of the
writ.
SEC. 41. Section 2025.010 of the Code of Civil Procedure is
amended to read:
2025.010. Any party may obtain discovery within the scope
delimited by Chapter 2 (commencing with Section 2017.010), and
subject to the restrictions set forth in Chapter 5 (commencing with
Section 2019.010), by taking in California the oral deposition of any
person, including any party to the action. The person deposed may be
a natural person, an organization such as a public or private
corporation, a partnership, an association, or a governmental agency.
SEC. 42. Section 2031.010 of the Code of Civil Procedure is
amended to read:
2031.010. (a) Any party may obtain discovery within the scope
delimited by Chapter 2 (commencing with Section 2017.010), and
subject to the restrictions set forth in Chapter 5 (commencing with
Section 2019.010), by inspecting, copying, testing, or sampling
documents, tangible things, land or other property, and
electronically stored information in the possession, custody, or
control of any other party to the action.
(b) A party may demand that any other party produce and permit the
party making the demand, or someone acting on the demanding party's
behalf, to inspect and to copy a document that is in the possession,
custody, or control of the party on whom the demand is made.
(c) A party may demand that any other party produce and permit the
party making the demand, or someone acting on the demanding party's
behalf, to inspect and to photograph, test, or sample any tangible
things that are in the possession, custody, or control of the party
on whom the demand is made.
(d) A party may demand that any other party allow the party making
the demand, or someone acting on the demanding party's behalf, to
enter on any land or other property that is in the possession,
custody, or control of the party on whom the demand is made, and to
inspect and to measure, survey, photograph, test, or sample the land
or other property, or any designated object or operation on it.
(e) A party may demand that any other party produce and permit the
party making the demand, or someone acting on the demanding party's
behalf, to inspect, copy, test, or sample electronically stored
information in the possession, custody, or control of the party on
whom demand is made.
SEC. 43. Section 2033.010 of the Code of Civil Procedure is
amended to read:
2033.010. Any party may obtain discovery within the scope
delimited by Chapter 2 (commencing with Section 2017.010), and
subject to the restrictions set forth in Chapter 5 (commencing with
Section 2019.010), by a written request that any other party to the
action admit the genuineness of specified documents, or the truth of
specified matters of fact, opinion relating to fact, or application
of law to fact. A request for admission may relate to a matter that
is in controversy between the parties.
SEC. 44. Section 2035.010 of the Code of Civil Procedure is
amended to read:
2035.010. (a) One who expects to be a party or expects a
successor in interest to be a party to an action that may be
cognizable in a court of the state, whether as a plaintiff, or as a
defendant, or in any other capacity, may obtain discovery within the
scope delimited by Chapter 2 (commencing with Section 2017.010), and
subject to the restrictions set forth in Chapter 5 (commencing with
Section 2019.010), for the purpose of perpetuating that person's own
testimony or that of another natural person or organization, or of
preserving evidence for use in the event an action is subsequently
filed.
(b) One shall not employ the procedures of this chapter for
purposes of either ascertaining the possible existence of a cause of
action or a defense to it, or of identifying those who might be made
parties to an action not yet filed.
SEC. 45. Section 2036.010 of the Code of Civil Procedure is
amended to read:
2036.010. If an appeal has been taken from a judgment entered by
a court of the state, or if the time for taking an appeal has not
expired, a party may obtain discovery within the scope delimited by
Chapter 2 (commencing with Section 2017.010), and subject to the
restrictions set forth in Chapter 5 (commencing with Section
2019.010), for purposes of perpetuating testimony or preserving
information for use in the event of further proceedings in that
court.
SEC. 46. Section 2093 of the Code of Civil Procedure is amended to
read:
2093. (a) A court, judge or clerk of a court, justice, notary
public, and officer or person authorized to take testimony in an
action or proceeding, or to decide upon evidence, has the power to
administer oaths and affirmations.
(b) (1) A shorthand reporter certified pursuant to Article 3
(commencing with Section 8020) of Chapter 13 of Division 3 of the
Business and Professions Code has the power to administer oaths and
affirmations and may perform the duties of the deposition officer
pursuant to Chapter 9 (commencing with Section 2025.010) of Title 4.
The certified shorthand reporter is entitled to receive fees for
services rendered during a deposition, including fees for deposition
services, as specified in subdivision (c) of Section 8211 of the
Government Code.
(2) This subdivision shall also apply to depositions taken by
telephone or other remote electronic means as specified in Chapter 2
(commencing with Section 2017.010) and Chapter 9 (commencing with
Section 2025.010) of Title 4.
(c) (1) A former judge or justice of a court of record in the
state who retired or resigned from office shall have the power to
administer oaths and affirmations, if both of the following
conditions are met:
(A) The former judge or justice requests and receives a
certification from the Commission on Judicial Performance pursuant to
paragraph (2).
(B) A formal disciplinary proceeding was not pending at the time
of the retirement or resignation.
(2) (A) A former judge or justice of a court of record in the
state who retired or resigned from office may apply to the Commission
on Judicial Performance to receive a certification to administer
oaths and affirmations. The commission shall supply the required
forms to an applicant upon request.
(B) (i) A certification application shall be accompanied by a
medical certification. If an applicant's medical certification
indicates the applicant does not have a medical condition that would
impair his or her ability to administer oaths and affirmations, the
commission shall issue a certification to the applicant to administer
oaths and affirmations. Except as provided in clause (ii), a
certification issued pursuant to this paragraph is valid for a period
of five years from the date of issuance.
(ii) If an applicant's medical certification indicates the
applicant has a medical condition that may impair his or her ability
to administer oaths and affirmations, but does not do so at the time
the medical certification is submitted with the application, the
commission shall issue a certification to administer oaths and
affirmations, but the certification is only valid for a period of two
years from the date of issuance.
(3) Notwithstanding paragraph (1), a former judge or justice of a
court of record who received a certification from the Commission on
Judicial Performance before January 1, 2016, to administer oaths and
affirmations may continue to exercise this power until January 1,
2017, at which time he or she shall reapply for certification
pursuant to paragraph (2).
(4) The Commission on Judicial Performance may charge a regulatory
fee not to exceed fifteen dollars ($15) for each certification
application submitted pursuant to this subdivision to cover its
costs, including costs to review the medical certification.
(d) A rule or regulation regarding the confidentiality of
proceedings of the Commission on Judicial Performance does not
prohibit the commission from issuing a certificate as provided for in
this section.
SEC. 47. Section 2105 of the Corporations Code is amended to read:
2105. (a) A foreign corporation shall not transact intrastate
business without having first obtained from the Secretary of State a
certificate of qualification. To obtain that certificate it shall
file, on a form prescribed by the Secretary of State, a statement and
designation signed by a corporate officer or, in the case of a
foreign association that has no officers, signed by a trustee
stating:
(1) Its name and the state or place of its incorporation or
organization.
(2) The street address of its principal executive office.
(3) The street address of its principal office within this state,
if any.
(4) The mailing address of its principal executive office, if
different from the addresses specified pursuant to paragraphs (2) and
(3).
(5) The name of an agent upon whom process directed to the
corporation may be served within this state. The designation shall
comply with subdivision (b) of Section 1502.
(6) (A) Its irrevocable consent to service of process directed to
it upon the agent designated and to service of process on the
Secretary of State if the agent designated or the agent's successor
is no longer authorized to act or cannot be found at the address
given.
(B) Consent under this paragraph extends to service of process
directed to the foreign corporation's agent in this state for a
search warrant issued pursuant to Section 1524.2 of the Penal Code,
or for any other validly issued and properly served search warrant,
for records or documents that are in the possession of the foreign
corporation and are located inside or outside of this state. This
subparagraph shall apply to a foreign corporation that is a party or
a nonparty to the matter for which the search warrant is sought. For
purposes of this subparagraph, "properly served" means delivered by
hand, or in a manner reasonably allowing for proof of delivery if
delivered by United States mail, overnight delivery service, or
facsimile to a person or entity listed in Section 2110, or any other
means specified by the foreign corporation, including, but not
limited to, email or submission via an Internet Web portal that the
foreign corporation has designated for the purpose of service of
process.
(7) If it is a corporation that will be subject to the Insurance
Code as an insurer, it shall state that fact.
(b) Annexed to the statement and designation shall be a
certificate by an authorized public official of the state or place of
incorporation of the corporation to the effect that the corporation
is an existing corporation in good standing in that state or place
or, in the case of an association, an officers' certificate stating
that it is a validly organized and existing business association
under the laws of a specified foreign jurisdiction.
(c) Before it may be designated by a foreign corporation as its
agent for service of process, a corporate agent must comply with
Section 1505.
SEC. 48. Section 2207 of the Corporations Code is amended to read:
2207. (a) A corporation is liable for a civil penalty in an
amount not exceeding one million dollars ($1,000,000) if the
corporation does both of the following:
(1) Has actual knowledge that an officer, director, manager, or
agent of the corporation does any of the following:
(A) Makes, publishes, or posts, or has made, published, or posted,
either generally or privately to the shareholders or other persons,
either of the following:
(i) An oral, written, or electronically transmitted report,
exhibit, notice, or statement of its affairs or pecuniary condition
that includes a material statement or omission that is false and
intended to give the shares of stock in the corporation a materially
greater or a materially less apparent market value than they really
possess.
(ii) An oral, written, or electronically transmitted report,
prospectus, account, or statement of operations, values, business,
profits, or expenditures, that includes a material false statement or
omission intended to give the shares of stock in the corporation a
materially greater or a materially less apparent market value than
they really possess.
(B) Refuses, or has refused to make, any book entry or post any
notice required by law in the manner required by law.
(C) Misstates or conceals, or has misstated or concealed, from a
regulatory body a material fact in order to deceive a regulatory body
to avoid a statutory or regulatory duty, or to avoid a statutory or
regulatory limit or prohibition.
(2) Within 30 days after actual knowledge is acquired of the
actions described in paragraph (1), the corporation knowingly fails
to do both of the following:
(A) Notify the Attorney General or appropriate government agency
in writing, unless the corporation has actual knowledge that the
Attorney General or appropriate government agency has been notified.
(B) Notify its shareholders in writing, unless the corporation has
actual knowledge that the shareholders have been notified.
(b) The requirement for notification under this section does not
apply if the action taken or about to be taken by the corporation, or
by an officer, director, manager, or agent of the corporation under
paragraph (1) of subdivision (a), is abated within the time
prescribed for reporting, unless the appropriate government agency
requires disclosure by regulation.
(c) If the action reported to the Attorney General pursuant to
this section implicates the government authority of an agency other
than the Attorney General, the Attorney General shall promptly
forward the written notice to that agency.
(d) If the Attorney General was not notified pursuant to
subparagraph (A) of paragraph (2) of subdivision (a), but the
corporation reasonably and in good faith believed that it had
complied with the notification requirements of this section by
notifying a government agency listed in paragraph (5) of subdivision
(e), no penalties shall apply.
(e) For purposes of this section:
(1) "Manager" means a person having both of the following:
(A) Management authority over a business entity.
(B) Significant responsibility for an aspect of a business that
includes actual authority for the financial operations or financial
transactions of the business.
(2) "Agent" means a person or entity authorized by the corporation
to make representations to the public about the corporation's
financial condition and who is acting within the scope of the agency
when the representations are made.
(3) "Shareholder" means a person or entity that is a shareholder
of the corporation at the time the disclosure is required pursuant to
subparagraph (B) of paragraph (2) of subdivision (a).
(4) "Notify its shareholders" means to give sufficient description
of an action taken or about to be taken that would constitute acts
or omissions as described in paragraph (1) of subdivision (a). A
notice or report filed by a corporation with the United States
Securities and Exchange Commission that relates to the facts and
circumstances giving rise to an obligation under paragraph (1) of
subdivision (a) shall satisfy all notice requirements arising under
paragraph (2) of subdivision (a), but is not the exclusive means of
satisfying the notice requirements, if the Attorney General or
appropriate agency is informed in writing that the filing has been
made together with a copy of the filing or an electronic link where
it is available online without charge.
(5) "Appropriate government agency" means an agency on the
following list that has regulatory authority with respect to the
financial operations of a corporation:
(A) Department of Business Oversight.
(B) Department of Insurance.
(C) Department of Managed Health Care.
(D) United States Securities and Exchange Commission.
(6) "Actual knowledge of the corporation" means the knowledge an
officer or director of a corporation actually possesses or does not
consciously avoid possessing, based on an evaluation of information
provided pursuant to the corporation's disclosure controls and
procedures.
(7) "Refuse to make a book entry" means the intentional decision
not to record an accounting transaction when all of the following
conditions are satisfied:
(A) The independent auditors required recordation of an accounting
transaction during the course of an audit.
(B) The corporation's audit committee has not approved the
independent auditor's recommendation.
(C) The decision is made for the primary purpose of rendering the
financial statements materially false or misleading.
(8) "Refuse to post any notice required by law" means an
intentional decision not to post a notice required by law when all of
the following conditions exist:
(A) The decision not to post the notice has not been approved by
the corporation's audit committee.
(B) The decision is intended to give the shares of stock in the
corporation a materially greater or a materially less apparent market
value than they really possess.
(9) "Misstate or conceal material facts from a regulatory body"
means an intentional decision not to disclose material facts when all
of the following conditions exist:
(A) The decision not to disclose material facts has not been
approved by the corporation's audit committee.
(B) The decision is intended to give the shares of stock in the
corporation a materially greater or a materially less apparent market
value than they really possess.
(10) "Material false statement or omission" means an untrue
statement of material fact or an omission to state a material fact
necessary in order to make the statements made under the
circumstances under which they were made not misleading.
(11) "Officer" means any person as set forth in Rule 16a-1
promulgated under the Securities Exchange Act of 1934 or any
successor regulation thereto, except an officer of a subsidiary
corporation who is not also an officer of the parent corporation.
(f) This section only applies to corporations that are issuers, as
defined in Section 2 of the Sarbanes-Oxley Act of 2002 (15 U.S.C.
Sec. 7201 et seq.).
(g) An action to enforce this section may only be brought by the
Attorney General or a district attorney or city attorney in the name
of the people of the state.
SEC. 49. Section 17708.02 of the Corporations Code is amended to
read:
17708.02. (a) A foreign limited liability company may apply for a
certificate of registration to transact business in this state by
delivering an application to the Secretary of State for filing on a
form prescribed by the Secretary of State. The application shall
state all of the following:
(1) The name of the foreign limited liability company, and, if the
name does not comply with Section 17701.08, an alternate name
adopted pursuant to subdivision (a) of Section 17708.05.
(2) The state or other jurisdiction under whose law the foreign
limited liability company is organized and the date of its
organization in that state or other jurisdiction, and
a statement that the foreign limited
liability company is authorized to exercise its powers and privileges
in that state or other jurisdiction.
(3) The street address of the foreign limited liability company's
principal office and of its principal business office in this state,
if any.
(4) (A) The name and street address of the foreign limited
liability company's initial agent for service of process in this
state who consents to service of process and meets the qualifications
specified in subdivision (c) of Section 17701.13. If a corporate
agent is designated, only the name of the agent shall be set forth.
(B) Consent under this paragraph extends to service of process
directed to the foreign limited liability company's agent in this
state for a search warrant issued pursuant to Section 1524.2 of the
Penal Code, or for any other validly issued and properly served
search warrant, for records or documents that are in the possession
of the foreign limited liability company and are located inside or
outside of this state. This subparagraph shall apply to a foreign
limited liability company that is a party or a nonparty to the matter
for which the search warrant is sought. For purposes of this
subparagraph, "properly served" means delivered by hand, or in a
manner reasonably allowing for proof of delivery if delivered by
United States mail, overnight delivery service, facsimile, or any
other means specified by the foreign limited liability company,
including email or submission via an Internet Web portal the foreign
limited liability company has designated for the purpose of service
of process.
(5) A statement that the Secretary of State is appointed the agent
of the foreign limited liability company for service of process if
the agent has resigned and has not been replaced or if the agent
cannot be found or served with the exercise of reasonable diligence.
(6) The mailing address of the foreign limited liability company
if different than the street address of the principal office, or
principal business office in this state.
(b) A foreign limited liability company shall deliver with a
completed application under subdivision (a) a certificate of
existence, status, or good standing or a record of similar import
signed by the Secretary of State or other official having custody of
the foreign limited liability company's publicly filed records in the
state or other jurisdiction under whose law the foreign limited
liability company is formed.
(c) The Secretary of State shall include with instructional
materials, provided in conjunction with registration under
subdivision (a), a notice that filing the registration will obligate
the foreign limited liability company to pay an annual tax to the
Franchise Tax Board pursuant to Section 17941 of the Revenue and
Taxation Code. That notice shall be updated annually to specify the
dollar amount of the tax.
SEC. 50. Section 25100 of the Corporations Code is amended to
read:
25100. The following securities are exempted from Sections 25110,
25120, and 25130:
(a) Any security, including a revenue obligation, issued or
guaranteed by the United States, any state, any city, county, city
and county, public district, public authority, public corporation,
public entity, or political subdivision of a state or any agency or
corporate or other instrumentality of any one or more of the
foregoing, or any certificate of deposit for any of the foregoing.
(b) Any security issued or guaranteed by Canada, any Canadian
province, any political subdivision or municipality of that province,
or by any other foreign government that the United States currently
maintains diplomatic relations, if the security is recognized as a
valid obligation by the issuer or guarantor, or any certificate of
deposit for any of the foregoing.
(c) Any security issued or guaranteed by and representing an
interest in, or a direct obligation of, a national bank or a bank or
trust company incorporated under the laws of this state, and any
security issued by a bank to one or more other banks and representing
an interest in an asset of the issuing bank.
(d) Any security issued or guaranteed by a federal savings
association, federal savings bank, federal land bank, joint land
bank, national farm loan association, or by any savings association,
as defined in subdivision (a) of Section 5102 of the Financial Code,
that is subject to the supervision and regulation of the Commissioner
of Business Oversight.
(e) Any security, other than an interest in all or portions of a
parcel or parcels of real property that are subdivided land or a
subdivision or in a real estate development, the issuance of which is
subject to authorization by the Insurance Commissioner, the Public
Utilities Commission, or the Real Estate Commissioner.
(f) Any security consisting of any interest in all or portions of
a parcel or parcels of real property that are subdivided lands or a
subdivision or in a real estate development. The exemption in this
subdivision does not apply to either of the following:
(1) Any investment contract sold or offered for sale with, or as
part of, that interest.
(2) Any person engaged in the business of selling, distributing,
or supplying water for irrigation purposes or domestic use that is
not a public utility except that the exemption applies to any
security of a mutual water company, other than an investment contract
as described in paragraph (1), offered or sold in connection with
subdivided lands pursuant to Chapter 2 (commencing with Section
14310) of Part 7 of Division 3 of Title 1.
(g) Any mutual capital certificates or savings accounts, as
defined in the Savings Association Law, issued by a savings
association, as defined by subdivision (a) of Section 5102 of the
Financial Code, and holding a license or certificate of authority
then in force from the Commissioner of Business Oversight.
(h) Any security issued or guaranteed by any federal credit union,
or by any credit union organized and supervised, or regulated, under
the Credit Union Law.
(i) Any security issued or guaranteed by any railroad, other
common carrier, public utility, or public utility holding company
that is any of the following:
(1) Subject to the jurisdiction of the Interstate Commerce
Commission or its successor.
(2) A holding company registered with the Securities and Exchange
Commission under the Public Utility Holding Company Act of 1935 or a
subsidiary of the holding company within the meaning of that act.
(3) Regulated in respect of the issuance or guarantee of the
security by a governmental authority of the United States, of any
state, of Canada or of any Canadian province, and the security is
subject to registration with or authorization of issuance by that
authority.
(j) Any security, except evidences of indebtedness, whether
interest bearing or not, of an issuer (1) organized exclusively for
educational, benevolent, fraternal, religious, charitable, social, or
reformatory purposes and not for pecuniary profit, if no part of the
net earnings of the issuer inures to the benefit of any private
shareholder or individual, or (2) organized as a chamber of commerce
or trade or professional association. The fact that amounts received
from memberships, or dues, or both will or may be used to construct
or otherwise acquire facilities for use by members of the nonprofit
organization does not disqualify the organization for this exemption.
This exemption does not apply to the securities of a nonprofit
organization if any promoter thereof expects or intends to make a
profit directly or indirectly from any business or activity
associated with the organization or operation of the nonprofit
organization or from remuneration received from the nonprofit
organization.
(k) Any agreement, commonly known as a "life income contract," of
an issuer (1) organized exclusively for educational, benevolent,
fraternal, religious, charitable, social, or reformatory purposes and
not for pecuniary profit and (2) that the commissioner designates by
rule or order, with a donor in consideration of a donation of
property to that issuer and providing for the payment to the donor or
persons designated by him or her of income or specified periodic
payments from the donated property or other property for the life of
the donor or those other persons.
( l ) Any note, draft, bill of exchange, or banker's
acceptance that is freely transferable and of prime quality, arises
out of a current transaction or the proceeds of which have been or
are to be used for current transactions, and that evidences an
obligation to pay cash within nine months of the date of issuance,
exclusive of days of grace, or any renewal of that paper which is
likewise limited, or any guarantee of that paper or of that renewal,
if the paper is not offered to the public in amounts of less than
twenty-five thousand dollars ($25,000) in the aggregate to any one
purchaser. In addition, the commissioner may, by rule or order,
exempt any issuer of any notes, drafts, bills of exchange or banker's
acceptances from qualification of those securities if the
commissioner finds that the qualification is not necessary or
appropriate in the public interest or for the protection of
investors.
(m) Any security issued by a corporation organized and existing
under the provisions of Chapter 1 (commencing with Section 54001) of
Division 20 of the Food and Agricultural Code.
(n) Any beneficial interest in an employees' pension,
profit-sharing, stock bonus, or similar benefit plan that meets the
requirements for qualification under Section 401 of the federal
Internal Revenue Code or any statute amendatory thereof or
supplementary thereto. A determination letter from the Internal
Revenue Service stating that an employees' pension, profit-sharing,
stock bonus, or similar benefit plan meets those requirements is
conclusive evidence that the plan is an employees' pension,
profit-sharing, stock bonus, or similar benefit plan within the
meaning of the first sentence of this subdivision until the date the
determination letter is revoked in writing by the Internal Revenue
Service, regardless of whether or not the revocation is retroactive.
(o) (1) Any security listed or approved for listing upon notice of
issuance on a national securities exchange, if the exchange has been
certified by rule or order of the commissioner and any warrant or
right to purchase or subscribe to the security. The exemption
afforded by this subdivision does not apply to securities listed or
approved for listing upon notice of issuance on a national securities
exchange, in a rollup transaction unless the rollup transaction is
an eligible rollup transaction as defined in Section 25014.7.
(2) The certification of an exchange shall be made by the
commissioner upon the written request of the exchange if the
commissioner finds that the exchange, in acting on applications for
listing of common stock, substantially applies the minimum standards
set forth in either subparagraph (A) or (B) of paragraph (3), and, in
considering suspension or removal from listing, substantially
applies each of the criteria set forth in paragraph (4).
(3) Listing standards:
(A) (i) Shareholders' equity of at least four million dollars
($4,000,000).
(ii) Pretax income of at least seven hundred fifty thousand
dollars ($750,000) in the issuer's last fiscal year or in two of its
last three fiscal years.
(iii) (I) Minimum public distribution of 500,000 shares, exclusive
of the holdings of officers, directors, controlling shareholders,
and other concentrated or family holdings, together with a minimum of
800 public holders or minimum public distribution of 1,000,000
shares together with a minimum of 400 public holders. The exchange
may also consider the listing of a company's securities if the
company has a minimum of 500,000 shares publicly held, a minimum of
400 shareholders and daily trading volume in the issue has been
approximately 2,000 shares or more for the six months preceding the
date of application. In evaluating the suitability of an issue for
listing under this trading provision, the exchange shall review the
nature and frequency of that activity and any other factors as it
determines to be relevant in ascertaining whether the issue is
suitable for trading. A security that trades infrequently shall not
be considered for listing under this paragraph even though average
daily volume amounts to 2,000 shares per day or more.
(II) Companies whose securities are concentrated in a limited
geographical area, or whose securities are largely held in block by
institutional investors, normally may not be considered eligible for
listing unless the public distribution appreciably exceeds 500,000
shares.
(iv) Minimum price of three dollars ($3) per share for a
reasonable period of time before the filing of a listing application.
However, in certain instances an exchange may favorably consider
listing an issue selling for less than three dollars ($3) per share
after considering all pertinent factors, including market conditions
in general, whether historically the issue has sold above three
dollars ($3) per share, the applicant's capitalization, and the
number of outstanding and publicly held shares of the issue.
(v) An aggregate market value for publicly held shares of at least
three million dollars ($3,000,000).
(B) (i) Shareholders' equity of at least four million dollars
($4,000,000).
(ii) Minimum public distribution set forth in clause (iii) of
subparagraph (A) of paragraph (3).
(iii) Operating history of at least three years.
(iv) An aggregate market value for publicly held shares of at
least fifteen million dollars ($15,000,000).
(4) Criteria for consideration of suspension or removal from
listing:
(A) If a company that has shareholders' equity of less than one
million dollars ($1,000,000) has sustained net losses in each of its
two most recent fiscal years or has net tangible assets of less than
three million dollars ($3,000,000) and has sustained net losses in
three of its four most recent fiscal years.
(B) If the number of shares publicly held, excluding the holdings
of officers, directors, controlling shareholders, and other
concentrated or family holdings, is less than 150,000.
(C) If the total number of shareholders is less than 400 or if the
number of shareholders of lots of 100 shares or more is less than
300.
(D) If the aggregate market value of shares publicly held is less
than seven hundred fifty thousand dollars ($750,000).
(E) If shares of common stock sell at a price of less than three
dollars ($3) per share for a substantial period of time and the
issuer shall fail to effectuate a reverse stock split of the shares
within a reasonable period of time after being requested by the
exchange to take that action.
(5) (A) A national securities exchange, certified by rule or order
of the commissioner under this subdivision, shall file annual
reports when requested to do so by the commissioner. The annual
reports shall contain, by issuer, all of the following:
(i) The variances granted to an exchange's listing standards,
including variances from corporate governance and voting rights'
standards, for any security of that issuer.
(ii) The reasons for the variances.
(iii) A discussion of the review procedure instituted by the
exchange to determine the effect of the variances on investors and
whether the variances should be continued.
(iv) Any other information that the commissioner deems relevant.
(B) The purpose of these reports is to assist the commissioner in
determining if the quantitative and qualitative requirements of this
subdivision are substantially being met by the exchange in general or
with regard to any particular security.
(6) The commissioner after appropriate notice and opportunity for
hearing in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2
of the Government Code) may, in his or her discretion, by rule or
order, decertify any exchange previously certified that ceases
substantially to apply the minimum standards or criteria as set forth
in paragraphs (3) and (4).
(7) A rule or order of certification shall conclusively establish
that any security listed or approved for listing upon notice of
issuance on any exchange named in a rule or order of certification,
and any warrant or right to purchase or subscribe to that security,
is exempt under this subdivision until the adoption by the
commissioner of any rule or order decertifying the exchange.
(p) A promissory note secured by a lien on real property, that is
neither one of a series of notes of equal priority secured by
interests in the same real property nor a note in which beneficial
interests are sold to more than one person or entity.
(q) Any unincorporated interindemnity or reciprocal or
interinsurance contract, that qualifies under the provisions of
Section 1280.7 of the Insurance Code, between members of a
cooperative corporation, organized and operating under Part 2
(commencing with Section 12200) of Division 3 of Title 1, and whose
members consist only of physicians and surgeons licensed in the
state, which contracts indemnify solely in respect to medical
malpractice claims against the members, and which do not collect in
advance of loss any moneys other than contributions by each member to
a collective reserve trust fund or for necessary expenses of
administration.
(1) Whenever it appears to the commissioner that a person has
engaged, or is about to engage, in an act or practice constituting a
violation of Section 1280.7 of the Insurance Code, the commissioner
may, in the commissioner's discretion, bring an action in the name of
the people of the state in the superior court to enjoin the acts or
practices or to enforce compliance with Section 1280.7 of the
Insurance Code. Upon a proper showing a permanent or preliminary
injunction, a restraining order, or a writ of mandate shall be
granted and a receiver or conservator may be appointed for the
defendant or the defendant's assets.
(2) The commissioner may, in the commissioner's discretion, make
public or private investigations within or outside of the state as
the commissioner deems necessary to determine if a person has
violated or is about to violate Section 1280.7 of the Insurance Code
or to aid in the enforcement of Section 1280.7, and publish
information concerning the violation of Section 1280.7.
(3) For purposes of an investigation or proceeding under this
section, the commissioner or any officer designated by the
commissioner may administer oaths and affirmations, subpoena
witnesses, compel their attendance, take evidence, and require the
production of any books, papers, correspondence, memoranda,
agreements, or other documents or records that the commissioner deems
relevant or material to the inquiry.
(4) In case of contumacy by, or refusal to obey a subpoena issued
to, any person, the superior court, upon application by the
commissioner, may issue to the person an order requiring the person
to appear before the commissioner, or the officer designated by the
commissioner, to produce documentary evidence, if so ordered, or to
give evidence touching the matter under investigation or in question.
Failure to obey the order of the court may be punished by the court
as a contempt.
(5) No person is excused from attending or testifying or from
producing any document or record before the commissioner or in
obedience to the subpoena of the commissioner or any officer
designated by the commissioner, or in any proceeding instituted by
the commissioner, on the ground that the testimony or evidence,
documentary or otherwise, required of the person may tend to
incriminate the person or subject the person to a penalty or
forfeiture, but no individual may be prosecuted or subjected to any
penalty or forfeiture for, or on account of, any transaction, matter,
or thing concerning which the person is compelled, after validly
claiming the privilege against self-incrimination, to testify or
produce evidence, documentary or otherwise, except that the
individual testifying is not exempt from prosecution and punishment
for perjury or contempt committed in testifying.
(6) (A) The cost of any review, examination, audit, or
investigation made by the commissioner under Section 1280.7 of the
Insurance Code shall be paid to the commissioner by the person
subject to the review, examination, audit, or investigation, and the
commissioner may maintain an action for the recovery of these costs
in any court of competent jurisdiction. In determining the cost, the
commissioner may use the actual amount of the salary or other
compensation paid to the persons making the review, examination,
audit, or investigation plus the actual amount of expenses including
overhead reasonably incurred in the performance of the work.
(B) The recoverable cost of each review, examination, audit, or
investigation made by the commissioner under Section 1280.7 of the
Insurance Code shall not exceed twenty-five thousand dollars
($25,000), except that costs exceeding twenty-five thousand dollars
($25,000) shall be recoverable if the costs are necessary to prevent
a violation of Section 1280.7 of the Insurance Code.
(r) Any shares or memberships issued by any corporation organized
and existing pursuant to the provisions of Part 2 (commencing with
Section 12200) of Division 3 of Title 1, if the aggregate investment
of any shareholder or member in shares or memberships sold pursuant
to this subdivision does not exceed one thousand dollars ($1,000).
This exemption does not apply to the shares or memberships of that
corporation if any promoter thereof expects or intends to make a
profit directly or indirectly from any business or activity
associated with the corporation or the operation of the corporation
or from remuneration, other than reasonable salary, received from the
corporation. This exemption does not apply to nonvoting shares or
memberships of that corporation issued to any person who does not
possess, and who will not acquire in connection with the issuance of
nonvoting shares or memberships, voting power, as defined in Section
12253, in the corporation. This exemption does not apply to shares or
memberships issued by a nonprofit cooperative corporation organized
to facilitate the creation of an unincorporated interindemnity
arrangement that provides indemnification for medical malpractice to
its physician and surgeon members as set forth in subdivision (q).
(s) Any security consisting of or representing an interest in a
pool of mortgage loans that meets all of the following requirements:
(1) The pool consists of whole mortgage loans or participation
interests in those loans, which loans were originated or acquired in
the ordinary course of business by a national bank or federal savings
association or federal savings bank having its principal office in
this state, by a bank incorporated under the laws of this state, or
by a savings association as defined in subdivision (a) of Section
5102 of the Financial Code and that is subject to the supervision and
regulation of the commissioner, and each of which at the time of
transfer to the pool is an authorized investment for the originating
or acquiring institution.
(2) The pool of mortgage loans is held in trust by a trustee that
is a financial institution specified in paragraph (1) as trustee or
otherwise.
(3) The loans are serviced by a financial institution specified in
paragraph (1).
(4) The security is not offered in amounts of less than
twenty-five thousand dollars ($25,000) in the aggregate to any one
purchaser.
(5) The security is offered pursuant to a registration under the
Securities Act of 1933, or pursuant to an exemption under Regulation
A under that act, or in the opinion of counsel for the issuer, is
offered pursuant to an exemption under Section 4(2) of that act.
(t) (1) Any security issued or guaranteed by and representing an
interest in, or a direct obligation of, an industrial loan company
incorporated under the laws of the state and authorized by the
commissioner to engage in industrial loan business.
(2) Any investment certificate in or issued by an industrial loan
company that is organized under the laws of a state of the United
States other than this state, that is insured by the Federal Deposit
Insurance Corporation, and that maintains a branch office in this
state.
SEC. 51. Section 25247 of the Corporations Code is amended to
read:
25247. (a) Upon written or oral request, the commissioner shall
make available to any person the information specified in Section
6254.12 of the Government Code and made available through the Public
Disclosure Program of the Financial Industry Regulatory Authority
with respect to any broker-dealer or agent licensed or regulated
under this part. The commissioner shall also make available the
current license status and the year of issuance of the license of a
broker-dealer. Any information disclosed pursuant to this subdivision
shall constitute a public record. Notwithstanding any other law, the
commissioner may disclose either orally or in writing that
information pursuant to this subdivision. There shall be no liability
on the part of, and no cause of action of any nature shall arise
against, the state, the Department of Business Oversight, the
Commissioner of Business Oversight, or any officer, agent, or
employee of the state or the Department of Business Oversight for the
release of any false or unauthorized information, unless the release
of that information was done with knowledge and malice.
(b) Any broker-dealer or agent licensed or regulated under this
part shall, upon request, deliver a written notice to any client when
a new account is opened stating that information about the license
status or disciplinary record of a broker-dealer or an agent may be
obtained from the Division of Corporations, or from any other source
that provides substantially similar information.
(c) The notice provided under subdivision (b) shall contain the
office location or telephone number where the information may be
obtained.
(d) A broker-dealer or agent is exempt from providing the notice
required under subdivision (b) if a person who does not have a
financial relationship with the broker-dealer or agent, requests only
general operational information such as the nature of the
broker-dealer's or agent's business, office location, hours of
operation, basic services, and fees, but does not solicit advice
regarding investments or other services offered.
(e) Upon written or
oral request, the commissioner shall make available to any person the
disciplinary records maintained on the Investment Adviser
Registration Depository and made available through the Investment
Advisor Public Disclosure Internet Web site as to any investment
adviser, investment adviser representative, or associated person of
an investment adviser licensed or regulated under this part. The
commissioner shall also make available the current license status and
the year of issuance of the license of an investment adviser. Any
information disclosed pursuant to this subdivision shall constitute a
public record. Notwithstanding any other law, the commissioner may
disclose that information either orally or in writing pursuant to
this subdivision. There shall be no liability on the part of, and no
cause of action of any nature shall arise against, the state, the
Department of Business Oversight, the Commissioner of Business
Oversight, or any officer, agent, or employee of the state or the
Department of Business Oversight for the release of any false or
unauthorized information, unless the release of that information was
done with knowledge and malice.
(f) Section 461 of the Business and Professions Code shall not
apply to the Division of Corporations when using a national, uniform
application adopted or approved for use by the Securities and
Exchange Commission, the North American Securities Administrators
Association, or the Financial Industry Regulatory Authority that is
required for participation in the Central Registration Depository or
the Investment Adviser Registration Depository.
(g) This section shall not require the disclosure of criminal
history record information maintained by the Federal Bureau of
Investigation pursuant to Section 534 of Title 28 of the United
States Code, and the rules thereunder, or information not otherwise
subject to disclosure under the Information Practices Act of 1977.
SEC. 52. Section 221.6 of the Education Code is amended to read:
221.6. On or before July 1, 2006, the department shall post on
its Internet Web site, in both English and Spanish and at a reading
level that may be comprehended by pupils in high school, the
information set forth in the federal regulations implementing Title
IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681 et seq.).
SEC. 53. Section 1313 of the Education Code is amended to read:
1313. Each county employee whose status is changed by this
article, and who is in employment and a member of a county retirement
system other than one provided by contract with the Public Employees'
Retirement System on the date of the change, shall become eligible
for membership in the Public Employees' Retirement System in
accordance with the Public Employees' Retirement Law with respect to
his or her employment thereafter, and shall be subject to the
reciprocal benefits provided by those systems. However, the employee
may elect to continue in membership of the county retirement system
with respect to his or her employment thereafter, in which event the
same appropriations and transfers of funds shall be made to the
retirement fund of the county system for the employee as those
required of the county under the county retirement law, and these
amounts shall be legal charges against the county school service
fund. The election authorized by this section shall be made no later
than the date preceding the date upon which his or her status is
changed in accordance with procedures to be established by the county
board of supervisors, which shall allow at least 30 days to make the
election. The election once made shall not be rescinded. An employee
who does not elect to continue membership in the county system shall
be deemed to have discontinued county employment for purposes of the
county system at the close of the day preceding the date upon which
his or her status changes.
SEC. 54. Section 8340.4 of the Education Code is amended to read:
8340.4. The county shall, by the end of the first fiscal year of
operation under the approved child care subsidy plan, demonstrate, in
the report required pursuant to Section 8340.5, an increase in the
aggregate days a child is enrolled in child care in the county as
compared to the enrollment in the final quarter of the 2014-15 fiscal
year.
SEC. 55. Section 17250.25 of the Education Code, as added by
Section 2 of Chapter 752 of the Statutes of 2015, is amended to read:
17250.25. The procurement process for design-build projects shall
progress as follows:
(a) (1) The school district shall prepare a set of documents
setting forth the scope and estimated price of the project. The
documents may include, but are not limited to, the size, type, and
desired design character of the project, performance specifications
covering the quality of materials, equipment, workmanship,
preliminary plans or building layouts, or any other information
deemed necessary to describe adequately the school district's needs.
The performance specifications and any plans shall be prepared by a
design professional who is duly licensed and registered in the state.
(2) The documents shall not include a design-build-operate
contract for a project. The documents, however, may include
operations during a training or transition period, but shall not
include long-term operations for a project.
(b) The school district shall prepare and issue a request for
qualifications in order to prequalify, or develop a short-list of,
the design-build entities whose proposals shall be evaluated for
final selection. The request for qualifications shall include, but is
not limited to, all of the following elements:
(1) Identification of the basic scope and needs of the project or
contract, the expected cost range, the methodology that will be used
by the school district to evaluate proposals, the procedure for final
selection of the design-build entity, and any other information
deemed necessary by the school district to inform interested parties
of the contracting opportunity.
(2) Significant factors that the school district reasonably
expects to consider in evaluating qualifications, including technical
design and construction expertise, acceptable safety record, and all
other nonprice-related factors.
(3) A standard template request for statements of qualifications
prepared by the school district. In preparing the standard template,
the school district may consult with the construction industry, the
building trades and surety industry, and other school districts
interested in using the authorization provided by this chapter. The
template shall require the following information:
(A) If the design-build entity is a privately held corporation,
limited liability company, partnership, or joint venture, a listing
of all of the shareholders, partners, or members known at the time of
statement of qualification submission who will perform work on the
project.
(B) Evidence that the members of the design-build team have
completed, or demonstrated the experience, competency, capability,
and capacity to complete, projects of similar size, scope, or
complexity, and that the proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project.
(C) A financial statement that ensures that the design-build
entity has the capacity to complete the project.
(D) The licenses, registration, and credentials required to design
and construct the project, including, but not limited to,
information on the revocation or suspension of any license,
credential, or registration.
(E) Evidence that establishes that the design-build entity has the
capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance.
(F) Information concerning workers' compensation experience
history and a worker safety program.
(G) If the proposed design-build entity is a corporation, limited
liability company, partnership, joint venture, or other legal entity,
a copy of the organizational documents or agreement committing to
form the organization.
(H) An acceptable safety record. A proposer's safety record shall
be deemed acceptable if its experience modification rate for the most
recent three-year period is an average of 1.00 or less, and its
average total recordable injury or illness rate and average lost work
rate for the most recent three-year period does not exceed the
applicable statistical standards for its business category, or if the
proposer is a party to an alternative dispute resolution system, as
provided for in Section 3201.5 of the Labor Code.
(c) (1) The information required under a standard template
pursuant to paragraph (3) of subdivision (b) shall be certified under
penalty of perjury by the design-build entity and its general
partners or joint venture members.
(2) Information required under a standard template pursuant to
paragraph (3) of subdivision (b) that is not otherwise a public
record under the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) shall not be open to public inspection.
(d) A design-build entity shall not be prequalified or shortlisted
unless the entity provides an enforceable commitment to the school
district that the entity and its subcontractors at every tier will
use a skilled and trained workforce to perform all work on the
project or contract that falls within an apprenticeable occupation in
the building and construction trades.
(1) For purposes of this subdivision:
(A) "Apprenticeable occupation" means an occupation for which the
Chief of the Division of Apprenticeship Standards had approved an
apprenticeship program pursuant to Section 3075 of the Labor Code
before January 1, 2014.
(B) "Skilled and trained workforce" means a workforce that meets
all of the following conditions:
(i) All the workers are either skilled journeypersons or
apprentices registered in an apprenticeship program approved by the
Chief of the Division of Apprenticeship Standards.
(ii) (I) As of July 1, 2016, at least 20 percent of the skilled
journeypersons employed to perform work on the contract or project by
the entity and each of its subcontractors at every tier are
graduates of an apprenticeship program for the applicable occupation
that was either approved by the Chief of the Division of
Apprenticeship Standards pursuant to Section 3075 of the Labor Code
or located outside the state and approved for federal purposes
pursuant to the apprenticeship regulations adopted by the federal
Secretary of Labor.
(II) As of July 1, 2017, at least 30 percent of the skilled
journeypersons employed to perform work on the contract or project by
the entity and each of its subcontractors at every tier are
graduates of an apprenticeship program for the applicable occupation
that was either approved by the Chief of the Division of
Apprenticeship Standards pursuant to Section 3075 of the Labor Code
or located outside the state and approved for federal purposes
pursuant to the apprenticeship regulations adopted by the federal
Secretary of Labor.
(III) As of July 1, 2018, at least 40 percent of the skilled
journeypersons employed to perform work on the contract or project by
the entity and each of its subcontractors at every tier are
graduates of an apprenticeship program for the applicable occupation
that was either approved by the Chief of the Division of
Apprenticeship Standards pursuant to Section 3075 of the Labor Code
or located outside the state and approved for federal purposes
pursuant to the apprenticeship regulations adopted by the federal
Secretary of Labor.
(IV) As of July 1, 2019, at least 50 percent of the skilled
journeypersons employed to perform work on the contract or project by
the entity and each of its subcontractors at every tier are
graduates of an apprenticeship program for the applicable occupation
that was either approved by the Chief of the Division of
Apprenticeship Standards pursuant to Section 3075 of the Labor Code
or located outside the state and approved for federal purposes
pursuant to the apprenticeship regulations adopted by the federal
Secretary of Labor.
(V) As of July 1, 2020, at least 60 percent of the skilled
journeypersons employed to perform work on the contract or project by
the entity and each of its subcontractors at every tier are
graduates of an apprenticeship program for the applicable occupation
that was either approved by the Chief of the Division of
Apprenticeship Standards pursuant to Section 3075 of the Labor Code
or located outside the state and approved for federal purposes
pursuant to the apprenticeship regulations adopted by the federal
Secretary of Labor.
(iii) For an apprenticeable occupation in which no apprenticeship
program had been approved by the Chief of the Division of
Apprenticeship Standards before January 1, 1995, up to one-half of
the graduation percentage requirements of clause (ii) may be
satisfied by skilled journeypersons who commenced working in the
apprenticeable occupation before the chief's approval of an
apprenticeship program for that occupation in the county in which the
project is located.
(C) "Skilled journeyperson" means a worker who either:
(i) Graduated from an apprenticeship program for the applicable
occupation that was either approved by the Chief of the Division of
Apprenticeship Standards or located outside the state and approved
for federal purposes pursuant to the apprenticeship regulations
adopted by the federal Secretary of Labor.
(ii) Has at least as many hours of on-the-job experience in the
applicable occupation as would be required to graduate from an
apprenticeship program for the applicable occupation that is approved
by the chief.
(2) An entity's commitment that a skilled and trained workforce
will be used to perform the project or contract may be established by
any of the following:
(A) The entity's agreement with the school district that the
entity and its subcontractors at every tier will comply with the
requirements of this subdivision and that the entity will provide the
school district with evidence, on a monthly basis while the project
or contract is being performed, that the entity and its
subcontractors are complying with the requirements of this
subdivision.
(B) If the school district has entered into a project labor
agreement that will bind all contractors and subcontractors
performing work on the project or contract and that includes the
requirements of this subdivision, the entity's agreement that it will
become a party to that project labor agreement.
(C) Evidence that the entity has entered into a project labor
agreement that includes the requirements of this subdivision and that
will bind the entity and all its subcontractors at every tier
performing the project or contract.
(e) (1) Based on the documents prepared as described in
subdivision (a), the school district shall prepare a request for
proposals that invites prequalified or short-listed entities to
submit competitive sealed proposals in the manner prescribed by the
school district. The request for proposals shall include, but need
not be limited to, the following elements:
(A) Identification of the basic scope and needs of the project or
contract, the estimated cost of the project, the methodology that
will be used by the school district to evaluate proposals, whether
the contract will be awarded on the basis of low bid or best value,
and any other information deemed necessary by the school district to
inform interested parties of the contracting opportunity.
(B) Significant factors that the school district reasonably
expects to consider in evaluating proposals, including, but not
limited to, cost or price and all nonprice-related factors.
(C) The relative importance or the weight assigned to each of the
factors identified in the request for proposals.
(2) Where a best value selection method is used, the school
district may reserve the right to request proposal revisions and hold
discussions and negotiations with responsive proposers, in which
case the school district shall so specify in the request for
proposals and shall publish separately or incorporate into the
request for proposals applicable procedures to be observed by the
school district to ensure that any discussions or negotiations are
conducted in good faith.
(f) For those projects using low bid as the final selection
method, the competitive bidding process shall result in lump-sum bids
by the prequalified or short-listed design-build entities, and
awards shall be made to the design-build entity that is the lowest
responsible bidder.
(g) For those projects using best value as a selection method, the
design-build competition shall progress as follows:
(1) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposals. The following minimum factors, however, shall
be weighted as deemed appropriate by the school district:
(A) Price, unless a stipulated sum is specified.
(B) Technical design and construction expertise.
(C) Life-cycle costs over 15 or more years.
(2) Pursuant to paragraph (2) of subdivision (e), the school
district may hold discussions or negotiations with responsive
proposers using the process articulated in the school district's
request for proposals.
(3) When the evaluation is complete, the responsive proposers
shall be ranked based on a determination of value provided, and no
more than three proposers are required to be ranked.
(4) The award of the contract shall be made to the responsible
design-build entity whose proposal is determined by the school
district to have offered the best value to the public.
(5) Notwithstanding any other law, upon issuance of a contract
award, the school district shall publicly announce its award,
identifying the design-build entity to which the award is made, along
with a statement regarding the basis of the award.
(6) The statement regarding the school district's contract award,
described in paragraph (5), and the contract file shall provide
sufficient information to satisfy an external audit.
SEC. 56. Section 17250.35 of the Education Code, as added by
Section 2 of Chapter 752 of the Statutes of 2015, is amended to read:
17250.35. (a) The school district, in each design-build request
for proposals, may identify specific types of subcontractors that
must be included in the design-build entity statement of
qualifications and proposal. All construction subcontractors that are
identified in the proposal shall be afforded all the protections of
Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 of
the Public Contract Code.
(b) Following award of the design-build contract, the design-build
entity shall proceed as follows in awarding construction
subcontracts with a value exceeding one-half of 1 percent of the
contract price allocable to construction work:
(1) Provide public notice of availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the school district,
including a fixed date and time on which qualifications statements,
bids, or proposals will be due.
(2) Establish reasonable qualification criteria and standards.
(3) Award the subcontract either on a best value basis or to the
lowest responsible bidder. The process may include prequalification
or short-listing. The foregoing process does not apply to
construction subcontractors listed in the original proposal.
Subcontractors awarded construction subcontracts under this
subdivision shall be afforded all the protections of Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code.
SEC. 57. Section 33353.7 of the Education Code is amended to read:
33353.7. (a) No later than July 1, 2017, the California
Interscholastic Federation, in consultation with the department,
shall develop guidelines, procedures, and safety standards for the
purpose of classifying competition cheer as an interscholastic sport
that is consistent with the United States Department of Education's
Office for Civil Rights' definition of a sport.
(b) For purposes of this section, "competition cheer" means a
sport in which teams participate in direct, head-to-head competition
with one another using an objective scoring system.
(c) The California Interscholastic Federation shall seek a United
States Department of Education Office for Civil Rights Title IX
compliance designation for competition cheer. Competition cheer shall
not be counted toward a school's Title IX compliance unless the
United States Department of Education's Office for Civil Rights deems
competition cheer compliant with its definition of a sport.
SEC. 58. Section 41360 of the Education Code is amended to read:
41360. (a) Loans may be made from moneys in the Public School
District Organization Revolving Fund to newly organized elementary,
high school, or unified school districts upon application of the
governing board of any such school district, certified by the county
superintendent of schools and approved by the Superintendent for use
by the school district during the period from the date the action to
form the school district was completed and the date the school
district becomes effective for all purposes. Money loaned to a school
district pursuant to this section shall be used only to meet one or
more of the following:
(1) The expenses of office rental, office supplies, postage,
telephone, and telegraphing.
(2) The expenses of necessary elections required by law or
authorized by Section 35532.
(3) The expenses of employing, the salary of, and necessary travel
expenses of officers and necessary clerical help for the governing
board of the school district.
(b) During each of the two successive fiscal years commencing with
the first fiscal year of the existence of the school district for
all purposes, the Controller shall deduct from apportionments made to
that school district an amount equal to one-half of the amount
loaned to that school district under this section and pay the same
amount into the Public School District Organization Revolving Fund in
the State Treasury.
SEC. 59. Section 41422 of the Education Code is amended to read:
41422. (a) A school district, county office of education, or
charter school that is prevented from maintaining its schools during
a fiscal year for at least 175 days or is required to operate
sessions of shorter length than otherwise prescribed by law because
of fire, flood, earthquake, or epidemic, or because of any order of
any military officer of the United States or of the state to meet an
emergency created by war, or of any civil officer of the United
States, of the state, or of any county, city and county, or city
authorized to issue that order to meet an emergency created by war,
or because of other extraordinary conditions, or because of inability
to secure or hold a teacher, or because of the illness of the
teacher, which fact shall be shown to the satisfaction of the
Superintendent by the affidavits of the members of the governing
board of the school district, the governing board of the county
office of education, or the governing board or body of the charter
school and of the county superintendent of schools, shall receive the
same apportionment from the State School Fund as it would have
received had it not been so prevented from maintaining school for at
least 175 full-length days.
(b) This section shall also apply to school districts, county
offices of education, or charter schools that, in the absence of one
or more of the conditions prescribed by this section, would have
qualified for funds pursuant to Sections 46200 to 46208, inclusive,
or Section 47612.5, as applicable.
SEC. 60. Section 42925 of the Education Code is amended to read:
42925. (a) As a condition of receiving funds, each county office
of education and consortium of county offices of education with a
foster youth services coordinating program operated pursuant to this
chapter shall, to the extent possible, develop and enter into a
memorandum of understanding, contract, or formal agreement with the
county child welfare agency pursuant to which foster youth services
coordinating program funds shall be used, to the maximum extent
possible, to leverage funds received pursuant to Title IV-E of the
federal Social Security Act (42 U.S.C. Sec. 670 et seq.) and any
other funds that may be used to specifically address the educational
needs of pupils in foster care, or they shall explain in writing,
annually, why a memorandum of understanding is not practical or
feasible.
(b) To the extent possible, each foster youth services
coordinating program is encouraged to consider leveraging other local
funding opportunities to support the educational success of pupils
in foster care.
SEC. 61. Section 44977.5 of the Education Code is amended to read:
44977.5. (a) During each school year, when a person employed in a
position requiring certification qualifications has exhausted all
available sick leave, including all accumulated sick leave, and
continues to be absent from his or her duties on account of maternity
or paternity leave pursuant to Section 12945.2 of the Government
Code for a period of up to 12 school weeks, whether or not the
absence arises out of or in the course of the employment of the
employee, the amount deducted from the salary due him or her for any
of the additional 12 weeks in which the absence occurs shall not
exceed the sum that is actually paid a substitute employee employed
to fill his or her position during his or her absence or, if a
substitute employee was not employed, the amount that would have been
paid to the substitute had he or she been employed. The school
district shall make every reasonable effort to secure the services of
a substitute employee.
(b) For purposes of subdivision (a):
(1) The 12-week period shall be reduced by any period of sick
leave, including accumulated sick leave, taken during a period of
maternity or paternity leave pursuant to Section 12945.2 of the
Government Code.
(2) An employee shall not be provided more than one 12-week period
per maternity or paternity leave. However, if a school year
terminates before the 12-week period is exhausted, the employee may
take the balance of the 12-week period in the subsequent school year.
(3) An employee on maternity or paternity leave pursuant to
Section 12945.2 of the Government Code shall not be denied access to
differential pay, as specified in subdivision (a)
, while on that leave.
(c) This section applies whether or not the absence from duty is
by reason of a leave of absence granted by the governing board of the
employing school district.
(d) To the extent that this section conflicts with a provision of
a collective bargaining agreement entered into by a public school
employer and an exclusive bargaining representative before January 1,
2016, pursuant to Chapter 10.7 (commencing with Section 3540) of
Division 4 of Title 1 of the Government Code, this section shall not
apply until expiration or renewal of that collective bargaining
agreement.
(e) For purposes of this section, "maternity or paternity leave"
means leave for reason of the birth of a child of the employee, or
the placement of a child with an employee in connection with the
adoption or foster care of the child by the employee.
SEC. 62. Section 44984 of the Education Code is amended to read:
44984. (a) The governing board of a school district shall provide
by rules and regulations for industrial accident and illness leaves
of absence for all certificated employees. The governing board of a
school district that is created or whose boundaries or status is
changed by an action to organize or reorganize school districts
completed after the effective date of this section shall provide by
rules and regulations for these leaves of absence on or before the
date on which the organization or reorganization of the school
district becomes effective for all purposes.
(b) The rules or regulations shall include the following
provisions:
(1) Allowable leave shall be for not less than 60 days during
which the schools of the school district are required to be in
session or when the employee would otherwise have been performing
work for the school district in any one fiscal year for the same
accident.
(2) Allowable leave shall not be accumulated from year to year.
(3) Industrial accident or illness leave shall commence on the
first day of absence.
(4) (A) If a certificated employee is absent from his or her
duties on account of an industrial accident or illness, he or she
shall be paid the portion of the salary due him or her for any month
in which the absence occurs as, when added to his or her temporary
disability indemnity under Division 4 or Division 4.5 of the Labor
Code, will result in a payment to him or her of not more than his or
her full salary.
(B) The phrase "full salary" as used in this subdivision shall be
computed so that it shall not be less than the employee's "average
weekly earnings" as that phrase is used in Section 4453 of the Labor
Code. For purposes of this section, however, the maximum and minimum
average weekly earnings set forth in Section 4453 of the Labor Code
shall otherwise not be deemed applicable.
(5) Industrial accident or illness leave shall be reduced by one
day for each day of authorized absence regardless of a temporary
disability indemnity award.
(6) When an industrial accident or illness leave overlaps into the
next fiscal year, the employee shall be entitled to only the amount
of unused leave due him or her for the same illness or injury.
(c) Upon termination of the industrial accident or illness leave,
the employee shall be entitled to the benefits provided in Sections
44977, 44978, and 44983, and for purposes of each of these sections,
the employee's absence shall be deemed to have commenced on the date
of termination of the industrial accident or illness leave, provided
that if the employee continues to receive temporary disability
indemnity, the employee may elect to take as much of his or her
accumulated sick leave as, when added to his or her temporary
disability indemnity, will result in a payment to him or her of not
more than his or her full salary.
(d) The governing board of a school district may, by rule or
regulation, provide for an additional leave of absence for industrial
accident or illness as it deems appropriate.
(e) During a paid leave of absence, the employee may endorse to
the school district the temporary disability indemnity checks
received on account of the employee's industrial accident or illness.
The school district, in turn, shall issue the employee appropriate
salary warrants for payment of the employee's salary and shall deduct
normal retirement, other authorized contributions, and the temporary
disability indemnity, if any, actually paid to and retained by the
employee for periods covered by the salary warrants.
(f) In the absence of rules and regulations adopted by the
governing board of a school district pursuant to this section, an
employee shall be entitled to industrial accident or illness leave as
provided in this section but without limitation as to the number of
days of that leave.
SEC. 63. Section 45192 of the Education Code is amended to read:
45192. (a) The governing board of a school district shall provide
by rules and regulations for industrial accident or illness leaves
of absence for employees who are a part of the classified service.
The governing board of a school district that is created or whose
boundaries or status is changed by an action to organize or
reorganize school districts completed after the effective date of
this section shall provide by rules and regulations for these leaves
of absence on or before the date on which the organization or
reorganization of the school district becomes effective for all
purposes.
(b) The rules and regulations shall include the following
provisions:
(1) Allowable leave shall not be for less than 60 working days in
any one fiscal year for the same accident.
(2) Allowable leave shall not be accumulative from year to year.
(3) Industrial accident or illness leave will commence on the
first day of absence.
(4) Payment for wages lost on any day shall not, when added to an
award granted the employee under the workers' compensation laws of
this state, exceed the normal wage for the day.
(5) Industrial accident leave will be reduced by one day for each
day of authorized absence regardless of a compensation award made
under workers' compensation.
(6) When an industrial accident or illness occurs at a time when
the full 60 days will overlap into the next fiscal year, the employee
shall be entitled to only that amount remaining at the end of the
fiscal year in which the injury or illness occurred, for the same
illness or injury.
(c) The industrial accident or illness leave of absence is to be
used in lieu of entitlement acquired under Section 45191. When
entitlement to industrial accident or illness leave has been
exhausted, entitlement or other sick leave will then be used, but if
an employee is receiving workers' compensation, the employee shall be
entitled to use only so much of his or her accumulated or available
sick leave, accumulated compensating time, vacation, or other
available leave as, when added to the workers' compensation award,
will provide for a full day's wage or salary.
(d) The governing board of a school district may, by rule or
regulation, provide for as much additional leave of absence, paid or
unpaid, as it deems appropriate and during this leave the employee
may return to his or her position without suffering any loss of
status or benefits. The employee shall be notified, in writing, that
available paid leave has been exhausted, and shall be offered an
opportunity to request additional leave.
(e) A period of leave of absence, paid or unpaid, shall not be
considered to be a break in service of the employee.
(f) During a paid leave of absence, whether industrial accident
leave as provided in this section, sick leave, vacation, compensated
time off, or other available leave provided by law or the action of
the governing board of a school district, the employee shall endorse
to the school district wage loss benefit checks received under the
workers' compensation laws of this state. The school district, in
turn, shall issue the employee appropriate warrants for payment of
wages or salary and shall deduct normal retirement and other
authorized contributions. Reduction of entitlement to leave shall be
made only in accordance with this section.
(g) When all available leaves of absence, paid or unpaid, have
been exhausted and if the employee is not medically able to assume
the duties of his or her position, the employee shall, if not placed
in another position, be placed on a reemployment list for a period of
39 months. When available, during the 39-month period, the employee
shall be employed in a vacant position in the class of the employee's
previous assignment over all other available candidates except for a
reemployment list established because of lack of work or lack of
funds, in which case the employee shall be listed in accordance with
appropriate seniority regulations.
(h) The governing board of a school district may require that an
employee serve or have served continuously a specified period of time
with the school district before the benefits provided by this
section are made available to the employee but this period shall not
exceed three years and all service of the employee before the
effective date of this section shall be credited in determining
compliance with the requirement.
(i) In the absence of rules and regulations adopted by the
governing board of a school district, pursuant to this section, an
employee shall be entitled to industrial and accident or illness
leave as provided in this section but without limitation as to the
number of days of this leave and without any requirement of a
specified period of service.
(j) An employee who has been placed on a reemployment list, as
provided in this section, who has been medically released for return
to duty and who fails to accept an appropriate assignment shall be
dismissed.
(k) This section applies to school districts that have adopted the
merit system in the same manner and effect as if it were a part of
Article 6 (commencing with Section 45240).
SEC. 64. Section 46392 of the Education Code is amended to read:
46392. (a) If the average daily attendance of a school district,
county office of education, or charter school during a fiscal year
has been materially decreased during a fiscal year because of any of
the following, the fact shall be established to the satisfaction of
the Superintendent by affidavits of the members of the governing
board or body of the school district, county office of education, or
charter school and the county superintendent of schools:
(1) Fire.
(2) Flood.
(3) Impassable roads.
(4) Epidemic.
(5) Earthquake.
(6) The imminence of a major safety hazard as determined by the
local law enforcement agency.
(7) A strike involving transportation services to pupils provided
by a nonschool entity.
(8) An order provided for in Section 41422.
(b) In the event a state of emergency is declared by the Governor
in a county, a decrease in average daily attendance in the county
below the approximate total average daily attendance that would have
been credited to a school district, county office of education, or
charter school had the state of emergency not occurred shall be
deemed material. The Superintendent shall determine the length of the
period during which average daily attendance has been reduced by the
state of emergency. The period determined by the Superintendent
shall not extend into the next fiscal year following the declaration
of the state of emergency by the Governor, except upon a showing by a
school district, county office of education, or charter school, to
the satisfaction of the Superintendent, that extending the period
into the next fiscal year is essential to alleviate continued
reductions in average daily attendance attributable to the state of
emergency.
(c) The average daily attendance of the school district, county
office of education, or charter school for the fiscal year shall be
estimated by the Superintendent in a manner that credits to the
school district, county office of education, or charter school for
determining the apportionments to be made to the school district,
county office of education, or charter school from the State School
Fund approximately the total average daily attendance that would have
been credited to the school district, county office of education, or
charter school had the emergency not occurred or had the order not
been issued.
(d) This section applies to any average daily attendance that
occurs during any part of a school year.
SEC. 65. Section 48204.2 of the Education Code is amended to read:
48204.2. (a) If a school district elects to undertake an
investigation pursuant to subdivision (c) of Section 48204.1, the
governing board of the school district shall adopt a policy regarding
the investigation of a pupil to determine whether the pupil meets
the residency requirements for school attendance in the school
district before investigating any pupils.
(b) The policy shall do all of the following:
(1) Identify the circumstances upon which the school district may
initiate an investigation, which shall, at a minimum, require the
school district employee to be able to identify specific, articulable
facts supporting the belief that the parent or legal guardian of the
pupil has provided false or unreliable evidence of residency.
(2) (A) Describe the investigatory methods that may be used by the
school district in the conduct of the investigation, including
whether the school district will be employing the services of a
private investigator.
(B) Before hiring a private investigator, the policy shall require
the school district to make reasonable efforts to determine whether
the pupil resides in the school district.
(3) Prohibit the surreptitious photographing or video-recording of
pupils who are being investigated. For purposes of this paragraph,
"surreptitious photographing or video-recording" means the covert
collection of photographic or videographic images of persons or
places subject to an investigation. For purposes of this paragraph,
the collection of images is not covert if the technology is used in
open and public view.
(4) Require that employees and contractors of the school district
engaged in the investigation identify themselves truthfully as such
to individuals contacted or interviewed during the course of the
investigation.
(5) Require a school district to specify the basis for a
determination of nonresidency of a pupil, and provide a process to
appeal that determination. If an appeal is made, the burden shall be
on the appealing party to show why the decision of the school
district should be overruled.
(c) The policy required pursuant to this section shall be adopted
at a public meeting of the governing board of the school district.
SEC. 66. Section 51421.5 of the Education Code, as added by
Section 3 of Chapter 384 of the Statutes of 2015, is amended to read:
51421.5. (a) If, for purposes of this article, a contractor or
testing center charges an examinee its own separate fee, the
contractor or testing center shall not charge that fee to an examinee
who meets all of the following criteria:
(1) The examinee qualifies as a homeless child or youth, as
defined in paragraph (2) of Section 725 of the federal McKinney-Vento
Homeless Assistance Act (42 U.S.C. Sec. 11434a(2)).
(2) The examinee has not attained 25 years of age as of the date
of the scheduled examination.
(3) The examinee can verify his or her status as a homeless child
or youth. A homeless services provider that has knowledge of the
examinee's housing status may verify the examinee's status for
purposes of this paragraph.
(b) For purposes of this section, a "homeless services provider"
includes either of the following:
(1) A homeless services provider listed in paragraph (3) of
subdivision (d) of Section 103577 of the Health and Safety Code.
(2) Any other person or entity that is qualified to verify an
individual's housing status, as determined by the department.
(c) Additional state funds shall not be appropriated for purposes
of implementing this section.
(d) Notwithstanding subdivision (c), the Superintendent may use
surplus funds in the Special Deposit Fund Account, established
pursuant to Section 51427, to reimburse contractors for the loss of
fees, if any, pursuant to this section. A contract executed by the
department for the provision of examinations pursuant to Section
51421 or this section shall require that any contracting party accept
all examinees, including those entitled to a fee waiver pursuant to
this section. For purposes of this subdivision, "surplus funds" are
funds remaining after the costs permitted by subdivision (a) of
Section 51421 are paid.
(e) On or before December 1, 2018, the Superintendent shall submit
a report to the appropriate policy and fiscal committees of the
Legislature that includes, but is not limited to, all of the
following:
(1) The number of homeless youth that took a high school
equivalency test in each of the 2016, 2017, and 2018 calendar years.
(2) The impact of the opportunity to take a high school
equivalency test at no cost on the number and percentage of homeless
youth taking a high school equivalency test.
(3) The estimated number of homeless youth who may take a high
school equivalency test in future years.
(4) Recommendations for a permanent funding source to cover the
cost of the waived fees.
(5) The annual and projected administrative cost to the
department.
(6) The annual and projected reimbursement to the contractor
pursuant to this section.
(f) The Superintendent shall adopt emergency regulations, as
necessary, to implement this section. The adoption of these
regulations shall be deemed to be an emergency and necessary for the
immediate preservation of the public peace, health, and safety, or
general welfare.
(g) The department shall include a provision in all memorandums of
understanding with contractors for purposes of providing a high
school equivalency test, that if the surplus funds in the Special
Deposit Fund Account are depleted, the ongoing costs of a fee waiver
for an examinee deemed eligible for a waiver pursuant to this section
shall be absorbed by the contractor.
(h) This section shall become inoperative on July 1, 2019, and, as
of January 1, 2020, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2020, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 67. Section 51745.6 of the Education Code is amended to read:
51745.6. (a) (1) The ratio of average daily attendance for
independent study pupils 18 years of age or less to school district
full-time equivalent certificated employees responsible for
independent study, calculated as specified by the department, shall
not exceed the equivalent ratio of average daily attendance to
full-time equivalent certificated employees providing instruction in
other educational programs operated by the school district, unless a
new higher or lower average daily attendance ratio for all other
educational programs offered is negotiated in a collective bargaining
agreement or a memorandum of understanding is entered into that
indicates an existing collective bargaining agreement contains an
alternative average daily attendance ratio.
(2) The ratio of average daily attendance for independent study
pupils 18 years of age or less to county office of education
full-time equivalent certificated employees responsible for
independent study, to be calculated in a manner prescribed by the
department, shall not exceed the equivalent prior year ratio of
average daily attendance to full-time equivalent certificated
employees for all other educational programs operated by the high
school or unified school district with the largest average daily
attendance of pupils in that county or the collectively bargained
alternative ratio used by that high school or unified school district
in the prior year, unless a new higher or lower average daily
attendance ratio for all other educational programs offered is
negotiated in a collective bargaining agreement or a memorandum of
understanding is entered into that indicates an existing collective
bargaining agreement contains an alternative average daily attendance
ratio. The computation of the ratios shall be performed annually by
the reporting agency at the time of, and in connection with, the
second principal apportionment report to the Superintendent.
(b) Only those units of average daily attendance for independent
study that reflect a pupil-teacher ratio that does not exceed the
ratios described in subdivision (a) shall be eligible for
apportionment pursuant to Section 2575, for county offices of
education, and Section 42238.05, for school districts. This section
does not prevent a school district or county office of education from
serving additional units of average daily attendance greater than
the ratios described in subdivision (a), except that those additional
units shall not be funded pursuant to Section 2575 or 42238.05, as
applicable. If a school district, charter school, or county office of
education has a memorandum of understanding to provide instruction
in coordination with the school district, charter school, or county
office of education at which a pupil is enrolled, the ratios that
shall apply for purposes of this paragraph are the ratios for the
local educational agency providing the independent study program to
the pupil pursuant to Section 51749.5.
(c) The calculations performed for purposes of this section shall
not include either of the following:
(1) The average daily attendance generated by special education
pupils enrolled in special day classes on a full-time basis, or the
teachers of those classes.
(2) The average daily attendance or teachers in necessary small
schools that are eligible to receive funding pursuant to Article 4
(commencing with Section 42280) of Chapter 7 of Part 24 of Division
3.
(d) The applicable
average-daily-attendance-to-certificated-employee ratios described in
subdivision (a) may, in a charter school, be calculated by using a
fixed average-daily-attendance-to-certificated-employee ratio of 25
to 1, or by using a ratio of less than 25 pupils per certificated
employee. A new higher or lower ratio for all other educational
programs offered by a charter school may be negotiated in a
collective bargaining agreement, or a memorandum of understanding
indicating that an existing collective bargaining agreement contains
an alternative average daily attendance ratio may be entered into by
a charter school. All charter school pupils, regardless of age, shall
be included in the applicable
average-daily-attendance-to-certificated-employee ratio calculations.
SEC. 68. Section 66302 of the Education Code is amended to read:
66302. The Trustees of the California State University, the
Regents of the University of California, and the governing board of
each community college district are requested to adopt and publish
policies on harassment, intimidation, and bullying to be included
within the rules and regulations governing student behavior within
their respective segments of public postsecondary education. It is
the intent of the Legislature that rules and regulations governing
student conduct be published, at a minimum, on the Internet Web site
of each public postsecondary educational campus and as part of any
printed material covering those rules and regulations within the
respective public postsecondary education system.
SEC. 69. Section 66749.5 of the Education Code is amended to read:
66749.5. (a) The Office of the Chancellor of the California
Community Colleges shall report to the Legislature on or before
December 1, 2016, the status of each community college's compliance
with the provisions of this article related to creating associate
degrees for transfer.
(b) The California State University shall submit two reports to
the Legislature on campus acceptance of transfer model curricula by
concentration, on or before December 1, 2016, and on or before
December 1, 2017, respectively.
(c) (1) The California State University shall annually, commencing
December 1, 2016, publicly post available data on all of the
following:
(A) The number of students admitted with an associate degree for
transfer.
(B) The proportion of students with an associate degree for
transfer who graduate from the California State University within two
or three years.
(C) The number of students with an associate degree for transfer
who applied to a campus of the California State University and were
redirected to another campus than that indicated in the application.
(D) The number of students described in subparagraph (C) who
ultimately enrolled at a California State University campus.
(2) This subdivision shall become inoperative on November 30,
2021.
(d) (1) The requirements for submitting reports on or before
December 1, 2016, imposed under subdivisions (a) and (b) are
inoperative on December 1, 2020, and the requirement for submitting a
report on or before December 1, 2017, imposed under subdivision (b)
is inoperative on December 1, 2021, pursuant to Section 10231.5 of
the Government Code.
(2) Reports to be submitted pursuant to subdivisions (a) and (b)
shall be submitted in compliance with Section 9795 of the Government
Code.
(e) This section shall remain in effect only until January 1,
2022, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2022, deletes or extends
that date.
SEC. 70. Section 69800.2 of the Education Code is amended to read:
69800.2. (a) Before certifying a borrower's eligibility for a
private student loan, a public, private, or independent postsecondary
educational institution shall provide to the student information
concerning all unused state and federal financial assistance,
including unused federal student loan moneys available to that
student.
(b) An institution that does not participate in federal student
loan programs shall inform students that the institution does not
participate in federal loan programs and that students may be
eligible for federal loans at a participating institution. The
institution shall provide the student with information regarding the
Cal Grants Web link on the California Student Aid Commission's
Internet Web site and the Federal Student Aid Web link on the United
States Department of Education's Internet Web site.
SEC. 71. Section 70037 of the Education Code is amended to read:
70037. (a) The Trustees of the California State University and
the Regents of the University of California shall adopt regulations
providing for the
withholding of institutional services from a student or former
student who has been notified in writing at the student's or former
student's last known address that he or she is in default on a loan
or loans under the DREAM Program.
(b) The regulations adopted pursuant to subdivision (a) shall
provide that the services withheld may be provided during a period
when the facts are in dispute or when the student or former student
demonstrates to either the Trustees of the California State
University or the Regents of the University of California, as
applicable, that reasonable progress has been made to repay the loan
or that there exists a reasonable justification for the delay as
determined by the institution. The regulations shall specify the
services to be withheld from the student, which may include, but are
not limited to, the following:
(1) The provision of grades.
(2) The provision of transcripts.
(3) The provision of diplomas.
(c) "Default," for purposes of this section, means the failure of
a borrower to make an installment payment when due, or to meet other
terms of the promissory note if the institution holding the loan
finds it reasonable to conclude that the borrower no longer intends
to honor the obligation to repay, provided that this failure persists
for 180 days for a loan repayable in monthly installments, or 240
days for a loan repayable in less frequent installments.
(d) This section does not impose any requirement upon the
University of California unless the Regents of the University of
California, by resolution, makes this section applicable.
SEC. 72. Section 84750.5 of the Education Code is amended to read:
84750.5. (a) The board of governors, in accordance with the
statewide requirements contained in paragraphs (1) to (9), inclusive,
of subdivision (d), and in consultation with institutional
representatives of the California Community Colleges and statewide
faculty and staff organizations, so as to ensure their participation
in the development and review of policy proposals, shall develop
criteria and standards for the purpose of making the annual budget
request for the California Community Colleges to the Governor and the
Legislature, and for the purpose of allocating the state general
apportionment revenues.
(b) In developing the criteria and standards, the board of
governors shall use and strongly consider the recommendations and
work product of the "System Office Recommendations Based on the
Report of the Work Group on Community College Finance" that was
adopted by the board at its meeting of March 7, 2005. The board of
governors shall complete the development of these criteria and
standards, accompanied by the necessary procedures, processes, and
formulas for using its criteria and standards, by March 1, 2007, and
shall submit on or before that date a report on these items to the
Legislature and the Governor.
(c) (1) It is the intent of the Legislature in enacting this
section to improve the equity and predictability of general
apportionment and growth funding for community college districts in
order that the districts may more readily plan and implement
instruction and related programs, more readily serve students
according to the policies of the state's master plan for higher
education, and enhance the quality of instruction and related
services for students.
(2) It is the intent of the Legislature to determine the amounts
to be appropriated for purposes of this section through the annual
Budget Act. Nothing in this section shall be construed as limiting
the authority either of the Governor to propose, or the Legislature
to approve, appropriations for California Community Colleges programs
or purposes.
(d) The board of governors shall develop the criteria and
standards within the following statewide minimum requirements:
(1) The calculations of each community college district's revenue
level for each fiscal year shall be based on the level of general
apportionment revenues, state and local, the community college
district received for the prior year plus any amount attributed to a
deficit from the adopted standards to be developed pursuant to this
section, with revenue adjustments being made for increases or
decreases in full-time equivalent students (FTES), for equalization
of funding per credit FTES, for necessary alignment of funding per
FTES between credit and noncredit programs, for inflation, and for
other purposes authorized by law.
(2) Commencing with the 2006-07 fiscal year, the funding mechanism
developed pursuant to this section shall recognize the need for
community college districts to receive an annual allocation based on
the number of colleges and comprehensive centers in the community
college district. In addition to this basic allocation, the marginal
amount of credit revenue allocated per FTES shall be funded at a rate
not less than four thousand three hundred sixty-seven dollars
($4,367), as adjusted for the change in the cost-of-living in
subsequent annual budget acts.
(A) To the extent that the Budget Act of 2006 contains an
appropriation of one hundred fifty-nine million four hundred
thirty-eight thousand dollars ($159,438,000) for community college
equalization, the Legislature finds and declares that community
college equalization for credit FTES has been effectively
accomplished as of March 31, 2007.
(B) The chancellor shall develop criteria for the allocation of
one-time grants for those community college districts that would have
qualified for more equalization under prior law than pursuant to
this section and the Budget Act of 2006, and for those community
college districts that would have qualified for more funding under a
proposed rural college access grant than pursuant to this section and
the Budget Act of 2006, as determined by the chancellor.
Appropriations for the one-time grants shall be provided pursuant to
paragraph (24) of subdivision (a) of Section 43 of Chapter 79 of the
Statutes of 2006.
(3) Noncredit instruction shall be funded at a uniform rate of two
thousand six hundred twenty-six dollars ($2,626) per FTES, as
adjusted for the change in the cost of living provided in subsequent
annual budget acts.
(4) Funding for instruction in career development and college
preparation, as authorized pursuant to Section 84760.5, shall be
provided as follows:
(A) (i) Beginning in the 2006-07 fiscal year, career development
and college preparation FTES may be funded at a rate of three
thousand ninety-two dollars ($3,092) per FTES for courses in programs
that conform to the requirements of Section 84760.5. This rate shall
be adjusted for the change in the cost of living or as otherwise
provided in subsequent annual budget acts.
(ii) Beginning in the 2015-16 fiscal year, career development and
college preparation FTES shall be funded at the same level as the
credit rate specified in paragraph (2). This rate shall be adjusted
for the change in the cost of living or as otherwise provided in
subsequent annual budget acts.
(iii) The Legislative Analyst shall report to the Legislature on
or before March 1, 2017, regarding the change in funding specified in
clause (ii), including whether community colleges offered additional
classes or programs related to career development or college
preparation, and whether there was any change in FTES.
(iv) (I) The requirement for submitting a report imposed under
clause (iii) is inoperative on March 30, 2019, pursuant to Section
10231.5 of the Government Code.
(II) A report submitted pursuant to clause (iii) shall be
submitted in compliance with Section 9795 of the Government Code.
(B) Changes in career development and college preparation FTES
shall result in adjustments to revenues as follows:
(i) Increases in career development and college preparation FTES
shall result in an increase in revenues in the year of the increase
and at the average rate per career development and college
preparation FTES, including any cost-of-living adjustment authorized
by statute or by the annual Budget Act.
(ii) Decreases in career development and college preparation FTES
shall result in a revenue reduction in the year following the
decrease at the average rate per career development and college
preparation FTES.
(5) Except as otherwise provided by statute, current categorical
programs providing direct services to students, including extended
opportunity programs and services, and disabled students programs and
services, shall continue to be funded separately through the annual
Budget Act, and shall not be assumed under the budget formula
otherwise specified by this section.
(6) For credit and noncredit instruction, changes in FTES shall
result in adjustments in community college district revenues as
follows:
(A) Increases in FTES shall result in an increase in revenues in
the year of the increase and at the amount per FTES provided for in
paragraph (2) or (3), as appropriate, including any cost-of-living
adjustment authorized by statute or by the annual Budget Act.
(B) Decreases in FTES shall result in revenue reductions beginning
in the year following the initial year of decrease in FTES, and at
the district's marginal funding per FTES.
(C) Community college districts shall be entitled to the
restoration of any reductions in apportionment revenue due to
decreases in FTES during the three years following the initial year
of decrease in FTES if there is a subsequent increase in FTES.
(7) Revenue adjustments shall be made to reflect cost changes,
using the same inflation adjustment as required for school districts
pursuant to paragraph (2) of subdivision (d) of Section 42238.02.
These revenue adjustments shall be made to the college and center
basic allocations, credit and noncredit FTES funding rates, and
career development and college preparation FTES funding rates.
(8) The statewide requested increase in budgeted workload FTES
shall be based, at a minimum, on the sum of the following
computations:
(A) Determination of an equally weighted average of the rate of
change in the state's population of persons between the ages of 19
and 24 and the rate of change in the state's population of persons
between the ages of 25 and 65, both as determined by the Department
of Finance's Demographic Research Unit as determined for the
preceding fiscal year.
(B) To the extent the state's unemployment rate exceeds 5 percent
for the most recently completed fiscal year, that positive difference
shall be added to the rate computed in subparagraph (A). In no event
shall that positive difference exceed 2 percent.
(C) The chancellor may also add to the amounts calculated pursuant
to subparagraphs (A) and (B) the number of FTES in the areas of
transfer, vocational education, and basic skills that were unfunded
in the current fiscal year. For this purpose, the following
computation shall be determined for each community college district,
and a statewide total shall be calculated:
(i) Establish the base level of FTES earned in the prior fiscal
year for transfer courses consisting of courses meeting the
California State University breadth or Intersegmental General
Education Transfer Curriculum requirements or major course
prerequisites accepted by the University of California or the
California State University.
(ii) Establish the base level of FTES earned in the prior fiscal
year for vocational education courses consisting of courses defined
by the chancellor's office Student Accountability Model codes A and B
that are consistent with the courses used for measuring success in
this program area under the accountability system established
pursuant to Section 84754.5.
(iii) Establish the base level of FTES in the prior fiscal year
for basic skills courses, both credit and noncredit.
(iv) Add the sum of FTES for clauses (i) to (iii), inclusive.
(v) Multiply the result of the calculation made under clause (iv)
by one plus the community college district's funded growth rate in
the current fiscal year. This figure shall represent the maintenance
of effort level for the budget year.
(vi) FTES in transfer, vocational education, and basic skills that
are in excess of the total calculated pursuant to clause (v), shall
be considered in excess of the maintenance of effort level, and shall
be eligible for overcap growth funding if the community college
district exceeds its overall funded FTES.
(vii) In no event shall the amount calculated pursuant to clause
(vi) exceed the total unfunded FTES for that fiscal year. To the
extent the computation specified in subdivision (c) requires the
reporting of additional data by community college districts, that
reporting shall be a condition of the receipt of apportionment for
growth pursuant to this section and those funds shall be available to
offset any and all costs of providing the data.
(9) Except as specifically provided in statute, regulations of the
board of governors for determining and allocating the state general
apportionment to the community college districts shall not require
community college district governing boards to expend the allocated
revenues in specified categories of operation or according to the
workload measures developed by the board of governors.
(e) (1) The Chancellor of the Community Colleges shall develop,
and the board of governors shall adopt, a revised apportionment
growth formula for use commencing with the 2015-16 fiscal year. The
chancellor shall allocate apportionments pursuant to the revised
formula only after the revised formula, and any formulas for
adjustment pursuant to paragraph (2), have been adopted by the board
of governors. The revised apportionment growth formula shall support
the primary missions of the segment, and shall be based on each
community's need for access to the community colleges, as determined
by local demographics. In developing the revised formula, the
chancellor shall consider multiple factors in determining need;
however, the primary factors shall be:
(A) (i) The number of persons under 25 years of age without a
college degree, within a community college district's boundaries, and
the number of persons 25 to 64 years of age, inclusive, without a
college degree, within a community college district's boundaries.
(ii) Notwithstanding clause (i), the chancellor may use
alternative age ranges depending on the availability of data.
(B) The number of persons who are unemployed, have limited English
skills, who are in poverty, or who exhibit other signs of being
disadvantaged, as determined by the chancellor, within a community
college district's boundaries.
(2) Beginning with the 2016-17 fiscal year, the chancellor shall
adjust upward the need determination based on each community college'
s effectiveness in serving residents of neighborhoods, within or
outside of the community college district's boundaries, that exhibit
the highest levels of need in the state.
(3) The chancellor shall calculate each community college district'
s proportionate share of the statewide need for access to the
community colleges based on the application of this formula described
in paragraph (1), as adjusted pursuant to paragraph (2).
(4) The chancellor shall calculate the difference between each
community college district's proportionate share of the statewide
need for access to the community colleges, as calculated pursuant to
paragraph (3), and its current proportionate share of statewide
enrollment in the community colleges.
(5) (A) Until a community college district reaches its highest
level of apportionment revenues previously received, its
apportionment revenues shall be eligible to increase by the lesser of
1 percent of its current apportionment base, or one-half of the
statewide growth allocation on a proportionate basis, regardless of
need.
(B) After a community college district reaches its highest level
of apportionment revenues previously received, it is eligible to
increase its apportionment revenues by the lesser of one-half of 1
percent of its current apportionment base, or one-quarter of the
statewide growth allocation on a proportionate basis, regardless of
its need.
(6) The remainder of the apportionment growth funding shall be
allocated to allow each community college district to grow its
apportionment revenues based on its relative share of the difference
between the amounts calculated in paragraph (4), up to a maximum of
its apportionment base for the preceding fiscal year appropriate to
ensure that community college district is advancing the primary
missions of the segment. The maximum established by the chancellor
shall not be less than 5 percent nor greater than 10 percent of a
community college district's apportionment base for the preceding
fiscal year.
(7) Unless otherwise agreed upon by the board of governors,
apportionment reductions shall be allocated proportionally based on
the most recent levels of apportionment revenues.
(8) (A) It is the intent of the Legislature, consistent with
direction provided in the 2014-15 Budget Act, that apportionment
growth funding be expended for purposes of increasing the number of
FTES in courses or programs that support the primary missions of the
segment.
(B) (i) Notwithstanding Section 10231.5 of the Government Code, on
or before October 15, 2015, and each year thereafter, the chancellor
shall report to the Legislature on the course sections and FTES
added at each community college that received apportionment growth
funding in the prior fiscal year, including the number of course
sections and if any course sections and FTES were added that are
within the primary missions of the segment and those that are not
within the primary missions of the segment.
(ii) A report submitted to the Legislature pursuant to clause (i)
shall be submitted in compliance with Section 9795 of the Government
Code.
(C) For purposes of this section, "primary missions of the segment"
means credit courses and those noncredit courses specified in
paragraphs (2) to (6), inclusive, of subdivision (a) of Section
84757.
(f) (1) It is the intent of the Legislature to allow for changes
to the criteria and standards developed pursuant to subdivisions (a)
to (d), inclusive, in order to recognize increased operating costs
and to improve instruction.
(2) (A) If the annual budget act identifies funds appropriated
specifically for the purposes of this subdivision, the chancellor
shall adjust the budget request formula to allocate those funds
without altering any of the adjustments described in subdivision (d).
At least 30 days before allocating any state general apportionment
revenues using a budget request formula revised pursuant to this
subdivision, the chancellor shall submit to the Department of Finance
and the Legislature a description of the specific adjustments made
to the budget request formula.
(B) A report to the Legislature pursuant to subparagraph (A) shall
be submitted in compliance with Section 9795 of the Government Code.
SEC. 73. Section 84916 of the Education Code is amended to read:
84916. In order to maximize the benefits derived from public
funds provided for the purpose of addressing the educational needs of
adults and to ensure the efficient and coordinated use of resources,
it is the intent and expectation of the Legislature that any
community college district, school district, or county office of
education, or any joint powers authority consisting of community
college districts, school districts, county offices of education, or
a combination of these, located within the boundaries of the adult
education region shall be a member of a consortium pursuant to this
article if it receives funds from any of the following programs or
allocations:
(a) The Adults in Correctional Facilities program.
(b) The federal Adult Education and Family Literacy Act (Title II
of the federal Workforce Innovation and Opportunity Act).
(c) The federal Carl D. Perkins Career and Technical Education Act
(Public Law 109-270).
(d) Local control funding formula apportionments received for
students who are 19 years of age or older.
(e) Community college apportionments received for providing
instruction in courses in the areas listed in subdivision (a) of
Section 84913.
(f) State funds for remedial education and job training services
for participants in the CalWORKs program.
SEC. 74. Section 87787 of the Education Code is amended to read:
87787. (a) The governing board of a community college district
shall provide by rules and regulations for industrial accident and
illness leaves of absence for all academic employees. The governing
board of a community college district that is created or whose
boundaries or status is changed by an action to organize or
reorganize community college districts completed after January 1,
1976, shall provide by rules and regulations for those leaves of
absence on or before the date on which the organization or
reorganization of the community college district becomes effective.
(b) The rules or regulations shall include all of the following
provisions:
(1) Allowable leave shall be for not less than 60 days during
which the community colleges of the district are required to be in
session or when the employee would otherwise have been performing
work for the community college district in any one fiscal year for
the same accident.
(2) Allowable leave shall not be accumulated from year to year.
(3) Industrial accident or illness leave shall commence on the
first day of absence.
(4) (A) When an academic employee is absent from his or her duties
on account of an industrial accident or illness, the employee shall
be paid the portion of the salary due him or her for any month in
which the absence occurs as, when added to his or her temporary
disability indemnity under Division 4 (commencing with Section 3200)
or Division 4.5 (commencing with Section 6100) of the Labor Code,
will result in a payment to the employee of not more than his or her
full salary.
(B) The phrase "full salary," as used in this subdivision, shall
be computed so that it shall not be less than the employee's "average
weekly earnings" as that phrase is used in Section 4453 of the Labor
Code. For purposes of this section, however, the maximum and minimum
average weekly earnings set forth in Section 4453 of the Labor Code
shall otherwise not be deemed applicable.
(5) Industrial accident or illness leave shall be reduced by one
day for each day of authorized absence regardless of a temporary
disability indemnity award.
(6) When an industrial accident or illness leave overlaps into the
next fiscal year, the employee shall be entitled to only the amount
of unused leave due him or her for the same illness or injury.
(c) Upon termination of the industrial accident or illness leave,
the employee shall be entitled to the benefits provided in Sections
87780, 87781, and 87786, and, for purposes of each of these sections,
his or her absence shall be deemed to have commenced on the date of
termination of the industrial accident or illness leave. However, if
the employee continues to receive temporary disability indemnity, he
or she may elect to take as much of his or her accumulated sick leave
as, when added to his or her temporary disability indemnity, will
result in a payment to the employee of not more than his or her full
salary.
(d) The governing board of a community college district, by rule
or regulation, may provide for additional leave of absence for
industrial accident or illness as it deems appropriate.
(e) During a paid leave of absence, the employee may endorse to
the community college district the temporary disability indemnity
checks received on account of his or her industrial accident or
illness. The community college district, in turn, shall issue the
employee appropriate salary warrants for payment of the employee's
salary and shall deduct normal retirement, other authorized
contributions, and the temporary disability indemnity, if any,
actually paid to and retained by the employee for periods covered by
the salary warrants.
(f) In the absence of rules and regulations adopted by the
governing board of a community college district pursuant to this
section, an employee shall be entitled to industrial accident or
illness leave as provided in this section but without limitation as
to the number of days of leave.
SEC. 75. Section 88192 of the Education Code is amended to read:
88192. (a) The governing board of a community college district
shall provide, by rules and regulations, for industrial accident or
illness leaves of absence for employees who are a part of the
classified service. The governing board of a community college
district that is created or whose boundaries or status is changed by
an action to organize or reorganize community college districts
completed after January 1, 1975, shall provide, by rules and
regulations, for these leaves of absence on or before the date on
which the organization or reorganization of the community college
district becomes effective for all purposes.
(b) The rules and regulations shall include all of the following
provisions:
(1) Allowable leave shall not be for less than 60 working days in
any one fiscal year for the same accident.
(2) Allowable leave shall not be accumulative from year to year.
(3) Industrial accident or illness leave of absence shall commence
on the first day of absence.
(4) Payment for wages lost on any day shall not, when added to an
award granted the employee under the workers' compensation laws of
this state, exceed the normal wage for the day.
(5) Industrial accident leave shall be reduced by one day for each
day of authorized absence regardless of a compensation award made
under workers' compensation.
(6) When an industrial accident or illness occurs at a time when
the full 60 days will overlap into the next fiscal year, the employee
shall be entitled to only that amount remaining at the end of the
fiscal year in which the injury or illness occurred, for the same
illness or injury.
(c) The industrial accident or illness leave of absence is to be
used in lieu of entitlement acquired under Section 88191. When
entitlement to industrial accident or illness leave has been
exhausted, entitlement to other sick leave will then be used, but if
an employee is receiving workers' compensation, the employee shall be
entitled to use only so much of his or her accumulated or available
sick leave, accumulated compensating time, vacation or other
available leave as, when added to the workers' compensation award,
provide for a full day's wage or salary.
(d) The governing board of a community college district, by rule
or regulation, may
provide for additional leave of absence, paid or unpaid, as it deems
appropriate and during that leave the employee may return to his or
her position without suffering any loss of status or benefits.
(e) A period of leave of absence, paid or unpaid, shall not be
considered to be a break in service of the employee.
(f) During a paid leave of absence, whether industrial accident
leave as provided in this section, sick leave, vacation, compensated
time off or other available leave provided by law or the action of a
governing board of a community college district, the employee shall
endorse to the community college district wage loss benefit checks
received under the workers' compensation laws of this state. The
community college district, in turn, shall issue the employee
appropriate warrants for payment of wages or salary and shall deduct
normal retirement and other authorized contributions. Reduction of
entitlement to leave shall be made only in accordance with this
section.
(g) When all available leaves of absence, paid or unpaid, have
been exhausted and if the employee is not medically able to assume
the duties of his or her position, the employee, if not placed in
another position, shall be placed on a reemployment list for a period
of 39 months. When available, during the 39-month period, the
employee shall be employed in a vacant position in the class of his
or her previous assignment over all other available candidates except
for a reemployment list established because of lack of work or lack
of funds, in which case the employee shall be listed in accordance
with appropriate seniority regulations.
(h) The governing board of a community college district may
require that an employee serve, or have served continuously, a
specified period of time with the community college district before
the benefits provided by this section are made available to the
employee. However, that period shall not exceed three years. All
service of an employee before the effective date of this section
shall be credited in determining compliance with the requirement.
(i) In the absence of rules and regulations adopted by the
governing board of a community college district pursuant to this
section, an employee shall be entitled to industrial and accident or
illness leave as provided in this section but without limitation as
to the number of days of that leave and without any requirement of a
specified period of service.
(j) An employee who has been placed on a reemployment list, as
provided in this section, who has been medically released for return
to duty and who fails to accept an appropriate assignment shall be
dismissed.
(k) This section applies to community college districts that have
adopted the merit system in the same manner and effect as if it were
a part of Article 3 (commencing with Section 88060).
SEC. 76. Section 89090 of the Education Code is amended to read:
89090. (a) The trustees, alumni associations, and auxiliary
organizations may distribute the names, addresses, and email
addresses of alumni of the California State University to a business
as described in subdivision (b), in order to accomplish any or all of
the following:
(1) To provide those persons with informational materials relating
to the university and its programs and activities.
(2) To provide those persons, the trustees, the alumni
associations, and the auxiliary organizations with commercial
opportunities that provide a benefit to those persons, or to the
trustees, alumni associations, or auxiliary organizations.
(3) To promote and support the educational mission of the
university, the trustees, the alumni associations, or the auxiliary
organizations.
(b) The disclosures authorized in subdivision (a) shall be
permitted only if all of the following requirements are met:
(1) (A) The trustees, the alumni associations, or the auxiliary
organizations have a written agreement with a business, as defined in
subdivision (a) of Section 1798.80 of the Civil Code, that maintains
control over this data that requires the business to maintain the
confidentiality of the names, addresses, and email addresses of the
alumni, that requires that the California State University retain the
right to approve or reject any purpose for which the private
information is to be used by the business, and to review and approve
the text of mailings sent to alumni pursuant to this section, and
that prohibits the business from using the information for purposes
other than those described in subdivision (a). The text of a mailing
intended to be sent to alumni pursuant to this section shall not be
approved by the trustees, the affected alumni association, or the
affected auxiliary organization unless and until the mailing
conspicuously identifies the university, the alumni association, or
the auxiliary organization as associated with the business described
in the mailing.
(B) If an affinity partner, as defined in Section 4054.6 of the
Financial Code, sends any message to an email address obtained
pursuant to this section, that message shall include at least both of
the following:
(i) The identity of the sender of the message.
(ii) A cost-free means for the recipient to notify the sender not
to electronically transmit any further message to the recipient.
(2) The trustees, an alumni association, or an auxiliary
organization shall not disclose to, or share alumni nonpublic
personal information with, a business, as defined in paragraph (1),
unless the institution, association, or organization has clearly and
conspicuously notified the alumnus, pursuant to subdivision (c), that
the nonpublic personal information may be disclosed to the business
and that the alumnus has not directed that the nonpublic personal
information not be disclosed.
(3) The disclosure of alumni names, addresses, and email addresses
does not include the names, addresses, and email addresses of alumni
who, pursuant to subdivision (c) or in another manner, have directed
the trustees, an alumni association, or an auxiliary organization
not to disclose their names, addresses, or email addresses.
(4) Information regarding either of the following is not
disclosed:
(A) The current students of the California State University.
(B) An alumnus who, as a student at a campus of the California
State University, indicated that, pursuant to the federal Family
Educational Rights and Privacy Act (Public Law 93-380), he or she did
not wish his or her name, address, and email address to be
disclosed.
(c) (1) The trustees, the affected alumni association, or the
affected auxiliary organization shall satisfy the notice requirements
of subdivision (b) if it uses the form set forth in paragraph (2).
The form set forth in this subdivision or a form that complies with
subparagraphs (A) to (J), inclusive, shall be provided by the
trustees, the alumni association, or the auxiliary organization to
the alumnus as required in this subdivision, and shall describe the
nature of the information the alumnus would receive should the
alumnus choose not to opt out, so that the alumnus may make a
decision and provide direction to the trustees, the alumni
association, or the auxiliary organization regarding the sharing of
his or her name, address, and email address:
(A) The form uses the title "IMPORTANT PRIVACY CHOICE" and the
header, if applicable, as follows: "Restrict Information Sharing With
Affinity Partners."
(B) The titles and headers in the form are clearly and
conspicuously displayed, and no text in the form is smaller than
10-point type.
(C) The form may be provided as a separate document, incorporated
into another communication piece intended for the target audience, or
provided through a link to the form located on the Internet Web site
of the trustees, the affected alumni association, or the affected
auxiliary organization. If the form is provided through a link to an
Internet Web page, it shall be accompanied by the title "IMPORTANT
PRIVACY CHOICE" and a clear and concise description of the choice
that can be made by accessing the form. This requirement may be met
by using text materially similar to the first paragraph of the form
set forth in paragraph (2).
(D) The choice or choices provided in the form are stated
separately, and may be selected by checking a box.
(E) The form is designed to call attention to the nature and
significance of the information in the document.
(F) The form presents information in clear and concise sentences,
paragraphs, and sections.
(G) The form uses short explanatory sentences of an average of 15
to 20 words, or bullet lists whenever possible.
(H) The form avoids multiple negatives, legal terminology, and
highly technical terminology whenever possible.
(I) The form avoids explanations that are imprecise and readily
subject to different interpretations.
(J) The form is not more than one page.
(2) The form reads as follows:
IMPORTANT PRIVACY CHOICE
You have the right to control whether we share your name, address,
and email address with our affinity partners (companies that we
partner with to offer products or services to our alumni). Please
read the following information carefully before you make your choice
below:
Your Rights
You have the following rights to restrict the sharing of your
name, address, and email address with our affinity partners. This
form does not prohibit us from sharing your information when we are
required to do so by law. This includes sending you information about
the alumni association, the university, or other products or
services.
Your Choice
Restrict Information Sharing With Affinity Partners:
Unless you say "NO," we may share your name, address, and email
address with our affinity partners. Our affinity partners may send
you offers to purchase various products or services that we may have
agreed they can offer in partnership with us.
( ) NO, please do not share my name, address, and email address
with your affinity partners.
Time Sensitive Reply
You may decide at any time that you do not want us to share your
information with our affinity partners. Your choice marked here will
remain unless you state otherwise. However, if we do not hear from
you, we may share your name, address, and email address with our
affinity partners.
If you decide that you do not want to receive information from our
partners, you may do one of the following:
(1) Call this toll-free telephone number: (xxx-xxx-xxxx).
(2) Reply electronically by contacting us through the following
Internet option: xxxxxxxxxxxx.com.
(3) Fill out, sign, and send back this form to us at the following
address (you may want to make a copy for your records).
Xxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxx
Name:
Address:
Signature:
(3) (A) The trustees, the affected alumni association, or the
affected auxiliary organization shall not be in violation of this
subdivision solely because they include in the form one or more brief
examples or explanations of the purpose or purposes for which, or
the context within which, names, addresses, and email addresses will
be shared, as long as those examples meet the clarity and readability
standards set forth in paragraph (1).
(B) (i) The solicitation to students, upon their graduation, from
the trustees or the alumni association, encouraging students to join
the alumni association or to avail themselves of the services or
benefits of the association, shall include the form.
(ii) The alumni association magazine or newsletter, or both, shall
include the form on an annual or more frequent basis.
(iii) The Internet Web site for the alumni association shall
include a link to the form, which shall be located on either the
homepage of the association's Internet Web site or in the association'
s privacy policy.
(iv) A one-time mailing to all alumni on the university mailing
list as of January 1, 2006, shall include the form.
(v) An annual electronic communication to those alumni for whom
email addresses are available shall include the form.
(4) The trustees, the affected alumni associations, or the
affected auxiliary organizations shall provide at least two
alternative cost-free means for alumni to communicate their privacy
choices, such as calling a toll-free telephone number or using
electronic means. The trustees, the alumni association, or the
auxiliary organization shall clearly and conspicuously disclose in
the form required by this subdivision the information necessary to
direct the alumnus on how to communicate his or her choice, including
the toll-free telephone or facsimile number or Internet Web site
address that may be used, if those means of communication are
offered.
(5) (A) An alumnus may direct at any time that his or her name,
address, and email address not be disclosed. The trustees, the
affected alumni association, or the affected auxiliary organization
shall comply with the direction of an alumnus concerning the sharing
of his or her name, address, and email address within 45 days of
receipt by the trustees, the alumni association, or the auxiliary
organization. When an alumnus directs that his or her name, address,
and email address not be disclosed, that direction is in effect until
otherwise stated by the alumnus.
(B) This subdivision does not prohibit the disclosure of the name,
address, and email address of an alumnus as allowed by other
applicable state laws.
(6) The trustees, or the affected alumni association or the
affected auxiliary organization, may provide a joint notice from the
trustees or from one or more alumni associations, as identified in
the notice, so long as the notice is accurate with respect to the
trustees and the alumni association or associations or auxiliary
organization or organizations participating in the joint notice.
(d) As used in this section, "auxiliary organization" has the same
meaning as set forth in Section 89901.
(e) This section shall not be construed to authorize the release
of any social security numbers.
SEC. 77. Section 89708 of the Education Code is amended to read:
89708. (a) Tuition fees adequate, in the long run, to meet the
cost of maintaining special sessions in the California State
University shall be required of, and collected from, students
enrolled in each special session pursuant to rules and regulations
prescribed by the trustees.
(b) "Special sessions," as used in this division, means
self-supporting instructional programs conducted by the California
State University. The special sessions shall include, but not
necessarily be limited to, career enrichment and retraining programs.
It is the intent of the Legislature that those programs, currently
offered on a self-supporting basis by the California State University
during summer sessions, may be provided throughout the year, and
shall be known as special sessions. The self-supporting special
sessions shall not supplant, as defined in subdivision (c), regular
course offerings available on a non-self-supporting basis during the
regular academic year.
(c) "Supplant," as used in this section, means reducing the number
of state-supported course offerings while increasing the number of
self-supporting versions of that course.
(d) To the extent possible, each campus shall ensure that any
course required as a condition of undergraduate degree completion for
a state-supported matriculated student shall be offered as a
state-supported course. A campus shall not require a state-supported
matriculated student to enroll in a special session course in order
to fulfill a graduation requirement for a state-supported degree
program.
SEC. 78. Section 89712 of the Education Code is amended to read:
89712. (a) (1) Neither a campus of the California State
University, nor the Chancellor of the California State University
shall approve a new student success fee or an increase to an existing
student success fee, as defined in subdivision (g), before all of
the following requirements are satisfied:
(A) The campus undertakes a rigorous consultation process that
informs and educates students on the uses, impact, and cost of any
proposed student success fee or student success fee increase.
(B) The campus informs its students of all of the following
circumstances, which shall apply to these fees:
(i) That, except as provided in clauses (ii) and (iii), a student
success fee may be rescinded by a majority vote of the students, as
specified in subdivision (c).
(ii) That a student success fee shall not be rescinded earlier
than six years following the vote to implement the fee.
(iii) If any portion of the student success fee is committed to
support a long-term obligation, that portion of the fee shall not be
rescinded until the obligation has been satisfied.
(C) The campus shall hold a binding student election on the
implementation of any proposed student success fees, or any increase
to an existing student success fee, and a majority of the student
body voting on the fee must vote affirmatively.
(2) Implementation of a fee supported by a majority of the campus
student body voting on the fee is contingent upon the final approval
of the Chancellor of the California State University.
(3) A student success fee proposal shall not be brought before the
student body more frequently than once per academic year.
(b) A student success fee in place on January 1, 2016, may be
rescinded by a binding student vote under the procedures authorized
in subdivision (c) only after at least six years have elapsed
following the implementation of the fee.
(c) (1) Student success fees may be rescinded with a binding
student vote if a simple majority of those students voting vote to
rescind the fee. The student vote shall comply with all of the
following:
(A) A campus decision to vote is formally approved by the
recognized student government.
(B) Rescission vote proposals shall not be brought before the
student body more frequently than once per academic year.
(C) In the process of reconsidering a student success fee, and
before the student vote occurs, the students shall be informed, if a
portion of the fee is supporting a long-term obligation, the dollar
amount of that portion, and the date on which the long-term
obligation would be satisfied.
(2) A new contractual or other obligation that would be supported
by the rescinded student success fee shall not be entered into
following a vote to rescind the fee.
(d) The Chancellor of the California State University shall ensure
that all of the following occur on each campus:
(1) There is majority student representation in campus student
success fee allocation oversight groups.
(2) There is an annual report from each campus to the chancellor
on student success fees.
(3) There is uniform, transparent, online accountability in the
decisionmaking process for, and a detailed accounting of, the
allocation of student success fees.
(e) The Chancellor of the California State University shall
establish appropriate reporting procedures to ensure that a campus is
in compliance with the requirements of this section.
(f) The chancellor shall report, by December 1 of each year, to
the Department of Finance, and the Legislature pursuant to Section
9795 of the Government Code, a summary of the fees adopted or
rescinded in the prior academic year, and the uses of proposed and
currently implemented fees.
(g) For purposes of this section, a "student success fee" is a
type of category II campus-based mandatory fee that is required to be
paid by a student before that student may enroll or attend a campus
of the California State University, as determined by that campus or
the Chancellor of the California State University.
SEC. 79. Section 92630 of the Education Code is amended to read:
92630. (a) The regents and alumni associations may distribute the
names, addresses, and email addresses of alumni of the University of
California to a business as described in subdivision (b) in order to
accomplish any or all of the following:
(1) To provide those persons with informational materials relating
to the university or college and its programs and activities.
(2) To provide those persons, the regents, and the alumni
associations with commercial opportunities that provide a benefit to
those persons, or to the regents or the alumni associations.
(3) To promote and support the educational mission of the
university, the regents, or the alumni associations.
(b) The disclosures authorized in subdivision (a) shall be
permitted only if all of the following requirements are met:
(1) (A) The regents or the alumni associations have a written
agreement with a business, as defined in subdivision (a) of Section
1798.80 of the Civil Code, that maintains control over this data that
requires the business to maintain the confidentiality of the names,
addresses, and email addresses of the alumni, that requires that the
University of California retain the right to approve or reject any
purpose for which the private information is to be used by the
business and to review and approve the text of mailings sent to
alumni pursuant to this section, and that prohibits the business from
using the information for purposes other than those described in
subdivision (a). The text of a mailing intended to be sent to alumni
pursuant to this section shall not be approved by the regents or the
affected alumni association unless and until the mailing
conspicuously identifies the university or the alumni association as
associated with the business described in the mailing.
(B) If an affinity partner, as defined in Section 4054.6 of the
Financial Code, sends any message to an email address obtained
pursuant to this section, that message shall include at least both of
the following:
(i) The identity of the sender of the message.
(ii) A cost-free means for the recipient to notify the sender not
to electronically transmit any further message to the recipient.
(2) The regents or an alumni association shall not disclose to, or
share a consumer's nonpublic personal information with, a business,
as defined in paragraph (1), unless the institution, association, or
organization has clearly and conspicuously notified the consumer
pursuant to subdivision (c), that the nonpublic personal information
may be disclosed to the business and that the alumnus has not
directed that the nonpublic personal information not be disclosed.
(3) The disclosure of alumni names, addresses, and email
addresses does not include the names, addresses, and email addresses
of alumni who, pursuant to subdivision (c) or in another manner, have
directed the regents or an alumni association not to disclose their
names, addresses, or email addresses.
(4) Information regarding either of the following is not
disclosed:
(A) The current students of the University of California.
(B) An alumnus who, as a student of a campus of the University of
California, indicated that, pursuant to the federal Family
Educational Rights and Privacy Act (Public Law 93-380), he or she did
not wish his or her name, address, and email address to be
disclosed.
(c) (1) The regents or the affected alumni association shall
satisfy the notice requirements of subdivision (b) if it uses the
form set forth in paragraph (2). The form set forth in this
subdivision or a form that complies with subparagraphs (A) to (J),
inclusive, shall be provided by the regents or the alumni association
to the alumnus as required in this subdivision, and shall describe
the nature of the information the alumnus would receive should the
alumnus choose not to opt out, so that the alumnus may make a
decision and provide direction to the regents and the alumni
association regarding the sharing of his or her name, address, and
email address:
(A) The form uses the title "IMPORTANT PRIVACY CHOICE" and the
header, if applicable, as follows: "Restrict Information Sharing With
Affinity Partners."
(B) The titles and headers in the form are clearly and
conspicuously displayed, and no text in the form is smaller than
10-point type.
(C) The form may be provided as a separate document, incorporated
into another communication piece intended for the target audience, or
provided through a link to the form located on the Internet Web site
of the regents, the affected alumni association, or the affected
auxiliary organization. If the form is provided through a link to an
Internet Web page, it shall be accompanied by the title "IMPORTANT
PRIVACY CHOICE" and a clear and concise description of the choice
that can be made by accessing the form. This requirement may be met
by using text materially similar to the first paragraph of the form
set forth in paragraph (2).
(D) The choice or choices provided in the form are stated
separately, and may be selected by checking a box.
(E) The form is designed to call attention to the nature and
significance of the information in the document.
(F) The form presents information in clear and concise sentences,
paragraphs, and sections.
(G) The form uses short explanatory sentences of an average of 15
to 20 words, or bullet lists whenever possible.
(H) The form avoids multiple negatives, legal terminology, and
highly technical terminology whenever possible.
(I) The form avoids explanations that are imprecise and readily
subject to different interpretations.
(J) The form is not more than one page.
(2) The form reads as follows:
IMPORTANT PRIVACY CHOICE
You have the right to control whether we share your name, address,
and email address with our affinity partners (companies that we
partner with to offer products or services to our alumni). Please
read the following information carefully before you make your choice
below:
Your Rights
You have the following rights to restrict the sharing of your
name, address, and email address with our affinity partners. This
form does not prohibit us from sharing your information when we are
required to do so by law. This includes sending you information about
the alumni association, the university, or other products or
services.
Your Choice
Restrict Information Sharing With Affinity Partners:
Unless you say "NO," we may share your name, address, and email
address with our affinity partners. Our affinity partners may send
you offers to purchase various products or services that we may have
agreed they can offer in partnership with us.
( ) NO, please do not share my name, address, and email address
with your affinity partners.
Time Sensitive Reply
You may decide at any time that you do not want us to share your
information with our partners. Your choice marked here will remain
unless you state otherwise. However, if we do not hear from you, we
may share your name, address, and email address with our affinity
partners.
If you decide that you do not want to receive information from our
partners, you may do one of the following:
(1) Call this toll-free telephone number: (xxx-xxx-xxxx).
(2) Reply electronically by contacting us through the following
Internet option: xxxxxxxxxxxx.com.
(3) Fill out, sign, and send back this form to us at the following
address (you may want to make a copy for your records).
Xxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxx
Name:
Address:
Signature:
(3) (A) The regents or the affected alumni association shall not
be in violation of this subdivision solely because they include in
the form one or more brief examples or explanations of the purpose or
purposes for which, or the context within which, names, addresses,
and email addresses will be shared, as long as those examples meet
the clarity and readability standards set forth in paragraph (1).
(B) (i) The solicitation to students, upon their graduation, from
the regents or the alumni association, encouraging students to join
the alumni association or to avail themselves of the services or
benefits of the association, shall include the form.
(ii) The alumni association magazine or newsletter, or both, shall
include the form on an annual or more frequent basis.
(iii) The Internet Web site for the alumni association shall
include a link to the form, which shall be located on either the
homepage of the association's Internet Web site or in the association'
s privacy policy.
(iv) A one-time mailing to all alumni on the university or college
mailing list as of January 1, 2006, shall include the form.
(v) An annual electronic communication to those alumni for whom
electronic mail addresses are available, shall include the form.
(4) The regents or the affected alumni associations shall provide
at least two alternative cost-free means for alumni to communicate
their privacy choice, such as calling a toll-free telephone number,
or using electronic means. The regents or the alumni association
shall clearly and conspicuously disclose in the form required by this
subdivision the information necessary to direct the alumnus on how
to communicate his or her choices, including the toll-free telephone
or facsimile number or Internet Web site address that may be used, if
those means of communication are offered.
(5) (A) An alumnus may direct at any time that his or her name,
address, and email address not be disclosed. The regents or the
affected alumni association shall comply with the direction of an
alumnus concerning the sharing of his or her name, address, and email
address within 45 days of receipt by the regents or the alumni
association. When an alumnus directs that his or her name, address,
or email address not be disclosed, that direction is in effect until
otherwise stated by the alumnus.
(B) This subdivision does not prohibit the disclosure of the name,
address, or email address of an alumnus as allowed by other
applicable state laws.
(6) The regents or the affected alumni association may provide a
joint notice from the regents or from one or more alumni
associations, as identified in the notice, so long as the notice is
accurate with respect to the regents and the alumni association or
associations participating in the joint notice.
(d) This section shall not be construed to authorize the release
of any social security numbers.
SEC. 80. Section 94925 of the Education Code is amended to read:
94925. (a) The amount in the Student Tuition Recovery Fund shall
not exceed twenty-five million dollars ($25,000,000) at any time.
(b) If the bureau has temporarily stopped collecting the Student
Tuition Recovery Fund assessments because the fund has approached the
twenty-five-million dollar ($25,000,000) limit in subdivision (a),
the bureau shall resume collecting Student Tuition Recovery Fund
assessments when the fund falls below twenty million dollars
($20,000,000).
(c) An otherwise eligible student who enrolled during a period
when institutions were not required to collect Student Tuition
Recovery Fund assessments is eligible for Student Tuition Recovery
Fund payments despite not having paid any Student Tuition Recovery
Fund assessment.
SEC. 81. Section 17 of the Elections Code is amended to read:
17. The Secretary of State shall establish and maintain
administrative complaint procedures, pursuant to the requirements of
the federal Help America Vote Act of 2002 (52 U.S.C. Sec. 21112), in
order to remedy grievances in the administration of elections. The
Secretary of State shall not require that the administrative remedies
provided in the complaint procedures established pursuant to this
section be exhausted in order to pursue any other remedies provided
by state or federal law.
SEC. 82. Section 1000 of the Elections Code is amended to read:
1000. The established election dates are as follows:
(a) The second Tuesday of April in each even-numbered year.
(b) The first Tuesday after the first Monday in March of each
odd-numbered year.
(c) The first Tuesday after the first Monday in June in each year.
(d) The first Tuesday after the first Monday in November of each
year.
SEC. 83. Section 1301 of the Elections Code is amended to read:
1301. (a) Except as required by Section 57379 of the Government
Code, and except as provided in subdivision (b), a general municipal
election shall be held on an established election date pursuant to
Section 1000.
(b) (1) Notwithstanding subdivision (a), a city council may enact
an ordinance, pursuant to Division 10 (commencing with Section
10000), requiring its general municipal election to be held on the
day of the statewide direct primary election, the day of the
statewide general election, the day of school district elections as
set forth in Section 1302, the first Tuesday after the first Monday
of March in each odd-numbered year, or the second Tuesday of April in
each year. An ordinance adopted pursuant to this subdivision shall
become operative upon approval by the county board of supervisors.
(2) In the event of consolidation, the general municipal election
shall be conducted in accordance with all applicable procedural
requirements of this code pertaining to that primary, general, or
school district election, and shall thereafter occur in consolidation
with that election.
(c) If a city adopts an ordinance described in subdivision (b),
the municipal election following the adoption of the ordinance and
each municipal election thereafter shall be conducted on the date
specified by the city council, in accordance with subdivision (b),
unless the ordinance in question is later repealed by the city
council.
(d) If the date of a general municipal election is changed
pursuant to subdivision (b), at least one election shall be held
before the ordinance, as approved by the county board of supervisors,
may be subsequently repealed or amended.
SEC. 84. Section 2142 of the Elections Code is amended to read:
2142. (a) If the county elections official refuses to register a
qualified elector in the county, the elector may proceed by action in
the superior court to compel his or her registration. In an action
under this section, as many persons may join as plaintiffs as have
causes of action.
(b) If the county elections official has not registered a
qualified elector who claims to have registered to vote through the
Department of Motor Vehicles or any other public agency designated as
a voter registration agency pursuant to the federal National Voter
Registration Act of 1993 (52 U.S.C. Sec. 20501 et seq.), the elector
may proceed by action in the superior court to compel his or her
registration. In an action under this section, as many persons may
join as plaintiffs as have causes of action.
(c) No fee shall be charged by the clerk of the court for services
rendered in an action under this section.
SEC. 85. Section 2150 of the Elections Code, as amended by Section
4.5 of Chapter 736 of the Statutes of 2015, is amended to read:
2150. (a) The affidavit of registration shall show:
(1) The facts necessary to establish the affiant as an elector.
(2) The affiant's name at length, including his or her given name,
and a middle name or initial, or if the initial of the given name is
customarily used, then the initial and middle name. The affiant's
given name may be preceded, at the affiant's option, by the
designation of "Miss," "Ms.," "Mrs.," or "Mr." A person shall not be
denied the right to register because of his or her failure to mark a
prefix to the given name and shall be so advised on the voter
registration card. This subdivision shall not be construed as
requiring the printing of prefixes on an affidavit of registration.
(3) The affiant's place of residence, residence telephone number,
if furnished, and email address, if furnished. A person shall not be
denied the right to register because of his or her failure to furnish
a telephone number or email address, and shall be so advised on the
voter registration card.
(4) The affiant's mailing address, if different from the place of
residence.
(5) The affiant's date of birth to establish that he or she will
be at least 18 years of age on or before the date of the next
election.
(6) The state or country of the affiant's birth.
(7) (A) In the case of an affiant who has been issued a current
and valid driver's license, the affiant's driver's license number.
(B) In the case of any other affiant, other than an affiant to
whom subparagraph (C) applies, the last four digits of the affiant's
social security number.
(C) If a voter registration affiant has not been issued a current
and valid driver's license or a social security number, the state
shall assign the applicant a number that will serve to identify the
affiant for voter registration purposes. If the state has a
computerized list in effect under this paragraph and the list assigns
unique identifying numbers to registrants, the number assigned under
this subparagraph shall be the unique identifying number assigned
under the list.
(8) The affiant's political party preference.
(9) That the affiant is currently not imprisoned or on parole for
the conviction of a felony.
(10) A prior registration portion indicating if the affiant has
been registered at another address, under another name, or as
preferring another party. If the affiant has been so registered, he
or she shall give an additional statement giving that address, name,
or party.
(b) The affiant shall certify the content of the affidavit of
registration as to its truthfulness and correctness, under penalty of
perjury, with the signature of his or her name and the date of
signing. If the affiant is unable to write, he or she shall sign with
a mark or cross. An affiant who is an individual with a disability
may complete the affidavit with reasonable accommodations as needed.
(c) The affidavit of registration shall also contain a space that
would enable the affiant to state his or her ethnicity or race, or
both. An affiant shall not be denied the ability to register because
he or she declines to state his or her ethnicity or race.
(d) If a person assists the affiant in completing the affidavit of
registration, that person shall sign and date the affidavit below
the signature of the affiant.
(e) The affidavit of registration shall also contain a space to
permit the affiant to apply for permanent vote by mail status.
(f) The Secretary of State may continue to supply existing
affidavits of registration to county elections officials before
printing new or revised forms that reflect the changes made to this
section by Chapter 508 of the Statutes of 2007.
SEC. 86. Section 2155 of the Elections Code is amended to read:
2155. Upon receipt of a properly executed affidavit of
registration or address correction notice or letter pursuant to
Section 2119, Article 2 (commencing with Section 2220), or the
federal National Voter Registration Act of 1993 (52 U.S.C. Sec. 20501
et seq.), the county elections official shall send the voter a voter
notification by nonforwardable, first-class mail, address correction
requested. The voter notification shall state the party preference
for which the voter has registered in the following format:
Party: (Name of political party)
The voter notification shall be substantially in the following
form:
VOTER NOTIFICATION
You are registered to vote. The party preference you chose, if
any, is on this card. This card is being sent as a notification of:
1. Your recently completed affidavit of registration.
OR,
2. A change to your registration because of an official notice
that you have moved. If your residence address has not changed or if
your move is temporary, please call or write to our office
immediately.
OR,
3. Your recent registration with a change in party preference. If
this change is not correct, please call or write to our office
immediately.
_________________________________________________
You may vote in any election held 15 or more days after the date
on this card.
Your name will appear on the index kept at the polls.
Please contact our office if the information shown on the reverse
side of this card is incorrect.
_________________________________________________
(Signature of Voter)
SEC. 87. Section 2196 of the Elections Code, as amended by Section
54 of Chapter 728 of the Statutes of 2015, is amended to read:
2196. (a) (1) Notwithstanding any other law, a person who is
qualified to register to vote and who has a valid California driver's
license or state identification card may submit an affidavit of
voter registration electronically on the Internet Web site of the
Secretary of State.
(2) An affidavit submitted pursuant to this section is effective
upon receipt of the affidavit by the Secretary of State if the
affidavit is received on or before the last day to register for an
election to be held in the precinct of the person submitting the
affidavit.
(3) The affiant shall affirmatively attest to the truth of the
information provided in the affidavit.
(4) For voter registration purposes, the applicant shall
affirmatively assent to the use of his or her signature from his or
her driver's license or state identification card.
(5) For each electronic affidavit, the Secretary of State shall
obtain an electronic copy of the applicant's signature from his or
her driver's license or state identification card directly from the
Department of Motor Vehicles.
(6) The Secretary of State shall require a person who submits an
affidavit pursuant to this section to submit all of the following:
(A) The number from his or her California driver's license or
state identification card.
(B) His or her date of birth.
(C) The last four digits of his or her social security number.
(D) Any other information the Secretary of State deems necessary
to establish the identity of the affiant.
(7) Upon submission of an affidavit pursuant to this section, the
electronic voter registration system shall provide for immediate
verification of both of the following:
(A) That the applicant has a California driver's license or state
identification card and that the number for that driver's license or
identification card provided by the applicant matches the number for
that person's driver's license or identification card that is on file
with the Department of Motor Vehicles.
(B) That the date of birth provided by the applicant matches the
date of birth for that person that is on file with the Department of
Motor Vehicles.
(8) The Secretary of State shall employ security measures to
ensure the accuracy and integrity of affidavits of voter registration
submitted electronically pursuant to this section.
(b) The Department of Motor Vehicles shall use the electronic
voter registration system required by this section to comply with its
duties and responsibilities as a voter registration agency pursuant
to the federal National Voter Registration Act of 1993 (52 U.S.C.
Sec. 20501 et seq.).
(c) The Department of Motor Vehicles and the Secretary of State
shall maintain a process and the infrastructure to allow the
electronic copy of the applicant's signature and other information
required under this section that is in the possession of the
department to be transferred to the Secretary of State and to the
county election management systems to allow a person who is qualified
to register to vote in California to register to vote under this
section.
(d) If an applicant cannot electronically submit the information
required pursuant to paragraph (6) of subdivision (a), he or she
shall nevertheless be able to complete the affidavit of voter
registration electronically on the Secretary of State's Internet Web
site, print a hard copy of the completed affidavit, and mail or
deliver the hard copy of the completed affidavit to the Secretary of
State or the appropriate county elections official.
SEC. 88. Section 2250 of the Elections Code is amended to read:
2250. On and after July 1, 2007, in any document mailed by a
state agency that offers a person the opportunity to register to vote
pursuant to the federal National Voter Registration Act of 1993 (52
U.S.C. Sec. 20501 et seq.) that state agency shall include a notice
informing prospective voters that if they have not received voter
registration information within 30 days of requesting it, they should
contact their local elections office or the office of the Secretary
of State.
SEC. 89. Section 2263 of the Elections Code is amended to read:
2263. (a) The Department of Motor Vehicles, in consultation with
the Secretary of State, shall establish a schedule and method for the
department to electronically provide to the Secretary of State the
records specified in this section.
(b) (1) The department shall provide to the Secretary of State, in
a manner and method to be determined by the department in
consultation with the Secretary of State, the following information
associated with each person who submits an application for a driver's
license or identification card pursuant to Section 12800, 12815, or
13000 of the Vehicle Code, or who notifies the department of a change
of address pursuant to Section 14600 of the Vehicle Code:
(A) Name.
(B) Date of birth.
(C) Either or both of the following, as contained in the
department's records:
(i) Residence address.
(ii) Mailing address.
(D) Digitized signature, as described in Section 12950.5 of the
Vehicle Code.
(E) Telephone number, if available.
(F) Email address, if available.
(G) Language preference.
(H) Political party preference.
(I) Whether the person chooses to become a permanent vote by mail
voter.
(J) Whether the person affirmatively declined to become registered
to vote during a transaction with the department.
(K) A notation that the applicant has attested that he or she
meets all voter eligibility requirements, including United States
citizenship, specified in Section 2101.
(L) Other information specified in regulations implementing this
chapter.
(2) (A) The department may provide the records described in
paragraph (1) to the Secretary of State before the Secretary of State
certifies that all of the conditions set forth in subdivision (e) of
this section have been satisfied. Records provided pursuant to this
paragraph shall only be used for purposes of outreach and education
to eligible voters conducted by the Secretary of State.
(B) The Secretary shall provide materials created for purposes of
outreach and education as described in this paragraph in languages
other than English, as required by the federal Voting Rights Act of
1965 (52 U.S.C. Sec. 10503).
(c) The Secretary of State shall not sell, transfer, or allow any
third party access to the information acquired from the Department of
Motor Vehicles pursuant to this chapter without approval of the
department, except as permitted by this chapter and Section 2194.
(d) The department shall not electronically provide records of a
person who applies for or is issued a driver's license pursuant to
Section 12801.9 of the Vehicle Code because he or she is unable to
submit satisfactory proof that his or her presence in the United
States is authorized under federal law.
(e) The Department of Motor Vehicles shall commence implementation
of this section no later than one year after the Secretary of State
certifies all of the following:
(1) The State has a statewide voter registration database that
complies with the requirements of the federal Help America Vote Act
of 2002 (52 U.S.C. Sec. 20901 et seq.).
(2) The Legislature has appropriated the funds necessary for the
Secretary of State and the Department of Motor Vehicles to implement
and maintain the California New Motor Voter Program.
(3) The regulations required by Section 2270 have been adopted.
(f) The Department of Motor Vehicles shall not electronically
provide records pursuant to this section that contain a home address
designated as confidential pursuant to Section 1808.2, 1808.4, or
1808.6 of the Vehicle Code.
SEC. 90. Section 2265 of the Elections Code is amended to read:
2265. (a) The records of a person designated in paragraph (1) of
subdivision (b) of Section 2263 shall constitute a completed
affidavit of registration and the Secretary of State shall register
the person to vote, unless any of the following conditions are
satisfied:
(1) The person's records, as described in Section 2263, reflect
that he or she affirmatively declined to become registered to vote
during a transaction with the Department of Motor Vehicles.
(2) The person's records, as described in Section 2263, do not
reflect that he or she has attested to meeting all voter eligibility
requirements specified in Section 2101.
(3) The Secretary of State determines that the person is
ineligible to vote.
(b) (1) If a person who is registered to vote pursuant to this
chapter does not provide a party preference, his or her party
preference shall be designated as "Unknown" and he or she shall be
treated as a "No Party Preference" voter.
(2) A person whose party preference is designated as "Unknown"
pursuant to this subdivision shall not be counted for purposes of
determining the total number of voters registered on the specified
day preceding an election, as required by subdivision (b) of Section
5100 and subdivision (c) of Section 5151.
SEC. 91. Section 2270 of the Elections Code is amended to read:
2270. The Secretary of State shall adopt regulations to implement
this chapter, including regulations addressing both of the
following:
(a) A process for canceling the registration of a person who is
ineligible to vote, but became registered under the California New
Motor Voter Program in the absence of any violation by that person of
Section 18100.
(b) An education and outreach campaign informing voters about the
California New Motor Voter Program that the Secretary of State will
conduct to implement this chapter. The Secretary of State may use any
public and private funds available for this and shall provide
materials created for this outreach and education campaign in
languages other than English, as required by the federal Voting
Rights Act of 1965 (52 U.S.C. Sec. 10503).
SEC. 92. Section 2600 of the Elections Code is amended to read:
2600. The Secretary of State shall establish a Language
Accessibility Advisory Committee which shall meet no less than four
times each calendar year. The committee shall consist of no less than
15 members and be comprised of the Secretary of State and his or her
designee or designees and additional members appointed by the
Secretary of State. The appointees shall have demonstrated language
accessibility experience, have knowledge of presenting election
materials to voters using plain language methods or another method
that is easy for voters to access and understand, or be a county
elections official or his or her designee. At least three county
elections officials shall be appointed to the committee. The
Secretary of State shall consult with and consider the
recommendations of the committee. The committee shall serve in an
advisory capacity to the Secretary of State.
SEC. 93. Section 3025 of the Elections Code is amended to read:
3025. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Vote by mail ballot drop box" means a secure receptacle
established by a county or city and county elections official whereby
a voted vote by mail ballot may be returned to the elections
official from whom it was obtained.
(2) "Vote by mail ballot drop-off location" means a location
consisting of a secured vote by mail ballot drop box at which a voted
vote by mail ballot may be returned to the elections official from
whom it was obtained.
(b) On or before January 1, 2017, the Secretary of State shall
promulgate regulations establishing guidelines based on best
practices for security measures and procedures, including, but not
limited to, chain of custody, pick-up times, proper labeling, and
security of vote by mail ballot drop boxes, that a county elections
official may use if the county elections official establishes one or
more vote by mail ballot drop-off locations.
SEC. 94. Section 3114 of the Elections Code is amended to read:
3114. (a) For an election for which this state has not received a
waiver pursuant to the federal Military and Overseas Voter
Empowerment Act (52 U.S.C. Sec. 20301 et seq.), not sooner than 60
days but not later than 45 days before the election, the elections
official shall transmit a ballot and balloting materials to each
military or overseas voter who, by that date, submits a valid ballot
application pursuant to Section 3102.
(b) If a valid ballot application from a military or overseas
voter arrives after the 45th day before the election, the elections
official charged with distributing a ballot and balloting materials
to that voter shall transmit them to the voter as soon as practicable
after the application arrives.
SEC. 95. Section 6850 of the Elections Code is amended to read:
6850. This chapter applies to the presidential preference primary
ballot of the Green Party only. As used in this chapter, "Green
Party" means the Green
Party of California.
SEC. 96. Section 6850.5 of the Elections Code is amended to read:
6850.5. The Green Party presidential preference primary ballot
shall express the presidential preference of California voters who
vote in the Green Party presidential preference primary election.
National convention delegates shall be selected as provided for in
the bylaws and the rules and procedures of the Green Party and
pursuant to the rules of the national political party with which the
Green Party is affiliated.
SEC. 97. The heading of Article 2 (commencing with Section 6851)
of Chapter 5 of Part 1 of Division 6 of the Elections Code is amended
to read:
Article 2. Qualification of Candidates for Presidential
Preference Primary Ballot
SEC. 98. Section 6851 of the Elections Code is amended to read:
6851. The Secretary of State shall place the name of a candidate
upon the Green Party presidential preference primary ballot when the
Secretary of State has determined that the candidate is generally
advocated for or recognized throughout the United States or
California as actively seeking the presidential nomination of the
Green Party or the national political party with which the Green
Party is affiliated.
SEC. 99. Section 6853 of the Elections Code is amended to read:
6853. If a selected candidate or an unselected candidate files
with the Secretary of State, no later than the 68th day before the
presidential primary election, an affidavit stating without
qualification that she or he is not a candidate for the office of
President of the United States at the forthcoming presidential
primary election, the name of that candidate shall be omitted from
the list of names certified by the Secretary of State to the
elections official for the ballot and the name of that candidate
shall not appear on the presidential preference primary ballot.
SEC. 100. Section 6854 of the Elections Code is amended to read:
6854. This article applies to the nomination of a Green Party
candidate for the presidential preference primary ballot.
SEC. 101. Section 6854.5 of the Elections Code is amended to read:
6854.5. Nomination papers properly prepared, circulated, signed,
and verified shall be left, for examination, with the elections
official of the county in which they are circulated at least 74 days
before the presidential preference primary election.
SEC. 102. Section 6855 of the Elections Code is amended to read:
6855. Each signer of a nomination paper for the presidential
preference primary ballot may sign only one paper. The signer shall
add her or his printed name and place of residence indicating city
and giving the street and number, if any.
SEC. 103. Section 6857 of the Elections Code is amended to read:
6857. The nomination paper for a candidate for the presidential
preference primary ballot shall be in substantially the following
form:
SECTION OF NOMINATION PAPER SIGNED BY VOTER ON
BEHALF OF PRESIDENTIAL PREFERENCE PRIMARY CANDIDATE
Section ____________ Page ____________
County of __________.
Nomination paper of a presidential preference
candidate for the Green Party presidential
preference primary ballot.
State of )
California ) ss.
County of ______
SIGNER'S STATEMENT
I, the undersigned, am a voter of the County of
____________, State of California, and am
registered as preferring the Green Party. I hereby
nominate ____________ for the presidential
preference portion of the Green Party's
presidential primary ballot, to be voted for at
the presidential preference primary to be held on
the____________ day of ____________, 20____. I
have not signed the nomination paper of any
other candidate for the same office.
Number_________Signature_________Printed
name_________Residence
___________________________________________________
1. ______________________________________________
2. ______________________________________________
3. ______________________________________________
etc.
CIRCULATOR'S DECLARATION
I, ________, affirm all of the following:
1. That I am 18 years of age or older.
2. That my residence address, including street
number,
is
__________________________________________________.
(If no street or number exists, a designation of
my residence adequate to readily ascertain its
location
is
_________________________________________________.)
3. That I secured signatures in the County of
________ to the nomination paper of a candidate in
the presidential preference primary of the
Green Party, that all the signatures on this
section of the nomination paper numbered from 1 to
______, inclusive, were made in my presence, that
the signatures were obtained between ____________,
20__, and ____________, 20__, and that to the best
of my knowledge and belief each signature is the
genuine signature of the person whose name it
purports to be.
I declare under penalty of perjury that the
foregoing is true and correct.
Executed at ________, California, this ____ day of
____, 20__.
(Signed) ______________________________
Circulator
(Printed Name) _____________________________
SEC. 104. Section 6859 of the Elections Code is amended to read:
6859. Within five days after any nomination papers are left with
the elections official for examination, the elections official shall
do both of the following:
(a) Examine and affix to the nomination papers a certificate
reciting that she or he has examined them and stating the number of
names that have not been marked "not sufficient."
(b) Transmit the nomination papers with the certificate of
examination to the Secretary of State, who shall file the papers.
SEC. 105. Section 6861.5 of the Elections Code is amended to read:
6861.5. For the presidential preference primary election, the
format of the Green Party ballot shall be governed by Chapter 2
(commencing with Section 13100) of Division 13, with the following
exceptions:
(a) The heading "Presidential Candidate Preference" shall be
included.
(b) Selected and unselected presidential candidates shall be
listed below the heading specified in subdivision (a).
(c) The instructions to voters shall begin with the words "Vote
for a candidate." The instructions to voters shall also include the
statement that "Delegates to the national convention will be selected
after the presidential preference primary election."
SEC. 106. Section 6862 of the Elections Code is amended to read:
6862. A person who believes her or his name may be used as a
write-in candidate for President of the United States shall, no later
than 21 days before the presidential preference primary election,
file an endorsement of her or his write-in candidacy with the
Secretary of State, or no votes shall be counted for that write-in
candidate.
SEC. 107. Section 6863 of the Elections Code is amended to read:
6863. The number of delegates to be selected following the
presidential preference primary election shall be the number
established by the national political party with which the Green
Party is affiliated.
SEC. 108. Section 7901 of the Elections Code is amended to read:
7901. At each presidential preference primary election, members
of central committees, which shall be termed "county councils," shall
be elected in each county.
SEC. 109. Section 7902 of the Elections Code is amended to read:
7902. For purposes of this chapter, the registration figures used
shall be those taken from the statement of voters and their
political preferences transmitted by the elections officials to the
Secretary of State on or before March 1 of the odd-numbered year
preceding the next presidential preference primary election.
SEC. 110. Section 7903 of the Elections Code is amended to read:
7903. The number of members of the county council to be elected
in a county shall be a minimum of three and a maximum of 50, and the
process in which each county's number shall be calculated shall be
defined in the Green Party's bylaws and, to be effective, shall be
communicated to the Secretary of State by the Green Party Liaison to
the Secretary of State no later than 175 days before the next
presidential preference primary election.
SEC. 111. Section 7904 of the Elections Code is amended to read:
7904. At its first meeting following the presidential preference
primary election and at subsequent meetings, a county council may
appoint additional members to the county council to fill any vacancy.
SEC. 112. Section 7911 of the Elections Code is amended to read:
7911. Members of county councils shall be elected from one or
more multimember districts. Multimember districts shall conform to
the county boundaries or recognized jurisdictional boundaries of
Congressional, State Assembly, State Senate, or Supervisorial
districts within that county, in accordance with state Green Party
bylaws and county Green Party bylaws.
SEC. 113. Section 7912 of the Elections Code is amended to read:
7912. The Secretary of State, no later than the 175th day before
the presidential preference primary election, shall compute the
number of members of a county council to be elected in each county
and shall mail a certificate to that effect to the elections official
of each county and to the Green Party Liaison to the Secretary of
State.
SEC. 114. Section 7913 of the Elections Code is amended to read:
7913. The elections official, no later than the 172nd day before
the presidential preference primary election, shall compute the
number of members of a county council to be elected in each district
if the election of the members is to be by district pursuant to this
chapter.
SEC. 115. Section 7918 of the Elections Code is amended to read:
7918. Notwithstanding any other provision of this code, each
sponsor is entitled to sponsor as many candidates as there are seats
in the county council election district. Candidate names listed on a
single sponsor's certificate, and the signatures on the certificate
shall count toward the sponsor requirement of each and every
candidate whose name is listed on the certificate. The number of
candidates having their names on a sponsor's certificate shall not
exceed the number of members of a county council to be elected in the
district.
SEC. 116. Section 7921 of the Elections Code is amended to read:
7921. The office of member of county council shall be placed on
the presidential preference primary ballot under the heading "Party
County Council" in the place and manner designated for the office of
county central committee pursuant to Chapter 2 (commencing with
Section 13100) of Division 13. The subheading printed under party
central committees on the presidential preference primary ballot
shall be in substantially the following form: Member of Green Party
County Council, ___the __________ District or Member of the Green
Party County Council, _______ County.
SEC. 117. Section 7922 of the Elections Code is amended to read:
7922. Except as otherwise provided in this section, the votes
cast for each candidate for member of county council shall be
included in the canvass and statement of results in a manner similar
to the vote for each candidate for county central committees pursuant
to Division 15 (commencing with Section 15000), and specifically:
(a) The final total of votes cast for each candidate for member of
county council, including the name, address, and ballot designation
of each candidate, and a specification as to which candidates were
declared elected shall be certified to the Secretary of State without
delay upon completion of the official canvass. The county clerk
shall simultaneously send one copy of this final certification to the
Green Party Liaison to the Secretary of State.
(b) As soon as practicable after the presidential preference
primary election, the Secretary of State shall prepare a certified
list, by county, of all elected Green Party members of county
councils, including their addresses and primary election ballot
designations. The Secretary of State shall send copies of the list to
the registrar of voters in each county no later than 45 days
following the presidential preference primary election. This list
shall be maintained for public inspection by the registrars of voters
in each county until a subsequent list is received.
(c) The Secretary of State, no later than 45 days following the
presidential preference primary election, shall send a notice by mail
to each of the elected members of county councils that informs the
person that she or he has been elected as a member of the county
council. The Secretary of State shall send a copy of the certified
list of all elected members of all county councils to the Green Party
Liaison to the Secretary of State.
SEC. 118. Section 7927 of the Elections Code is amended to read:
7927. (a) The state coordinating committee shall have the
authority to certify, as provided by Green Party bylaws, county
council members in the following counties:
(1) Counties where no county council candidates qualified for the
ballot in the preceding presidential preference primary election.
(2) Counties where all members of the county council have become
disqualified from holding office.
(b) County council members certified pursuant to this section
shall meet the qualifications otherwise required for county council
members. County council members certified pursuant to this section
shall be reported by the state coordinating committee to the
applicable county elections officials. County council members
certified under this section shall have all the powers and privileges
otherwise afforded to county councils.
SEC. 119. Section 12309.5 of the Elections Code is amended to
read:
12309.5. (a) No later than June 30, 2005, the Secretary of State
shall adopt uniform standards for the training of precinct board
members, based upon the recommendations of the task force appointed
pursuant to subdivision (b). The uniform standards shall, at a
minimum, address the following:
(1) The rights of voters, including, but not limited to, language
access rights for linguistic minorities, the disabled, and protected
classes as referenced and defined in the federal Voting Rights Act of
1965 (52 U.S.C. Sec. 10301 et seq.).
(2) Election challenge procedures such as challenging precinct
administrator misconduct, fraud, bribery, or discriminatory voting
procedures as referenced and defined in the federal Voting Rights Act
of 1965 (52 U.S.C. Sec. 10301 et seq.).
(3) Operation of a jurisdiction's voting system, including, but
not limited to, modernized voting systems, touch-screen voting, and
proper tabulation procedures.
(4) Poll hours and procedures concerning the opening and closing
of polling locations on election day. Procedures shall be developed
that, notwithstanding long lines or delays at a polling location,
ensure all eligible voters who arrive at the polling location before
closing time are allowed to cast a ballot.
(5) Relevant election laws and any other subjects that will assist
an inspector in carrying out his or her duties.
(6) Cultural competency, including, but not limited to, having
adequate knowledge of diverse cultures, including languages, that may
be encountered by a poll worker during the course of an election,
and the appropriate skills to work with the electorate.
(7) Knowledge regarding issues confronting voters who have
disabilities, including, but not limited to, access barriers and the
need for reasonable accommodations.
(8) Procedures involved with provisional, fail-safe provisional,
vote by mail, and provisional vote by mail voting.
(b) The Secretary of State shall appoint a task force of at least
12 members who have experience in the administration of elections and
other relevant backgrounds to study and recommend uniform guidelines
for the training of precinct board members. The task force shall
consist of the chief elections officer of the two largest counties,
the two smallest counties, and two county elections officers selected
by the Secretary of State, or their designees. The Secretary of
State shall appoint at least six other members who have elections
expertise, or their designees, including members of community-based
organizations that may include citizens familiar with different
ethnic, cultural, and disabled populations to ensure that the task
force is representative of the state's diverse electorate. The task
force shall make its recommendations available for public review and
comment before the submission of the recommendations to the Secretary
of State and the Legislature.
(c) The task force shall file its recommendations with the
Secretary of State and the Legislature no later than January 1, 2005.
SEC. 120. Section 13307 of the Elections Code is amended to read:
13307. (a) (1) Each candidate for nonpartisan elective office in
any local agency, including any city, county, city and county, or
district, may prepare a candidate's statement on an appropriate form
provided by the elections official. The statement may include the
name, age, and occupation of the candidate and a brief description,
of no more than 200 words, of the candidate's education and
qualifications expressed by the candidate himself or herself.
However, the governing body of the local agency may authorize an
increase in the limitations on words for the statement from 200 to
400 words. The statement shall not include the party affiliation of
the candidate, nor membership or activity in partisan political
organizations.
(2) The statement authorized by this subdivision shall be filed in
the office of the elections official when the candidate's nomination
papers are returned for filing, if it is for a primary election, or
for an election for offices for which there is no primary. The
statement shall be filed in the office of the elections official no
later than the 88th day before the election, if it is for an election
for which nomination papers are not required to be filed. If a
runoff election or general election occurs within 88 days of the
primary or first election, the statement shall be filed with the
elections official by the third day following the governing body's
declaration of the results from the primary or first election.
(3) Except as provided in Section 13309, the statement may be
withdrawn, but not changed, during the period for filing nomination
papers and until 5 p.m. of the next working day after the close of
the nomination period.
(b) (1) The elections official shall send to each voter, together
with the sample ballot, a voter's pamphlet that contains the written
statements of each candidate that is prepared pursuant to this
section. The statement of each candidate shall be printed in type of
uniform size and darkness, and with uniform spacing.
(2) The elections official shall provide a Spanish translation to
those candidates who wish to have one, and shall select a person to
provide that translation who is one of the following:
(A) A certified and registered interpreter on the Judicial Council
Master List.
(B) An interpreter categorized as "certified" or "professionally
qualified" by the Administrative Office of the United States Courts.
(C) From an institution accredited by a regional or national
accrediting agency recognized by the United States Secretary of
Education.
(D) A current voting member in good standing of the American
Translators Association.
(E) A current member in good standing of the American Association
of Language Specialists.
(c) The local agency may estimate the total cost of printing,
handling, translating, and mailing the candidate's statements filed
pursuant to this section, including costs incurred as a result of
complying with the federal Voting Rights Act of 1965, as amended. The
local agency may require each candidate filing a statement to pay in
advance to the local agency his or her estimated pro rata share as a
condition of having his or her statement included in the voter's
pamphlet. If an estimated payment is required, the receipt for the
payment shall include a written notice that the estimate is just an
approximation of the actual cost that varies from one election to
another election and may be significantly more or less than the
estimate, depending on the actual number of candidates filing
statements. Accordingly, the local agency is not bound by the
estimate and may, on a pro rata basis, bill the candidate for
additional actual expense or refund any excess paid depending on the
final actual cost. In the event of underpayment, the local agency may
require the candidate to pay the balance of the cost incurred. In
the event of overpayment, the local agency that, or the elections
official who, collected the estimated cost shall prorate the excess
amount among the candidates and refund the excess amount paid within
30 days of the election.
(d) This section shall not be deemed to make any statement, or the
authors thereof, free or exempt from any civil or criminal action or
penalty because of any false, slanderous, or libelous statements
offered for printing or contained in the voter's pamphlet.
(e) Before the nominating period opens, the local agency for that
election shall determine whether a charge shall be levied against
that candidate for the candidate's statement sent to each voter. This
decision shall not be revoked or modified after the seventh day
before the opening of the nominating period. A written statement of
the regulations with respect to charges for handling, packaging, and
mailing shall be provided to each candidate or his or her
representative at the time he or she picks up the nomination papers.
(f) For purposes of this section and Section 13310, the board of
supervisors shall be deemed the governing body of judicial elections.
SEC. 121. Section 14026 of the Elections Code is amended to read:
14026. As used in this chapter:
(a) "At-large method of election" means any of the following
methods of electing members to the governing body of a political
subdivision:
(1) One in which the voters of the entire jurisdiction elect the
members to the governing body.
(2) One in which the candidates are required to reside within
given areas of the jurisdiction and the voters of the entire
jurisdiction elect the members to the governing body.
(3) One that combines at-large elections with district-based
elections.
(b) "District-based elections" means a method of electing members
to the governing body of a political subdivision in which the
candidate must reside within an election district that is a divisible
part of the political subdivision and is elected only by voters
residing within that election district.
(c) "Political subdivision" means a geographic area of
representation created for the provision of government services,
including, but not limited to, a general law city, general law
county, charter city, charter county, charter city and county, school
district, community college district, or other district organized
pursuant to state law.
(d) "Protected class" means a class of voters who are members of a
race, color, or language minority group, as this class is referenced
and defined in the federal Voting Rights Act of 1965 (52 U.S.C. Sec.
10301 et seq.).
(e) "Racially polarized voting" means voting in which there is a
difference, as defined in case law regarding enforcement of the
federal Voting Rights Act of 1965 (52 U.S.C. Sec. 10301 et seq.), in
the choice of candidates or other electoral choices that are
preferred by voters in a protected class, and in the choice of
candidates and electoral choices that are preferred by voters in the
rest of the electorate. The methodologies for estimating group voting
behavior as approved in applicable federal cases to enforce the
federal Voting Rights Act of 1965 (52 U.S.C. Sec. 10301 et seq.) to
establish racially polarized voting may be used for purposes of this
section to prove that elections are characterized by racially
polarized voting.
SEC. 122. Section 14405 of the Elections Code is amended to read:
14405. (a) The members of the precinct board shall account for
the ballots delivered to them by returning a sufficient number of
unused ballots to make up, when added to the number of official
ballots cast and the number of spoiled and canceled ballots returned,
the number of ballots given to them. The accounting of ballots may
either:
(1) Take place at the polling place.
(2) Be performed by the county elections official at the central
counting place.
(b) The precinct board shall complete the roster as required in
Section 14107, and shall also complete and sign the certificate of
performance prescribed in Section 15280, if that section applies.
SEC. 123. Section 18108 of the Elections Code is amended to read:
18108. (a) Except as provided in subdivision (c), a person who
receives money or other valuable consideration to assist another to
register to vote by receiving the completed affidavit of registration
from the elector, and fails to comply with Section 2159, is guilty
of a misdemeanor, and shall be punished by a fine not exceeding one
thousand dollars ($1,000), or by imprisonment in the county jail not
exceeding six months or if the failure to comply is found to be
willful, not exceeding one year, or both.
(b) A person who receives money or other valuable consideration to
assist another to register to vote by receiving the completed
affidavit of registration from the elector, upon a third or
subsequent conviction, on charges brought and separately tried, for
failure to comply with Section 2159 shall be punished by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment in the
county jail not to exceed one year, or both.
(c) This section does not apply to a public agency or its
employees that is designated as a voter registration agency pursuant
to the federal National Voter Registration Act of 1993 (52 U.S.C.
Sec. 20501 et seq.), if an elector asks for assistance to register to
vote during the course and scope of the agency's normal business.
SEC. 124. Section 18108.1 of the Elections Code is amended to
read:
18108.1. (a) Except as provided in subdivision (c), a person who
receives money or other valuable consideration to assist another to
register to vote by receiving the completed affidavit of registration
from the elector, and knowingly misrepresents himself or herself as
having helped register another to vote on a registration form,
pursuant to Section 2159, is guilty of a misdemeanor, and shall be
punished by a fine not exceeding one thousand dollars ($1,000), by
imprisonment in the county
jail not exceeding six months, or by both the fine and imprisonment.
(b) A person who receives money or other valuable consideration to
assist another to register to vote by receiving the completed
affidavit of registration from the elector, upon a third or
subsequent conviction, on charges brought and separately tried, for
misrepresenting himself or herself as having helped register another
to vote on a registration form, pursuant to Section 2159, shall be
punished by a fine not exceeding ten thousand dollars ($10,000), by
imprisonment in the county jail not to exceed one year, or by both
the fine and imprisonment.
(c) This section does not apply to a public agency or its
employees that is designated as a voter registration agency pursuant
to the federal National Voter Registration Act of 1993 (52 U.S.C.
Sec. 20501 et seq.), if an elector asks for assistance to register to
vote during the course and scope of the agency's normal business.
SEC. 125. Section 980 of the Evidence Code is amended to read:
980. Subject to Section 912 and except as otherwise provided in
this article, a spouse, or the spouse's guardian or conservator if
the spouse has a guardian or conservator, whether or not a party, has
a privilege during the marital relationship and afterwards to refuse
to disclose, and to prevent another from disclosing, a communication
if the spouse claims the privilege and the communication was made in
confidence between the spouse and the other spouse while they were
married.
SEC. 126. Section 1010 of the Evidence Code is amended to read:
1010. As used in this article, "psychotherapist" means a person
who is, or is reasonably believed by the patient to be:
(a) A person authorized to practice medicine in any state or
nation who devotes, or is reasonably believed by the patient to
devote, a substantial portion of his or her time to the practice of
psychiatry.
(b) A person licensed as a psychologist under Chapter 6.6
(commencing with Section 2900) of Division 2 of the Business and
Professions Code.
(c) A person licensed as a clinical social worker under Article 4
(commencing with Section 4996) of Chapter 14 of Division 2 of the
Business and Professions Code, when he or she is engaged in applied
psychotherapy of a nonmedical nature.
(d) A person who is serving as a school psychologist and holds a
credential authorizing that service issued by the state.
(e) A person licensed as a marriage and family therapist under
Chapter 13 (commencing with Section 4980) of Division 2 of the
Business and Professions Code.
(f) A person registered as a psychological assistant who is under
the supervision of a licensed psychologist or board certified
psychiatrist as required by Section 2913 of the Business and
Professions Code, or a person registered as a marriage and family
therapist intern who is under the supervision of a licensed marriage
and family therapist, a licensed clinical social worker, a licensed
psychologist, or a licensed physician and surgeon certified in
psychiatry, as specified in Section 4980.44 of the Business and
Professions Code.
(g) A person registered as an associate clinical social worker who
is under supervision as specified in Section 4996.23 of the Business
and Professions Code.
(h) A person registered with the Board of Psychology as a
registered psychologist who is under the supervision of a licensed
psychologist or board certified psychiatrist.
(i) A psychological intern as defined in Section 2911 of the
Business and Professions Code who is under the supervision of a
licensed psychologist or board certified psychiatrist.
(j) A trainee, as defined in subdivision (c) of Section 4980.03 of
the Business and Professions Code, who is fulfilling his or her
supervised practicum required by subparagraph (B) of paragraph (1) of
subdivision (d) of Section 4980.36 of, or subdivision (c) of Section
4980.37 of, the Business and Professions Code and is supervised by a
licensed psychologist, a board certified psychiatrist, a licensed
clinical social worker, a licensed marriage and family therapist, or
a licensed professional clinical counselor.
(k) A person licensed as a registered nurse pursuant to Chapter 6
(commencing with Section 2700) of Division 2 of the Business and
Professions Code, who possesses a master's degree in
psychiatric-mental health nursing and is listed as a
psychiatric-mental health nurse by the Board of Registered Nursing.
( l ) An advanced practice registered nurse who is
certified as a clinical nurse specialist pursuant to Article 9
(commencing with Section 2838) of Chapter 6 of Division 2 of the
Business and Professions Code and who participates in expert clinical
practice in the specialty of psychiatric-mental health nursing.
(m) A person rendering mental health treatment or counseling
services as authorized pursuant to Section 6924 of the Family Code.
(n) A person licensed as a professional clinical counselor under
Chapter 16 (commencing with Section 4999.10) of Division 2 of the
Business and Professions Code.
(o) A person registered as a clinical counselor intern who is
under the supervision of a licensed professional clinical counselor,
a licensed marriage and family therapist, a licensed clinical social
worker, a licensed psychologist, or a licensed physician and surgeon
certified in psychiatry, as specified in Sections 4999.42 to 4999.46,
inclusive, of the Business and Professions Code.
(p) A clinical counselor trainee, as defined in subdivision (g) of
Section 4999.12 of the Business and Professions Code, who is
fulfilling his or her supervised practicum required by paragraph (3)
of subdivision (c) of Section 4999.32 of, or paragraph (3) of
subdivision (c) of Section 4999.33 of, the Business and Professions
Code, and is supervised by a licensed psychologist, a board-certified
psychiatrist, a licensed clinical social worker, a licensed marriage
and family therapist, or a licensed professional clinical counselor.
SEC. 127. Section 1106 of the Evidence Code is amended to read:
1106. (a) In any civil action alleging conduct which constitutes
sexual harassment, sexual assault, or sexual battery, opinion
evidence, reputation evidence, and evidence of specific instances of
the plaintiff's sexual conduct, or any of that evidence, is not
admissible by the defendant in order to prove consent by the
plaintiff or the absence of injury to the plaintiff, unless the
injury alleged by the plaintiff is in the nature of loss of
consortium.
(b) Subdivision (a) does not apply to evidence of the plaintiff's
sexual conduct with the alleged perpetrator.
(c) Notwithstanding subdivision (b), in any civil action brought
pursuant to Section 1708.5 of the Civil Code involving a minor and
adult as described in Section 1708.5.5 of the Civil Code, evidence of
the plaintiff minor's sexual conduct with the defendant adult shall
not be admissible to prove consent by the plaintiff or the absence of
injury to the plaintiff. Such evidence of the plaintiff's sexual
conduct may only be introduced to attack the credibility of the
plaintiff in accordance with Section 783 or to prove something other
than consent by the plaintiff if, upon a hearing of the court out of
the presence of the jury, the defendant proves that the probative
value of that evidence outweighs the prejudice to the plaintiff
consistent with Section 352.
(d) If the plaintiff introduces evidence, including testimony of
a witness, or the plaintiff as a witness gives testimony, and the
evidence or testimony relates to the plaintiff's sexual conduct, the
defendant may cross-examine the witness who gives the testimony and
offer relevant evidence limited specifically to the rebuttal of the
evidence introduced by the plaintiff or given by the plaintiff.
(e) This section shall not be construed to make inadmissible any
evidence offered to attack the credibility of the plaintiff as
provided in Section 783.
SEC. 128. Section 1157 of the Evidence Code is amended to read:
1157. (a) Neither the proceedings nor the records of organized
committees of medical, medical-dental, podiatric, registered
dietitian, psychological, marriage and family therapist, licensed
clinical social worker, professional clinical counselor, pharmacist,
or veterinary staffs in hospitals, or of a peer review body, as
defined in Section 805 of the Business and Professions Code, having
the responsibility of evaluation and improvement of the quality of
care rendered in the hospital, or for that peer review body, or
medical or dental review or dental hygienist review or chiropractic
review or podiatric review or registered dietitian review or
pharmacist review or veterinary review or acupuncturist review
committees of local medical, dental, dental hygienist, podiatric,
dietetic, pharmacist, veterinary, acupuncture, or chiropractic
societies, marriage and family therapist, licensed clinical social
worker, professional clinical counselor, or psychological review
committees of state or local marriage and family therapist, state or
local licensed clinical social worker, state or local licensed
professional clinical counselor, or state or local psychological
associations or societies having the responsibility of evaluation and
improvement of the quality of care, shall be subject to discovery.
(b) Except as hereinafter provided, a person in attendance at a
meeting of any of the committees described in subdivision (a) shall
not be required to testify as to what transpired at that meeting.
(c) The prohibition relating to discovery or testimony does not
apply to the statements made by a person in attendance at a meeting
of any of the committees described in subdivision (a) if that person
is a party to an action or proceeding the subject matter of which was
reviewed at that meeting, to a person requesting hospital staff
privileges, or in an action against an insurance carrier alleging bad
faith by the carrier in refusing to accept a settlement offer within
the policy limits.
(d) The prohibitions in this section do not apply to medical,
dental, dental hygienist, podiatric, dietetic, psychological,
marriage and family therapist, licensed clinical social worker,
professional clinical counselor, pharmacist, veterinary, acupuncture,
or chiropractic society committees that exceed 10 percent of the
membership of the society, nor to any of those committees if a person
serves upon the committee when his or her own conduct or practice is
being reviewed.
(e) The amendments made to this section by Chapter 1081 of the
Statutes of 1983, or at the 1985 portion of the 1985-86 Regular
Session of the Legislature, at the 1990 portion of the 1989-90
Regular Session of the Legislature, at the 2000 portion of the
1999-2000 Regular Session of the Legislature, at the 2011 portion of
the 2011-12 Regular Session of the Legislature, or at the 2015
portion of the 2015-16 Regular Session of the Legislature, do not
exclude the discovery or use of relevant evidence in a criminal
action.
SEC. 129. Section 7612 of the Family Code is amended to read:
7612. (a) Except as provided in Chapter 1 (commencing with
Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2,
a presumption under Section 7611 is a rebuttable presumption
affecting the burden of proof and may be rebutted in an appropriate
action only by clear and convincing evidence.
(b) If two or more presumptions arise under Section 7610 or 7611
that conflict with each other, or if a presumption under Section 7611
conflicts with a claim pursuant to Section 7610, the presumption
which on the facts is founded on the weightier considerations of
policy and logic controls.
(c) In an appropriate action, a court may find that more than two
persons with a claim to parentage under this division are parents if
the court finds that recognizing only two parents would be
detrimental to the child. In determining detriment to the child, the
court shall consider all relevant factors, including, but not limited
to, the harm of removing the child from a stable placement with a
parent who has fulfilled the child's physical needs and the child's
psychological needs for care and affection, and who has assumed that
role for a substantial period of time. A finding of detriment to the
child does not require a finding of unfitness of any of the parents
or persons with a claim to parentage.
(d) Unless a court orders otherwise after making the determination
specified in subdivision (c), a presumption under Section 7611 is
rebutted by a judgment establishing parentage of the child by another
person.
(e) Within two years of the execution of a voluntary declaration
of paternity, a person who is presumed to be a parent under Section
7611 may file a petition pursuant to Section 7630 to set aside a
voluntary declaration of paternity. The court's ruling on the
petition to set aside the voluntary declaration of paternity shall be
made taking into account the validity of the voluntary declaration
of paternity, the best interests of the child based upon the court's
consideration of the factors set forth in subdivision (b) of Section
7575, and the best interests of the child based upon the nature,
duration, and quality of the petitioning party's relationship with
the child and the benefit or detriment to the child of continuing
that relationship. In the event of a conflict between the presumption
under Section 7611 and the voluntary declaration of paternity, the
weightier considerations of policy and logic shall control.
(f) A voluntary declaration of paternity is invalid if, at the
time the declaration was signed, any of the following conditions
exist:
(1) The child already had a presumed parent under Section 7540.
(2) The child already had a presumed parent under subdivision (a),
(b), or (c) of Section 7611.
(3) The man signing the declaration is a sperm donor, consistent
with subdivision (b) of Section 7613.
(g) A person's offer or refusal to sign a voluntary declaration of
paternity may be considered as a factor, but shall not be
determinative, as to the issue of legal parentage in any proceedings
regarding the establishment or termination of parental rights.
SEC. 130. Section 7613.5 of the Family Code is amended to read:
7613.5. (a) An intended parent may, but is not required to, use
the forms set forth in this section to demonstrate his or her intent
to be a legal parent of a child conceived through assisted
reproduction. These forms shall satisfy the writing requirement
specified in Section 7613, and are designed to provide clarity
regarding the intentions, at the time of conception, of intended
parents using assisted reproduction. These forms do not affect any
presumptions of parentage based on Section 7611, and do not preclude
a court from considering any other claims to parentage under
California statute or case law.
(b) These forms apply only in very limited circumstances. Please
read the forms carefully to see if you qualify for use of the forms.
(c) These forms do not apply to assisted reproduction agreements
for gestational carriers or surrogacy agreements.
(d) Nothing in this section shall be interpreted to require the
use of one of these forms to satisfy the writing requirement of
Section 7613.
(e) The following are the optional California Statutory Forms for
Assisted Reproduction:
California Statutory Forms for Assisted
Reproduction, Form 1:
Two Married or Unmarried People Using Assisted
Reproduction to Conceive a Child
Use this form if: You and another intended
parent, who may be your spouse or registered
domestic partner, are conceiving a child
through assisted reproduction using sperm
and/or egg donation; and one of you will be
giving birth.
WARNING: Signing this form does not terminate
the parentage claim of a sperm donor. A sperm
donor's claim to parentage is terminated if the
sperm is provided to a licensed physician and
surgeon or to a licensed sperm bank prior to
insemination, or if you conceive without having
sexual intercourse and you have a written
agreement signed by you and the donor that you
will conceive using assisted reproduction and
do not intend for the donor to be a parent, as
required by Section 7613(b) of the Family Code.
The laws about parentage of a child are
complicated. You are strongly encouraged to
consult with an attorney about your rights.
Even if you do not fill out this form, a spouse
or domestic partner of the parent giving birth
is presumed to be a legal parent of any child
born during the marriage or domestic
partnership.
_______________________________________________
This form demonstrates your intent to be
parents of the child you plan to conceive
through assisted reproduction using sperm
and/or egg donation.
I, ____________________ (print name of person
not giving birth), intend to be a parent of
a child that ____________________ (print name
of person giving birth) will or has conceived
through assisted reproduction using sperm
and/or egg donation. I consent to the use of
assisted reproduction by the person who will
give birth. I INTEND to be a parent of the
child conceived.
SIGNATURES
Intended parent who will give birth:
___________________ (print name)
________________________ (signature)
____________(date)
Intended parent who will not give birth:
____________ (print name)
_________________________ (signature)
___________(date)
_______________________________________________
NOTARY ACKNOWLEDGMENT
State of California
County of )
On ____ before me, _____________________________
(insert name and title of the
________
officer)
personally appeared ___________________________,
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity,
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_______________________________ (Seal)
_______________________________________________
California Statutory Forms for Assisted
Reproduction, Form 2:
Unmarried, Intended Parents Using Intended
Parent's Sperm to Conceive a Child
Use this form if: (1) Neither you or the other
person are married or in a registered domestic
partnership (including a registered domestic
partnership or civil union from another state);
(2) one of you will give birth to a child
conceived through assisted reproduction using
the intended parent's sperm; and (3) you
both intend to be parents of that child.
Do not use this form if you are conceiving
using a surrogate.
WARNING: If you do not sign this form, or a
similar agreement, you may be treated as a
sperm donor if you conceive without having
sexual intercourse according to Section 7613(b)
of the Family Code.
The laws about parentage of a child are
complicated. You are strongly encouraged to
consult with an attorney about your rights.
_______________________________________________
This form demonstrates your intent to be
parents of the child you plan to conceive
through assisted reproduction using sperm
donation.
I, ____________________ (print name of parent
giving birth), plan to use assisted
reproduction with another intended parent who
is providing sperm to conceive the child. I am
not married and am not in a registered domestic
partnership (including a registered domestic
partnership or civil union from another
jurisdiction), and I INTEND for the person
providing sperm to be a parent of the child to
be conceived.
I, ____________________ (print name of parent
providing sperm), plan to use assisted
reproduction to conceive a child using my
sperm with the parent giving birth. I am not
married and am not in a registered domestic
partnership (including a registered domestic
partnership or civil union from another
jurisdiction), and I INTEND to be a parent of
the child to be conceived.
SIGNATURES
Intended parent giving birth:
___________________ (print name)
________________________ (signature)
____________(date)
Intended parent providing sperm: ____________
(print name)
_________________________ (signature)
___________(date)
_______________________________________________
NOTARY ACKNOWLEDGMENT
State of California
County of )
On ____ before me, _____________________________
(insert name and title of the
________
officer)
personally appeared _____________________,
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity,
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_______________________________ (Seal)
_______________________________________________
California Statutory Forms for Assisted
Reproduction, Form 3:
Intended Parents Conceiving a Child Using Eggs
from One Parent and the Other Parent Will Give
Birth
Use this form if: You are conceiving a child
using the eggs from one of you and the other
person will give birth to the child; (2) and
you both intend to be parents to that child.
Do not use this form if you are conceiving
using a surrogate.
WARNING: Signing this form does not terminate
the parentage claim of a sperm donor. A sperm
donor's claim to parentage is terminated if the
sperm is provided to a licensed physician and
surgeon or to a licensed sperm bank prior to
insemination, or if you conceive without having
sexual intercourse and you have a written
agreement signed by you and the donor that you
will conceive using assisted reproduction and
do not intend for the donor to be a parent, as
required by Section 7613(b) of the Family Code.
The laws about parentage of a child are
complicated. You are strongly encouraged to
consult with an attorney about your rights.
_______________________________________________
This form demonstrates your intent to be
parents of the child you plan to conceive
through assisted reproduction using eggs from
one parent and the other parent will give birth
to the child.
I, ____________________ (print name of parent
giving birth), plan to use assisted
reproduction to conceive and give birth to a
child with another person who will provide eggs
to conceive the child. I INTEND for the person
providing eggs to be a parent of the child
to be conceived.
I, ____________________ (print name of parent
providing eggs), plan to use assisted
reproduction to conceive a child with another
person who will give birth to the child
conceived using my eggs. I INTEND to be a
parent of the child to be conceived.
SIGNATURES
Intended parent giving birth:
___________________ (print name)
________________________ (signature)
____________(date)
Intended parent providing eggs: ____________
(print name)
_________________________ (signature)
___________(date)
_______________________________________________
NOTARY ACKNOWLEDGMENT
State of California
County of )
On ____ before me, _____________________________
(insert name and title of the
________
officer)
personally appeared ___________________________,
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity,
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_______________________________ (Seal)
_______________________________________________
California Statutory Forms for Assisted
Reproduction, Form 4:
Intended Parent(s) Using a Known Sperm and/or
Egg Donor(s) to Conceive a Child
Use this form if: You are using a known sperm
and/or egg donor(s), or embryo donation, to
conceive a child and you do not intend for the
donor(s) to be a parent.
Do not use this form if you are conceiving
using a surrogate.
If you do not sign this form or a similar
agreement, your sperm donor may be treated as a
parent unless the sperm is provided to a
licensed physician and surgeon or to a licensed
sperm bank prior to insemination, or a court
finds by clear and convincing evidence that you
planned to conceive through assisted
reproduction and did not intend for the donor
to be a parent, as required by Section 7613(b)
of the Family Code. If you do not sign this
form or a similar agreement, your egg donor may
be treated as a parent unless a court finds
that there is satisfactory evidence that you
planned to conceive through assisted
reproduction and did not intend for the donor
to be a parent, as required by Section 7613(c)
of the Family Code.
The laws about parentage of a child are
complicated. You are strongly encouraged to
consult with an attorney about your rights.
_______________________________________________
This form demonstrates your intent that your
sperm and/or egg or embryo donor(s) will not be
a parent or parents of the child you plan to
conceive through assisted reproduction.
I, ____________________ (print name of parent
giving birth), plan to use assisted
reproduction to conceive using a sperm and/or
egg donor(s) or embryo donation, and I DO NOT
INTEND for the sperm and/or egg or embryo
donor(s) to be a parent of the child to be
conceived.
(If applicable) I, ____________________ (print
name of sperm donor), plan to donate my sperm
to____________________ (print name of parent
giving birth and second parent if applicable).
I am not married to and am not in a registered
domestic partnership (including a registered
domestic partnership or a civil union from
another jurisdiction) with ____________________
(print name of parent giving birth), and I DO
NOT INTEND to be a
parent of the child to be
conceived.
(If applicable) I, ____________________ (print
name of egg donor), plan to donate my ova
to____________________ (print name of parent
giving birth and second parent if applicable).
I am not married to and am not in a registered
domestic partnership (including a registered
domestic partnership or a civil union from
another jurisdiction) with ____________________
(print name of parent giving birth), or any
intimate and nonmarital relationship with
____________________ (print name of parent
giving birth) and I DO NOT INTEND to be a
parent of the child to be conceived.
(If applicable) I, ____________________ (print
name of intended parent not giving birth),
INTEND to be a parent of the child
that____________________ (print name of parent
giving birth) will conceive through assisted
reproduction using sperm and/or egg donation
and I DO NOT INTEND for the sperm and/or egg or
embryo donor(s) to be a parent. I consent to
the use of assisted reproduction by the person
who will give birth.
SIGNATURES
Intended parent giving birth:
___________________ (print name)
________________________ (signature)
____________(date)
(If applicable) Sperm Donor:
___________________ (print name)
________________________ (signature)
____________(date)
(If applicable) Egg Donor:
___________________ (print name)
________________________ (signature)
____________(date)
(If applicable) Intended parent not giving
birth: ____________ (print name)
_________________________ (signature)
___________(date)
_______________________________________________
NOTARY ACKNOWLEDGMENT
State of California
County of )
On ____ before me, _____________________________
(insert name and title of the
________
officer)
personally appeared ___________________________,
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity,
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_______________________________ (Seal)
SEC. 131. Section 8811 of the Family Code is amended to read:
8811. (a) The department or delegated county adoption agency
shall require each person who files an adoption petition to be
fingerprinted and shall secure from an appropriate law enforcement
agency any criminal record of that person to determine if the person
has ever been convicted of a crime other than a minor traffic
violation. The department or delegated county adoption agency may
also secure the person's full criminal record, if any, with the
exception of any convictions for which relief has been granted
pursuant to Section 1203.49 of the Penal Code. Any federal-level
criminal offender record requests to the Department of Justice shall
be submitted with fingerprint images and related information required
by the Department of Justice for the purposes of obtaining
information as to the existence and content of a record of an
out-of-state or federal conviction or arrest of a person or
information regarding any out-of-state or federal crimes or arrests
for which the Department of Justice establishes that the person is
free on bail, or on his or her own recognizance pending trial or
appeal. The Department of Justice shall forward to the Federal Bureau
of Investigation any requests for federal summary criminal history
information received pursuant to this section. The Department of
Justice shall review the information returned from the Federal Bureau
of Investigation and shall compile and disseminate a response to the
department or delegated county adoption agency.
(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be included
in the report to the court.
(c) (1) The department or a delegated county adoption agency shall
not give final approval for an adoptive placement in any home in
which the prospective adoptive parent or any adult living in the
prospective adoptive home has either of the following:
(A) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subdivision, crimes involving violence means those violent
crimes contained in clause (i) of subparagraph (A), and subparagraph
(B), of paragraph (1) of subdivision (g) of Section 1522 of the
Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.
(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. Sec. 670 et seq.).
(d) Any fee charged by a law enforcement agency for fingerprinting
or for checking or obtaining the criminal record of the petitioner
shall be paid by the petitioner. The department or delegated county
adoption agency may defer, waive, or reduce the fee if its payment
would cause economic hardship to the prospective adoptive parents
detrimental to the welfare of the adopted child, if the child has
been in the foster care of the prospective adoptive parents for at
least one year, or if necessary for the placement of a special-needs
child.
SEC. 132. Section 8908 of the Family Code is amended to read:
8908. (a) A licensed adoption agency shall require each person
filing an application for adoption to be fingerprinted and shall
secure from an appropriate law enforcement agency any criminal record
of that person to determine if the person has ever been convicted of
a crime other than a minor traffic violation. The licensed adoption
agency may also secure the person's full criminal record, if any,
with the exception of any convictions for which relief has been
granted pursuant to Section 1203.49 of the Penal Code. Any
federal-level criminal offender record requests to the Department of
Justice shall be submitted with fingerprint images and related
information required by the Department of Justice for the purposes of
obtaining information as to the existence and content of a record of
an out-of-state or federal conviction or arrest of a person or
information regarding any out-of-state or federal crimes or arrests
for which the Department of Justice establishes that the person is
free on bail, or on his or her own recognizance pending trial or
appeal. The Department of Justice shall forward to the Federal Bureau
of Investigation any requests for federal summary criminal history
information received pursuant to this section. The Department of
Justice shall review the information returned from the Federal Bureau
of Investigation and shall compile and disseminate a fitness
determination to the licensed adoption agency.
(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be included
in the report to the court.
(c) (1) A licensed adoption agency shall not give final approval
for an adoptive placement in any home in which the prospective
adoptive parent, or any adult living in the prospective adoptive
home, has a felony conviction for either of the following:
(A) Any felony conviction for child abuse or neglect, spousal
abuse, crimes against a child, including child pornography, or for a
crime involving violence, including rape, sexual assault, or
homicide, but not including other physical assault and battery. For
purposes of this subdivision, crimes involving violence means those
violent crimes contained in clause (i) of subparagraph (A), and
subparagraph (B), of paragraph (1) of subdivision (g) of Section 1522
of the Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.
(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. Sec. 670 et seq.).
(d) Any fee charged by a law enforcement agency for fingerprinting
or for checking or obtaining the criminal record of the applicant
shall be paid by the applicant. The licensed adoption agency may
defer, waive, or reduce the fee if its payment would cause economic
hardship to the prospective adoptive parents detrimental to the
welfare of the adopted child.
SEC. 133. Section 20024 of the Family Code is repealed.
SEC. 134. Section 20039 of the Family Code is repealed.
SEC. 135. Section 2022 of the Fish and Game Code is amended to
read:
2022. (a) For the purposes of this section, the following terms
have the following meanings:
(1) "Bona fide educational or scientific institution" means an
institution that establishes through documentation either of the
following:
(A) Educational or scientific tax exemption, from the federal
Internal Revenue Service or the institution's national, state, or
local tax authority.
(B) Accreditation as an educational or scientific institution,
from a qualified national, regional, state, or local authority for
the institution's location.
(2) "Ivory" means a tooth or tusk from a species of elephant,
hippopotamus, mammoth, mastodon, walrus, warthog, whale, or narwhal,
or a piece thereof, whether raw ivory or worked ivory, and includes a
product containing, or advertised as containing, ivory.
(3) "Rhinoceros horn" means the horn, or a piece thereof, or a
derivative such as powder, of a species of rhinoceros, and includes a
product containing, or advertised as containing, a rhinoceros horn.
(4) "Sale" or "sell" means selling, trading, bartering for
monetary or nonmonetary consideration, giving away in conjunction
with a commercial transaction, or giving away at a location where a
commercial transaction occurred at least once during the same or the
previous calendar year.
(5) "Total value" means either the fair market value or the actual
price paid for ivory or rhinoceros horn, whichever is greater.
(b) Except as provided in subdivision (c), it is unlawful to
purchase, sell, offer for sale, possess with intent to sell, or
import with intent to sell ivory or rhinoceros horn.
(c) The prohibitions set forth in subdivision (b) do not apply to
any of the following:
(1) An employee or agent of the federal or state government
undertaking a law enforcement activity pursuant to federal or state
law, or a mandatory duty required by federal law.
(2) An activity that is authorized by an exemption or permit under
federal law or that is otherwise expressly authorized under federal
law.
(3) Ivory or rhinoceros horn that is part of a musical instrument,
including, but not limited to, a string or wind instrument or piano,
and that is less than 20 percent by volume of the instrument, if the
owner or seller provides historical documentation demonstrating
provenance and showing the item was manufactured no later than 1975.
(4) Ivory or rhinoceros horn that is part of a bona fide antique
and that is less than five percent by volume of the antique, if the
antique status is established by the owner or seller of the antique
with historical documentation demonstrating provenance and showing
the antique to be not less than 100 years old.
(5) The purchase, sale, offer for sale, possession with intent to
sell, or importation with intent to sell ivory or rhinoceros horn for
educational or scientific purposes by a bona fide educational or
scientific institution if both of the following criteria are
satisfied:
(A) The purchase, sale, offer for sale, possession with intent to
sell, or import with intent to sell the ivory or rhinoceros horn is
not prohibited by federal law.
(B) The ivory or rhinoceros horn was legally acquired before
January 1, 1991, and was not subsequently transferred from one person
to another for financial gain or profit after July 1, 2016.
(d) Possession of ivory or rhinoceros horn in a retail or
wholesale outlet commonly used for the buying or selling of similar
items is prima facie evidence of possession with intent to sell. This
evidence does not preclude a finding of intent to sell based on any
other evidence that may serve to establish that intent independently
or in conjunction with this evidence.
(e) For a violation of any provision of this section, or any rule,
regulation, or order adopted pursuant to this section, the following
criminal penalties shall be imposed:
(1) For a first conviction, where the total value of the ivory or
rhinoceros horn is two hundred fifty dollars ($250) or less, the
offense shall be a misdemeanor punishable by a fine of not less than
one thousand dollars ($1,000), or more than ten thousand dollars
($10,000), imprisonment in the county jail for not more than 30 days,
or by both the fine and imprisonment.
(2) For a first conviction, where the total value of the ivory or
rhinoceros horn is more than two hundred fifty dollars ($250), the
offense shall be a misdemeanor punishable by a fine of not less than
five thousand dollars ($5,000), or more than forty thousand dollars
($40,000), imprisonment in the county jail for not more than one
year, or by both the fine and imprisonment.
(3) For a second or subsequent conviction, where the total value
of the ivory or rhinoceros horn is two hundred fifty dollars ($250)
or less, the offense shall be a misdemeanor punishable by a fine of
not less than five thousand dollars ($5,000), or more than forty
thousand dollars ($40,000), imprisonment in county jail for not more
than one year, or by both the fine and imprisonment.
(4) For a second or subsequent conviction, where the total value
of the ivory or rhinoceros horn is more than two hundred fifty
dollars ($250), the offense shall be a misdemeanor punishable by a
fine of not less than ten thousand dollars ($10,000), or more than
fifty thousand dollars ($50,000) or the amount equal to two times the
total value of the ivory or rhinoceros horn involved in the
violation, whichever is greater, imprisonment in county jail for not
more than one year, or by both the fine and imprisonment.
(f) In addition to, and separate from, any criminal penalty
provided for under subdivision (e), an administrative penalty of up
to ten thousand dollars ($10,000) may be imposed for a violation of
any provision of this section, or any rule, regulation, or order
adopted pursuant to this section. Penalties authorized pursuant to
this subdivision may be imposed by the department consistent with all
of the following:
(1) The chief of enforcement issues a complaint to any person or
entity on which an administrative penalty may be imposed pursuant to
this section. The complaint shall allege the act or failure to act
that constitutes a violation, relevant facts, the provision of law
authorizing the administrative penalty to be imposed, and the
proposed penalty amount.
(2) The complaint and order is served by personal notice or
certified mail and informs the party served that the party may
request a hearing no later than 20 days from the date of service. If
a hearing is requested, it shall be scheduled before the director or
his or her designee, which designee shall not be the chief of
enforcement issuing the complaint and order. A request for hearing
shall contain a brief statement of the material facts the party
claims support his or her contention that an administrative penalty
should not be imposed or that an administrative penalty of a lesser
amount is warranted. A party served with a complaint pursuant to this
subdivision waives the right to a hearing if no hearing is requested
within 20 days of service of the complaint, in which case the order
imposing the administrative penalty shall become final.
(3) The director, or his or her designee, shall control the nature
and order of the hearing proceedings. Hearings shall be informal in
nature, and need not be conducted according to the technical rules
relating to evidence. The director, or his or her designee, shall
issue a final order within 45 days of the close of the hearing. A
final copy of the order shall be served by certified mail upon the
party served with the complaint.
(4) A party may obtain review of the final order by filing a
petition for a writ of mandate with the superior court within 30 days
of the date of service of the final order. The administrative
penalty shall be due and payable to the department within 60 days
after the time to seek judicial review has expired or, where the
party has not requested a hearing of the order, within 20 days after
the order imposing an administrative penalty becomes final.
(g) For any conviction or other entry of judgment imposed by a
court for a violation of this section resulting in a fine, the court
may pay one-half of the fine, but not to exceed five hundred dollars
($500), to any person giving information that led to the conviction
or other entry of judgment. This reward shall not apply if the
informant is a regular salaried law enforcement officer, or officer
or agent of the department.
(h) Upon conviction or other entry of judgment for a violation of
this section, any seized ivory or rhinoceros horn shall be forfeited
and, upon forfeiture, either maintained by the department for
educational or training purposes, donated by the department to a bona
fide educational or scientific institution, or destroyed.
(i) Administrative penalties collected pursuant to this section
shall be deposited in the Fish and Game Preservation Fund and used
for law enforcement purposes upon appropriation by the Legislature.
(j) This section does not preclude enforcement under Section 653o
of the Penal Code.
SEC. 136. Section 6440 of the Fish and Game Code is amended to
read:
6440. The Legislature finds and declares that triploid grass carp
have the potential to control aquatic nuisance plants in non-public
waters allowing for reduced chemical control but that the threat that
grass carp pose to aquatic habitat may outweigh its benefits. It is
the intent of this section to allow the department to use its
management authority to provide for the long-term health of the
ecosystem in the state, including the aquatic ecosystem, and, in that
context, manage grass carp either through control of movement,
eradication of populations, acquisition of habitat, and any other
action that the department finds will maintain the biological
diversity and the long term, overall health of the state's
environment. The department shall undertake the management of grass
carp in a manner that is consistent with provisions of this code,
and, for the purposes of this section, the department shall define
management as handling, controlling, destroying, or moving species.
The Legislature does not intend for this section to provide a right
for the use of triploid grass carp if the department finds that use
of the species poses an unacceptable risk to the state's existing
ecosystem.
SEC. 137. Section 7704 of the Fish and Game Code is amended to
read:
7704. (a) It is unlawful to cause or permit deterioration or
waste of a fish taken in the waters of this state, or brought into
this state, or to take, receive, or agree to receive more fish than
can be used without deterioration, waste, or spoilage.
(b) Except as permitted by this code, it is unlawful to use a
fish, except fish offal, in a reduction plant or by a reduction
process.
(c) Except as permitted by this code or by regulation of the
commission, it is unlawful to sell, purchase, deliver for a
commercial purpose, or possess on a commercial fishing vessel
registered pursuant to Section 7881, a shark fin or tail or part of a
shark fin or tail that has been removed from the carcass. However, a
thresher shark fin or tail that has been removed from the carcass
and whose original shape remains unaltered may be possessed on a
registered commercial fishing vessel if the carcass corresponding to
the fin or tail is also possessed.
SEC. 138. Section 12029 of the Fish and Game Code is amended to
read:
12029. (a) The Legislature finds and declares all of the
following:
(1) The environmental impacts associated with marijuana
cultivation have increased, and unlawful water diversions for
marijuana irrigation have a detrimental effect on fish and wildlife
and their habitat, which are held in trust by the state for the
benefit of the people of the state.
(2) The remediation of existing marijuana cultivation sites is
often complex and the permitting of these sites requires greater
department staff time and personnel expenditures. The potential for
marijuana cultivation sites to significantly impact the state's fish
and wildlife resources requires immediate action on the part of the
department's lake and streambed alteration permitting staff.
(b) In order to address unlawful water diversions and other
violations of this code associated with marijuana cultivation, the
department shall establish the watershed enforcement program to
facilitate the investigation, enforcement, and prosecution of these
offenses.
(c) The department, in coordination with the State Water Resources
Control Board, shall establish a permanent multiagency task force to
address the environmental impacts of marijuana cultivation. The
multiagency task force, to the extent feasible and subject to
available resources, shall expand its enforcement efforts on a
statewide level to ensure the reduction of adverse impacts of
marijuana cultivation on fish and wildlife and their habitats
throughout the state.
(d) In order to facilitate the remediation and permitting of
marijuana cultivation sites, the department shall adopt regulations
to enhance the fees on any entity subject to Section 1602 for
marijuana cultivation sites that require remediation. The fee
schedule established pursuant to this subdivision shall not exceed
the fee limits in Section 1609.
SEC. 139. Section 14651.5 of the Food and Agricultural Code is
amended to read:
14651.5. (a) The department shall levy an administrative penalty
against a person who violates this chapter in an amount of not more
than five thousand dollars ($5,000) for each violation. The amount of
the penalty assessed for each violation shall be based upon the
nature of the violation, the seriousness of the effect of the
violation upon the effectuation of the purposes and provisions of
this chapter, and the impact of the penalty on the violator,
including the deterrent effect on future violations.
(b) Upon a finding that the violation is minor or unintentional,
in lieu of an administrative penalty, the secretary may issue a
notice of warning.
(c) A person against whom an administrative penalty is levied
shall be afforded an opportunity for a hearing before the secretary,
upon a request made within 30 days after the date of issuance of the
notice of penalty. At the hearing, the person shall be given the
right to present evidence on his or her own behalf. If a hearing is
not requested, the administrative penalty shall constitute a final
and nonreviewable order.
(d) If a hearing is held, review of the decision of the secretary
may be sought by the person against whom the administrative penalty
is levied within 30 days of the date of the final order of the
secretary pursuant to Section 1094.5 of the Code of Civil Procedure.
(e) After completion of the hearing procedure pursuant to
subdivision (c), the secretary may file a certified copy of the
department's final decision that directs payment of an administrative
penalty, and, if applicable, any order denying a petition for a writ
of administrative mandamus, with the clerk of the superior court of
any county that has jurisdiction over the matter. Judgment shall be
entered immediately by the clerk in conformity with the decision or
order. Fees shall not be charged by the clerk of the superior court
for performance of any official services required in connection with
the entry of judgment and the satisfaction of the judgment pursuant
to this section.
SEC. 140. Section 27581.1 of the Food and Agricultural Code is
amended to read:
27581.1. (a) On or before January 1, 2017, the secretary shall
adopt regulations classifying violations of this chapter, or any
regulation adopted pursuant to this chapter, as "minor," subject to a
penalty from fifty dollars ($50) to four hundred dollars ($400),
inclusive, "moderate," subject to a penalty from four hundred one
dollars ($401) to one thousand dollars ($1,000), inclusive, or
"serious," subject to a penalty from one thousand one dollars
($1,001) to ten thousand dollars ($10,000), inclusive.
(b) The penalty schedule described in this section shall apply to
civil penalties imposed pursuant to Section 27581.4 and
administrative penalties imposed pursuant to Section 27583.
(c) The department shall post on its Internet Web site the penalty
schedule described in this section when it is adopted.
SEC. 141. Section 27583.2 of the Food and Agricultural Code is
amended to read:
27583.2. If the secretary levies an administrative penalty
pursuant to Section 27583, the following shall apply:
(a) The person charged with the violation shall be notified of the
proposed action in accordance with subdivision (b). The notice shall
include the nature of the violation, the amount of the proposed
administrative penalty, and the right to request a hearing to appeal
the administrative action.
(b) (1) Notice shall be sent by certified mail to one of the
following:
(A) The address of the person charged, as provided by any license
or registration issued by the department, which is not limited to a
certificate of registration issued
pursuant to this chapter.
(B) The address of an agent for service of process for the person
charged, as filed with the Secretary of State.
(C) If an address described in subparagraph (A) or (B) is not
available, the last known address of the person charged.
(2) Notice that is sent to any of the addresses described in
paragraph (1) shall be considered received, even if delivery is
refused or if the notice is not accepted at that address.
(3) The person charged shall have the right to appeal the proposed
action by requesting a hearing within 20 days of the issuance of the
notice of the proposed action.
(c) If a hearing is requested, the secretary shall schedule a
hearing within 45 days of the request, with notice of the time and
place of the hearing given at least 10 days before the date of the
hearing. At the hearing, the person charged shall be given an
opportunity to review the secretary's evidence and to present
evidence on his or her own behalf. If a hearing is not timely
requested, the secretary may take the proposed action without a
hearing.
(d) The secretary shall issue a decision within 30 days of the
conclusion of the hearing, which decision shall become effective
immediately.
(e) The secretary shall send a copy of the notice of the proposed
action to the commissioner of the county in which the violation took
place at the same time notice is sent pursuant to subdivision (b).
Additionally, the secretary shall inform the commissioner of the
county in which the action was initiated of violations for which a
penalty has been assessed.
(f) If the proposed action is not overturned, in addition to the
levy of an administrative penalty, the secretary may recover from the
person charged any other reasonable costs incurred by the department
in connection with administering the hearing to appeal the proposed
action.
(g) Revenues collected by the secretary pursuant to this section
shall be deposited into the Department of Food and Agriculture Fund
for use by the department in administering this chapter, when
appropriated to the department for that purpose.
SEC. 142. Section 27583.4 of the Food and Agricultural Code is
amended to read:
27583.4. If a commissioner levies an administrative penalty
pursuant to Section 27583, the following shall apply:
(a) (1) Before an administrative penalty is levied, the person
charged with the violation shall receive written notice of the
proposed action in accordance with paragraph (2). The notice shall
include the nature of the violation, the amount of the proposed
penalty, and the right to request a hearing to appeal the
administrative action.
(2) (A) Notice shall be sent by certified mail to one of the
following:
(i) The address of the person charged, as provided by any license
or registration issued by the department, which is not limited to a
certificate of registration issued pursuant to this chapter.
(ii) The address of an agent for service of process for the person
charged, as filed with the Secretary of State.
(iii) If an address described in clause (i) or (ii) is not
available, the last known address of the person charged.
(B) Notice that is sent to any of the addresses described in
subparagraph (A) shall be considered received, even if delivery is
refused or if the notice is not accepted at that address.
(C) The person charged shall have the right to appeal the proposed
action by requesting a hearing within 20 days of the issuance of the
notice of the proposed action.
(3) If a hearing is requested, the commissioner shall schedule a
hearing within 45 days of the request, with notice of the time and
place of the hearing given at least 10 days before the date of the
hearing. At the hearing, the person charged shall be given an
opportunity to review the commissioner's evidence and to present
evidence on his or her own behalf. If a hearing is not timely
requested, the commissioner may take the proposed action without a
hearing. If the person charged, or his or her legal representative,
fails to appear, the commissioner shall prevail in the proceedings.
(4) The commissioner shall issue a decision within 30 days of the
conclusion of the hearing, which decision shall become effective
immediately.
(5) The commissioner shall send a copy of the notice of the
proposed action to the secretary at the same time notice is sent to
the person charged with the violation.
(b) If the person, upon whom the commissioner levied an
administrative penalty, requested and appeared at a hearing, the
person may appeal the commissioner's decision to the secretary within
30 days of the date of receiving a copy of the commissioner's
decision. The following procedures apply to the appeal:
(1) The appeal shall be in writing and signed by the appellant or
his or her authorized agent, state the grounds for the appeal, and
include a copy of the commissioner's decision. The appellant shall
file a copy of the appeal with the commissioner at the same time it
is filed with the secretary.
(2) The appellant and the commissioner, at the time of filing the
appeal, within 10 days thereafter, or at a later time prescribed by
the secretary, may present the record of the hearing and a written
argument to the secretary stating the ground for affirming,
modifying, or reversing the commissioner's decision.
(3) The secretary may grant oral arguments upon application made
at the time written arguments are filed.
(4) If an application to present an oral argument is granted,
written notice of the time and place for the oral argument shall be
given at least 10 days before the date set for oral argument. The
times may be altered by mutual agreement of the appellant, the
commissioner, and the secretary.
(5) The secretary shall decide the appeal on the record of the
hearing, including the written evidence and the written argument
described in paragraph (2), that he or she has received. If the
secretary finds substantial evidence in the record to support the
commissioner's decision, the secretary shall affirm the decision.
(6) The secretary shall render a written decision within 45 days
of the date of appeal or within 15 days of the date of oral arguments
or as soon thereafter as practical.
(7) On an appeal pursuant to this section, the secretary may
affirm the commissioner's decision, modify the commissioner's
decision by reducing or increasing the amount of the penalty levied
so that it is consistent with the penalty schedule described in
Section 27581.1, or reverse the commissioner's decision. An
administrative penalty increased by the secretary shall not be higher
than that proposed in the commissioner's notice of proposed action
given pursuant to subdivision (a). A copy of the secretary's decision
shall be delivered or mailed to the appellant and the commissioner.
(8) Any person who does not request a hearing with the
commissioner pursuant to an administrative penalty assessed under
subdivision (a) shall not file an appeal to the secretary pursuant to
this subdivision.
(c) If the proposed action is not overturned, in addition to the
levy of an administrative penalty, the commissioner may recover from
the person charged any other reasonable costs incurred by the
commissioner in connection with administering the hearing to appeal
the proposed action.
(d) Revenues from administrative penalties levied by the
commissioner shall be deposited in the general fund of the county
and, upon appropriation by the board of supervisors, shall be used by
the commissioner to carry out his or her responsibilities under this
chapter. The commissioner shall inform the secretary of any
violations for which a penalty has been assessed.
SEC. 143. Section 52332 of the Food and Agricultural Code is
amended to read:
52332. The secretary, by regulation, may adopt all of the
following:
(a) A list of the plants and crops that the secretary finds are or
may be grown in this state.
(b) A list of the plants and crops that the secretary finds are
detrimental to agriculture if they occur incidentally in other crops,
and which, therefore, are classed as weed seed except if sold alone
or as a specific constituent of a definite seed mixture.
(c) A list of noxious weed seed that the secretary finds are
prohibited noxious weed seed, as defined in this chapter.
(d) A list of those noxious weed seed that are not classified as
prohibited noxious weed seed and are classified by this chapter as
restricted noxious weed seed.
(e) A list of substances that are likely to be used for treating
grain or other crop seed that the secretary finds and determines are
toxic to human beings or animals if used, and an appropriate warning
or caution statement for each substance.
(f) (1) (A) Methods and procedures, upon the recommendation of the
board, for the conciliation, mediation, or arbitration of disputes
between labelers and any persons concerning conformance with label
statements, advertisements, financial terms or the lack of payment by
a dealer to a grower, or other disputes regarding the quality or
performance of seed. The methods and procedures shall be a mandatory
prerequisite to pursuing other dispute resolution mechanisms,
including, but not limited to, litigation. However, if conciliation,
mediation, or arbitration proceedings are commenced under this
section to resolve a controversy, the statute of limitations that
applies to a civil action concerning that controversy is tolled upon
commencement of the conciliation, mediation, or arbitration
proceedings, and until 30 days after the completion of those
proceedings. As used in this subdivision, "completion of those
proceedings" means the filing of a statement of agreement or
nonagreement by the conciliator or mediator, or the rendering of a
decision by an arbitrator or arbitration committee.
(B) If a proceeding for the conciliation, mediation, or
arbitration of a dispute between a dealer and a grower is commenced
under this subdivision for conformance with the financial terms by a
dealer to a grower, and the decision in the proceeding is in favor of
the grower, the decision may include a provision requiring
compensation to the grower for the estimated value of the seed
production services a grower provides to a dealer, including, but not
limited to, labor, care, and expense in growing and harvesting that
product.
(C) If a dealer fails to comply with the financial obligations of
a judgment rendered in a conciliation, mediation, or arbitration
proceeding between a dealer and a grower commenced pursuant to this
subdivision following the conclusion of all appeals in the
proceeding, the secretary may revoke the dealer's registration and
prevent the dealer from renewing his or her registration until the
time the financial obligation is fulfilled.
(2) Conciliation, mediation, or arbitration shall not affect any
enforcement action by the secretary pursuant to this chapter.
Regulations adopted by the secretary for the mandatory conciliation,
mediation, or arbitration of disputes shall require that adequate
notice be provided on the seed label notifying any buyer of the
requirement to submit a dispute to mandatory conciliation, mediation,
or arbitration as a prerequisite to other dispute resolution
mechanisms, including litigation.
(g) Additional labeling requirements for coated, pelleted,
encapsulated, mat, tape, or any other germination medium or device
used on seed in order that the purchaser or consumer will be informed
as to the actual amount of seed purchased.
SEC. 144. Section 55631 of the Food and Agricultural Code is
amended to read:
55631. (a) Every producer of any farm product that sells any
product that is grown by him or her to any processor under contract,
express or implied, in addition to all other rights and remedies that
are provided for by law, has a lien upon that product and upon all
processed or manufactured forms of that farm product for his or her
labor, care, and expense in growing and harvesting that product. The
lien shall be to the extent of the agreed price, if any, for that
product so sold. If there is no agreed price or a method for
determining the price that is agreed upon, the extent of the lien is
the value of the farm product as of the date of the delivery. Any
portion of that product or the processed or manufactured forms of
that product, in excess of the amount necessary to satisfy the total
amount owed to producers under contract, shall be free and clear of
that lien.
(b) Every producer of a flower, agricultural, or vegetable seed
that sells seed that is grown by him or her, when the seed was
purchased or supplied by the grower and not supplied by the dealer or
an independent third party who paid for the seed, to any seed dealer
under contract, express or implied, in addition to all other rights
and remedies that are provided for by law, has a lien upon that
product and upon all processed or manufactured forms of that product
for his or her labor, care, and expense in growing and harvesting
that product. The lien shall be to the extent of the agreed price, if
any, for that product so sold. If there is no agreed price or a
method for determining the price that is agreed upon, the extent of
the lien is the value of that product as of the date of the delivery.
Any portion of that product or the processed or manufactured forms
of that product, in excess of the amount necessary to satisfy the
total amount owed to producers under contract, shall be free and
clear of that lien.
SEC. 145. Section 56109 of the Food and Agricultural Code is
amended to read:
56109. "Farm product" includes every agricultural, horticultural,
viticultural, and vegetable product of the soil, poultry and poultry
products, livestock products and livestock not for immediate
slaughter, bees and apiary products, hay, dried beans, honey, and cut
flowers. It does not, however, include any timber or timber product,
flower or agricultural or vegetable seed, any milk product that is
subject to the licensing and bonding provisions of Chapter 2
(commencing with Section 61801) of Part 3 of Division 21, any
aquacultural product, or cattle sold to any person who is bonded
under the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181
et seq.).
SEC. 146. Section 67132 of the Food and Agricultural Code is
amended to read:
67132. Upon the finding of 11 voting members of the commission if
the commission consists of three or five districts, or of 10 voting
members of the commission if the commission consists of four
districts, that this chapter has not tended to effectuate its
declared purposes, the commission may recommend to the secretary that
the operations of the commission shall be suspended, provided that
the suspension shall not become effective until the expiration of the
current marketing season. The secretary shall, upon receipt of the
recommendation, or upon a petition filed with him or her requesting
the suspension, signed by 15 percent of the producers by number who
produced not less than 15 percent of the volume in the immediately
preceding year, cause a referendum to be conducted among the listed
producers to determine if the operation of this chapter and the
operations of the commission shall be suspended, and shall establish
a referendum period, which shall not be less than 10 days nor more
than 60 days in duration. The secretary is authorized to prescribe
any additional procedure necessary to conduct the referendum. At the
close of the established referendum period, the secretary shall
tabulate the ballots filed during the period. If at least 40 percent
of the total number of producers, on a list established by the
secretary, marketing 40 percent of the total volume marketed by all
producers during the last completed marketing season, participate in
the referendum, the secretary shall suspend this chapter upon the
expiration of the current marketing season, if he or she finds either
one of the following:
(a) Sixty-five percent or more of the producers who voted in the
referendum voted in favor of the suspension, and the producers so
voting marketed 51 percent or more of the total quantity of avocados
marketed in the preceding marketing season by all of the producers
who voted in the referendum.
(b) Fifty-one percent or more of the producers who voted in the
referendum voted in favor of suspension, and the producers so voting
marketed 65 percent or more of the total quantity of avocados
marketed in the preceding season by all of the producers who voted in
the referendum.
SEC. 147. Section 76953.5 of the Food and Agricultural Code is
amended to read:
76953.5. (a) Before the referendum vote is conducted by the
secretary, the proponents of the council shall deposit with the
secretary the amount that the secretary determines is necessary to
defray the expenses of preparing the necessary lists and information
and conducting the referendum vote.
(b) Any funds not used in carrying out this article shall be
returned to the proponents of the council who deposited the funds
with the secretary.
(c) Upon establishment of the council, the council may reimburse
the proponents of the council for any funds deposited with the
secretary that were used in carrying out this article, and for any
legal expenses and costs incurred in establishing the council.
(d) After approval by the Commercial Salmon Trollers Advisory
Committee created pursuant to Section 7862 of the Fish and Game Code,
the Department of Fish and Wildlife may expend funds collected
pursuant to Section 7861 of the Fish and Game Code, for payment to
the secretary to pay necessary costs incurred in conducting the
implementation referendum vote. If the commercial salmon vessel
operators who voted in the implementation referendum voted in favor
of implementing this article, as provided in Section 76952, the
council shall reimburse the Commercial Salmon Stamp Account in the
Fish and Game Preservation Fund all amounts received from that fund.
SEC. 147.5. Section 421 of the Government Code is amended to read:
421. The golden poppy (Eschscholzia californica) is the official
State Flower. April 6 of each year is hereby designated California
Poppy Day.
SEC. 148. Section 1225 of the Government Code is amended to read:
1225. (a) An executive officer, a judicial officer, and a Member
of the Legislature may administer and certify oaths.
(b) A former judge of a court of record in this state who retired
or resigned from office shall be deemed a judicial officer for
purposes of this section, if he or she satisfies the conditions set
forth in subdivision (c) of Section 2093 of the Code of Civil
Procedure.
(c) A law, rule, or regulation regarding the confidentiality of
proceedings of the Commission on Judicial Performance shall not be
construed to prohibit the commission from issuing a certificate as
provided for in this section.
SEC. 149. The heading of Chapter 15 (commencing with Section 5970)
of Division 6 of Title 1 of the Government Code, as amended and
renumbered by Section 182 of Chapter 303 of the Statutes of 2015, is
amended and renumbered to read:
CHAPTER 14.5. AWARDING OF CONTRACTS
SEC. 150. Section 5970 of the Government Code is amended to read:
5970. As used in this chapter, the following phrases have the
following meanings:
(a) "Person" means any broker, dealer, municipal securities
dealer, investment advisor, or investment firm.
(b) "Regulatory agency" means the Department of Business
Oversight, the securities administrators or other similar regulatory
authority in any other state, the Securities and Exchange Commission,
the Financial Industry Regulatory Authority, the Municipal
Securities Rulemaking Board, the Commodity Futures Trading
Commission, or any other self-regulatory organization.
(c) "State or local government" means the state, any department,
agency, board, commission, or authority of the state, or any city,
city and county, county, public district, public corporation,
authority, agency, board, commission, or other public entity.
SEC. 151. Section 6254.5 of the Government Code is amended to
read:
6254.5. Notwithstanding any other law, if a state or local agency
discloses a public record that is otherwise exempt from this
chapter, to a member of the public, this disclosure shall constitute
a waiver of the exemptions specified in Section 6254 or 6254.7, or
other similar provisions of law. For purposes of this section,
"agency" includes a member, agent, officer, or employee of the agency
acting within the scope of his or her membership, agency, office, or
employment.
This section, however, shall not apply to disclosures:
(a) Made pursuant to the Information Practices Act (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code) or discovery proceedings.
(b) Made through other legal proceedings or as otherwise required
by law.
(c) Within the scope of disclosure of a statute that limits
disclosure of specified writings to certain purposes.
(d) Not required by law, and prohibited by formal action of an
elected legislative body of the local agency that retains the
writings.
(e) Made to a governmental agency that agrees to treat the
disclosed material as confidential. Only persons authorized in
writing by the person in charge of the agency shall be permitted to
obtain the information. Any information obtained by the agency shall
only be used for purposes that are consistent with existing law.
(f) Of records relating to a financial institution or an affiliate
thereof, if the disclosures are made to the financial institution or
affiliate by a state agency responsible for the regulation or
supervision of the financial institution or affiliate.
(g) Of records relating to a person who is subject to the
jurisdiction of the Department of Business Oversight, if the
disclosures are made to the person who is the subject of the records
for the purpose of corrective action by that person, or, if a
corporation, to an officer, director, or other key personnel of the
corporation for the purpose of corrective action, or to any other
person to the extent necessary to obtain information from that person
for the purpose of an investigation by the Department of Business
Oversight.
(h) Made by the Commissioner of Business Oversight under Section
450, 452, 8009, or 18396 of the Financial Code.
(i) Of records relating to a person who is subject to the
jurisdiction of the Department of Managed Health Care, if the
disclosures are made to the person who is the subject of the records
for the purpose of corrective action by that person, or, if a
corporation, to an officer, director, or other key personnel of the
corporation for the purpose of corrective action, or to any other
person to the extent necessary to obtain information from that person
for the purpose of an investigation by the Department of Managed
Health Care.
SEC. 152. Section 7161 of the Government Code is amended to read:
7161. "Security" has the same meaning as defined in Section 8102
of the Commercial Code.
SEC. 153. Section 8594.15 of the Government Code is amended to
read:
8594.15. (a) For purposes of this section, the following terms
have the following meanings:
(1) "Serious bodily injury" means an injury that involves, either
at the time of the actual injury or at a later time, a substantial
risk of serious and permanent disfigurement, a substantial risk of
protracted loss or impairment of the function of any part of the
body, or a break, fracture, or burn of the second or third degree.
(2) "Yellow Alert" means a notification system, activated pursuant
to subdivision (b), designed to issue and coordinate alerts with
respect to a hit-and-run incident resulting in the death or injury of
a person as described in Section 20001 of the Vehicle Code.
(b) (1) If a hit-and-run incident is reported to a law enforcement
agency, and that agency determines that the requirements of
subdivision (c) are met, the agency may request the Department of the
California Highway Patrol to activate a Yellow Alert. If the
Department of the California Highway Patrol concurs that the
requirements of subdivision (c) are met, it may activate a Yellow
Alert within the geographic area requested by the investigating law
enforcement agency.
(2) Radio, television, and cable and satellite systems are
encouraged, but are not required, to cooperate with disseminating the
information contained in a Yellow Alert.
(3) Upon activation of a Yellow Alert, the Department of the
California Highway Patrol shall assist the investigating law
enforcement agency by issuing the Yellow Alert via a changeable
message sign.
(4) If there are multiple Yellow Alerts requested, the Department
of the California Highway Patrol may prioritize the activation of
alerts based on any factor, including, but not limited to, the
severity of the injury, the time elapsed between a hit-and-run
incident and the request, or the likelihood that an activation would
reasonably lead to the apprehension of a suspect.
(c) A law enforcement agency may request that a Yellow Alert be
activated if that agency determines that all of the following
conditions are met in regard to the investigation of the hit-and-run
incident:
(1) A person has been killed or has suffered serious bodily injury
due to a hit-and-run incident.
(2) There is an indication that a suspect has fled the scene
utilizing the state highway system or is likely to be observed by the
public on the state highway system.
(3) The investigating law enforcement agency has additional
information concerning the suspect or the suspect's vehicle,
including, but not limited to, any of the following:
(A) The complete license plate number of the suspect's vehicle.
(B) A partial license plate number and additional unique
identifying characteristics, such as the make, model, and color of
the suspect's vehicle, which could reasonably lead to the
apprehension of the suspect.
(C) The identity of the suspect.
(4) Public dissemination of available information could either
help avert further harm or accelerate apprehension of the suspect
based on any factor, including, but not limited to, the severity of
the injury, the time elapsed between a hit-and-run incident and the
request, or the likelihood that an activation would reasonably lead
to the apprehension of a suspect.
(d) This section shall remain in effect only until January 1,
2019, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2019, deletes or extends
that date.
SEC. 154. Section 8670.13 of the Government Code is amended to
read:
8670.13. (a) The administrator shall periodically evaluate the
feasibility of requiring new technologies to aid in prevention,
response, containment, cleanup, and wildlife rehabilitation.
(b) (1) On or before January 1, 2017, the administrator shall
submit a report to the Legislature, pursuant to Section 9795,
assessing the best achievable technology of equipment for oil spill
prevention, preparedness, and response.
(2) The report shall evaluate studies of estimated recovery system
potential as a methodology for rating equipment in comparison to
effective daily recovery capacity.
(3) Pursuant to Section 10231.5, this subdivision is inoperative
on July 1, 2020.
(c) (1) Considering, among other things, the report prepared
pursuant to subdivision (b), the administrator shall update
regulations governing the adequacy of oil spill contingency plans for
best achievable technologies for oil spill prevention and response
no later than July 1, 2018.
(2) The updated regulations shall enhance the capabilities for
prevention, response, containment, cleanup, and wildlife
rehabilitation.
(d) (1) The administrator shall direct the Harbor Safety
Committees, established pursuant to Section 8670.23, to assess the
presence and capability of tugs within their respective geographic
areas of responsibility to provide emergency towing of tank vessels
and nontank vessels to arrest their drift or otherwise guide
emergency transit.
(2) The assessments for harbors in the San Francisco Bay area and
in the Los Angeles-Long Beach area shall be initiated by May 1, 2016.
The assessments for the other harbors shall be initiated by January
1, 2020.
(3) The assessment shall consider, among other things, data from
available United States Coast Guard Vessel Traffic Systems, relevant
incident and accident data, any relevant simulation models, and
identification of any transit areas where risks are higher.
(4) The assessment shall consider the condition of tank and
nontank vessels calling on harbors, including the United States Coast
Guard's marine inspection program and port state control program
regarding risks due to a vessel's hull or engineering material
deficiencies, or inadequate crew training and professionalism.
SEC. 155. Section 8670.13.3 of the Government Code is amended to
read:
8670.13.3. If dispersants are used in response to an oil spill in
state waters, the administrator shall provide written notification
of their use to the Legislature within three days of the use. The
administrator shall provide the Legislature with written
justification of that use, including copies of key supporting
documentation used by the federal on-scene coordinator and the
federal Regional Response Team as soon as those materials are
released. Within two months of the use of dispersants in state
waters, the administrator shall also provide a report to the
Legislature on the effectiveness of the dispersants used, including,
but not limited to, results of any available monitoring data to
determine whether the dispersant use resulted in overall
environmental benefit or harm. The written notification,
justification, and report shall be submitted pursuant to Section
9795.
SEC. 156. Section 8670.28 of the Government Code is amended to
read:
8670.28. (a) The administrator, taking into consideration the
facility or vessel contingency plan requirements of the State Lands
Commission, the Office of the State Fire Marshal, the California
Coastal Commission, and other state and federal agencies, shall adopt
and implement regulations governing the adequacy of oil spill
contingency plans to be prepared and implemented under this article.
All regulations shall be developed in consultation with the Oil Spill
Technical Advisory Committee, and shall be consistent with the
California oil spill contingency plan and not in conflict with the
National Contingency Plan. The regulations shall provide for the best
achievable protection of the waters and natural resources of the
state. The regulations shall permit the development, application, and
use of an oil spill contingency plan for similar vessels, pipelines,
terminals, and facilities within a single company or organization,
and across companies and organizations. The regulations shall, at a
minimum, ensure all of the following:
(1) All areas of state waters are at all times protected by
prevention, response, containment, and cleanup equipment and
operations.
(2) Standards set for response, containment, and cleanup equipment
and operations are maintained and regularly improved to protect the
resources of the state.
(3) All appropriate personnel employed by operators required to
have a contingency plan receive training in oil spill response and
cleanup equipment usage and operations.
(4) Each oil spill contingency plan provides for appropriate
financial or contractual arrangements for all necessary equipment and
services for the response, containment, and cleanup of a reasonable
worst case oil spill scenario for each area the plan addresses.
(5) Each oil spill contingency plan demonstrates that all
protection measures are being taken to reduce the possibility of an
oil spill occurring as a result of the operation of the facility or
vessel. The protection measures shall include, but not be limited to,
response to disabled vessels and identification of those measures
taken to comply with requirements of Division 7.8 (commencing with
Section 8750) of the Public Resources Code.
(6) Each oil spill contingency plan identifies the types of
equipment that can be used, the location of the equipment, and the
time taken to deliver the equipment.
(7) Each facility, as determined by the administrator, conducts a
hazard and operability study to identify the hazards associated with
the operation of the facility, including the use of the facility by
vessels, due to operating error, equipment failure, and external
events. For the hazards identified in the hazard and operability
studies, the facility shall conduct an offsite consequence analysis
that, for the most likely hazards, assumes pessimistic water and air
dispersion and other adverse environmental conditions.
(8) Each oil spill contingency plan contains a list of contacts to
call in the event of a drill, threatened discharge of oil, or
discharge of oil.
(9) Each oil spill contingency plan identifies the measures to be
taken to protect the recreational and environmentally sensitive areas
that would be threatened by a reasonable worst case oil spill
scenario.
(10) Standards for determining a reasonable worst case oil spill.
However, for a nontank vessel, the reasonable worst case is a spill
of the total volume of the largest fuel tank on the nontank vessel.
(11) Each oil spill contingency plan specifies an agent for
service of process. The agent shall be located in this state.
(b) The regulations and guidelines adopted pursuant to this
section shall also include provisions to provide for public review
and comment on submitted oil spill contingency plans.
(c) The regulations adopted pursuant to this section shall
specifically address the types of equipment that will be necessary,
the maximum time that will be allowed for deployment, the maximum
distance to cooperating response entities, the amounts of dispersant,
and the maximum time required for application should the use of
dispersants be approved. Upon a determination by the administrator
that booming is appropriate at the site and necessary to provide best
achievable protection, the regulations shall require that vessels
engaged in lightering operations be boomed prior to the commencement
of operations.
(d) The administrator shall adopt regulations and guidelines for
oil spill contingency plans with regard to mobile transfer units,
small marine fueling facilities, and vessels carrying oil as
secondary cargo that acknowledge the reduced risk of damage from oil
spills from those units, facilities, and vessels while maintaining
the best achievable protection for the public health and safety and
the environment.
SEC. 157. Section 8670.95 of the Government Code is amended and
renumbered to read:
8670.5.5. If any provision of this chapter or the application
thereof to any person or circumstances is held invalid, that
invalidity shall not affect other provisions or applications of the
chapter that can be given effect without the invalid provision or
application, and to this end the provisions of this chapter are
severable.
SEC. 158. Section 14670.36 of the Government Code is amended to
read:
14670.36. (a) Notwithstanding any other law, the Director of
General Services, with the consent of the Director of Developmental
Services, may, in the best interests of the state, let to any person
or entity real property not exceeding 20 acres located within the
grounds of the Fairview Developmental Center for a period not to
exceed 55 years, at a price that will permit the development of
affordable housing for people with developmental disabilities.
(b) Notwithstanding any other law, the lease authorized by this
section may be assignable subject to approval by the Director of
General Services, with the consent of the Director of Developmental
Services. The lease shall do all of the following:
(1) Provide housing for individuals who qualify based upon
criteria established by the Department of Developmental Services. A
minimum of 20 percent of the housing units developed shall be
available and affordable to individuals with developmental
disabilities served by a regional center pursuant to the Lanterman
Developmental Disabilities Services Act (Chapter 1 (commencing with
Section 4500) of Division 4.5 of the Welfare and Institutions Code).
When filling vacancies, priority for housing shall be given to
individuals transitioning from a developmental center or at risk for
admission to a developmental center.
(2) Allow for lease revenues or other proceeds received by the
state under the leases for projects authorized by this section and
Section 14670.35, to be utilized by the Department of Developmental
Services to support individuals with developmental disabilities,
including subsidizing rents for those individuals.
(3) Include provisions authorizing the Department of Developmental
Services, or its designee, to provide management oversight and
administration over the housing for individuals with developmental
disabilities and the general operations of the project sufficient to
ensure the purposes of the lease are being carried out and to protect
the financial interests of the state.
(c) The Department of Developmental Services may share in
proceeds, if any, generated from the overall operation of the project
developed pursuant to this section. All proceeds received from the
project authorized by this section and the project authorized by
Section 14670.35, in accordance with the terms of the lease, shall be
deposited in the Department of Developmental Services Trust Fund,
which is hereby created in the State Treasury. Moneys in the
Department of Developmental Services Trust Fund shall be used, upon
appropriation by the Legislature, for the purpose of providing
housing and transitional services for people with developmental
disabilities. Any funds not needed to support individuals with
developmental disabilities shall be transferred to the General Fund
upon the order of the Director of Finance.
(d) The Director of General Services, with the consent of the
Director of Developmental Services, may enter into a lease pursuant
to this section at less than market value, provided that the cost of
administering the lease is recovered.
(e) The project and lease, including off-site improvements
directly related to the housing project authorized by this section,
shall not be deemed a "public works contract" as defined by Section
1101 of the Public Contract Code. However, construction projects
contemplated by the lease authorized by this section shall be
considered "public works," as defined by paragraph (1) of subdivision
(a) of Section 1720 of the Labor Code, for the purpose of prevailing
wage requirements.
SEC. 159. Section 17581.9 of the Government Code is amended to
read:
17581.9. (a) (1) The sum of three billion ninety-eight million
four hundred fifty-five thousand dollars ($3,098,455,000) is hereby
appropriated from the General Fund to the Superintendent of Public
Instruction for allocation to school districts and county
superintendents of schools in the manner, and for the purposes, set
forth in this section.
(2) The sum of six hundred four million forty-three thousand
dollars ($604,043,000) is hereby appropriated from the General Fund
to the Chancellor of the California Community Colleges for allocation
to community college districts in the manner, and for the purposes,
set forth in this section.
(3) For purposes of this section, a school district includes a
county office of education and a charter school.
(b) (1) (A) The Superintendent of Public Instruction shall
allocate forty million dollars ($40,000,000) of the funds
appropriated pursuant to paragraph (1) of subdivision (a) to county
superintendents of schools, as follows:
(i) Each county superintendent of schools shall be allocated the
greater of: (I) thirty thousand dollars ($30,000), multiplied by the
number of school districts for which the county superintendent of
schools has jurisdiction pursuant to Section 1253 of the Education
Code; or (II) eighty thousand dollars ($80,000).
(ii) After the allocations pursuant to clause (i), the balance
shall be allocated in an equal amount per unit of regular average
daily attendance, as those average daily attendance numbers are
reported at the time of the second principal apportionment for the
2014-15 fiscal year.
(B) For purposes of allocating funding pursuant to this paragraph
only, "regular average daily attendance" means the aggregate number
of units of average daily attendance within the county attributable
to all school districts for which the county superintendent of
schools has jurisdiction pursuant to Section 1253 of the Education
Code, charter schools within the county, and the schools operated by
the county superintendent of schools.
(2) It is the intent of the Legislature that county offices of
education will prioritize the use of funds allocated pursuant to
paragraph (1) for investments necessary to support new
responsibilities required under the evolving accountability structure
of the local control funding formula and develop greater capacity
and consistency within and between county offices of education. A
county office of education may encumber funds apportioned pursuant to
this section at any time during the 2015-16 or 2016-17 fiscal year.
(3) The Superintendent shall allocate three billion fifty-eight
million four hundred fifty-five thousand dollars ($3,058,455,000) of
the funds appropriated pursuant to paragraph (1) of subdivision (a)
to school districts on the basis of an equal amount per unit of
regular average daily attendance, as those average daily attendance
numbers are reported at the time of the second principal
apportionment for the 2014-15 fiscal year.
(c) The Chancellor of the California Community Colleges shall
allocate the funds appropriated pursuant to paragraph (2) of
subdivision (a) to community college districts on the basis of an
equal amount per enrolled full-time equivalent student, as those
numbers of students are reported at the time of the second principal
apportionment for the 2014-15 fiscal year.
(d) Allocations made pursuant to this section shall first satisfy
any outstanding claims pursuant to Section 6 of Article XIII B of the
California Constitution for reimbursement of state-mandated local
program costs for any fiscal year. Notwithstanding Section 12419.5
and any amounts that are paid in satisfaction of outstanding claims
for reimbursement of state-mandated local program costs, the
Controller may audit any claim as allowed by law, and may recover any
amount owed by school districts or community college districts
pursuant to an audit only by reducing amounts owed by the state to
school districts or community college districts for any other mandate
claims. Under no circumstances shall a school district or community
college district be required to remit funding back to the state to
pay for disallowed costs identified by a Controller audit of claimed
reimbursable state-mandated local program costs. The Controller shall
not recover any amount owed by a school district or community
college district pursuant to an audit of claimed reimbursable
state-mandated local program costs by reducing any amount owed a
school district or community college district for any purpose other
than amounts owed for any other mandate claims. The Controller shall
apply amounts received by each school district or community college
district against any balances of unpaid claims for reimbursement of
state-mandated local program costs and interest in chronological
order beginning with the earliest claim. The Controller shall report
to each school district and community college district the amounts of
any claims and interest that are offset from funds provided pursuant
to this section, and shall report a summary of the amounts offset
for each mandate for each fiscal year to the Department of Finance
and the fiscal committees of the Legislature.
(e) (1) The governing board of a school district or community
college district may expend the one-time funds received pursuant to
this section for any purpose, as determined by the governing board.
(2) It is the intent of the Legislature that school districts
shall prioritize the use of these one-time funds for professional
development, induction for beginning teachers with a focus on
relevant mentoring, instructional materials, technology
infrastructure, and any other investments necessary to support
implementation of the common core standards in English language arts
and mathematics, the implementation of English language development
standards, and the implementation of the Next Generation Science
standards.
(f) For purposes of making the computations required by Section 8
of Article XVI of the California Constitution, three hundred nineteen
million two hundred thirty-one thousand dollars ($319,231,000) of
the appropriations made by subdivision (a) shall be deemed to be
"General Fund revenues appropriated for school districts," as defined
in subdivision (c) of Section 41202 of the Education Code, for the
2013-14 fiscal year, and included within the "total allocations to
school districts and community college districts from General Fund
proceeds of taxes appropriated pursuant to Article XIII B," as
defined in subdivision (e) of Section 41202 of the Education Code,
for the 2013-14 fiscal year.
(g) For purposes of making the computations required by Section 8
of Article XVI of the California Constitution, ninety-three million
five hundred twenty-nine thousand dollars ($93,529,000) of the
appropriations made by subdivision (a) shall be deemed to be "General
Fund revenues appropriated for community college districts," as
defined in subdivision (d) of Section 41202 of the Education Code,
for the 2013-14 fiscal year, and included within the "total
allocations to school districts and community college districts from
General Fund proceeds of taxes appropriated pursuant to Article XIII
B," as defined in subdivision (e) of Section 41202 of the Education
Code, for the 2013-14 fiscal year.
(h) For purposes of making the computations required by Section 8
of Article XVI of the California Constitution, two billion seven
hundred forty-eight million three hundred forty-nine thousand dollars
($2,748,349,000) of the appropriations made by subdivision (a) shall
be deemed to be "General Fund revenues appropriated for school
districts," as defined in subdivision (c) of Section 41202 of the
Education Code, for the 2014-15 fiscal year, and included within the
"total allocations to school districts and community college
districts from General Fund proceeds of taxes appropriated pursuant
to Article XIII B," as defined in subdivision (e) of Section 41202 of
the Education Code, for the 2014-15 fiscal year.
(i) For purposes of making the computations required by Section 8
of Article XVI of the California Constitution, three hundred
ninety-three million two hundred twenty thousand dollars
($393,220,000) of the appropriations made by subdivision (a) shall be
deemed to be "General Fund revenues appropriated for community
college districts," as defined in subdivision (d) of Section 41202 of
the Education Code, for the 2014-15 fiscal year, and included within
the "total allocations to school districts and community college
districts from General Fund proceeds of taxes appropriated pursuant
to Article XIII B," as defined in subdivision (e) of Section 41202 of
the Education Code, for the 2014-15 fiscal year.
(j) For purposes of making the computations required by Section 8
of Article XVI of the California Constitution, one hundred seventeen
million two hundred ninety-four thousand dollars ($117,294,000) of
the appropriations made by subdivision (a) shall be deemed to be
"General Fund revenues appropriated for community college districts,"
as defined in subdivision (d) of Section 41202 of the Education
Code, for the 2015-16 fiscal year, and included within the "total
allocations to school districts and community college districts from
General Fund proceeds of taxes appropriated pursuant to Article XIII
B," as defined in subdivision (e) of Section 41202 of the Education
Code, for the 2015-16 fiscal year.
(k) For purposes of making the computations required by Section 8
of Article XVI of the California Constitution, thirty million eight
hundred seventy-five thousand dollars ($30,875,000) of the
appropriations made by subdivision (a) shall be deemed to be "General
Fund revenues appropriated for school districts," as defined in
subdivision (c) of Section 41202 of the Education Code, for the
2015-16 fiscal year, and included within the "total allocations to
school districts and community college districts from General Fund
proceeds of taxes appropriated pursuant to Article XIII B," as
defined in subdivision (e) of Section 41202 of the Education Code,
for the 2015-16 fiscal year.
SEC. 160. Section 19130 of the Government Code is amended to read:
19130. The purpose of this article is to establish standards for
the use of personal services contracts.
(a) Personal services contracting is permissible to achieve cost
savings when all the following conditions are met:
(1) The contracting agency clearly demonstrates that the proposed
contract will result in actual overall cost savings to the state,
provided that:
(A) In comparing costs, there shall be included the state's
additional cost of providing the same service as proposed by a
contractor. These additional costs shall include the salaries and
benefits of additional staff that would be needed and the cost of
additional space, equipment, and materials needed to perform the
function.
(B) In comparing costs, there shall not be included the state's
indirect overhead costs unless these costs can be attributed solely
to the function in question and would not exist if that function was
not performed in state service. Indirect overhead costs shall mean
the pro rata share of existing administrative salaries and benefits,
rent, equipment costs, utilities, and materials.
(C) In comparing costs, there shall be included in the cost of a
contractor providing a service any continuing state costs that would
be directly associated with the contracted function. These continuing
state costs shall include, but not be limited to, those for
inspection, supervision, and monitoring.
(2) Proposals to contract out work shall not be approved solely on
the basis that savings will result from lower contractor pay rates
or benefits. Proposals to contract out work shall be eligible for
approval if the contractor's wages are at the industry's level and do
not significantly undercut state pay rates.
(3) The contract does not cause the displacement of civil service
employees. The term "displacement" includes layoff, demotion,
involuntary transfer to a new class, involuntary transfer to a new
location requiring a change of residence, and time base reductions.
Displacement does not include changes in shifts or days off, nor does
it include reassignment to other positions within the same class and
general location.
(4) The contract does not adversely affect the state's affirmative
action efforts.
(5) The savings shall be large enough to ensure that they will not
be eliminated by private sector and state cost fluctuations that
could normally be expected during the contracting period.
(6) The amount of savings clearly justify the size and duration of
the contracting agreement.
(7) The contract is awarded through a publicized, competitive
bidding process.
(8) The contract includes specific provisions pertaining to the
qualifications of the staff that will perform the work under the
contract, as well as assurance that the contractor's hiring practices
meet applicable nondiscrimination, affirmative action standards.
(9) The potential for future economic risk to the state from
potential contractor rate increases is minimal.
(10) The contract is with a firm. A "firm" means a corporation,
partnership, nonprofit organization, or sole proprietorship.
(11) The potential economic advantage of contracting is not
outweighed by the public's interest in having a particular function
performed directly by state government.
(b) Personal services contracting also shall be permissible when
any of the following conditions are met:
(1) The functions contracted are exempted from civil service by
Section 4 of Article VII of the California Constitution, which
describes exempt appointments.
(2) The contract is for a new state function and the Legislature
has specifically mandated or authorized the performance of the work
by independent contractors.
(3) The services contracted are not available within civil
service, cannot be performed satisfactorily by civil service
employees, or are of such a highly specialized or technical nature
that the necessary expert knowledge, experience, and ability are not
available through the civil service system.
(4) The services are incidental to a contract for the purchase or
lease of real or personal property. Contracts under this criterion,
known as "service agreements," shall include, but not be limited to,
agreements to service or maintain office equipment or computers that
are leased or rented.
(5) The
legislative, administrative, or legal goals and purposes cannot be
accomplished through the utilization of persons selected pursuant to
the regular civil service system. Contracts are permissible under
this criterion to protect against a conflict of interest or to ensure
independent and unbiased findings in cases where there is a clear
need for a different, outside perspective. These contracts shall
include, but not be limited to, obtaining expert witnesses in
litigation.
(6) The nature of the work is such that the standards of this code
for emergency appointments apply. These contracts shall conform with
Article 8 (commencing with Section 19888) of Chapter 2.5 of Part
2.6.
(7) State agencies need private counsel because a conflict of
interest on the part of the Attorney General's office prevents it
from representing the agency without compromising its position. These
contracts shall require the written consent of the Attorney General,
pursuant to Section 11040.
(8) The contractor will provide equipment, materials, facilities,
or support services that could not feasibly be provided by the state
in the location where the services are to be performed.
(9) The contractor will conduct training courses for which
appropriately qualified civil service instructors are not available,
provided that permanent instructor positions in academies or similar
settings shall be filled through civil service appointment.
(10) The services are of such an urgent, temporary, or occasional
nature that the delay incumbent in their implementation under civil
service would frustrate their very purpose.
(c) All persons who provide services to the state under conditions
the board determines constitute an employment relationship shall,
unless exempted from civil service by Section 4 of Article VII of the
California Constitution, be retained under an appropriate civil
service appointment.
SEC. 161. Section 19241 of the Government Code, as added by
Section 5 of Chapter 356 of the Statutes of 2015, is amended to read:
19241. (a) The department, consistent with board rules, shall be
responsible for the implementation of this chapter, which may provide
for the establishment of eligibility criteria for participation,
special job classifications, examination techniques, and appointment
and appeals procedures.
(b) This section shall become operative on January 1, 2021.
SEC. 162. Section 22865 of the Government Code is amended to read:
22865. Not later than 30 days prior to the approval of benefits
and premium readjustments authorized under Section 22864, the board
shall provide an initial estimate of proposed changes and costs in
writing to the Joint Legislative Budget Committee, the chairpersons
of the committees and subcommittees in each house of the Legislature
that consider the Public Employees' Retirement System's budget and
activities, the Controller, the Trustees of the California State
University, the Department of Human Resources, the Director of
Finance, and the Legislative Analyst.
SEC. 163. Section 34886 of the Government Code is amended to read:
34886. (a) Notwithstanding Section 34871 or any other law, the
legislative body of a city with a population of fewer than 100,000
people may adopt an ordinance that requires the members of the
legislative body to be elected by district or by district with an
elective mayor, as described in subdivisions (a) and (c) of Section
34871, without submitting the ordinance to the voters for approval.
An ordinance adopted pursuant to this subdivision shall include a
declaration that the change in the method of electing members of the
legislative body is being made in furtherance of the purposes of the
California Voting Rights Act of 2001 (Chapter 1.5 (commencing with
Section 14025) of Division 14 of the Elections Code).
(b) For purposes of this section, the population of a city shall
be determined by the most recent federal decennial census.
SEC. 164. Section 53515 of the Government Code is amended to read:
53515. (a) General obligation bonds issued and sold by or on
behalf of a local agency shall be secured by a statutory lien on all
revenues received pursuant to the levy and collection of the tax. The
lien shall automatically arise without the need for any action or
authorization by the local agency or its governing body. The lien
shall be valid and binding from the time the bonds are executed and
delivered. The revenues received pursuant to the levy and collection
of the tax shall be immediately subject to the lien, and the lien
shall immediately attach to the revenues and be effective, binding,
and enforceable against the local agency, its successors,
transferees, and creditors, and all others asserting rights therein,
irrespective of whether those parties have notice of the lien and
without the need for any physical delivery, recordation, filing, or
further act.
(b) This section is not intended to supplement or limit a local
agency's power to issue general obligation bonds conferred by any
other law.
(c) For purposes of this section, both of the following
definitions apply:
(1) "General obligation bonds" means bonds, warrants, notes, or
other evidence of indebtedness of a local agency payable, both
principal and interest, from the proceeds of ad valorem taxes that
may be levied pursuant to paragraphs (2) and (3) of subdivision (b)
of Section 1 of Article XIII A of the California Constitution.
(2) "Local agency" means any city, county, city and county, school
district, community college district, authority, or special
district.
SEC. 165. Section 56332 of the Government Code is amended to read:
56332. (a) The independent special district selection committee
shall consist of the presiding officer of the legislative body of
each independent special district. However, if the presiding officer
of an independent special district is unable to participate in a
meeting or election of the independent special district selection
committee, the legislative body of the district may appoint one of
its members as an alternate to participate in the selection committee
in the presiding officer's place. Those districts shall include
districts located wholly within the county and those containing
territory within the county representing 50 percent or more of the
assessed value of taxable property of the district, as shown on the
last equalized county assessment roll. Each member of the committee
shall be entitled to one vote for each independent special district
of which he or she is the presiding officer or his or her alternate
as designated by the governing body. Members representing a majority
of the eligible districts shall constitute a quorum.
(b) The executive officer shall call and give written notice of
all meetings of the members of the selection committee. A meeting
shall be called and held under one of the following circumstances:
(1) Whenever the executive officer anticipates that a vacancy will
occur within the next 90 days among the members or alternate member
representing independent special districts on the commission.
(2) Whenever a vacancy exists among the members or alternate
member representing independent special districts upon the
commission.
(3) Upon receipt of a written request by one or more members of
the selection committee representing districts having 10 percent or
more of the assessed value of taxable property within the county, as
shown on the last equalized county assessment roll.
(c) The selection committee shall appoint two regular members and
one alternate member to the commission. The members so appointed
shall be elected or appointed members of the legislative body of an
independent special district residing within the county but shall not
be members of the legislative body of a city or county. If one of
the regular district members is absent from a commission meeting or
disqualifies himself or herself from participating in a meeting, the
alternate district member may serve and vote in place of the regular
district member for that meeting. Service on the commission by a
regular district member shall not disqualify, or be cause for
disqualification of, the member from acting on proposals affecting
the special district on whose legislative body the member serves. The
special district selection committee may, at the time it appoints a
member or alternate, provide that the member or alternate is
disqualified from voting on proposals affecting the district on whose
legislative body the member serves.
(d) If the office of a regular district member becomes vacant, the
alternate member may serve and vote in place of the former regular
district member until the appointment and qualification of a regular
district member to fill the vacancy.
(e) A majority of the independent special district selection
committee may determine to conduct the committee's business by mail,
including holding all elections by mailed ballot, pursuant to
subdivision (f).
(f) If the independent special district selection committee has
determined to conduct the committee's business by mail or if the
executive officer determines that a meeting of the special district
selection committee, for the purpose of appointing the special
district members or filling vacancies, is not feasible, the executive
officer shall conduct the business of the committee by mail.
Elections by mail shall be conducted as provided in this subdivision.
(1) The executive officer shall prepare and deliver a call for
nominations to each eligible district. The presiding officer, or his
or her alternate as designated by the governing body, may respond in
writing by the date specified in the call for nominations, which date
shall be at least 30 days from the date on which the executive
officer mailed the call for nominations to the eligible district.
(2) At the end of the nominating period, if only one candidate is
nominated for a vacant seat, that candidate shall be deemed
appointed. If two or more candidates are nominated, the executive
officer shall prepare and deliver one ballot and voting instructions
to each eligible district. The ballot shall include the names of all
nominees and the office for which each was nominated. Each presiding
officer, or his or her alternate as designated by the governing body,
shall return the ballot to the executive officer by the date
specified in the voting instructions, which date shall be at least 30
days from the date on which the executive officer mailed the ballot
to the eligible district.
(3) The call for nominations, ballots, and voting instructions
shall be delivered by certified mail to each eligible district. As an
alternative to the delivery by certified mail, the executive
officer, with prior concurrence of the presiding officer or his or
her alternate as designated by the governing body, may transmit
materials by electronic mail.
(4) If the executive officer has transmitted the call for
nominations or ballots by electronic mail, the presiding officer, or
his or her alternate as designated by the governing body, may respond
to the executive officer by electronic mail.
(5) Each returned nomination and ballot shall be signed by the
presiding officer or his or her alternate as designated by the
governing body of the eligible district.
(6) For an election to be valid, at least a quorum of the special
districts must submit valid ballots. The candidate receiving the most
votes shall be elected, unless another procedure has been adopted by
the selection committee. Any nomination and ballot received by the
executive officer after the date specified is invalid, provided,
however, that if a quorum of ballots is not received by that date,
the executive officer shall extend the date to submit ballots by 60
days and notify all districts of the extension. The executive officer
shall announce the results of the election within seven days of the
date specified.
(7) All election materials shall be retained by the executive
officer for a period of at least six months after the announcement of
the election results.
(g) For purposes of this section, "executive officer" means the
executive officer or designee as authorized by the commission.
SEC. 166. Section 82015 of the Government Code is amended to read:
82015. (a) "Contribution" means a payment, a forgiveness of a
loan, a payment of a loan by a third party, or an enforceable promise
to make a payment except to the extent that full and adequate
consideration is received, unless it is clear from the surrounding
circumstances that it is not made for political purposes.
(b) (1) A payment made at the behest of a committee, as defined in
subdivision (a) of Section 82013, is a contribution to the committee
unless full and adequate consideration is received from the
committee for making the payment.
(2) A payment made at the behest of a candidate is a contribution
to the candidate unless the criteria in either subparagraph (A) or
(B) are satisfied:
(A) Full and adequate consideration is received from the
candidate.
(B) It is clear from the surrounding circumstances that the
payment was made for purposes unrelated to his or her candidacy for
elective office. The following types of payments are presumed to be
for purposes unrelated to a candidate's candidacy for elective
office:
(i) A payment made principally for personal purposes, in which
case it may be considered a gift under the provisions of Section
82028. Payments that are otherwise subject to the limits of Section
86203 are presumed to be principally for personal purposes.
(ii) A payment made by a state, local, or federal governmental
agency or by a nonprofit organization that is exempt from taxation
under Section 501(c)(3) of the Internal Revenue Code. A payment by a
state, local, or federal governmental agency that is made principally
for legislative or governmental purposes is governed exclusively by
this clause and, therefore, is not subject to the reporting
requirement described in clause (iii).
(iii) A payment not covered by clause (i), made principally for
legislative, governmental, or charitable purposes, in which case it
is neither a gift nor a contribution. However, payments of this type
that are made at the behest of a candidate who is an elected officer
shall be reported within 30 days following the date on which the
payment or payments equal or exceed five thousand dollars ($5,000) in
the aggregate from the same source in the same calendar year in
which they are made. The report shall be filed by the elected officer
with the elected officer's agency and shall be a public record
subject to inspection and copying pursuant to Section 81008. The
report shall contain the following information: name of payor,
address of payor, amount of the payment, date or dates the payment or
payments were made, the name and address of the payee, a brief
description of the goods or services provided or purchased, if any,
and a description of the specific purpose or event for which the
payment or payments were made. Once the five-thousand-dollar ($5,000)
aggregate threshold from a single source has been reached for a
calendar year, all payments for the calendar year made by that source
shall be disclosed within 30 days after the date the threshold was
reached or the payment was made, whichever occurs later. Within 30
days after receipt of the report, state agencies shall forward a copy
of these reports to the Commission, and local agencies shall forward
a copy of these reports to the officer with whom elected officers of
that agency file their campaign statements.
(C) For purposes of subparagraph (B), a payment is made for
purposes related to a candidate's candidacy for elective office if
all or a portion of the payment is used for election-related
activities. For purposes of this subparagraph, "election-related
activities" shall include, but are not limited to, the following:
(i) Communications that contain express advocacy of the nomination
or election of the candidate or the defeat of his or her opponent.
(ii) Communications that contain reference to the candidate's
candidacy for elective office, the candidate's election campaign, or
the candidate's or his or her opponent's qualifications for elective
office.
(iii) Solicitation of contributions to the candidate or to third
persons for use in support of the candidate or in opposition to his
or her opponent.
(iv) Arranging, coordinating, developing, writing, distributing,
preparing, or planning of any communication or activity described in
clause (i), (ii), or (iii).
(v) Recruiting or coordinating campaign activities of campaign
volunteers on behalf of the candidate.
(vi) Preparing campaign budgets.
(vii) Preparing campaign finance disclosure statements.
(viii) Communications directed to voters or potential voters as
part of activities encouraging or assisting persons to vote if the
communication contains express advocacy of the nomination or election
of the candidate or the defeat of his or her opponent.
(D) A contribution made at the behest of a candidate for a
different candidate or to a committee not controlled by the behesting
candidate is not a contribution to the behesting candidate.
(3) A payment made at the behest of a member of the Public
Utilities Commission, made principally for legislative, governmental,
or charitable purposes, is not a contribution. However, payments of
this type shall be reported within 30 days following the date on
which the payment or payments equal or exceed five thousand dollars
($5,000) in the aggregate from the same source in the same calendar
year in which they are made. The report shall be filed by the member
with the Public Utilities Commission and shall be a public record
subject to inspection and copying pursuant to Section 81008. The
report shall contain the following information: name of payor,
address of payor, amount of the payment, date or dates the payment or
payments were made, the name and address of the payee, a brief
description of the goods or services provided or purchased, if any,
and a description of the specific purpose or event for which the
payment or payments were made. Once the five-thousand-dollar ($5,000)
aggregate threshold from a single source has been reached for a
calendar year, all payments for the calendar year made by that source
shall be disclosed within 30 days after the date the threshold was
reached or the payment was made, whichever occurs later. Within 30
days after receipt of the report, the Public Utilities Commission
shall forward a copy of these reports to the Fair Political Practices
Commission.
(c) "Contribution" includes the purchase of tickets for events
such as dinners, luncheons, rallies, and similar fundraising events;
the candidate's own money or property used on behalf of his or her
candidacy, other than personal funds of the candidate used to pay
either a filing fee for a declaration of candidacy or a candidate
statement prepared pursuant to Section 13307 of the Elections Code;
the granting of discounts or rebates not extended to the public
generally or the granting of discounts or rebates by television and
radio stations and newspapers not extended on an equal basis to all
candidates for the same office; the payment of compensation by any
person for the personal services or expenses of any other person if
the services are rendered or expenses incurred on behalf of a
candidate or committee without payment of full and adequate
consideration.
(d) "Contribution" further includes any transfer of anything of
value received by a committee from another committee, unless full and
adequate consideration is received.
(e) "Contribution" does not include amounts received pursuant to
an enforceable promise to the extent those amounts have been
previously reported as a contribution. However, the fact that those
amounts have been received shall be indicated in the appropriate
campaign statement.
(f) (1) Except as provided in paragraph (2) or (3), "contribution"
does not include a payment made by an occupant of a home or office
for costs related to any meeting or fundraising event held in the
occupant's home or office if the costs for the meeting or fundraising
event are five hundred dollars ($500) or less.
(2) "Contribution" includes a payment made by a lobbyist or a
cohabitant of a lobbyist for costs related to a fundraising event
held at the home of the lobbyist, including the value of the use of
the home as a fundraising event venue. A payment described in this
paragraph shall be attributable to the lobbyist for purposes of
Section 85702.
(3) "Contribution" includes a payment made by a lobbying firm for
costs related to a fundraising event held at the office of the
lobbying firm, including the value of the use of the office as a
fundraising event venue.
(g) Notwithstanding the foregoing definition of "contribution,"
the term does not include volunteer personal services or payments
made by any individual for his or her own travel expenses if the
payments are made voluntarily without any understanding or agreement
that they shall be, directly or indirectly, repaid to him or her.
(h) "Contribution" further includes the payment of public moneys
by a state or local governmental agency for a communication to the
public that satisfies both of the following:
(1) The communication expressly advocates the election or defeat
of a clearly identified candidate or the qualification, passage, or
defeat of a clearly identified measure, or, taken as a whole and in
context, unambiguously urges a particular result in an election.
(2) The communication is made at the behest of the affected
candidate or committee.
(i) "Contribution" further includes a payment made by a person to
a multipurpose organization as defined and described in Section
84222.
SEC. 167. Section 83123.6 of the Government Code is amended to
read:
83123.6. (a) Upon mutual agreement between the Commission and the
City Council of the City of Stockton, the Commission is authorized
to assume primary responsibility for the impartial, effective
administration, implementation, and enforcement of a local campaign
finance reform ordinance passed by the City Council of the City of
Stockton. The Commission is authorized to be the civil prosecutor
responsible for the civil enforcement of that local campaign finance
reform ordinance in accordance with this title. As the civil
prosecutor of the City of Stockton's local campaign finance reform
ordinance, the Commission may do both of the following:
(1) Investigate possible violations of the local campaign finance
reform ordinance.
(2) Bring administrative actions in accordance with this title and
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2.
(b) Any local campaign finance reform ordinance of the City of
Stockton enforced by the Commission pursuant to this section shall
comply with this title.
(c) The City Council of the City of Stockton shall consult with
the Commission before adopting and amending any local campaign
finance reform ordinance that is subsequently enforced by the
Commission pursuant to this section.
(d) (1) The City Council of the City of Stockton and the
Commission may enter into any agreements necessary and appropriate to
carry out the provisions of this section, including agreements
pertaining to any necessary reimbursement of state costs with city
funds for costs incurred by the Commission in administering,
implementing, or enforcing a local campaign finance reform ordinance
pursuant to this section.
(2) An agreement entered into pursuant to this subdivision shall
not contain any form of a cancellation fee, a liquidated damages
provision, or other financial disincentive to the exercise of the
right to terminate the agreement pursuant to subdivision (e), except
that the Commission may require the City Council of the City of
Stockton to pay the Commission for services rendered and any other
expenditures reasonably made by the Commission in anticipation of
services to be rendered pursuant to the agreement if the City Council
of the City of Stockton terminates the agreement.
(e) The City Council of the City of Stockton or the Commission
may, at any time, by ordinance or resolution, terminate any agreement
made pursuant to this section for the Commission to administer,
implement, or enforce a local campaign finance reform ordinance or
any provision of the ordinance.
(f) If an agreement is entered into pursuant to this section, the
Commission shall report to the Legislature regarding the performance
of that agreement on or before January 1, 2019, and shall submit that
report in compliance with Section 9795. The Commission shall develop
the report in consultation with the City Council of the City of
Stockton. The report shall include, but not be limited to, all of the
following:
(1) The status of the agreement.
(2) The estimated annual cost savings, if any, for the City of
Stockton.
(3) A summary of relevant annual performance metrics, including
measures of use, enforcement, and customer satisfaction.
(4) Public comments submitted to the Commission or the City of
Stockton relative to the operation of the agreement.
(5) Legislative recommendations.
(g) This section shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.
SEC. 168. Section 87207 of the Government Code is amended to read:
87207. (a) If income is required to be reported under this
article, the statement shall contain, except as provided in
subdivision (b):
(1) The name and address of each source of income aggregating five
hundred dollars ($500) or more in value, or fifty dollars ($50) or
more in value if the income was a gift, and a general description of
the business activity, if any, of each source.
(2) A statement whether the aggregate value of income from each
source, or in the case of a loan, the highest amount owed to each
source, was at least five hundred dollars ($500) but did not exceed
one thousand dollars ($1,000), whether it was in excess of one
thousand dollars ($1,000) but was not greater than ten thousand
dollars ($10,000), whether it was greater than ten thousand dollars
($10,000) but not greater than one hundred thousand dollars
($100,000), or whether it was greater than one hundred thousand
dollars ($100,000).
(3) A description of the consideration, if any, for which the
income was received.
(4) In the case of a gift, the amount and the date on which the
gift was received, and the travel destination for purposes of a gift
that is a travel payment, advance,
or reimbursement.
(5) In the case of a loan, the annual interest rate, the security,
if any, given for the loan, and the term of the loan.
(b) If the filer's pro rata share of income to a business entity,
including income to a sole proprietorship, is required to be reported
under this article, the statement shall contain:
(1) The name, address, and a general description of the business
activity of the business entity.
(2) The name of every person from whom the business entity
received payments if the filer's pro rata share of gross receipts
from that person was equal to or greater than ten thousand dollars
($10,000) during a calendar year.
(c) If a payment, including an advance or reimbursement, for
travel is required to be reported pursuant to this section, it may be
reported on a separate travel reimbursement schedule which shall be
included in the filer's statement of economic interests. A filer who
chooses not to use the travel schedule shall disclose payments for
travel as a gift, unless it is clear from all surrounding
circumstances that the services provided were equal to or greater in
value than the payments for the travel, in which case the travel may
be reported as income.
SEC. 169. Section 89506 of the Government Code is amended to read:
89506. (a) Payments, advances, or reimbursements for travel,
including actual transportation and related lodging and subsistence
that is reasonably related to a legislative or governmental purpose,
or to an issue of state, national, or international public policy,
are not prohibited or limited by this chapter if either of the
following applies:
(1) The travel is in connection with a speech given by the elected
state officer, local elected officeholder, candidate for elective
state office or local elective office, an individual specified in
Section 87200, member of a state board or commission, or designated
employee of a state or local government agency, the lodging and
subsistence expenses are limited to the day immediately preceding,
the day of, and the day immediately following the speech, and the
travel is within the United States.
(2) The travel is provided by a government, a governmental agency,
a foreign government, a governmental authority, a bona fide public
or private educational institution, as defined in Section 203 of the
Revenue and Taxation Code, a nonprofit organization that is exempt
from taxation under Section 501(c)(3) of the Internal Revenue Code,
or by a person domiciled outside the United States who substantially
satisfies the requirements for tax-exempt status under Section 501(c)
(3) of the Internal Revenue Code.
(b) Gifts of travel not described in subdivision (a) are subject
to the limits in Section 89503.
(c) Subdivision (a) applies only to travel that is reported on the
recipient's statement of economic interests.
(d) For purposes of this section, a gift of travel does not
include any of the following:
(1) Travel that is paid for from campaign funds, as permitted by
Article 4 (commencing with Section 89510), or that is a contribution.
(2) Travel that is provided by the governmental agency of a local
elected officeholder, an elected state officer, member of a state
board or commission, an individual specified in Section 87200, or a
designated employee.
(3) Travel that is reasonably necessary in connection with a bona
fide business, trade, or profession and that satisfies the criteria
for federal income tax deduction for business expenses in Sections
162 and 274 of the Internal Revenue Code, unless the sole or
predominant activity of the business, trade, or profession is making
speeches.
(4) Travel that is excluded from the definition of a gift by any
other provision of this title.
(e) This section does not apply to payments, advances, or
reimbursements for travel and related lodging and subsistence
permitted or limited by Section 170.9 of the Code of Civil Procedure.
(f) (1) A nonprofit organization that regularly organizes and
hosts travel for elected officials and that makes payments, advances,
or reimbursements that total more than ten thousand dollars
($10,000) in a calendar year, or that total more than five thousand
dollars ($5,000) in a calendar year for a single person, for travel
by an elected state officer or local elected officeholder as
described in subdivision (a) shall disclose to the Commission the
names of donors who did both of the following in the preceding year:
(A) Donated one thousand dollars ($1,000) or more to the nonprofit
organization.
(B) Accompanied an elected state officer or local elected
officeholder, either personally or through an agent, employee, or
representative, for any portion of travel described in subdivision
(a).
(2) For purposes of this subdivision, a nonprofit organization
"regularly organizes and hosts travel for elected officials" if the
sum of the nonprofit organization's expenses that relate to any of
the following types of activities with regard to elected officials
was greater than one-third of its total expenses reflected on the
nonprofit organization's Internal Revenue Service Form 990, or the
equivalent, filed most recently within the last 12 months:
(A) Travel.
(B) Study tours.
(C) Conferences, conventions, and meetings.
(3) This subdivision does not preclude a finding that a nonprofit
organization is acting as an intermediary or agent of the donor. If
the nonprofit organization is acting as an intermediary or agent of
the donor, all of the following apply:
(A) The donor to the nonprofit organization is the source of the
gift.
(B) The donor shall be identified as a financial interest under
Section 87103.
(C) The gift shall be reported as required by Section 87207.
(D) The gift shall be subject to the limitations on gifts
specified in Section 89503.
(4) For purposes of this subdivision, a nonprofit organization
includes an organization that is exempt from taxation under Section
501(c)(3) or Section 501(c)(4) of the Internal Revenue Code.
SEC. 170. Section 1204.2 of the Health and Safety Code, as added
by Section 1 of Chapter 704 of the Statutes of 2015, is amended to
read:
1204.2. (a) Notwithstanding any other law, including, but not
limited to, Section 75047 of Article 6 of Chapter 7 of Division 5 of
Title 22 of the California Code of Regulations, and except as
provided in subdivision (c), a primary care clinic described in
subdivision (a) of Section 1204 that is licensed pursuant to this
chapter shall not be required to enter into a written transfer
agreement with a nearby hospital as a condition of licensure.
(b) (1) A primary care clinic shall send with each patient at the
time of transfer, or in the case of an emergency, as promptly as
possible, copies of all medical records related to the patient's
transfer. To the extent practicable and applicable to the patient's
transfer, the medical records shall include current medical findings,
diagnoses, laboratory results, medications provided prior to
transfer, a brief summary of the course of treatment provided prior
to transfer, ambulation status, nursing and dietary information, name
and contact information for the treating physician at the clinic,
and, as appropriate, pertinent administrative and demographic
information related to the patient, including name and date of birth.
(2) The requirements in paragraph (1) do not apply if the primary
care clinic has entered into a written transfer agreement with a
local hospital that provides for the transfer of medical records.
(c) A primary care clinic licensed pursuant to subdivision (a) of
Section 1204 that provides services as an alternative birth center
shall, as a condition of licensure, be required to maintain a written
transfer agreement with a local hospital. The transfer agreement
shall include provisions for communication and transportation to meet
medical emergencies. Essential personal, health, and medical
information shall either accompany the patient upon transfer or be
transmitted immediately by telephone to the receiving facility. This
section does not modify or supersede the requirements imposed on
alternative birth centers described in Section 1204.3.
(d) The State Department of Public Health, no later than July 1,
2016, shall repeal Section 75047 of Article 6 of Chapter 7 of
Division 5 of Title 22 of the California Code of Regulations.
(e) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 171. Section 1204.2 of the Health and Safety Code, as added
by Section 2 of Chapter 704 of the Statutes of 2015, is amended to
read:
1204.2. (a) Notwithstanding any other law, and except as provided
in subdivision (c), a primary care clinic described in subdivision
(a) of Section 1204 that is licensed pursuant to this chapter shall
not be required to enter into a written transfer agreement with a
nearby hospital as a condition of licensure.
(b) (1) A primary care clinic shall send with each patient at the
time of transfer, or in the case of an emergency, as promptly as
possible, copies of all medical records related to the patient's
transfer. To the extent practicable and applicable to the patient's
transfer, the medical records shall include current medical findings,
diagnoses, laboratory results, medications provided prior to
transfer, a brief summary of the course of treatment provided prior
to transfer, ambulation status, nursing and dietary information, name
and contact information for the treating physician at the clinic,
and, as appropriate, pertinent administrative and demographic
information related to the patient, including name and date of birth.
(2) The requirements in paragraph (1) do not apply if the primary
care clinic has entered into a written transfer agreement with a
local hospital that provides for the transfer of medical records.
(c) A primary care clinic licensed pursuant to subdivision (a) of
Section 1204 that provides services as an alternative birth center
shall, as a condition of licensure, be required to maintain a written
transfer agreement with a local hospital. The transfer agreement
shall include provisions for communication and transportation to meet
medical emergencies. Essential personal, health, and medical
information shall either accompany the patient upon transfer or be
transmitted immediately by telephone to the receiving facility. This
section does not modify or supersede the requirements imposed on
alternative birth centers described in Section 1204.3.
(d) This section shall become operative on January 1, 2018.
SEC. 172. Section 1262.5 of the Health and Safety Code is amended
to read:
1262.5. (a) Each hospital shall have a written discharge planning
policy and process.
(b) The policy required by subdivision (a) shall require that
appropriate arrangements for posthospital care, including, but not
limited to, care at home, in a skilled nursing or intermediate care
facility, or from a hospice, are made prior to discharge for those
patients who are likely to suffer adverse health consequences upon
discharge if there is no adequate discharge planning. If the hospital
determines that the patient and family members or interested persons
need to be counseled to prepare them for posthospital care, the
hospital shall provide for that counseling.
(c) As part of the discharge planning process, the hospital shall
provide each patient who has been admitted to the hospital as an
inpatient with an opportunity to identify one family caregiver who
may assist in posthospital care, and shall record this information in
the patient's medical chart.
(1) In the event that the patient is unconscious or otherwise
incapacitated upon admittance to the hospital, the hospital shall
provide the patient or patient's legal guardian with an opportunity
to designate a caregiver within a specified time period, at the
discretion of the attending physician, following the patient's
recovery of consciousness or capacity. The hospital shall promptly
document the attempt in the patient's medical record.
(2) In the event that the patient or legal guardian declines to
designate a caregiver pursuant to this section, the hospital shall
promptly document this declination in the patient's medical record,
when appropriate.
(d) The policy required by subdivision (a) shall require that the
patient's designated family caregiver be notified of the patient's
discharge or transfer to another facility as soon as possible and, in
any event, upon issuance of a discharge order by the patient's
attending physician. If the hospital is unable to contact the
designated caregiver, the lack of contact shall not interfere with,
delay, or otherwise affect the medical care provided to the patient
or an appropriate discharge of the patient. The hospital shall
promptly document the attempted notification in the patient's medical
record.
(e) The process required by subdivision (a) shall require that the
patient and family caregiver be informed of the continuing health
care requirements following discharge from the hospital. The right to
information regarding continuing health care requirements following
discharge shall also apply to the person who has legal responsibility
to make decisions regarding medical care on behalf of the patient,
if the patient is unable to make those decisions for himself or
herself. The hospital shall provide an opportunity for the patient
and his or her designated family caregiver to engage in the discharge
planning process, which shall include providing information and,
when appropriate, instruction regarding the posthospital care needs
of the patient. This information shall include, but is not limited
to, education and counseling about the patient's medications,
including dosing and proper use of medication delivery devices, when
applicable. The information shall be provided in a culturally
competent manner and in a language that is comprehensible to the
patient and caregiver, consistent with the requirements of state and
federal law, and shall include an opportunity for the caregiver to
ask questions about the posthospital care needs of the patient.
(f) (1) A transfer summary shall accompany the patient upon
transfer to a skilled nursing or intermediate care facility or to the
distinct part-skilled nursing or intermediate care service unit of
the hospital. The transfer summary shall include essential
information relative to the patient's diagnosis, hospital course,
pain treatment and management, medications, treatments, dietary
requirement, rehabilitation potential, known allergies, and treatment
plan, and shall be signed by the physician.
(2) A copy of the transfer summary shall be given to the patient
and the patient's legal representative, if any, prior to transfer to
a skilled nursing or intermediate care facility.
(g) A hospital shall establish and implement a written policy to
ensure that each patient receives, at the time of discharge,
information regarding each medication dispensed, pursuant to Section
4074 of the Business and Professions Code.
(h) A hospital shall provide every patient anticipated to be in
need of long-term care at the time of discharge with contact
information for at least one public or nonprofit agency or
organization dedicated to providing information or referral services
relating to community-based long-term care options in the patient's
county of residence and appropriate to the needs and characteristics
of the patient. At a minimum, this information shall include contact
information for the area agency on aging serving the patient's county
of residence, local independent living centers, or other information
appropriate to the needs and characteristics of the patient.
(i) A contract between a general acute care hospital and a health
care service plan that is issued, amended, renewed, or delivered on
or after January 1, 2002, shall not contain a provision that
prohibits or restricts any health care facility's compliance with the
requirements of this section.
(j) Discharge planning policies adopted by a hospital in
accordance with this section shall ensure that planning is
appropriate to the condition of the patient being discharged from the
hospital and to the discharge destination and meets the needs and
acuity of patients.
(k) This section does not require a hospital to do either of the
following:
(1) Adopt a policy that would delay discharge or transfer of a
patient.
(2) Disclose information if the patient has not provided consent
that meets the standards required by state and federal laws governing
the privacy and security of protected health information.
(l) This section does not supersede or modify any privacy and
information security requirements and protections in federal and
state law regarding protected health information or personally
identifiable information, including, but not limited to, the federal
Health Insurance Portability and Accountability Act of 1996 (42
U.S.C. Sec. 300gg).
(m) For the purposes of this section, "family caregiver" means a
relative, friend, or neighbor who provides assistance related to an
underlying physical or mental disability but who is unpaid for those
services.
SEC. 173. Section 1266 of the Health and Safety Code is amended to
read:
1266. (a) The Licensing and Certification Division shall be
supported entirely by federal funds and special funds by no earlier
than the beginning of the 2009-10 fiscal year unless otherwise
specified in statute, or unless funds are specifically appropriated
from the General Fund in the annual Budget Act or other enacted
legislation. For the 2007-08 fiscal year, General Fund support shall
be provided to offset licensing and certification fees in an amount
of not less than two million seven hundred eighty-two thousand
dollars ($2,782,000).
(b) (1) The Licensing and Certification Program fees for the
2006-07 fiscal year shall be as follows:
Type of Facility Fee
General Acute Care Hospitals $ 134.10 per bed
Acute Psychiatric Hospitals $ 134.10 per bed
Special Hospitals $ 134.10 per bed
Chemical Dependency Recovery
Hospitals $ 123.52 per bed
Skilled Nursing Facilities $ 202.96 per bed
Intermediate Care Facilities $ 202.96 per bed
Intermediate Care Facilities-
Developmentally Disabled $ 592.29 per bed
Intermediate Care Facilities-
Developmentally Disabled- per
Habilitative $1,000.00 facility
Intermediate Care Facilities-
Developmentally Disabled- per
Nursing $1,000.00 facility
Home Health Agencies per
$2,700.00 facility
Referral Agencies per
$5,537.71 facility
Adult Day Health Centers per
$4,650.02 facility
Congregate Living Health
Facilities $ 202.96 per bed
Psychology Clinics per
$ 600.00 facility
Primary Clinics- Community per
and Free $ 600.00 facility
Specialty Clinics- Rehab
Clinics per
(For profit) $2,974.43 facility
(Nonprofit) per
$ 500.00 facility
Specialty Clinics- Surgical per
and Chronic $1,500.00 facility
Dialysis Clinics per
$1,500.00 facility
Pediatric Day Health/Respite
Care $ 142.43 per bed
Alternative Birthing Centers per
$2,437.86 facility
Hospice per
$1,000.00 provider
Correctional Treatment Centers $ 590.39 per bed
(2) (A) In the first year of licensure for intermediate care
facility/developmentally disabled-continuous nursing (ICF/DD-CN)
facilities, the licensure fee for those facilities shall be
equivalent to the licensure fee for intermediate care
facility/developmentally disabled-nursing facilities during the same
year. Thereafter, the licensure fee for ICF/DD-CN facilities shall be
established pursuant to the same procedures described in this
section.
(B) In the first year of licensure for hospice facilities, the
licensure fee shall be equivalent to the licensure fee for congregate
living health facilities during the same year. Thereafter, the
licensure fee for hospice facilities shall be established pursuant to
the same procedures described in this section.
(c) Commencing in the 2015-16 fiscal year, the fees for skilled
nursing facilities shall be increased so as to generate four hundred
thousand dollars ($400,000) for the California Department of Aging's
Long-Term Care Ombudsman Program for its work related to
investigating complaints made against skilled nursing facilities and
increasing visits to those facilities.
(d) Commencing February 1, 2007, and every February 1 thereafter,
the department shall publish a list of estimated fees pursuant to
this section. The calculation of estimated fees and the publication
of the report and list of estimated fees shall not be subject to the
rulemaking requirements of Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(e) Notwithstanding Section 10231.5 of the Government Code, by
February 1 of each year, the department shall prepare the following
reports and shall make those reports, and the list of estimated fees
required to be published pursuant to subdivision (d), available to
the public by submitting them to the Legislature and posting them on
the department's Internet Web site:
(1) A report of all costs for activities of the Licensing and
Certification Program. At a minimum, this report shall include a
narrative of all baseline adjustments and their calculations, a
description of how each category of facility was calculated,
descriptions of assumptions used in any calculations, and shall
recommend Licensing and Certification Program fees in accordance with
the following:
(A) Projected workload and costs shall be grouped for each fee
category, including workload costs for facility categories that have
been established by statute and for which licensing regulations and
procedures are under development.
(B) Cost estimates, and the estimated fees, shall be based on the
appropriation amounts in the Governor's proposed budget for the next
fiscal year, with and without policy adjustments to the fee
methodology.
(C) The allocation of program, operational, and administrative
overhead, and indirect costs to fee categories shall be based on
generally accepted cost allocation methods. Significant items of
costs shall be directly charged to fee categories if the expenses can
be reasonably identified to the fee category that caused them.
Indirect and overhead costs shall be allocated to all fee categories
using a generally accepted cost allocation method.
(D) The amount of federal funds and General Fund moneys to be
received in the budget year shall be estimated and allocated to each
fee category based upon an appropriate metric.
(E) The fee for each category shall be determined by dividing the
aggregate state share of all costs for the Licensing and
Certification Program by the appropriate metric for the category of
licensure. Amounts actually received for new licensure applications,
including change of ownership applications, and late payment
penalties, pursuant to Section 1266.5, during each fiscal year shall
be calculated and 95 percent shall be applied to the appropriate fee
categories in determining Licensing and Certification Program fees
for the second fiscal year following receipt of those funds. The
remaining 5 percent shall be retained in the fund as a reserve until
appropriated.
(2) (A) A staffing and systems analysis to ensure efficient and
effective utilization of fees collected, proper allocation of
departmental resources to licensing and certification activities,
survey schedules, complaint investigations, enforcement and appeal
activities, data collection and dissemination, surveyor training, and
policy development.
(B) The analysis under this paragraph shall be made available to
interested persons and shall include all of the following:
(i) The number of surveyors and administrative support personnel
devoted to the licensing and certification of health care facilities.
(ii) The percentage of time devoted to licensing and certification
activities for the various types of health facilities.
(iii) The number of facilities receiving full surveys and the
frequency and number of followup visits.
(iv) The number and timeliness of complaint investigations,
including data on the department's compliance with the requirements
of paragraphs (3), (4), and (5) of subdivision (a) of Section 1420.
(v) Data on deficiencies and citations issued, and numbers of
citation review conferences and arbitration hearings.
(vi) Other applicable activities of the licensing and
certification division.
(3) The annual program fee report described in subdivision (d) of
Section 1416.36.
(f) The reports required pursuant to subdivision (e) shall be
submitted in compliance with Section 9795 of the Government Code.
(g) (1) The department shall adjust the list of estimated fees
published pursuant to subdivision (d) if the annual Budget Act or
other enacted legislation includes an appropriation that differs from
those proposed in the Governor's proposed budget for that fiscal
year.
(2) The department shall publish a final fee list, with an
explanation of any adjustment, by the issuance of an all facilities
letter, by posting the list on the department's Internet Web site,
and by including the final fee list as part of the licensing
application package, within 14 days of the enactment of the annual
Budget Act. The adjustment of fees and the publication of the final
fee list shall not be subject to the rulemaking requirements of
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code.
(h) (1) Fees shall not be assessed or collected pursuant to this
section from any state department, authority, bureau, commission, or
officer, unless federal financial participation would become
available by doing so and an appropriation is included in the annual
Budget Act for that state department, authority, bureau, commission,
or officer for this purpose. Fees shall
not be assessed or collected pursuant to this section
from any clinic that is certified only by the federal government and
is exempt from licensure under Section 1206, unless federal financial
participation would become available by doing so.
(2) For the 2006-07 state fiscal year, a fee shall not be assessed
or collected pursuant to this section from any general acute care
hospital owned by a health care district with 100 beds or less.
(i) The Licensing and Certification Program may change annual
license expiration renewal dates to provide for efficiencies in
operational processes or to provide for sufficient cashflow to pay
for expenditures. If an annual license expiration date is changed,
the renewal fee shall be prorated accordingly. Facilities shall be
provided with a 60-day notice of any change in their annual license
renewal date.
(j) Commencing with the 2018-19 November Program estimate, the
Licensing and Certification Program shall evaluate the feasibility of
reducing investigation timelines based on experience with
implementing paragraphs (3), (4), and (5) of subdivision (a) of
Section 1420.
SEC. 174. Section 1279.7 of the Health and Safety Code is amended
to read:
1279.7. (a) A health facility, as defined in subdivision (a),
(b), (c), or (f) of Section 1250, shall implement a facilitywide hand
hygiene program.
(b) Commencing January 1, 2017, a health facility, as defined in
subdivision (a), (b), (c), or (f) of Section 1250, is prohibited from
using an epidural connector that would fit into a connector other
than the type it was intended for, unless an emergency or urgent
situation exists and the prohibition would impair the ability to
provide health care.
(c) Commencing January 1, 2016, a health facility, as defined in
subdivision (a), (b), (c), or (f) of Section 1250, is prohibited from
using an intravenous connector that would fit into a connector other
than the type it was intended for, unless an emergency or urgent
situation exists and the prohibition would impair the ability to
provide health care.
(d) Commencing July 1, 2016, a health facility, as defined in
subdivision (a), (b), (c), or (f) of Section 1250, is prohibited from
using an enteral feeding connector that would fit into a connector
other than the type it was intended for, unless an emergency or
urgent situation exists and the prohibition would impair the ability
to provide health care.
(e) The Advanced Medical Technology Association shall, on January
1 of each year until the standards are developed, provide the
Legislature with a report on the progress of the International
Organization for Standardization in developing new design standards
for connectors for intravenous, epidural, or enteral applications.
(f) A health facility that is required to develop a patient safety
plan pursuant to Section 1279.6 shall include in the patient safety
plan measures to prevent adverse events associated with misconnecting
intravenous, enteral feeding, and epidural lines. This subdivision
shall become inoperative as to epidural connectors upon the operative
date of subdivision (b), and as to intravenous connectors upon the
operative date of subdivision (c), and as to enteral feeding
connectors upon the operative date of subdivision (d).
SEC. 175. Section 1342.71 of the Health and Safety Code, as added
by Section 1 of Chapter 619 of the Statutes of 2015, is amended to
read:
1342.71. (a) The Legislature hereby finds and declares all of the
following:
(1) The federal Patient Protection and Affordable Care Act, its
implementing regulations and guidance, and related state law prohibit
discrimination based on a person's expected length of life, present
or predicted disability, degree of medical dependency, quality of
life, or other health conditions, including benefit designs that have
the effect of discouraging the enrollment of individuals with
significant health needs.
(2) The Legislature intends to build on existing state and federal
law to ensure that health coverage benefit designs do not have an
unreasonable discriminatory impact on chronically ill individuals,
and to ensure affordability of outpatient prescription drugs.
(3) Assignment of all or most prescription medications that treat
a specific medical condition to the highest cost tiers of a formulary
may effectively discourage enrollment by chronically ill
individuals, and may result in lower adherence to a prescription drug
treatment regimen.
(b) A nongrandfathered health care service plan contract that is
offered, amended, or renewed on or after January 1, 2017, shall
comply with this section. The cost-sharing limits established by this
section apply only to outpatient prescription drugs covered by the
contract that constitute essential health benefits, as defined in
Section 1367.005.
(c) A health care service plan contract that provides coverage for
outpatient prescription drugs shall cover medically necessary
prescription drugs, including nonformulary drugs determined to be
medically necessary consistent with this chapter.
(d) (1) Consistent with federal law and guidance, the formulary or
formularies for outpatient prescription drugs maintained by the
health care service plan shall not discourage the enrollment of
individuals with health conditions and shall not reduce the
generosity of the benefit for enrollees with a particular condition
in a manner that is not based on a clinical indication or reasonable
medical management practices. Section 1342.7 and any regulations
adopted pursuant to that section shall be interpreted in a manner
that is consistent with this section.
(2) For combination antiretroviral drug treatments that are
medically necessary for the treatment of AIDS/HIV, a health care
service plan contract shall cover a single-tablet drug regimen that
is as effective as a multitablet regimen unless, consistent with
clinical guidelines and peer-reviewed scientific and medical
literature, the multitablet regimen is clinically equally or more
effective and more likely to result in adherence to a drug regimen.
(e) (1) With respect to an individual or group health care service
plan contract subject to Section 1367.006, the copayment,
coinsurance, or any other form of cost sharing for a covered
outpatient prescription drug for an individual prescription for a
supply of up to 30 days shall not exceed two hundred fifty dollars
($250), except as provided in paragraphs (2) and (3).
(2) With respect to products with actuarial value at, or
equivalent to, the bronze level, cost sharing for a covered
outpatient prescription drug for an individual prescription for a
supply of up to 30 days shall not exceed five hundred dollars ($500),
except as provided in paragraph (3).
(3) For a health care service plan contract that is a "high
deductible health plan" under the definition set forth in Section 223
(c)(2) of Title 26 of the United States Code, paragraphs (1) and (2)
of this subdivision shall apply only once an enrollee's deductible
has been satisfied for the year.
(4) For a nongrandfathered individual or small group health care
service plan contract, the annual deductible for outpatient drugs, if
any, shall not exceed twice the amount specified in paragraph (1) or
(2), respectively.
(5) For purposes of paragraphs (1) and (2), "any other form of
cost sharing" shall not include a deductible.
(f) (1) If a health care service plan contract for a
nongrandfathered individual or small group product maintains a drug
formulary grouped into tiers that includes a fourth tier, a health
care service plan contract shall use the following definitions for
each tier of the drug formulary:
(A) Tier one shall consist of most generic drugs and low-cost
preferred brand name drugs.
(B) Tier two shall consist of nonpreferred generic drugs,
preferred brand name drugs, and any other drugs recommended by the
health care service plan's pharmacy and therapeutics committee based
on safety, efficacy, and cost.
(C) Tier three shall consist of nonpreferred brand name drugs or
drugs that are recommended by the health care service plan's pharmacy
and therapeutics committee based on safety, efficacy, and cost, or
that generally have a preferred and often less costly therapeutic
alternative at a lower tier.
(D) Tier four shall consist of drugs that are biologics, drugs
that the FDA or the manufacturer requires to be distributed through a
specialty pharmacy, drugs that require the enrollee to have special
training or clinical monitoring for self-administration, or drugs
that cost the health plan more than six hundred dollars ($600) net of
rebates for a one-month supply.
(2) In placing specific drugs on specific tiers, or choosing to
place a drug on the formulary, the health care service plan shall
take into account the other provisions of this section and this
chapter.
(3) A health care service plan contract may maintain a drug
formulary with fewer than four tiers.
(4) This section shall not be construed to limit a health care
service plan from placing any drug in a lower tier.
(g) A health care service plan contract shall ensure that the
placement of prescription drugs on formulary tiers is based on
clinically indicated, reasonable medical management practices.
(h) This section shall not be construed to require a health care
service plan to impose cost sharing. This section shall not be
construed to require cost sharing for prescription drugs that state
or federal law otherwise requires to be provided without cost
sharing.
(i) This section does not require or authorize a health care
service plan that contracts with the State Department of Health Care
Services to provide services to Medi-Cal beneficiaries to provide
coverage for prescription drugs that are not required pursuant to
those programs or contracts, or to limit or exclude any prescription
drugs that are required by those programs or contracts.
(j) In the provision of outpatient prescription drug coverage, a
health care service plan may utilize formulary, prior authorization,
step therapy, or other reasonable medical management practices
consistent with this chapter.
(k) This section does not apply to a health care service plan that
contracts with the State Department of Health Care Services.
(l) This section shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.
SEC. 176. Section 1358.18 of the Health and Safety Code is amended
to read:
1358.18. In the interest of full and fair disclosure, and to
ensure the availability of necessary consumer information to
potential subscribers or enrollees not possessing a special knowledge
of Medicare, health care service plans, or Medicare supplement
contracts, an issuer shall comply with the following provisions:
(a) Application forms shall include the following questions
designed to elicit information as to whether, as of the date of the
application, the applicant currently has Medicare supplement,
Medicare Advantage, Medi-Cal coverage, or another health insurance
policy or certificate or plan contract in force or whether a Medicare
supplement contract is intended to replace any other disability
policy or certificate, or plan contract, presently in force. A
supplementary application or other form to be signed by the applicant
and solicitor containing those questions and statements may be used.
"(Statements)
(1) You do not need more than one Medicare supplement policy or
contract.
(2) If you purchase this contract, you may want to evaluate your
existing health coverage and decide if you need multiple coverages.
(3) You may be eligible for benefits under Medi-Cal or Medicaid
and may not need a Medicare supplement contract.
(4) If, after purchasing this contract, you become eligible for
Medi-Cal, the benefits and premiums under your Medicare supplement
contract can be suspended, if requested, during your entitlement to
benefits under Medi-Cal or Medicaid for 24 months. You must request
this suspension within 90 days of becoming eligible for Medi-Cal or
Medicaid. If you are no longer entitled to Medi-Cal or Medicaid, your
suspended Medicare supplement contract or, if that is no longer
available, a substantially equivalent contract, will be reinstituted
if requested within 90 days of losing Medi-Cal or Medicaid
eligibility. If the Medicare supplement contract provided coverage
for outpatient prescription drugs and you enrolled in Medicare Part D
while your contract was suspended, the reinstituted contract will
not have outpatient prescription drug coverage, but will otherwise be
substantially equivalent to your coverage before the date of the
suspension.
(5) If you are eligible for, and have enrolled in, a Medicare
supplement contract by reason of disability and you later become
covered by an employer or union-based group health plan, the benefits
and premiums under your Medicare supplement contract can be
suspended, if requested, while you are covered under the employer or
union-based group health plan. If you suspend your Medicare
supplement contract under these circumstances and later lose your
employer or union-based group health plan, your suspended Medicare
supplement contract or, if that is no longer available, a
substantially equivalent contract, will be reinstituted if requested
within 90 days of losing your employer or union-based group health
plan. If the Medicare supplement contract provided coverage for
outpatient prescription drugs and you enrolled in Medicare Part D
while your contract was suspended, the reinstituted contract will not
have outpatient prescription drug coverage, but will otherwise be
substantially equivalent to your coverage before the date of the
suspension.
(6) Counseling services are available in this state to provide
advice concerning your purchase of Medicare supplement coverage and
concerning medical assistance through the Medi-Cal or Medicaid
Program, including benefits as a qualified Medicare beneficiary (QMB)
and a specified low-income Medicare beneficiary (SLMB). Information
regarding counseling services may be obtained from the California
Department of Aging.
(Questions)
If you lost or are losing other health insurance coverage and
received a notice from your prior insurer saying you were eligible
for guaranteed issue of a Medicare supplement insurance contract or
that you had certain rights to buy such a contract, you may be
guaranteed acceptance in one or more of our Medicare supplement
plans. Please include a copy of the notice from your prior insurer
with your application. PLEASE ANSWER ALL QUESTIONS.
Please mark Yes or No below with an "X."]
To the best of your knowledge,
(1) (a) Did you turn 65 years of age in the last 6 months?
Yes____ No____
(b) Did you enroll in Medicare Part B in the last 6 months?
Yes____ No____
(c) If yes, what is the effective date? ___________________
(2) Are you covered for medical assistance through California's
Medi-Cal program?
NOTE TO APPLICANT: If you have a share of cost under the Medi-Cal
program, please answer NO to this question.
Yes____ No____
If yes,
(a) Will Medi-Cal pay your premiums for this Medicare supplement
contract?
Yes____ No____
(b) Do you receive benefits from Medi-Cal OTHER THAN payments
toward your Medicare Part B premium?
Yes____ No____
(3) (a) If you had coverage from any Medicare plan other than
original Medicare within the past 63 days (for example, a Medicare
Advantage plan or a Medicare HMO or PPO), fill in your start and end
dates below. If you are still covered under this plan, leave "END"
blank.
START __/__/__ END __/__/__
(b) If you are still covered under the Medicare plan, do you
intend to replace your current coverage with this new Medicare
supplement contract?
Yes____ No____
(c) Was this your first time in this type of Medicare plan?
Yes____ No____
(d) Did you drop a Medicare supplement contract to enroll in the
Medicare plan?
Yes____ No____
(4) (a) Do you have another Medicare supplement policy or
certificate or contract in force?
Yes____ No____
(b) If so, with what company, and what plan do you have? optional
for Direct Mailers]
Yes____ No____
(c) If so, do you intend to replace your current Medicare
supplement policy or certificate or contract with this contract?
Yes____ No____
(5) Have you had coverage under any other health insurance within
the past 63 days? (For example, an employer, union, or individual
plan)
Yes____ No____
(a) If so, with what companies and what kind of policy?
________________________________________________
________________________________________________
________________________________________________
________________________________________________
(b) What are your dates of coverage under the other policy?
START __/__/__ END __/__/__
(If you are still covered under the other policy, leave "END"
blank)."
(b) Solicitors shall list any other health insurance policies or
plan contracts they have sold to the applicant as follows:
(1) List policies and contracts sold that are still in force.
(2) List policies and contracts sold in the past five years that
are no longer in force.
(c) An issuer issuing Medicare supplement contracts without a
solicitor or solicitor firm (a direct response issuer) shall return
to the applicant, upon delivery of the contract, a copy of the
application or supplemental forms, signed by the applicant and
acknowledged by the issuer.
(d) Upon determining that a sale will involve replacement of
Medicare supplement coverage, an issuer, other than a direct response
issuer, or its agent, shall furnish the applicant, prior to issuance
for delivery of the Medicare supplement contract, a notice regarding
replacement of Medicare supplement coverage. One copy of the notice
signed by the applicant and the agent, except where the coverage is
sold without an agent, shall be provided to the applicant and an
additional signed copy shall be retained by the issuer. A direct
response issuer shall deliver to the applicant at the time of the
issuance of the contract the notice regarding replacement of Medicare
supplement coverage.
(e) The notice required by subdivision (d) for an issuer shall be
provided in substantially the following form in no less than 12-point
type:
NOTICE TO APPLICANT REGARDING REPLACEMENT OF MEDICARE
SUPPLEMENT COVERAGE OR MEDICARE ADVANTAGE
(Company name and address)
SAVE THIS NOTICE! IT MAY BE IMPORTANT TO YOU IN THE FUTURE
According to your application] information you have furnished],
you intend to lapse or otherwise terminate an existing Medicare
supplement policy or contract or Medicare Advantage plan and replace
it with a contract to be issued by Plan Name]. Your contract to be
issued by Plan Name] will provide 30 days within which you may decide
without cost whether you desire to keep the contract. You should
review this new coverage carefully. Compare it with all accident and
sickness coverage you now have. Terminate your present policy or
contract only if, after due consideration, you find that purchase of
this Medicare supplement coverage is a wise decision.
STATEMENT TO APPLICANT BY PLAN, SOLICITOR, SOLICITOR FIRM, OR
OTHER REPRESENTATIVE:
(1) I have reviewed your current medical or health coverage. To
the best of my knowledge, the replacement of coverage involved in
this transaction does not duplicate coverage or, if applicable,
Medicare Advantage coverage because you intend to terminate your
existing Medicare supplement coverage or leave your Medicare
Advantage plan. The replacement contract is being purchased for the
following reason (check one):
__ Additional benefits.
__ No change in benefits, but lower premiums or charges.
__ Fewer benefits and lower premiums or charges.
__ Plan has outpatient prescription drug coverage and applicant is
enrolled in Medicare Part D.
__ Disenrollment from a Medicare Advantage plan. Reasons for
disenrollment:
__ Other. (please specify) ________.
(2) If the issuer of the Medicare supplement contract being
applied for does not impose, or is otherwise prohibited from
imposing, preexisting condition limitations, please skip to statement
3 below. Health conditions that you may presently have (preexisting
conditions) may not be immediately or fully covered under the new
contract. This could result in denial or delay of a claim for
benefits under the new contract, whereas a similar claim might have
been payable under your present contract.
(3) State law provides that your replacement Medicare supplement
contract may not contain new preexisting conditions, waiting periods,
elimination periods, or probationary periods. The plan will waive
any time periods applicable to preexisting conditions, waiting
periods, elimination periods, or probationary periods in the new
coverage for similar benefits to the extent that time was spent
(depleted) under the original contract.
(4) If you still wish to terminate your present policy or contract
and replace it with new coverage, be certain to truthfully and
completely answer any and all questions on the application concerning
your medical and health history. Failure to include all material
medical information on an application requesting that information may
provide a basis for the plan to deny any future claims and to refund
your prepaid or periodic payment as though your contract had never
been in force. After the application has been completed and before
you sign it, review it carefully to be certain that all information
has been properly recorded.
(5) Do not cancel your present Medicare supplement coverage until
you have received your new contract and are sure you want to keep it.
_________________________________________________
(Signature of Solicitor, Solicitor Firm, or
Other
Representative)
(Typed Name and Address of Plan, Solicitor, or
Solicitor Firm)
_________________________________________________
(Applicant's Signature)
_________________________________________________
(Date)
(f) The application form or other consumer information for persons
eligible for Medicare and used by an issuer shall contain, as an
attachment, a Medicare supplement buyer's guide in the form approved
by the director. The application or other consumer information,
containing, as an attachment, the buyer's guide, shall be mailed or
delivered to each applicant applying for that coverage at or before
the time of application and, to establish compliance with this
subdivision, the issuer shall obtain an acknowledgment of receipt of
the attached buyer's guide from each applicant. An issuer shall not
make use of or otherwise disseminate any buyer's guide that does not
accurately outline current Medicare supplement benefits. An issuer
shall not be required to provide more than one copy of the buyer's
guide to any applicant.
(g) An issuer may comply with the requirement of this section in
the case of group contracts by causing the subscriber (1) to
disseminate copies of the disclosure form containing as an attachment
the buyer's guide to all persons eligible under the group contract
at the time those persons are offered the Medicare supplement plan,
and (2) collecting and forwarding to the issuer an acknowledgment of
receipt of the disclosure form containing, as an attachment, the
buyer's guide from each enrollee.
(h) An issuer shall not require, request, or obtain health
information as part of the application process for an applicant who
is eligible for guaranteed issuance of, or open enrollment for, any
Medicare supplement coverage pursuant to Section 1358.11 or 1358.12,
except for purposes of paragraph (1) or (2) of subdivision (a) of
Section 1358.11 when the applicant is first enrolled in Medicare Part
B. The application form shall include a clear and conspicuous
statement that the applicant is not required to provide health
information during a period where guaranteed issue or open enrollment
applies, as specified in Section 1358.11 or 1358.12, except for
purposes of paragraph (1) or (2) of subdivision (a) of Section
1358.11 when the applicant is first enrolled in Medicare Part B, and
shall inform the applicant of those periods of guaranteed issuance of
Medicare supplement coverage. This subdivision does not prohibit an
issuer from requiring proof of eligibility for a guaranteed issuance
of Medicare supplement coverage.
SEC. 177. Section 1367.005 of the Health and Safety Code, as added
by Section 2 of Chapter 648 of the Statutes of 2015, is amended to
read:
1367.005. (a) An individual or small group health care service
plan contract issued, amended, or renewed on or after January 1,
2017, shall, at a minimum, include coverage for essential health
benefits pursuant to PPACA and as outlined in this section. For
purposes of this section, "essential health benefits" means all of
the following:
(1) Health benefits within the categories identified in Section
1302(b) of PPACA: ambulatory patient services, emergency services,
hospitalization, maternity and newborn care, mental health and
substance use disorder services, including behavioral health
treatment, prescription drugs, rehabilitative and habilitative
services and devices, laboratory services, preventive and wellness
services and chronic disease management, and pediatric services,
including oral and vision care.
(2) (A) The health benefits covered by the Kaiser Foundation
Health Plan Small Group HMO 30 plan (federal health product
identification number 40513CA035) as this plan was offered during the
first quarter of 2014, as follows, regardless of whether the
benefits are specifically referenced in the evidence of coverage or
plan contract for that plan:
(i) Medically necessary basic health care services, as defined in
subdivision (b) of Section 1345 and in Section 1300.67 of Title 28 of
the California Code of Regulations.
(ii) The health benefits mandated to be covered by the plan
pursuant to statutes enacted before December 31, 2011, as described
in the following sections: Sections 1367.002, 1367.06, and 1367.35
(preventive services for children); Section 1367.25 (prescription
drug coverage for contraceptives); Section 1367.45 (AIDS vaccine);
Section 1367.46 (HIV testing); Section 1367.51 (diabetes); Section
1367.54 (alpha-fetoprotein testing); Section 1367.6 (breast cancer
screening); Section 1367.61 (prosthetics for laryngectomy); Section
1367.62 (maternity hospital stay); Section 1367.63
(reconstructive surgery); Section
1367.635 (mastectomies); Section 1367.64 (prostate cancer); Section
1367.65 (mammography); Section 1367.66 (cervical cancer); Section
1367.665 (cancer screening tests); Section 1367.67 (osteoporosis);
Section 1367.68 (surgical procedures for jaw bones); Section 1367.71
(anesthesia for dental); Section 1367.9 (conditions attributable to
diethylstilbestrol); Section 1368.2 (hospice care); Section 1370.6
(cancer clinical trials); Section 1371.5 (emergency response
ambulance or ambulance transport services); subdivision (b) of
Section 1373 (sterilization operations or procedures); Section 1373.4
(inpatient hospital and ambulatory maternity); Section 1374.56
(phenylketonuria); Section 1374.17 (organ transplants for HIV);
Section 1374.72 (mental health parity); and Section 1374.73
(autism/behavioral health treatment).
(iii) Any other benefits mandated to be covered by the plan
pursuant to statutes enacted before December 31, 2011, as described
in those statutes.
(iv) The health benefits covered by the plan that are not
otherwise required to be covered under this chapter, to the extent
required pursuant to Sections 1367.18, 1367.21, 1367.215, 1367.22,
1367.24, and 1367.25, and Section 1300.67.24 of Title 28 of the
California Code of Regulations.
(v) Any other health benefits covered by the plan that are not
otherwise required to be covered under this chapter.
(B) If there are any conflicts or omissions in the plan identified
in subparagraph (A) as compared with the requirements for health
benefits under this chapter that were enacted prior to December 31,
2011, the requirements of this chapter shall be controlling, except
as otherwise specified in this section.
(C) Notwithstanding subparagraph (B) or any other provision of
this section, the home health services benefits covered under the
plan identified in subparagraph (A) shall be deemed to not be in
conflict with this chapter.
(D) For purposes of this section, the Paul Wellstone and Pete
Domenici Mental Health Parity and Addiction Equity Act of 2008
(Public Law 110-343) shall apply to a contract subject to this
section. Coverage of mental health and substance use disorder
services pursuant to this paragraph, along with any scope and
duration limits imposed on the benefits, shall be in compliance with
the Paul Wellstone and Pete Domenici Mental Health Parity and
Addiction Equity Act of 2008 (Public Law 110-343), and all rules,
regulations, or guidance issued pursuant to Section 2726 of the
federal Public Health Service Act (42 U.S.C. Sec. 300gg-26).
(3) With respect to habilitative services, in addition to any
habilitative services and devices identified in paragraph (2),
coverage shall also be provided as required by federal rules,
regulations, and guidance issued pursuant to Section 1302(b) of
PPACA. Habilitative services and devices shall be covered under the
same terms and conditions applied to rehabilitative services and
devices under the plan contract. Limits on habilitative and
rehabilitative services and devices shall not be combined.
(4) With respect to pediatric vision care, the same health
benefits for pediatric vision care covered under the Federal
Employees Dental and Vision Insurance Program vision plan with the
largest national enrollment as of the first quarter of 2014. The
pediatric vision care benefits covered pursuant to this paragraph
shall be in addition to, and shall not replace, any vision services
covered under the plan identified in paragraph (2).
(5) With respect to pediatric oral care, the same health benefits
for pediatric oral care covered under the dental benefit received by
children under the Medi-Cal program as of 2014, including the
provision of medically necessary orthodontic care provided pursuant
to the federal Children's Health Insurance Program Reauthorization
Act of 2009. The pediatric oral care benefits covered pursuant to
this paragraph shall be in addition to, and shall not replace, any
dental or orthodontic services covered under the plan identified in
paragraph (2).
(b) Treatment limitations imposed on health benefits described in
this section shall be no greater than the treatment limitations
imposed by the corresponding plans identified in subdivision (a),
subject to the requirements set forth in paragraph (2) of subdivision
(a).
(c) Except as provided in subdivision (d), nothing in this section
shall be construed to permit a health care service plan to make
substitutions for the benefits required to be covered under this
section, regardless of whether those substitutions are actuarially
equivalent.
(d) To the extent permitted under Section 1302 of PPACA and any
rules, regulations, or guidance issued pursuant to that section, and
to the extent that substitution would not create an obligation for
the state to defray costs for any individual, a plan may substitute
its prescription drug formulary for the formulary provided under the
plan identified in subdivision (a) as long as the coverage for
prescription drugs complies with the sections referenced in clauses
(ii) and (iv) of subparagraph (A) of paragraph (2) of subdivision (a)
that apply to prescription drugs.
(e) A health care service plan, or its agent, solicitor, or
representative, shall not issue, deliver, renew, offer, market,
represent, or sell any product, contract, or discount arrangement as
compliant with the essential health benefits requirement in federal
law, unless it meets all of the requirements of this section.
(f) This section applies regardless of whether the plan contract
is offered inside or outside the California Health Benefit Exchange
created by Section 100500 of the Government Code.
(g) This section shall not be construed to exempt a plan or a plan
contract from meeting other applicable requirements of law.
(h) This section shall not be construed to prohibit a plan
contract from covering additional benefits, including, but not
limited to, spiritual care services that are tax deductible under
Section 213 of the Internal Revenue Code.
(i) Subdivision (a) does not apply to any of the following:
(1) A specialized health care service plan contract.
(2) A Medicare supplement plan.
(3) A plan contract that qualifies as a grandfathered health plan
under Section 1251 of PPACA or any rules, regulations, or guidance
issued pursuant to that section.
(j) This section shall not be implemented in a manner that
conflicts with a requirement of PPACA.
(k) This section shall be implemented only to the extent essential
health benefits are required pursuant to PPACA.
(l) An essential health benefit is required to be provided under
this section only to the extent that federal law does not require the
state to defray the costs of the benefit.
(m) This section does not obligate the state to incur costs for
the coverage of benefits that are not essential health benefits as
defined in this section.
(n) A plan is not required to cover, under this section, changes
to health benefits that are the result of statutes enacted on or
after December 31, 2011.
(o) (1) The department may adopt emergency regulations
implementing this section. The department may, on a one-time basis,
readopt any emergency regulation authorized by this section that is
the same as, or substantially equivalent to, an emergency regulation
previously adopted under this section.
(2) The initial adoption of emergency regulations implementing
this section and the readoption of emergency regulations authorized
by this subdivision shall be deemed an emergency and necessary for
the immediate preservation of the public peace, health, safety, or
general welfare. The initial emergency regulations and the readoption
of emergency regulations authorized by this section shall be
submitted to the Office of Administrative Law for filing with the
Secretary of State and each shall remain in effect for no more than
180 days, by which time final regulations may be adopted.
(3) The initial adoption of emergency regulations implementing
this section made during the 2015-16 Regular Session of the
Legislature and the readoption of emergency regulations authorized by
this subdivision shall be deemed an emergency and necessary for the
immediate preservation of the public peace, health, safety, or
general welfare. The initial emergency regulations and the readoption
of emergency regulations authorized by this section shall be
submitted to the Office of Administrative Law for filing with the
Secretary of State and each shall remain in effect for no more than
180 days, by which time final regulations may be adopted.
(4) The director shall consult with the Insurance Commissioner to
ensure consistency and uniformity in the development of regulations
under this subdivision.
(5) This subdivision shall become inoperative on July 1, 2018.
(p) For purposes of this section, the following definitions apply:
(1) "Habilitative services" means health care services and devices
that help a person keep, learn, or improve skills and functioning
for daily living. Examples include therapy for a child who is not
walking or talking at the expected age. These services may include
physical and occupational therapy, speech-language pathology, and
other services for people with disabilities in a variety of inpatient
or outpatient settings, or both. Habilitative services shall be
covered under the same terms and conditions applied to rehabilitative
services under the plan contract.
(2) (A) "Health benefits," unless otherwise required to be defined
pursuant to federal rules, regulations, or guidance issued pursuant
to Section 1302(b) of PPACA, means health care items or services for
the diagnosis, cure, mitigation, treatment, or prevention of illness,
injury, disease, or a health condition, including a behavioral
health condition.
(B) "Health benefits" does not mean any cost-sharing requirements
such as copayments, coinsurance, or deductibles.
(3) "PPACA" means the federal Patient Protection and Affordable
Care Act (Public Law 111-148), as amended by the federal Health Care
and Education Reconciliation Act of 2010 (Public Law 111-152), and
any rules, regulations, or guidance issued thereunder.
(4) "Small group health care service plan contract" means a group
health care service plan contract issued to a small employer, as
defined in Section 1357.500.
SEC. 178. Section 1367.27 of the Health and Safety Code is amended
to read:
1367.27. (a) Commencing July 1, 2016, a health care service plan
shall publish and maintain a provider directory or directories with
information on contracting providers that deliver health care
services to the plan's enrollees, including those that accept new
patients. A provider directory shall not list or include information
on a provider that is not currently under contract with the plan.
(b) A health care service plan shall provide the directory or
directories for the specific network offered for each product using a
consistent method of network and product naming, numbering, or other
classification method that ensures the public, enrollees, potential
enrollees, the department, and other state or federal agencies can
easily identify the networks and plan products in which a provider
participates. By July 31, 2017, or 12 months after the date provider
directory standards are developed under subdivision (k), whichever
occurs later, a health care service plan shall use the naming,
numbering, or classification method developed by the department
pursuant to subdivision (k).
(c) (1) An online provider directory or directories shall be
available on the plan's Internet Web site to the public, potential
enrollees, enrollees, and providers without any restrictions or
limitations. The directory or directories shall be accessible without
any requirement that an individual seeking the directory information
demonstrate coverage with the plan, indicate interest in obtaining
coverage with the plan, provide a member identification or policy
number, provide any other identifying information, or create or
access an account.
(2) The online provider directory or directories shall be
accessible on the plan's public Internet Web site through an
identifiable link or tab and in a manner that is accessible and
searchable by enrollees, potential enrollees, the public, and
providers. By July 31, 2017, or 12 months after the date provider
directory standards are developed under subdivision (k), whichever
occurs later, the plan's public Internet Web site shall allow
provider searches by, at a minimum, name, practice address, city, ZIP
Code, California license number, National Provider Identifier
number, admitting privileges to an identified hospital, product,
tier, provider language or languages, provider group, hospital name,
facility name, or clinic name, as appropriate.
(d) (1) A health care service plan shall allow enrollees,
potential enrollees, providers, and members of the public to request
a printed copy of the provider directory or directories by contacting
the plan through the plan's toll-free telephone number,
electronically, or in writing. A printed copy of the provider
directory or directories shall include the information required in
subdivisions (h) and (i). The printed copy of the provider directory
or directories shall be provided to the requester by mail postmarked
no later than five business days following the date of the request
and may be limited to the geographic region in which the requester
resides or works or intends to reside or work.
(2) A health care service plan shall update its printed provider
directory or directories at least quarterly, or more frequently, if
required by federal law.
(e) (1) The plan shall update the online provider directory or
directories, at least weekly, or more frequently, if required by
federal law, when informed of and upon confirmation by the plan of
any of the following:
(A) A contracting provider is no longer accepting new patients for
that product, or an individual provider within a provider group is
no longer accepting new patients.
(B) A provider is no longer under contract for a particular plan
product.
(C) A provider's practice location or other information required
under subdivision (h) or (i) has changed.
(D) Upon completion of the investigation described in subdivision
(o), a change is necessary based on an enrollee complaint that a
provider was not accepting new patients, was otherwise not available,
or whose contact information was listed incorrectly.
(E) Any other information that affects the content or accuracy of
the provider directory or directories.
(2) Upon confirmation of any of the following, the plan shall
delete a provider from the directory or directories when:
(A) A provider has retired or otherwise has ceased to practice.
(B) A provider or provider group is no longer under contract with
the plan for any reason.
(C) The contracting provider group has informed the plan that the
provider is no longer associated with the provider group and is no
longer under contract with the plan.
(f) The provider directory or directories shall include both an
email address and a telephone number for members of the public and
providers to notify the plan if the provider directory information
appears to be inaccurate. This information shall be disclosed
prominently in the directory or directories and on the plan's
Internet Web site.
(g) The provider directory or directories shall include the
following disclosures informing enrollees that they are entitled to
both of the following:
(1) Language interpreter services, at no cost to the enrollee,
including how to obtain interpretation services in accordance with
Section 1367.04.
(2) Full and equal access to covered services, including enrollees
with disabilities as required under the federal Americans with
Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of
1973.
(h) A full service health care service plan and a specialized
mental health plan shall include all of the following information in
the provider directory or directories:
(1) The provider's name, practice location or locations, and
contact information.
(2) Type of practitioner.
(3) National Provider Identifier number.
(4) California license number and type of license.
(5) The area of specialty, including board certification, if any.
(6) The provider's office email address, if available.
(7) The name of each affiliated provider group currently under
contract with the plan through which the provider sees enrollees.
(8) A listing for each of the following providers that are under
contract with the plan:
(A) For physicians and surgeons, the provider group, and admitting
privileges, if any, at hospitals contracted with the plan.
(B) Nurse practitioners, physician assistants, psychologists,
acupuncturists, optometrists, podiatrists, chiropractors, licensed
clinical social workers, marriage and family therapists, professional
clinical counselors, qualified autism service providers, as defined
in Section 1374.73, nurse midwives, and dentists.
(C) For federally qualified health centers or primary care
clinics, the name of the federally qualified health center or clinic.
(D) For any provider described in subparagraph (A) or (B) who is
employed by a federally qualified health center or primary care
clinic, and to the extent their services may be accessed and are
covered through the contract with the plan, the name of the provider,
and the name of the federally qualified health center or clinic.
(E) Facilities, including, but not limited to, general acute care
hospitals, skilled nursing facilities, urgent care clinics,
ambulatory surgery centers, inpatient hospice, residential care
facilities, and inpatient rehabilitation facilities.
(F) Pharmacies, clinical laboratories, imaging centers, and other
facilities providing contracted health care services.
(9) The provider directory or directories may note that
authorization or referral may be required to access some providers.
(10) Non-English language, if any, spoken by a health care
provider or other medical professional as well as non-English
language spoken by a qualified medical interpreter, in accordance
with Section 1367.04, if any, on the provider's staff.
(11) Identification of providers who no longer accept new patients
for some or all of the plan's products.
(12) The network tier to which the provider is assigned, if the
provider is not in the lowest tier, as applicable. Nothing in this
section shall be construed to require the use of network tiers other
than contract and noncontracting tiers.
(13) All other information necessary to conduct a search pursuant
to paragraph (2) of subdivision (c).
(i) A vision, dental, or other specialized health care service
plan, except for a specialized mental health plan, shall include all
of the following information for each provider directory or
directories used by the plan for its networks:
(1) The provider's name, practice location or locations, and
contact information.
(2) Type of practitioner.
(3) National Provider Identifier number.
(4) California license number and type of license, if applicable.
(5) The area of specialty, including board certification, or other
accreditation, if any.
(6) The provider's office email address, if available.
(7) The name of each affiliated provider group or specialty plan
practice group currently under contract with the plan through which
the provider sees enrollees.
(8) The names of each allied health care professional to the
extent there is a direct contract for those services covered through
a contract with the plan.
(9) The non-English language, if any, spoken by a health care
provider or other medical professional as well as non-English
language spoken by a qualified medical interpreter, in accordance
with Section 1367.04, if any, on the provider's staff.
(10) Identification of providers who no longer accept new patients
for some or all of the plan's products.
(11) All other applicable information necessary to conduct a
provider search pursuant to paragraph (2) of subdivision (c).
(j) (1) The contract between the plan and a provider shall include
a requirement that the provider inform the plan within five business
days when either of the following occurs:
(A) The provider is not accepting new patients.
(B) If the provider had previously not accepted new patients, the
provider is currently accepting new patients.
(2) If a provider who is not accepting new patients is contacted
by an enrollee or potential enrollee seeking to become a new patient,
the provider shall direct the enrollee or potential enrollee to both
the plan for additional assistance in finding a provider and to the
department to report any inaccuracy with the plan's directory or
directories.
(3) If an enrollee or potential enrollee informs a plan of a
possible inaccuracy in the provider directory or directories, the
plan shall promptly investigate, and, if necessary, undertake
corrective action within 30 business days to ensure the accuracy of
the directory or directories.
(k) (1) On or before December 31, 2016, the department shall
develop uniform provider directory standards to permit consistency in
accordance with subdivision (b) and paragraph (2) of subdivision (c)
and development of a multiplan directory by another entity. Those
standards shall not be subject to the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code), until January 1, 2021. No more
than two revisions of those standards shall be exempt from the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code)
pursuant to this subdivision.
(2) In developing the standards under this subdivision, the
department shall seek input from interested parties throughout the
process of developing the standards and shall hold at least one
public meeting. The department shall take into consideration any
requirements for provider directories established by the federal
Centers for Medicare and Medicaid Services and the State Department
of Health Care Services.
(3) By July 31, 2017, or 12 months after the date provider
directory standards are developed under this subdivision, whichever
occurs later, a plan shall use the standards developed by the
department for each product offered by the plan.
(l) (1) A plan shall take appropriate steps to ensure the accuracy
of the information concerning each provider listed in the plan's
provider directory or directories in accordance with this section,
and shall, at least annually, review and update the entire provider
directory or directories for each product offered. Each calendar year
the plan shall notify all contracted providers described in
subdivisions (h) and (i) as follows:
(A) For individual providers who are not affiliated with a
provider group described in subparagraph (A) or (B) of paragraph (8)
of subdivision (h) and providers described in subdivision (i), the
plan shall notify each provider at least once every six months.
(B) For all other providers described in subdivision (h) who are
not subject to the requirements of subparagraph (A), the plan shall
notify its contracted providers to ensure that all of the providers
are contacted by the plan at least once annually.
(2) The notification shall include all of the following:
(A) The information the plan has in its directory or directories
regarding the provider or provider group, including a list of
networks and plan products that include the contracted provider or
provider group.
(B) A statement that the failure to respond to the notification
may result in a delay of payment or reimbursement of a claim pursuant
to subdivision (p).
(C) Instructions on how the provider or provider group can update
the information in the provider directory or directories using the
online interface developed pursuant to subdivision (m).
(3) The plan shall require an affirmative response from the
provider or provider group acknowledging that the notification was
received. The provider or provider group shall confirm that the
information in the provider directory or directories is current and
accurate or update the information required to be in the directory or
directories pursuant to this section, including whether or not the
provider or provider group is accepting new patients for each plan
product.
(4) If the plan does not receive an affirmative response and
confirmation from the provider that the information is current and
accurate or, as an alternative, updates any information required to
be in the directory or directories pursuant to this section, within
30 business days, the plan shall take no more than 15 business days
to verify whether the provider's information is correct or requires
updates. The plan shall document the receipt and outcome of each
attempt to verify the information. If the plan is unable to verify
whether the provider's information is correct or requires updates,
the plan shall notify the provider 10 business days in advance of
removal that the provider will be removed from the provider directory
or directories. The provider shall be removed from the provider
directory or directories at the next required update of the provider
directory or directories after the 10-business-day notice period. A
provider shall not be removed from the provider directory or
directories if he or she responds before the end of the
10-business-day notice period.
(5) General acute care hospitals shall be exempt from the
requirements in paragraphs (3) and (4).
(m) A plan shall establish policies and procedures with regard to
the regular updating of its provider directory or directories,
including the weekly, quarterly, and annual updates required pursuant
to this section, or more frequently, if required by federal law or
guidance.
(1) The policies and procedures described under this subdivision
shall be submitted by a plan annually to the department for approval
and in a format described by the department pursuant to Section
1367.035.
(2) Every health care service plan shall ensure processes are in
place to allow providers to promptly verify or submit changes to the
information required to be in the directory or directories pursuant
to this section. Those processes shall, at a minimum, include an
online interface for providers to submit verification or changes
electronically and shall generate an acknowledgment of receipt from
the health care service plan. Providers shall verify or submit
changes to information
required to be in the directory or directories pursuant to this
section using the process required by the health care service plan.
(3) The plan shall establish and maintain a process for enrollees,
potential enrollees, other providers, and the public to identify and
report possible inaccurate, incomplete, or misleading information
currently listed in the plan's provider directory or directories.
This process shall, at a minimum, include a telephone number and a
dedicated email address at which the plan will accept these reports,
as well as a hyperlink on the plan's provider directory Internet Web
site linking to a form where the information can be reported directly
to the plan through its Internet Web site.
(n) (1) This section does not prohibit a plan from requiring its
provider groups or contracting specialized health care service plans
to provide information to the plan that is required by the plan to
satisfy the requirements of this section for each of the providers
that contract with the provider group or contracting specialized
health care service plan. This responsibility shall be specifically
documented in a written contract between the plan and the provider
group or contracting specialized health care service plan.
(2) If a plan requires its contracting provider groups or
contracting specialized health care service plans to provide the plan
with information described in paragraph (1), the plan shall continue
to retain responsibility for ensuring that the requirements of this
section are satisfied.
(3) A provider group may terminate a contract with a provider for
a pattern or repeated failure of the provider to update the
information required to be in the directory or directories pursuant
to this section.
(4) A provider group is not subject to the payment delay described
in subdivision (p) if all of the following occurs:
(A) A provider does not respond to the provider group's attempt to
verify the provider's information. As used in this paragraph,
"verify" means to contact the provider in writing, electronically,
and by telephone to confirm whether the provider's information is
correct or requires updates.
(B) The provider group documents its efforts to verify the
provider's information.
(C) The provider group reports to the plan that the provider
should be deleted from the provider group in the plan directory or
directories.
(5) Section 1375.7, known as the Health Care Providers' Bill of
Rights, applies to any material change to a provider contract
pursuant to this section.
(o) (1) Whenever a health care service plan receives a report
indicating that information listed in its provider directory or
directories is inaccurate, the plan shall promptly investigate the
reported inaccuracy and, no later than 30 business days following
receipt of the report, either verify the accuracy of the information
or update the information in its provider directory or directories,
as applicable.
(2) When investigating a report regarding its provider directory
or directories, the plan shall, at a minimum, do the following:
(A) Contact the affected provider no later than five business days
following receipt of the report.
(B) Document the receipt and outcome of each report. The
documentation shall include the provider's name, location, and a
description of the plan's investigation, the outcome of the
investigation, and any changes or updates made to its provider
directory or directories.
(C) If changes to a plan's provider directory or directories are
required as a result of the plan's investigation, the changes to the
online provider directory or directories shall be made no later than
the next scheduled weekly update, or the update immediately following
that update, or sooner if required by federal law or regulations.
For printed provider directories, the change shall be made no later
than the next required update, or sooner if required by federal law
or regulations.
(p) (1) Notwithstanding Sections 1371 and 1371.35, a plan may
delay payment or reimbursement owed to a provider or provider group
as specified in subparagraph (A) or (B), if the provider or provider
group fails to respond to the plan's attempts to verify the provider'
s or provider group's information as required under subdivision (l).
The plan shall not delay payment unless it has attempted to verify
the provider's or provider group's information. As used in this
subdivision, "verify" means to contact the provider or provider group
in writing, electronically, and by telephone to confirm whether the
provider's or provider group's information is correct or requires
updates. A plan may seek to delay payment or reimbursement owed to a
provider or provider group only after the 10-business day notice
period described in paragraph (4) of subdivision (l) has lapsed.
(A) For a provider or provider group that receives compensation on
a capitated or prepaid basis, the plan may delay no more than 50
percent of the next scheduled capitation payment for up to one
calendar month.
(B) For any claims payment made to a provider or provider group,
the plan may delay the claims payment for up to one calendar month
beginning on the first day of the following month.
(2) A plan shall notify the provider or provider group 10 business
days before it seeks to delay payment or reimbursement to a provider
or provider group pursuant to this subdivision. If the plan delays a
payment or reimbursement pursuant to this subdivision, the plan
shall reimburse the full amount of any payment or reimbursement
subject to delay to the provider or provider group according to
either of the following timelines, as applicable:
(A) No later than three business days following the date on which
the plan receives the information required to be submitted by the
provider or provider group pursuant to subdivision (l).
(B) At the end of the one-calendar month delay described in
subparagraph (A) or (B) of paragraph (1), as applicable, if the
provider or provider group fails to provide the information required
to be submitted to the plan pursuant to subdivision (l).
(3) A plan may terminate a contract for a pattern or repeated
failure of the provider or provider group to alert the plan to a
change in the information required to be in the directory or
directories pursuant to this section.
(4) A plan that delays payment or reimbursement under this
subdivision shall document each instance a payment or reimbursement
was delayed and report this information to the department in a format
described by the department pursuant to Section 1367.035. This
information shall be submitted along with the policies and procedures
required to be submitted annually to the department pursuant to
paragraph (1) of subdivision (m).
(5) With respect to plans with Medi-Cal managed care contracts
with the State Department of Health Care Services pursuant to Chapter
7 (commencing with Section 14000), Chapter 8 (commencing with
Section 14200), or Chapter 8.75 (commencing with Section 14591) of
the Welfare and Institutions Code, this subdivision shall be
implemented only to the extent consistent with federal law and
guidance.
(q) In circumstances where the department finds that an enrollee
reasonably relied upon materially inaccurate, incomplete, or
misleading information contained in a health plan's provider
directory or directories, the department may require the health plan
to provide coverage for all covered health care services provided to
the enrollee and to reimburse the enrollee for any amount beyond what
the enrollee would have paid, had the services been delivered by an
in-network provider under the enrollee's plan contract. Prior to
requiring reimbursement in these circumstances, the department shall
conclude that the services received by the enrollee were covered
services under the enrollee's plan contract. In those circumstances,
the fact that the services were rendered or delivered by a
noncontracting or out-of-plan provider shall not be used as a basis
to deny reimbursement to the enrollee.
(r) Whenever a plan determines as a result of this section that
there has been a 10 percent change in the network for a product in a
region, the plan shall file an amendment to the plan application with
the department consistent with subdivision (f) of Section 1300.52 of
Title 28 of the California Code of Regulations.
(s) This section applies to plans with Medi-Cal managed care
contracts with the State Department of Health Care Services pursuant
to Chapter 7 (commencing with Section 14000), Chapter 8 (commencing
with Section 14200), or Chapter 8.75 (commencing with Section 14591)
of the Welfare and Institutions Code to the extent consistent with
federal law and guidance and state law guidance issued after January
1, 2016. Notwithstanding any other provision to the contrary in a
plan contract with the State Department of Health Care Services, and
to the extent consistent with federal law and guidance and state
guidance issued after January 1, 2016, a Medi-Cal managed care plan
that complies with the requirements of this section shall not be
required to distribute a printed provider directory or directories,
except as required by paragraph (1) of subdivision (d).
(t) A health plan that contracts with multiple employer welfare
agreements regulated pursuant to Article 4.7 (commencing with Section
742.20) of Chapter 1 of Part 2 of Division 1 of the Insurance Code
shall meet the requirements of this section.
(u) This section shall not be construed to alter a provider's
obligation to provide health care services to an enrollee pursuant to
the provider's contract with the plan.
(v) As part of the department's routine examination of the fiscal
and administrative affairs of a health care service plan pursuant to
Section 1382, the department shall include a review of the health
care service plan's compliance with subdivision (p).
(w) For purposes of this section, "provider group" means a medical
group, independent practice association, or other similar group of
providers.
SEC. 179. Section 1569.2 of the Health and Safety Code is amended
to read:
1569.2. As used in this chapter:
(a) "Administrator" means the individual designated by the
licensee to act on behalf of the licensee in the overall management
of the facility. The licensee, if an individual, and the
administrator may be one and the same person.
(b) "Beneficial ownership interest" means an ownership interest
through the possession of stock, equity in capital, or any interest
in the profits of the applicant or licensee, or through the
possession of such an interest in other entities that directly or
indirectly hold an interest in the applicant or licensee. The
percentage of beneficial ownership in the applicant or licensee that
is held by any other entity is determined by multiplying the other
entities' percentage of ownership interest at each level.
(c) "Care and supervision" means the facility assumes
responsibility for, or provides or promises to provide in the future,
ongoing assistance with activities of daily living without which the
resident's physical health, mental health, safety, or welfare would
be endangered. Assistance includes assistance with taking
medications, money management, or personal care.
(d) "Chain" means a group of two or more licensees that are
controlled, as defined in this section, by the same persons or
entities.
(e) "Control" means the ability to direct the operation or
management of the applicant or licensee and includes the ability to
exercise control through intermediary or subsidiary entities.
(f) "Department" means the State Department of Social Services.
(g) "Director" means the Director of Social Services.
(h) "Health-related services" mean services that shall be directly
provided by an appropriate skilled professional, including a
registered nurse, licensed vocational nurse, physical therapist, or
occupational therapist.
(i) "Instrumental activities of daily living" means any of the
following: housework, meals, laundry, taking of medication, money
management, appropriate transportation, correspondence, telephoning,
and related tasks.
(j) "License" means a basic permit to operate a residential care
facility for the elderly.
(k) "Parent organization" means an organization in control of
another organization either directly or through one or more
intermediaries.
(l) "Personal activities of daily living" means any of the
following: dressing, feeding, toileting, bathing, grooming, and
mobility and associated tasks.
(m) "Personal care" means assistance with personal activities of
daily living, to help provide for and maintain physical and
psychosocial comfort.
(n) "Protective supervision" means observing and assisting
confused residents, including persons with dementia, to safeguard
them against injury.
(o) (1) "Residential care facility for the elderly" means a
housing arrangement chosen voluntarily by persons 60 years of age or
over, or their authorized representative, where varying levels and
intensities of care and supervision, protective supervision, or
personal care are provided, based upon their varying needs, as
determined in order to be admitted and to remain in the facility.
Persons under 60 years of age with compatible needs may be allowed to
be admitted or retained in a residential care facility for the
elderly as specified in Section 1569.316.
(2) This subdivision shall be operative only until the enactment
of legislation implementing the three levels of care in residential
care facilities for the elderly pursuant to Section 1569.70.
(p) (1) "Residential care facility for the elderly" means a
housing arrangement chosen voluntarily by persons 60 years of age or
over, or their authorized representative, where varying levels and
intensities of care and supervision, protective supervision, personal
care, or health-related services are provided, based upon their
varying needs, as determined in order to be admitted and to remain in
the facility. Persons under 60 years of age with compatible needs
may be allowed to be admitted or retained in a residential care
facility for the elderly as specified in Section 1569.316.
(2) This subdivision shall become operative upon the enactment of
legislation implementing the three levels of care in residential care
facilities for the elderly pursuant to Section 1569.70.
(q) "Sundowning" means a condition in which persons with cognitive
impairment experience recurring confusion, disorientation, and
increasing levels of agitation that coincide with the onset of late
afternoon and early evening.
(r) "Supportive services" means resources available to the
resident in the community that help to maintain their functional
ability and meet their needs as identified in the individual resident
assessment. Supportive services may include any of the following:
medical, dental, and other health care services; transportation;
recreational and leisure activities; social services; and counseling
services.
SEC. 180. Section 1596.8662 of the Health and Safety Code is
amended to read:
1596.8662. (a) The department shall do all of the following:
(1) Make information available to all licensed child day care
providers, administrators, and employees of licensed child day care
facilities regarding detecting and reporting child abuse and neglect.
(2) Provide training including statewide guidance on the
responsibilities of a mandated reporter who is a licensed day care
provider or an applicant for that license, administrator, or employee
of a licensed child day care facility in accordance with the Child
Abuse and Neglect Reporting Act (Article 2.5 (commencing with Section
11164) of Chapter 2 of Title 1 of Part 4 of the Penal Code). The
department shall provide the guidance using its free module or
modules provided on the State Department of Social Services Internet
Web site or as otherwise specified by the department. This guidance
content shall include, but is not necessarily limited to, all of the
following:
(A) Information on the identification of child abuse and neglect,
including behavioral signs of abuse and neglect.
(B) Reporting requirements for child abuse and neglect, including
guidelines on how to make a suspected child abuse report when
suspected abuse or neglect takes place outside a child day care
facility, or within a child day care facility, and to which
enforcement agency or agencies a report is required to be made.
(C) Information that failure to report an incident of known or
reasonably suspected child abuse or neglect, as required by Section
11166 of the Penal Code, is a misdemeanor punishable by up to six
months confinement in a county jail, or by a fine of one thousand
dollars ($1,000), or by both that imprisonment and fine.
(D) Information that mandated reporting duties are individual and
no supervisor or administrator may impede or inhibit reporting
duties, and no person making a report shall be subject to any
sanction for making the report, pursuant to paragraph (1) of
subdivision (i) of Section 11166 of the Penal Code. A supervisor or
administrator who impedes or inhibits the duties of a mandated
reporter shall be subject to punishment pursuant to Section 11166.01
of the Penal Code.
(E) Information on childhood stages of development in order to
help distinguish whether a child's behavior or physical symptoms are
within range for his or her age and ability, or are signs of abuse or
neglect.
(3) The department shall provide training, including information
about child safety and maltreatment prevention using its free
training module or modules specified in paragraph (2), or as
otherwise specified by the department. This information shall
include, but is not necessarily limited to, all of the following:
(A) Information on protective factors that may help prevent abuse,
including dangers of shaking a child, safe sleep practices,
psychological effects of repeated exposure to domestic violence, safe
and age-appropriate forms of discipline, how to promote a child's
social and emotional health, and how to support positive parent-child
relationships.
(B) Information on recognizing risk factors that may lead to
abuse, such as stress and social isolation, and available resources
to which a family may be referred to help prevent child abuse and
neglect.
(C) When to call for emergency medical attention to prevent
further injury or death.
(D) Information on how a licensed child day care provider,
administrator, or employee of a licensed child day care facility
might communicate with a family before and after making a suspected
child abuse report.
(4) The department shall comply with the Dymally-Alatorre
Bilingual Services Act of 1973 (Chapter 17.5 (commencing with Section
7290) of the Government Code), which includes, among alternative
communication options, providing the same type of training materials
in any non-English language spoken by a substantial number of members
of the public whom the department serves.
(b) (1) On or before March 30, 2018, a person who, on January 1,
2018, is a licensed child day care provider, administrator, or
employee of a licensed child day care facility shall complete the
mandated reporter training provided pursuant to paragraphs (2) and
(3) of subdivision (a), and shall complete renewal mandated reporter
training every two years following the date on which he or she
completed the initial mandated reporter training.
(2) On and after January 1, 2018, a person who applies for a
license to be a provider of a child day care facility shall complete
the mandated reporter training provided pursuant to paragraphs (2)
and (3) of subdivision (a) as a precondition to licensure and shall
complete renewal mandated reporter training every two years following
the date on which he or she completed the initial mandated reporter
training.
(3) On and after January 1, 2018, a person who becomes an
administrator or employee of a licensed child day care facility shall
complete the mandated reporter training provided pursuant to
paragraphs (2) and (3) of subdivision (a) within the first 90 days
that he or she is employed at the facility and shall complete renewal
mandated reporter training every two years following the date on
which he or she completed the initial mandated reporter training.
(4) The licensee of a licensed child day care facility shall
obtain proof from an administrator or employee of the facility that
the person has completed mandated reporter training in compliance
with this subdivision.
(5) A licensed child day care provider, administrator, or employee
of a licensed child day care facility who does not use the online
training module provided by the department shall report to, and
obtain approval from, the department regarding the training that
person shall use in lieu of the online training module.
(c) Current proof of completion for each licensed child day care
provider or applicant for that license, administrator, and employee
of a licensed child day care facility shall be submitted to the
department upon inspection of the child day care or upon request by
the department.
(d) (1) The department shall issue a notice of deficiency at the
time of a site visit to the licensee of a licensed child day care
facility who is not in compliance with this section. The licensee
shall, at the time the department issues the notice of deficiency,
develop a plan to correct the deficiency within 45 days.
(2) A deficiency under this subdivision is not subject to Section
1596.890.
(e) A licensed child day care provider or applicant for that
license, an administrator, or employee of a licensed child care
facility is exempt from the detecting and reporting child abuse
training if he or she has limited English proficiency and training is
not made available in his or her primary language.
(f) This section shall become operative on January 1, 2018.
SEC. 181. Section 1760.2 of the Health and Safety Code is amended
to read:
1760.2. As used in this chapter, the following definitions shall
apply:
(a) (1) "Pediatric day health and respite care facility" means a
facility that provides an organized program of therapeutic social and
day health activities and services and limited 24-hour inpatient
respite care to medically fragile children 21 years of age or
younger, including terminally ill and technology-dependent patients,
except as provided in paragraph (2) and Section 1763.4.
(2) An individual who is 22 years of age or older may continue to
receive care in a pediatric day health and respite care facility if
the facility receives approval from the state department for a
Transitional Health Care Needs Optional Service Unit pursuant to
Section 1763.4. A patient who previously received services from a
pediatric day health and respite care facility, who is 22 years of
age or older, and who satisfies the requirements of Section 1763.4,
may also receive services in an optional service unit.
(b) "Medically fragile" means having an acute or chronic health
problem that requires therapeutic intervention and skilled nursing
care during all or part of the day. Medically fragile problems
include, but are not limited to, HIV disease, severe lung disease
requiring oxygen, severe lung disease requiring ventilator or
tracheostomy care, complicated spina bifida, heart disease,
malignancy, asthmatic exacerbations, cystic fibrosis exacerbations,
neuromuscular disease, encephalopathies, and seizure disorders.
(c) "Technology-dependent patient" means a person who, from
birth, has a chronic disability, requires the routine use of a
specific medical device to compensate for the loss of use of a
life-sustaining body function, and requires daily, ongoing care or
monitoring by trained personnel.
(d) "Respite care" means day and 24-hour relief for the parent or
guardian and care for the patient. 24-hour inpatient respite care
includes, but is not limited to, 24-hour nursing care, meals,
socialization, and developmentally appropriate activities. As used in
this chapter, "24-hour inpatient respite care" is limited to no more
than 30 intermittent or continuous whole calendar days per patient
per calendar year.
(e) "Comprehensive case management" means locating, coordinating,
and monitoring services for the eligible patient population and
includes all of the following:
(1) Screening of patient referrals to identify those persons who
can benefit from the available services.
(2) Comprehensive patient assessment to determine the services
needed.
(3) Coordinating the development of an interdisciplinary
comprehensive care plan.
(4) Determining individual case cost effectiveness and available
sources of funding.
(5) Identifying and maximizing informal sources of care.
(6) Ongoing monitoring of service delivery to determine the
optimum type, amount, and duration of services provided.
(f) "License" means a basic permit to operate a pediatric day
health and respite care facility. With respect to a health facility
licensed pursuant to Chapter 2 (commencing with Section 1250),
"license" means a special permit authorizing the health facility to
provide pediatric day health and respite care services as a separate
program in a distinct part of the facility.
(g) "State department" means the State Department of Public
Health.
SEC. 182. Section 12640 of the Health and Safety Code is amended
to read:
12640. In any case in which this chapter requires that a permit
be obtained from the State Fire Marshal, or in any case in which the
public agency having local jurisdiction requires pursuant to this
chapter that a permit be obtained, a licensee shall possess a valid
permit before performing any of the following:
(a) Manufacturing, importing, exporting, storing, possessing, or
selling dangerous fireworks at wholesale.
(b) Manufacturing, importing, exporting, storing, or selling at
wholesale or retail safe and sane fireworks or transporting safe and
sane fireworks, except that a transportation permit shall not be
required for safe and sane fireworks possessed by retail licensees.
(c) Manufacturing, importing, exporting, possessing, storing,
transporting, using, or selling at wholesale or retail, those
fireworks classified by the State Fire Marshal as agricultural and
wildlife fireworks.
(d) Manufacturing, importing, exporting, possessing, storing, or
selling at wholesale or retail, model rocket motors.
(e) Discharging dangerous fireworks at any place, including a
public display.
(f) Using special effects.
SEC. 183. Section 18080 of the Health and Safety Code is amended
to read:
18080. Ownership registration and title to a
manufactured home, mobilehome, commercial coach, or truck camper, or
floating home subject to registration may be held by two or more
coowners as follows:
(a) A manufactured home, mobilehome, commercial coach, truck
camper, or floating home may be registered in the names of two or
more persons as joint tenants. Upon the death of a joint tenant, the
interest of the decedent shall pass to the survivor or survivors. The
signature of each joint tenant or survivor or survivors, as the case
may be, shall be required to transfer or encumber the title to the
manufactured home, mobilehome, commercial coach, truck camper, or
floating home.
(b) A manufactured home, mobilehome, commercial coach, truck
camper, or floating home may be registered in the names of two or
more persons as tenants in common. If the names of the tenants in
common are separated by the word "and," each tenant in common may
transfer his or her individual interest in the manufactured home,
mobilehome, commercial coach, truck camper, or floating home without
the signature of the other tenant or tenants in common. However, the
signature of each tenant in common shall be required to transfer full
interest in the title to a new registered owner. If the names of the
tenants in common are separated by the word "or," any one of the
tenants in common may transfer full interest in the title to the
manufactured home, mobilehome, commercial coach, truck camper, or
floating home to a new registered owner without the signature of the
other tenant or tenants in common. The signature of each tenant in
common is required in all cases to encumber the title to the
manufactured home, mobilehome, commercial coach, truck camper, or
floating home.
(c) A manufactured home, mobilehome, commercial coach, truck
camper, or floating home may be registered as community property in
the names of a husband and wife. The signature of each spouse shall
be required to transfer or encumber the title to the manufactured
home, mobilehome, commercial coach, truck camper, or floating home.
(d) All manufactured homes, mobilehomes, commercial coaches,
truck campers, and floating homes registered, on or before January 1,
1985, in the names of two or more persons as tenants in common, as
provided in subdivision (b), shall be considered to be the same as if
the names of the tenants in common were separated by the word "or,"
as provided in subdivision (b).
SEC. 184. Section 25150.7 of the Health and Safety Code is amended
to read:
25150.7. (a) The Legislature finds and declares that this section
is intended to address the unique circumstances associated with the
generation and management of treated wood waste. The Legislature
further declares that this section does not set a precedent
applicable to the management, including disposal, of other hazardous
wastes.
(b) For purposes of this section, the following definitions shall
apply:
(1) "Treated wood" means wood that has been treated with a
chemical preservative for purposes of protecting the wood against
attacks from insects, microorganisms, fungi, and other environmental
conditions that can lead to decay of the wood, and the chemical
preservative is registered pursuant to the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(2) "Wood preserving industry" means business concerns, other than
retailers, that manufacture or sell treated wood products in the
state.
(c) This section applies only to treated wood waste that, solely
due to the presence of a preservative in the wood, is a hazardous
waste and to which both of the following requirements apply:
(1) The treated wood waste is not subject to regulation as a
hazardous waste under the federal act.
(2) Section 25143.1.5 does not apply to the treated wood waste.
(d) (1) Notwithstanding Sections 25189.5 and 25201, treated wood
waste shall be disposed of in either a class I hazardous waste
landfill, or in a composite-lined portion of a solid waste landfill
unit that meets all requirements applicable to disposal of municipal
solid waste in California after October 9, 1993, and that is
regulated by waste discharge requirements issued pursuant to Division
7 (commencing with Section 13000) of the Water Code for discharges
of designated waste, as defined in Section 13173 of the Water Code,
or treated wood waste.
(2) A solid waste landfill that accepts treated wood waste shall
comply with all of the following requirements:
(A) Manage the treated wood waste to prevent scavenging.
(B) Ensure that any management of the treated wood waste at the
solid waste landfill before disposal, or in lieu of disposal,
complies with the applicable requirements of this chapter, except as
otherwise provided by regulations adopted pursuant to subdivision
(f).
(C) If monitoring at the composite-lined portion of a landfill
unit at which treated wood waste has been disposed of indicates a
verified release, then treated wood waste shall not be discharged to
that landfill unit until corrective action results in cessation of
the release.
(e) (1) Each wholesaler and retailer of treated wood and treated
wood-like products in this state shall conspicuously post information
at or near the point of display or customer selection of treated
wood and treated wood-like products used for fencing, decking,
retaining walls, landscaping, outdoor structures, and similar uses.
The information shall be provided to wholesalers and retailers by the
wood preserving industry in 22-point type, or larger, and contain
the following message:
Warning--Potential Danger
These products are treated with wood preservatives registered with
the United States Environmental Protection Agency and the California
Department of Pesticide Regulation and should only be used in
compliance with the product labels.
This wood may contain chemicals classified by the State of
California as hazardous and should be handled and disposed of with
care. Check product label for specific preservative information and
Proposition 65 warnings concerning presence of chemicals known to the
State of California to cause cancer or birth defects.
Anyone working with treated wood, and anyone removing old treated
wood, needs to take precautions to minimize exposure to themselves,
children, pets, or wildlife, including:
? Avoid contact with skin. Wear gloves and long sleeved shirts when
working with treated wood. Wash exposed areas thoroughly with mild
soap and water after working with treated wood.
? Wear a dust mask when machining any wood to reduce the inhalation
of wood dusts. Avoid frequent or prolonged inhalation of sawdust
from treated wood. Machining operations should be performed outdoors
whenever possible to avoid indoor accumulations of airborne sawdust.
? Wear appropriate eye protection to reduce the potential for eye
injury from wood particles and flying debris during machining.
? If preservative or sawdust accumulates on clothes, launder before
reuse. Wash work clothes separately from other household clothing.
? Promptly clean up and remove all sawdust and scraps and dispose
of appropriately.
? Do not use treated wood under circumstances where the
preservative may become a component of food or animal feed.
? Only use treated wood that's visibly clean and free from surface
residue for patios, decks, or walkways.
? Do not use treated wood where it may come in direct or indirect
contact with public drinking water, except for uses involving
incidental contact such as docks and bridges.
? Do not use treated wood for mulch.
? Do not burn treated wood. Preserved wood should not be burned in
open fires, stoves, or fireplaces.
For further information, go to the Internet Web site
http://www.preservedwood.org and download the free Treated Wood Guide
mobile application.
In addition to the above listed precautions, treated wood waste
shall be managed in compliance with applicable hazardous waste
control laws.
(2) On or before July 1, 2005, the wood preserving industry shall,
jointly and in consultation with the department, make information
available to generators of treated wood waste, including fencing,
decking, and landscape contractors, solid waste landfills, and
transporters, that describes how to best handle, dispose of, and
otherwise manage treated wood waste, through the use either of a
toll-free telephone number, Internet Web site, information labeled on
the treated wood, information accompanying the sale of the treated
wood, or by mailing if the department determines that mailing is
feasible and other methods of communication would not be as
effective. A treated wood manufacturer or supplier to a wholesaler or
retailer shall also provide the information with each shipment of
treated wood products to a wholesaler or retailer, and the wood
preserving industry shall provide it to fencing, decking, and
landscaping contractors, by mail, using the Contractors' State
License Board's available listings, and license application packages.
The department may provide guidance to the wood preserving industry,
to the extent resources permit.
(f) (1) On or before January 1, 2007, the department, in
consultation with the Department of Resources Recycling and Recovery,
the State Water Resources Control Board, and the Office of
Environmental Health Hazard Assessment, and after consideration of
any known health hazards associated with treated wood waste, shall
adopt and may subsequently revise as necessary, regulations
establishing management standards for treated wood waste as an
alternative to the requirements specified in this chapter and the
regulations adopted pursuant to this chapter.
(2) The regulations adopted pursuant to this subdivision shall, at
a minimum, ensure all of the following:
(A) Treated wood waste is properly stored, treated, transported,
tracked, disposed of, and otherwise managed to prevent, to the extent
practical, releases of hazardous constituents to the environment,
prevent scavenging, and prevent harmful exposure of people, including
workers and children, aquatic life, and animals to hazardous
chemical constituents of the treated wood waste.
(B) Treated wood waste is not reused, with or without treatment,
except for a purpose that is consistent with the approved use of the
preservative with which the wood has been treated. For purposes of
this subparagraph, "approved uses" means a use approved at the time
the treated wood waste is reused.
(C) Treated wood waste is managed in accordance with all
applicable laws.
(D) Any size reduction of treated wood waste is conducted in a
manner that prevents the uncontrolled release of hazardous
constituents to the environment, and that conforms to applicable
worker health and safety requirements.
(E) All sawdust and other particles generated during size
reduction are captured and managed as treated wood waste.
(F) All employees involved in the acceptance, storage, transport,
and other management of treated wood waste are trained in the safe
and legal management of treated wood waste, including, but not
limited to, procedures for identifying and segregating treated wood
waste.
(g) (1) A person managing treated wood waste who is subject to a
requirement of this chapter, including a regulation adopted pursuant
to this chapter, shall comply with either the alternative standard
specified in the regulations adopted pursuant to subdivision (f) or
with the requirements of this chapter.
(2) A person who is in compliance with the alternative standard
specified in the regulations adopted pursuant to subdivision (f) is
deemed to be in compliance with the requirement of this chapter for
which the regulation is identified as being an alternative, and the
department and any other entity authorized to enforce this chapter
shall consider that person to be in compliance with that requirement
of this chapter.
(h) All variances granted by the department before January 1,
2005, governing the management of treated wood waste are inoperative
and have no further effect.
(i) This section does not limit the authority or responsibility of
the department to adopt regulations under any other law.
(j) On or before January 1, 2018, the department shall prepare,
post on its Internet Web site, and provide to the appropriate policy
committees of the Legislature, a comprehensive report on the
compliance with, and implementation of, this section. The report
shall include, but not be limited to, all of the following:
(1) Data, and evaluation of that data, on the rates of compliance
with this section and injuries associated with handling treated wood
waste based on department inspections of treated wood waste generator
sites and treated wood waste disposal facilities. To gather data to
perform the required evaluation, the department shall do all of the
following:
(A) The department shall inspect representative treated wood waste
generator sites and treated wood waste disposal facilities, which
shall not to be less than 25 percent of each.
(B) The department shall survey and otherwise seek information on
how households are currently handling, transporting, and disposing of
treated wood waste, including available information from household
hazardous waste collection facilities, solid waste transfer
facilities, solid waste disposal facility load check programs, and
CUPAs.
(C) The department shall, by survey or otherwise, seek data to
determine whether sufficient information and convenient collection
and disposal options are available to household generators of treated
wood waste.
(2) An evaluation of the adequacy of protective measures taken in
tracking, handling, and disposing of treated wood waste.
(3) Data regarding the unauthorized disposal of treated wood waste
at disposal facilities that have not been approved for that
disposal.
(4) Conclusions regarding the handling of treated wood waste.
(5) Recommendations for changes to the handling of treated wood
waste to ensure the protection of public health and the environment.
(k) This section shall become inoperative on December 31, 2020,
and, as of January 1, 2021, is repealed, unless a later enacted
statute, that becomes operative on or before January 1, 2021, deletes
or extends the dates on which it becomes inoperative and is
repealed.
SEC. 185. Section 25180 of the Health and Safety Code is amended
to read:
25180. (a) (1) Except as provided in paragraph (2), the
standards in this chapter and the regulations adopted by the
department to implement this chapter shall be enforced by the
department, and by any local health officer or any local public
officer designated by the director.
(2) The standards of this chapter listed in paragraph (1) of
subdivision (c) of Section 25404, and the regulations adopted to
implement the standards of this chapter listed in paragraph (1) of
subdivision (c) of Section 25404, shall be enforced by the department
and one of the following:
(A) If there is no CUPA, the officer or agency authorized,
pursuant to subdivision (f) of Section 25404.3, to implement and
enforce the requirements of this chapter listed in paragraph (1) of
subdivision (c) of Section 25404.
(B) Within the jurisdiction of a CUPA, the unified program
agencies, to the extent provided by this chapter and Sections 25404.1
and 25404.2. Within the jurisdiction of a CUPA, the unified program
agencies shall be the only local agencies authorized to enforce the
requirements of this chapter listed in paragraph (1) of subdivision
(c) of Section 25404.
(b) (1) In addition to the persons specified in subdivision (a),
any traffic officer, as defined by Section 625 of the Vehicle Code,
and any peace officer specified in Section 830.1 of the Penal Code,
may enforce Section 25160, subdivision (a) of Section 25163, and
Sections 25250.18, 25250.19, and 25250.23. Traffic officers and peace
officers are authorized representatives of the department for
purposes of enforcing the provisions set forth in this subdivision.
(2) A peace officer specified in subdivision (a) of Section
830.37 of the Penal Code may, upon approval of the local district
attorney, enforce the standards in this chapter and regulations
adopted by the department to implement this chapter. A peace officer
authorized to enforce those standards and regulations pursuant to
this paragraph shall perform these duties in coordination with the
appropriate local officer or agency authorized to enforce this
chapter pursuant to subdivision (a), and shall complete a training
program which is equivalent to that required by the department for
local officers and agencies authorized to enforce this chapter
pursuant to subdivision (a).
(c) Notwithstanding any limitations in subdivision (b), a member
of the California Highway Patrol may enforce Sections 25185, 25189,
25189.2, 25189.5, 25191, and 25195, and Article 6 (commencing with
Section 25160) and Article 6.5 (commencing with Section 25167.1), as
those provisions relate to the transportation of hazardous waste.
(d) In enforcing this chapter, including, but not limited to, the
issuance of orders imposing administrative penalties, the referral
of violations to prosecutors for civil or criminal prosecution, the
settlement of cases, and the adoption of enforcement policies and
standards related to those matters, the department and the local
officers and agencies authorized to enforce this chapter pursuant to
subdivision (a) shall exercise their enforcement authority in such a
manner that generators, transporters, and operators of storage,
treatment, transfer, and disposal facilities are treated equally and
consistently with regard to the same types of violations.
SEC. 186. Section 25250.15 of the Health and Safety Code is
amended to read:
25250.15. (a) Any person operating a refuse removal vehicle or a
curbside collection vehicle used to collect or transport used oil
which has been generated as a household waste or as part of a
curbside recycling program, as defined by the board, is exempt from
the requirements of Section 25160, and subdivision (a) of Section
25163 of this code and Chapter 2.5 (commencing with Section 2500) of
Division 2 of, Division 14.1 (commencing with Section 32000) of, and
subdivision (g) of Section 34500 of, the Vehicle Code.
(b) Refuse removal and other curbside collection operations
exempted under subdivision (a) are also exempt from permit
requirements pursuant to Article 9 (commencing with Section 25200),
if the storage location meets all applicable hazardous waste
generator, container, and tank requirements, except for the generator
fee requirement specified in subdivision (d).
(c) Used oil collected pursuant to this section shall be deemed
to be generated by the storage location upon receipt.
(d) Used oil collected pursuant to this section is exempt from
the generator fee imposed pursuant to Section 25205.5.
SEC. 187. Section 25270.6 of the Health and Safety Code is amended
to read:
25270.6. (a) (1) On or before January 1, annually, each owner or
operator of a tank facility subject to this chapter shall file with
the statewide information management system, a tank facility
statement that shall identify the name and address of the tank
facility, a contact person for the tank facility, the total storage
capacity of the tank facility, and the location and contents of each
petroleum storage tank that exceeds 10,000 gallons in storage
capacity. A copy of a statement submitted previously pursuant to this
section may be submitted in lieu of a new tank facility statement if
no new or used storage tanks have been added to the facility or if
no significant modifications have been made. For purposes of this
section, a significant modification includes, but is not limited to,
altering existing storage tanks or changing spill prevention or
containment methods.
(2) Notwithstanding paragraph (1), an owner or operator of a tank
facility that submits a business plan, as defined in subdivision (d)
of Section 25501, to the statewide information management system and
that complies with Sections 25503, 25505, 25505.1, 25507, 25507.2,
25508, 25508.1, and 25508.2, satisfies the requirement in paragraph
(1) to file a tank facility statement.
(b) Each owner or operator of a tank facility who is subject to
the requirements of subdivision (a) shall annually pay a fee to the
UPA, on or before a date specified by the UPA. The governing body of
the UPA shall establish a fee, as part of the single fee system
implemented pursuant to Section 25404.5, at a level sufficient to pay
the necessary and reasonable costs incurred by the UPA in
administering this chapter, including, but not limited to,
inspections, enforcement, and administrative costs. The UPA shall
also implement the fee accountability program established pursuant to
subdivision (c) of Section 25404.5 and the regulations adopted to
implement that program.
SEC. 188. Section 32132.8 of the Health and Safety Code is amended
to read:
32132.8. (a) Notwithstanding Section 32132 or any other law, upon
approval by the board of directors of the Mayers Memorial Hospital
District, the design-build procedure described in Chapter 4
(commencing with Section 22160) of Part 3 of Division 2 of the Public
Contract Code may be used to assign contracts for the construction
of a building or improvements directly related to construction of a
hospital or health facility building at the Mayers Memorial Hospital.
(b) For purposes of this section, all references in Chapter 4
(commencing with Section 22160) of Part 3 of Division 2 of the Public
Contract Code to "local agency" mean the Mayers Memorial Hospital
District and its board of directors.
(c) A hospital building project utilizing the design-build process
authorized by subdivision (a) shall be reviewed and inspected in
accordance with the standards and requirements of the Alfred E.
Alquist Hospital Facilities Seismic Safety Act of 1983 (Chapter 1
(commencing with Section 129675) of Part 7 of Division 107).
SEC. 189. Section 34191.3 of the Health and Safety Code is amended
to read:
34191.3. (a) Notwithstanding Section 34191.1, the requirements
specified in subdivision (e) of Section 34177 and subdivision (a) of
Section 34181 shall be suspended, except as those provisions apply to
the transfers for governmental use, until the Department of Finance
has approved a long-range property management plan pursuant to
subdivision (b) of Section 34191.5, at which point the plan shall
govern, and supersede all other provisions relating to, the
disposition and use of the real property assets of the former
redevelopment agency. If the department has not approved a plan by
January 1, 2016, subdivision (e) of Section 34177 and subdivision (a)
of Section 34181 shall be operative with respect to that successor
agency.
(b) If the department has approved a successor agency's long-range
property management plan prior to January 1, 2016, the successor
agency may amend its long-range property management plan once, solely
to allow for retention of real properties that constitute "parking
facilities and lots dedicated solely to public parking" for
governmental use pursuant to Section 34181. An amendment to a
successor agency's long-range property management plan under this
subdivision shall be submitted to its oversight board for review and
approval pursuant to Section 34179, and any such amendment shall be
submitted to the department prior to July 1, 2016.
(c) (1) Notwithstanding paragraph (2) of subdivision (a) of
Section 34181, for purposes of amending a successor agency's
long-range property management plan under subdivision (b), "parking
facilities and lots dedicated solely to public parking" do not
include properties that, as of the date of transfer pursuant to the
amended long-range property management plan, generate revenues in
excess of reasonable maintenance costs of the properties.
(2) Notwithstanding any other law, a city, county, city and
county, or parking district shall not be required to reimburse or pay
a successor agency for any funds spent on or before December 31,
2010, by a former redevelopment agency to design and construct a
parking facility.
SEC. 190. Section 44017 of the Health and Safety Code is amended
to read:
44017. (a) Except as otherwise provided in this section or
Section 44017.1, a motor vehicle owner shall qualify for a repair
cost waiver only after expending at least four hundred fifty dollars
($450) for repairs, including parts and labor.
(b) The department shall periodically revise the repair cost limit
specified in subdivision (a) in accordance with changes in the
Consumer Price Index, as published by the United States Bureau of
Labor Statistics.
(c) A repair cost limit shall not be imposed in those cases where
emissions control equipment is missing or is partially or totally
inoperative as a result of being tampered with.
(d) (1) A repair cost waiver shall not be issued if a motor
vehicle has failed the visible smoke test created by the department
pursuant to Section 44012.1, unless paragraph (2) applies, or the
vehicle is owned by a low-income person, as defined in Section
44062.1, in which case the repair cost limit applicable pursuant to
subdivision (b) of Section 44017.1 applies.
(2) By January 1, 2008, the department shall adopt regulations
allowing a repair cost waiver, with the repair cost limit specified
in subdivision (a), where a motor vehicle has failed the visible
smoke test component of a smog check inspection, for individuals
under economic hardship but who do not meet the definition of
low-income person, as defined in Section 44062.1. The regulations
shall make eligible for the waiver those individuals whose household
means fall below the level necessary to achieve a modest standard of
living without assistance from public programs. The department shall
consult authoritative information sources including, but not limited
to, the United States Census Bureau, the Department of Finance, and
the California Budget Project.
SEC. 191. Section 44559.4 of the Health and Safety Code, as
amended by Section 1 of Chapter 274 of the Statutes of 2012, is
amended to read:
44559.4. (a) If a financial institution that is participating in
the Capital Access Loan Program established pursuant to this article
decides to enroll a qualified loan under the program in order to
obtain the protection against loss provided by its loss reserve
account, it shall notify the authority in writing on a form
prescribed by the authority, within 15 days after the date on which
the loan is made, of all of the following:
(1) The disbursement of the loan.
(2) The dollar amount of the loan enrolled.
(3) The interest rate applicable to, and the term of, the loan.
(4) The amount of the agreed upon premium.
(b) The executive director may authorize an additional five days
for a financial institution to submit the written notification
described in subdivision (a) to the authority on a loan-by-loan basis
for a reason limited to conditions beyond the reasonable control of
the financial institution.
(c) The financial institution may make a qualified loan to be
enrolled under the program to an individual, or to a partnership or
trust wholly owned or controlled by an individual, for the purpose of
financing property that will be leased to a qualified business that
is wholly owned by that individual. In that case, the property shall
be treated as meeting the requirements of paragraph (1) of
subdivision (i) of Section 44559.1.
(d) When making a qualified loan that will be enrolled under the
program, the participating financial institution shall require the
qualified business to which the loan is made to pay a fee of not less
than 1 percent of the principal amount of the loan, but not more
than 31/2 percent of the principal amount. The financial institution
shall also pay a fee in an amount equal to the fee paid by the
borrower. The financial institution shall deliver the fees collected
under this subdivision to the authority for deposit in the loss
reserve account for the institution. The financial institution may
recover from the borrower the cost of its payments to the loss
reserve account through the financing of the loan, upon the agreement
of the financial institution and the borrower. The financial
institution may cover the cost of borrower payments to the loan loss
reserve account.
(e) When depositing fees collected under subdivision (d) to the
credit of the loss reserve account for a participating financial
institution, the authority shall do the following:
(1) If matching funds are not available under a federal capital
access program or other source, the authority shall transfer to the
loss reserve account an amount that is not less than the amount of
the fees paid by the participating financial institution. However, if
the qualified business is located within a severely affected
community, the authority shall transfer to the loss reserve account
an amount not less than 150 percent of the amount of the fees paid by
the participating financial institution.
(2) If matching funds are available under a federal capital access
program or other source, the authority shall transfer, on an
immediate or deferred basis, to the loss reserve account the amount
required by that federal program or other source. However, the total
amount deposited into the loss reserve account shall not be less than
the amount which would have been deposited in the absence of
matching funds.
(f) This section shall remain in effect only until April 1, 2017,
and as of that date is repealed, unless a later enacted statute, that
is enacted before April 1, 2017, deletes or extends that date.
SEC. 192. Section 44559.4 of the Health and Safety Code, as added
by Section 2 of Chapter 274 of the Statutes of 2012, is amended to
read:
44559.4. (a) If a financial institution that is participating in
the Capital Access Loan Program established pursuant to this article
decides to enroll a qualified loan under the program in order to
obtain the protection against loss provided by its loss reserve
account, it shall notify the authority in writing on a form
prescribed by the authority, within 15 days after the date on which
the loan is made, of all of the following:
(1) The disbursement of the loan.
(2) The dollar amount of the loan enrolled.
(3) The interest rate applicable to, and the term of, the loan.
(4) The amount of the agreed upon premium.
(b) The executive director may authorize an additional five days
for a financial institution to submit the written notification
described in subdivision (a) to the authority on a loan-by-loan basis
for a reason limited to conditions beyond the reasonable control of
the financial institution.
(c) The financial institution may make a qualified loan to be
enrolled under the program to an individual, or to a partnership or
trust wholly owned or controlled by an individual, for the purpose of
financing property that will be leased to a qualified business that
is wholly owned by that individual. In that case, the property shall
be treated as meeting the requirements of paragraph (1) of
subdivision (i) of Section 44559.1.
(d) When making a qualified loan that will be enrolled under the
program, the participating financial institution shall require the
qualified business to which the loan is made to pay a fee of not less
than 2 percent of the principal amount of the loan, but not more
than 31/2 percent of the principal amount. The financial institution
shall also pay a fee in an amount equal to the fee paid by the
borrower. The financial institution shall deliver the fees collected
under this subdivision to the authority for deposit in the loss
reserve account for the institution. The financial institution may
recover from the borrower the cost of its payments to the loss
reserve account through the financing of the loan, upon the agreement
of the financial institution and the borrower. The financial
institution may cover the cost of borrower payments to the loan loss
reserve account.
(e) When depositing fees collected under subdivision (d) to the
credit of the loss reserve account for a participating financial
institution, the authority shall do the following:
(1) If matching funds are not available under a federal capital
access program or other source, the authority shall transfer to the
loss reserve account an amount that is not less than the amount of
the fees paid by the participating financial institution. However, if
the qualified business is located within a severely affected
community, the authority shall transfer to the loss reserve account
an amount not less than 150 percent of the amount of the fees paid by
the participating financial institution.
(2) If matching funds are available under a federal capital access
program or other source, the authority shall transfer, on an
immediate or deferred basis, to the loss reserve account the amount
required by that federal program or other source. However, the total
amount deposited into the loss reserve account shall not be less than
the amount which would have been deposited in the absence of
matching funds.
(f) This section shall become operative on April 1, 2017.
SEC. 193. Section 101853.1 of the Health and Safety Code is
amended to read:
101853.1. (a) In exercising its powers to employ personnel, the
authority shall implement, and the board of supervisors shall adopt,
a personnel transition plan. The personnel transition plan shall
require all of the following:
(1) Ongoing communication to employees and recognized employee
organizations regarding the impact of the transition on existing
medical center, county, and other health care facility employees and
employee classifications.
(2) Meeting and conferring with representatives of affected
bargaining unit employees on both of the following issues:
(A) A timeframe for which the transfer of personnel shall occur.
(B) Specified periods of time during which county or medical
center employees affected by the establishment of the authority may
elect to be considered for appointment and exercise reinstatement
rights, if applicable, to funded, equivalent, vacant county positions
for which they are qualified and eligible. An employee who first
elects to remain with the county may subsequently seek reinstatement
with the authority within 30 days of the election to remain with the
county and shall be subject to the requirements of this article.
(3) Acknowledgment that the authority, to the extent permitted by
federal and state law, and consistent with paragraph (3) of
subdivision (d), shall be bound by the terms of those memoranda of
understanding executed between the county and its exclusive employee
representatives that are in effect on the date of the transfer of
control of the medical center to the authority. Subsequent memoranda
of understanding with exclusive employee representatives shall be
subject to approval only by the board of governors.
(4) Communication to the Board of Retirement of the Kern County
Employees' Retirement Association or other retirement plan of any
personnel transition plan, memoranda of understanding, or other
arrangements that are related to the participation of the authority's
employees or the addition of new employees in the retirement plan.
(b) Implementation of this chapter shall not be a cause for the
modification of the medical center or county employment benefits.
Employees of the medical center or county on the date of transfer,
who become authority employees, shall retain their existing or
equivalent classifications and job descriptions upon transfer to the
authority, comparable pension benefits (if permissible pursuant to
relevant plan terms), and their existing salaries and other benefits
that include, but are not limited to, accrued and unused vacation,
sick leave, personal leave, health care, retiree health benefits, and
deferred compensation plans. The transfer of an employee from the
medical center or county shall not constitute a termination of
employment for purposes of Section 227.3 of the Labor Code, or
employee benefit plans and arrangements maintained by the medical
center or county, except as otherwise provided in the enabling
ordinance or personnel transition plan, nor shall it be counted as a
break in uninterrupted employment for purposes of Section 31641 of
the Government Code with respect to the Kern County Employees'
Retirement Association, or state service for purposes of the Public
Employees' Retirement System (Part 3 (commencing with Section 20000)
of Division 5 of Title 2 of the Government Code).
(c) Subject to applicable state law, the authority shall recognize
the exclusive employee representatives of those authority employees
who are transferred from the county or medical center to the
authority pursuant to this chapter.
(d) In order to stabilize labor and employment relations and
provide continuity of care and services to the people of the county,
and notwithstanding any other law, the authority shall do all of the
following for a period of 24 months after the effective date of the
transfer of control of the medical center to the authority:
(1) Continue to recognize each exclusive employee representative
of each bargaining unit.
(2) Continue to provide the same level of employee benefits to
authority employees, whether the obligation to provide those benefits
arises out of a memorandum of understanding, or other agreement or
law.
(3) Extend and continue to be bound by any existing memoranda of
understanding covering the terms and conditions of employment for
employees of the authority, including the level of wages and
benefits, and any county rules, ordinances, or policies specifically
identified and incorporated by reference in a memoranda of
understanding for 24 months or through the term of the memorandum of
understanding, whichever is longer, unless modified by mutual
agreement with each of the exclusive employee representatives. The
authority shall continue to provide those pension benefits specified
in any memoranda of agreement as long as doing so does not conflict
with any Kern County Employees' Retirement Association plan
provisions, or federal or state law including the County Employees
Retirement Law of 1937 (Chapter 3 (commencing with Section 31450) of
Part 3 of Division 4 of Title 3 of the Government Code and the
federal Internal Revenue Code). If a memoranda of understanding is
expired on the date of the transfer of control of the medical center,
then the authority shall continue to be bound by the terms and
conditions of the most recent memoranda of understanding, unless
modified by a mutual agreement with each of the exclusive employee
representatives, and the benefits and wages of transferred employees
shall be retained consistent with subdivision (b).
(4) Meet and confer with the exclusive employee representatives to
develop processes and procedures to address employee disciplinary
action taken against permanent employees. If the authority
terminates, suspends, demotes, or reduces the pay of a permanent
employee for disciplinary reasons, those actions shall only be for
cause consistent with state law, and an employee shall be afforded
applicable due process protections granted to public employees under
state law. Permanent employees laid off by the authority within six
months of the date of the transfer of control of the medical center
shall remain on the county reemployment list for two years. Inclusion
on the county reemployment list is not a guarantee of reemployment.
For the purposes of this paragraph, the term "permanent employees"
excludes probationary employees, temporary employees, seasonal
employees, provisional employees, extra help employees, and per diem
employees.
(5) To the extent layoffs occur, and provided that all other
previously agreed upon factors are equal, ensure that seniority shall
prevail. The authority shall meet and confer with the exclusive
employee representatives to address layoff procedures and the manner
in which, and the extent to which, seniority shall be measured for
employees who transfer from the medical center or county.
(e) Permanent employees of the medical center or county on the
effective date of the transfer of control of the medical center to
the authority, shall be deemed qualified for employment in equivalent
positions at the authority, and no other qualifications shall be
required except as otherwise required by state or federal law.
Probationary employees on the effective date of the transfer, as set
forth in this paragraph, shall retain their probationary status and
rights and shall not be required to serve a new probationary period
or extend their probationary period by reason of the transfer. To the
extent possible, employees who transfer to equivalent positions at
the authority shall retain their existing classifications and job
descriptions, but if there is a dispute over this issue, the
authority agrees to meet and confer with the exclusive employee
representatives of the transferred employees.
(f) Employees who transfer from the medical center or county to
the authority shall retain the seniority they earned at the medical
center or county and any benefits or privileges based on the
seniority.
(g) Notwithstanding any other law, employees of the authority may
participate in the Kern County Employees' Retirement Association,
operated pursuant to the County Employees Retirement Law of 1937
(Chapter 3 (commencing with Section 31450) of Part 3 of Division 4 of
Title 3 of the Government Code) as set forth below. However, the
authority and employees of the authority, or certain designated parts
thereof, shall not participate in the Kern County Employees'
Retirement Association if the board of retirement, in its sole
discretion, determines that their participation could jeopardize the
Kern County Employees' Retirement Association's tax-qualified or
governmental plan status under federal law, or if a contract or
related contract amendment proposed by the authority contains any
benefit provisions that are not specifically authorized by Chapters 3
(commencing with Section 31450) and 3.9 (commencing with Section
31899) of Part 3 of Division 4 of Title 3 of the Government Code or
Article 4 (commencing with Section 7522) of Chapter 21 of Division 7
of Title 1 of the Government Code, and that the board determines
would adversely affect the administration of the system. There shall
not be any individual employee elections regarding participation in
the Kern County Employees' Retirement Association or other retirement
plans except to the extent such retirement plans provide for
elective employee salary deferral contributions in accordance with
federal Internal Revenue Code rules.
(1) Employees transferred from the county or medical center to the
authority who are subject to a memorandum of understanding between
the authority and an exclusive employee representative, as described
in paragraphs (2) and (3) of subdivision (d), and who were members of
the Kern County Employees' Retirement Association at the time of
their transfer of employment, shall continue to be a member of the
Kern County Employees' Retirement Association, retaining service
credit earned to the date of transfer, to the extent provided for in
the applicable memorandum of understanding.
(2) Employees transferred from the county or medical center to the
authority who are subject to a memorandum of understanding between
the authority and an exclusive employee representative, as described
in paragraphs (2) and (3) of subdivision (d), and who were not
members of the Kern County Employees' Retirement Association at the
time of their transfer of employment, shall subsequently become a
member of the Kern County Employees' Retirement Association only to
the extent provided for in the applicable memorandum of
understanding.
(3) Employees transferred from the county or medical center to the
authority who are not subject to a memorandum of understanding
between the authority and an exclusive employee representative, as
described in paragraphs (2) and (3) of subdivision (d), and who were
members of the Kern County Employees' Retirement Association at the
time of their transfer of employment, shall continue to be a member
of the Kern County Employees' Retirement Association, retaining
service credit earned to the date of transfer, as provided in the
enabling ordinance or the personnel transition plan.
(4) Employees transferred from the county or medical center to the
authority who are not subject to a memorandum of understanding
between the authority and an exclusive employee representative, as
described in paragraphs (2) and (3) of subdivision (d), and who were
not members of the Kern County Employees' Retirement Association at
the time of their transfer of employment, shall subsequently become a
member of the Kern County Employees' Retirement Association only to
the extent provided in the enabling ordinance or the personnel
transition plan.
(5) Employees hired by the authority on or after the effective
date of the transfer of control of the medical center shall become a
member of the Kern County Employees' Retirement Association only to
the extent provided in the enabling ordinance or personnel transition
plan described in subdivision (a), or, if subject to a memorandum of
understanding between the authority and an exclusive employee
representative as described in paragraphs (2) and (3) of subdivision
(d), to the extent provided for in the applicable memorandum of
understanding.
(6) (A) Notwithstanding any other law, for purposes of California
Public Employees' Pension Reform Act of 2013 (Article 4 (commencing
with Section 7522) of Chapter 21 of Division 7 of Title 1 of the
Government Code), an individual who was employed by the county or the
medical center when it was a constituent department of the county,
and is a member of the Kern County Employees' Retirement Association
or the Public Employees' Retirement System, as set forth in Part 3
(commencing with Section 20000) of Division 5 of Title 2 of the
Government Code or a member prior to January 1, 2013, and who
transfers, directly or after a break in service of less than six
months, to the authority, in which the individual continues to be a
member of either the Kern County Employees' Retirement Association or
the Public Employees' Retirement System, as applicable, shall not be
deemed to be a new employee or a new member within the meaning of
Section 7522.04 of the Government Code, and shall continue to be
subject, immediately after the transfer, to the same defined benefit
formula, as defined in Section 7522.04 of the Government Code, and
plan of replacement benefits offered by the county pursuant to
Section 31899.4 of the Government Code and the Kern County
Replacement Benefits Plan for retirement benefits limited by Section
415 of Title 26 of the United States Code.
(B) For purposes of subdivision (c) of Section 7522.43 of the
Government Code, the authority shall be treated as a public employer
that offered a plan of replacement benefits prior to January 1, 2013.
The county's plan of replacement benefits that was in effect prior
to January 1, 2013, is deemed to also be the authority's replacement
plan for the sole purpose of allowing the authority to continue to
offer the plan of replacement benefits, immediately after the
transfer, for Kern County Employees' Retirement Association members
who meet both of the following requirements, and the qualifying
survivors or beneficiaries of those members:
(i) The employee was employed as of January 1, 2013, by the county
or the medical center when it was a constituent department of the
county.
(ii) The employee is part of a member group to which the county
offered a plan of replacement benefits prior to January 1, 2013.
(7) (A) Notwithstanding any other law, legacy employees shall be
deemed to be county employees for purposes of participation in a
benefit plan administered by the Kern County Employees' Retirement
Association, but only for that purpose, and shall not be employees of
the county for any other purpose. Upon the transfer of control of
the medical center and thereafter, the county shall include legacy
employees in a special county employee group for which the county has
primary financial responsibility to fund all employer contributions
that, together with contributions by employees and earnings thereon,
are necessary to fund all benefits for legacy employees administered
by the Kern County Employees' Retirement Association, notwithstanding
the fact that, following the transfer of control of the medical
center, the authority shall commence making periodic employer
contributions for legacy employees. In the event the authority fails
to make required employer contributions for legacy employees when due
and after demand from the Kern County Employees' Retirement
Association, the county, after receipt of notice and demand from the
Kern County Employees' Retirement Association, shall be obligated to
make those contributions in place of the authority.
(B) The authority shall be primarily responsible for any employer
contributions that, together with contributions by employees and
earnings thereon, are necessary to fund all benefits for new
employees. In the event the authority fails to make required
contributions for new employees, the county shall be obligated to
make the required contributions after receipt of notice and demand
from the Kern County Employees' Retirement Association. The county
shall maintain this obligation for new employees until the authority
demonstrates, and the Kern County Employees' Retirement Association's
Board of Retirement determines, that the authority is sufficiently
capable financially to fully assume the obligation to make all
employer contributions for new employees, based upon the standard of
financial capability approved by the Kern County Employees'
Retirement Association and the county in a plan of participation, and
incorporated within a written agreement between the county and the
authority. In the event the authority fails to make required
contributions for any new employees due to the authority's
dissolution or bankruptcy, the county shall be obligated to make the
required contributions after receipt of notice and demand from the
Kern County Employees' Retirement Association.
(h) This chapter does not prohibit the authority from contracting
with the Public Employees' Retirement System, in accordance with the
requirements of Section 20508 and any other applicable provisions of
Part 3 (commencing with Section 20000) of Division 5 of Title 2 of
the Government Code, for the purpose of providing employee
participation in that system, or from establishing an alternative or
supplemental retirement system or arrangement, including, but not
limited to, deferred compensation arrangements, to the extent
permitted by law and subject to any applicable agreement between the
authority and the exclusive employee representatives, and as provided
in the enabling ordinance or the personnel transition plan.
Notwithstanding any other law, the authority and employees of the
authority shall not participate in the Public Employees' Retirement
System if the Board of Administration of the Public Employees'
Retirement System, in its sole discretion, determines that their
participation could jeopardize the Public Employees' Retirement
System's tax-qualified or governmental plan status under federal law,
or if a contract or related contract amendment proposed by the
authority contains any benefit provisions that are not specifically
authorized by Part 3 (commencing with Section 20000) of Division 5 of
Title 2 of the Government Code, and that the board determines would
adversely affect the administration of the system.
(i) Provided that this is not inconsistent with anything in this
chapter, this chapter does not prohibit the authority from
determining the number of employees, the number of full-time
equivalent positions, job descriptions, the nature and extent of
classified employment positions, and salaries of employees.
SEC. 194. Section 110424 of the Health and Safety Code is amended
and renumbered to read:
110422.5. Violation of this article by any person, as defined in
Section 109995, shall constitute an infraction, punishable by a fine
not to exceed the following:
(a) One thousand dollars ($1,000) for the first violation.
(b) Two thousand dollars ($2,000) for the second violation.
(c) Five thousand dollars ($5,000) for the third and each
subsequent violation.
SEC. 195. Section 112895 of the Health and Safety Code is amended
to read:
112895. (a) It is unlawful to manufacture, sell, offer for sale,
give away, or to possess imitation olive oil in California.
(b) This section does not prohibit the blending of olive oil with
other edible oils, if the blend is not labeled as olive oil or
imitation olive oil, is clearly labeled as a blended vegetable oil,
and if the contents and proportions of the blend are prominently
displayed on the container's label, or if the oil is a flavored olive
oil.
(c) If any olive oil is produced, processed, sold, offered for
sale, given away, or possessed in California, that indicates on its
label "California Olive Oil," or uses words
of similar import that indicate that California is
the source of the oil, 100 percent of that oil shall be derived from
olives grown in California.
(d) Olive oil produced, processed, sold, offered for sale, given
away, or possessed in California, that indicates on its label that it
is from a specific region of California shall be made of oil at
least 85 percent of which, by weight, is derived from olives grown in
the specified region.
(e) Olive oil produced, processed, sold, offered for sale, given
away, or possessed in California, that indicates on its label that it
is from a specific estate in California shall be made of oil at
least 95 percent of which, by weight, is derived from olives grown on
the specified estate.
(f) Olive-pomace oil shall not be labeled as olive oil.
SEC. 196. Section 113789 of the Health and Safety Code is amended
to read:
113789. (a) "Food facility" means an operation that stores,
prepares, packages, serves, vends, or otherwise provides food for
human consumption at the retail level, including, but not limited to,
the following:
(1) An operation where food is consumed on or off the premises,
regardless of whether there is a charge for the food.
(2) A place used in conjunction with the operations described in
this subdivision, including, but not limited to, storage facilities
for food-related utensils, equipment, and materials.
(b) "Food facility" includes permanent and nonpermanent food
facilities, including, but not limited to, the following:
(1) Public and private school cafeterias.
(2) Restricted food service facilities.
(3) Licensed health care facilities, except as provided in
paragraph (12) of subdivision (c).
(4) Commissaries.
(5) Mobile food facilities.
(6) Mobile support units.
(7) Temporary food facilities.
(8) Vending machines.
(9) Certified farmers' markets, for purposes of permitting and
enforcement pursuant to Section 114370.
(10) Farm stands, for purposes of permitting and enforcement
pursuant to Section 114375.
(11) Fishermen's markets.
(c) "Food facility" does not include any of the following:
(1) A cooperative arrangement wherein no permanent facilities are
used for storing or handling food.
(2) A private home, including a cottage food operation that is
registered or has a permit pursuant to Section 114365.
(3) A church, private club, or other nonprofit association that
gives or sells food to its members and guests, and not to the general
public, at an event that occurs not more than three days in any
90-day period.
(4) A for-profit entity that gives or sells food at an event that
occurs not more than three days in a 90-day period for the benefit of
a nonprofit association, if the for-profit entity receives no
monetary benefit, other than that resulting from recognition from
participating in an event.
(5) Premises set aside for wine tasting, as that term is used in
Section 23356.1 of the Business and Professions Code, or premises set
aside by a beer manufacturer, as defined in Section 25000.2 of the
Business and Professions Code, and in the regulations adopted
pursuant to those sections, that comply with Section 118375,
regardless of whether there is a charge for the wine or beer tasting,
if no other beverage, except for bottles of wine or beer and
prepackaged nonpotentially hazardous beverages, is offered for sale
or for onsite consumption and no food, except for crackers, pretzels,
or prepackaged food that is not potentially hazardous food is
offered for sale or for onsite consumption.
(6) An outlet or location, including, but not limited to,
premises, operated by a producer, selling or offering for sale only
whole produce grown by the producer or shell eggs, or both, provided
the sales are conducted at an outlet or location controlled by the
producer.
(7) A commercial food processing establishment, as defined in
Section 111955.
(8) A child day care facility, as defined in Section 1596.750.
(9) A community care facility, as defined in Section 1502.
(10) A residential care facility for the elderly, as defined in
Section 1569.2.
(11) A residential care facility for the chronically ill, which
has the same meaning as a residential care facility, as defined in
Section 1568.01.
(12) (A) An intermediate care facility for the developmentally
disabled, as defined in subdivisions (e), (h), and (m) of Section
1250, with a capacity of six beds or fewer.
(B) A facility described in subparagraph (A) shall report any
foodborne illness or outbreak to the local health department and to
the State Department of Public Health within 24 hours of the illness
or outbreak.
(13) A community food producer, as defined in Section 113752.
SEC. 197. Section 117945 of the Health and Safety Code is amended
to read:
117945. (a) A small quantity generator who is not required to
register pursuant to this chapter shall maintain on file in its
office all of the following:
(1) An information document stating how the generator contains,
stores, treats, and disposes of any medical waste generated through
any act or process of the generator.
(2) Records required by the United States Postal Service of any
medical waste shipped offsite for treatment and disposal. The small
quantity generator shall maintain, or have available electronically
at the facility or from the medical waste hauler or common carrier,
these records, for not less than three years.
(b) Documentation shall be made available to the enforcement
agency onsite.
SEC. 198. Section 118330 of the Health and Safety Code is amended
to read:
118330. (a) Whenever the enforcement agency determines that a
violation or threatened violation of this part or the regulations
adopted pursuant to this part has resulted, or is likely to result,
in a release of medical waste into the environment, the agency may
issue an order to the responsible person specifying a schedule for
compliance or imposing an administrative penalty of not more than
five thousand dollars ($5,000) per violation. A person who, after
notice and an opportunity for hearing, violates an order issued
pursuant to this section is guilty of a misdemeanor.
(1) If the department is the enforcement agency, the department
shall provide notice, issue the order, and conduct the administrative
hearing pursuant to subdivisions (d) and (f).
(2) If the department is not the enforcement agency, the
provisions of subdivisions (b) to (e), inclusive, apply.
(b) (1) In establishing the amount of the administrative penalty
and ordering that the violation be corrected pursuant to this
section, the enforcement agency shall take into consideration the
nature, circumstances, extent, and gravity of the violation, the
violator's past and present efforts to prevent, abate, or clean up
conditions posing a threat to the public health or safety or the
environment, the violator's ability to pay the penalty, and the
deterrent effect that the imposition of the penalty would have on
both the violator and the regulated community.
(2) If the amount of the administrative penalty is set after the
person is served with the order pursuant to subdivision (c) or after
the order becomes final, the person may request a hearing to dispute
the amount of the administrative penalty and is entitled to the same
process as provided in subdivision (c), whether or not the person
disputed the facts of the violation through that process.
(3) An administrative penalty assessed pursuant to this section
shall be in addition to any other penalties or sanctions imposed by
law.
(c) (1) An order issued pursuant to this section shall be served
by personal service or certified mail and shall inform the person
served of the right to a hearing.
(2) A person served with an order pursuant to paragraph (1) and
who has been unable to resolve the violation with the enforcement
agency may, within 15 days after service of the order, request a
hearing by filing with the enforcement agency a notice of defense.
The notice shall be filed with the agency that issued the order. A
notice of defense shall be deemed filed within the 15-day period if
it is postmarked within that 15-day period. If no notice of defense
is filed within the 15-day time period, the order shall become final.
(3) Except as otherwise provided in paragraph (4), a person
requesting a hearing on an order issued pursuant to this section may
select the hearing officer specified in either subparagraph (A) or
(B) of paragraph (4) in the notice of defense filed with the
enforcement agency pursuant to paragraph (2). If a notice of defense
is filed, but no hearing officer is selected, the enforcement agency
may select the hearing officer.
(4) Within 90 days of receipt of the notice of defense by the
enforcement agency, the hearing shall be scheduled using one of the
following:
(A) An administrative law judge of the Office of Administrative
Hearings of the Department of General Services, who shall conduct the
hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code, and
the enforcement agency shall have all the authority granted to an
agency by those provisions.
(B) (i) A hearing officer designated by the enforcement agency,
who shall conduct the hearing in accordance with Chapter 4.5
(commencing with Section 11400) of Part 1 of Division 3 of Title 2 of
the Government Code, and the enforcement agency shall have all the
authority granted to an agency by those provisions. When a hearing is
conducted by an enforcement agency hearing officer pursuant to this
clause, the enforcement agency shall issue a decision within 60 days
after the hearing is conducted. Each hearing officer designated by an
enforcement agency shall meet the requirements of Section 11425.30
of the Government Code and any other applicable restriction.
(ii) An enforcement agency, or a person requesting a hearing on an
order issued by an enforcement agency, may select the hearing
process specified in this subparagraph in a notice of defense filed
pursuant to paragraph (2) only if the enforcement agency has selected
a designated hearing officer and established a program for
conducting a hearing in accordance with this paragraph.
(5) The hearing decision issued pursuant to this subdivision shall
be effective and final upon issuance by the enforcement agency. A
copy of the decision shall be served by personal service or by
certified mail upon the party served with the order, or their
representative, if any.
(6) The person has a right to appeal the hearing decision if,
within 30 days of the date of receipt of the final decision pursuant
to paragraph (5), the person files a written notice of appeal with
the enforcement agency. The appeal shall be in accordance with the
Administrative Procedure Act (Chapters 4.5 (commencing with Section
11400) and 5 (commencing with Section 11500) of Part 1 of Division 3
of Title 2 of the Government Code).
(7) A decision issued pursuant to paragraph (6) may be reviewed by
a court pursuant to Section 11523 of the Government Code. In all
proceedings pursuant to this subdivision, the court shall uphold the
decision of the enforcement agency if the decision is based upon
substantial evidence in the record as a whole. The filing of a
petition for writ of mandate shall not stay an action required
pursuant to this chapter or the accrual of any penalties assessed
pursuant to this chapter. This subdivision does not prohibit the
court from granting any appropriate relief within its jurisdiction.
(d) A provision of an order issued under this section, except the
imposition of an administrative penalty, shall take effect upon
issuance of the order by the enforcement agency if the enforcement
agency finds that the violation or violations of law associated with
that provision may pose an imminent and substantial danger to the
public health or safety or the environment. A request for a hearing
or appeal, as provided in subdivision (c) or (f) shall not stay the
effect of that provision of the order pending a hearing decision. If
the enforcement agency determines that any or all provisions of the
order are so related that the public health or safety or the
environment can be protected only by immediate compliance with the
order as a whole, the order as a whole, except the imposition of an
administrative penalty, shall take effect upon issuance by the
enforcement agency. A request for a hearing shall not stay the effect
of the order as a whole pending a hearing decision.
(e) The enforcement agency shall consult with the district
attorney, county counsel, or city attorney on the development of
policies to be followed in exercising the authority delegated
pursuant to this section as it relates to the authority of the
enforcement agency to issue orders.
(f) (1) The department shall serve an order issued pursuant to
this section by personal service or certified mail and shall inform
the person served of the right to a hearing.
(2) A person served with an order pursuant to paragraph (1) may
appeal the order by sending a written request for hearing to the
department within 20 days after service of the order. If a request
for hearing is not made within the 20-day time period, the order
shall become final. Payments of any administrative penalty shall be
made within 30 days of the date the order becomes final.
(3) Any hearings conducted by the department pursuant to this
section shall be conducted pursuant to the procedures specified in
Section 131071.
SEC. 199. Section 120375 of the Health and Safety Code is amended
to read:
120375. (a) The governing authority of each school or institution
included in Section 120335 shall require documentary proof of each
entrant's immunization status. The governing authority shall record
the immunizations of each new entrant in the entrant's permanent
enrollment and scholarship record on a form provided by the
department. The immunization record of each new entrant admitted
conditionally shall be reviewed periodically by the governing
authority to ensure that within the time periods designated by
regulation of the department he or she has been fully immunized
against all of the diseases listed in Section 120335, and
immunizations received after entry shall be added to the pupil's
immunization record.
(b) The governing authority of each school or institution included
in Section 120335 shall prohibit from further attendance any pupil
admitted conditionally who failed to obtain the required
immunizations within the time limits allowed in the regulations of
the department, unless the pupil is exempted under Section 120370,
until that pupil has been fully immunized against all of the diseases
listed in Section 120335.
(c) The governing authority shall file a written report on the
immunization status of new entrants to the school or institution
under their jurisdiction with the department and the local health
department at times and on forms prescribed by the department. As
provided in paragraph (4) of subdivision (a) of Section 49076 of the
Education Code, the local health department shall have access to the
complete health information as it relates to immunization of each
student in the schools or other institutions listed in Section 120335
in order to determine immunization deficiencies.
(d) The governing authority shall cooperate with the county health
officer in carrying out programs for the immunization of persons
applying for admission to any school or institution under its
jurisdiction. The governing board of any school district may use
funds, property, and personnel of the district for that purpose. The
governing authority of any school or other institution may permit any
licensed physician or any qualified registered nurse to administer
immunizing agents to any person seeking admission to any school or
institution under its jurisdiction.
SEC. 200. Section 129160 of the Health and Safety Code is amended
to read:
129160. (a) (1) All debentures issued under this chapter to any
lender or bondholder shall be executed in the name of the fund as
obligor, shall be signed by the Treasurer, and shall be negotiable.
Pursuant to Sections 129125 and 129130, all debentures shall be dated
as of the date of the institution of foreclosure proceedings or as
of the date of the acquisition of the property after default by other
than foreclosure, or as of another date as the office, in its
discretion, may establish.
(2) The debentures shall bear interest from that date at a rate
equal to the insured loan or bonds, and shall be payable on a payment
schedule identical with payments on the insured loan or bonds. The
Treasurer shall take appropriate steps to the extent feasible to
provide that interest on the debentures is exempt from federal income
taxation under Section 103 of the Internal Revenue Code to the
extent interest on the insured loan or bonds is exempt from federal
income taxation under Section 103 of the Internal Revenue Code on the
date the insured loan or bonds is exchanged for debentures. All
debentures shall be exempt, both as to principal and interest, from
all taxation now or hereafter imposed by the state or local taxing
agencies, shall be paid out of the fund, which shall be primarily
liable therefor, and shall be, pursuant to Section 4 of Article XVI
of the California Constitution, fully and unconditionally guaranteed
as to principal and interest by the State of California, which
guaranty shall be expressed on the face of the debentures.
(3) If the fund fails to pay upon demand, when due, the principal
of, or interest on, any debentures issued under this chapter, the
Treasurer shall pay to the holders the amount thereof, which amount,
notwithstanding Section 13340 of the Government Code, is hereby
continuously appropriated from the General Fund, without regard to
fiscal years, and thereupon to the extent of the amount so paid the
Treasurer shall succeed to all the rights of the holders of the
debentures. The fund shall be liable for repayment to the General
Fund of any money paid from the General Fund pursuant to this section
in accordance with procedures jointly established by the Treasurer
and the office.
(b) Any debenture issued under this article shall be paid on a
par with general obligation bonds issued by the state.
SEC. 201. Section 38.6 of the Insurance Code is amended to read:
38.6. (a) (1) Any written record required to be given or mailed
to any person by a licensee relating to the business of life
insurance, as defined in Section 101 of this code may, if not
excluded by subdivision (b) or (c) of Section 1633.3 of the Civil
Code, be provided by electronic transmission pursuant to Title 2.5
(commencing with Section 1633.1) of Part 2 of Division 3 of the Civil
Code, if each party has agreed to conduct the transaction by
electronic means pursuant to Section 1633.5 of the Civil Code, and if
the licensee complies with the provisions of this section. A valid
electronic signature shall be sufficient for any provision of law
requiring a written signature.
(2) For purposes of this section, the definitions set forth in
Section 1633.2 of the Civil Code apply. The term "licensee" means an
insurer, agent, broker, or any other person who is required to be
licensed by the department.
(3) Notwithstanding subdivision (l) of Section 1633.2 of the Civil
Code, for purposes of this section, "person" includes, but is not
limited to, the policy owner, policyholder, applicant, insured, or
assignee or designee of an insured.
(b) In order to transmit a life insurance record electronically, a
licensee shall comply with all of the following:
(1) A licensee, or licensee's representative, acquires the consent
of the person to opt in to receive the record by electronic
transmission, and the person has not withdrawn that consent, prior to
providing the record by electronic transmission. A person's consent
may be acquired verbally, in writing, or electronically. If consent
is acquired verbally, the licensee shall confirm consent in writing
or electronically. The licensee shall retain a record of the person's
consent to receive the record by electronic transmission with the
policy information so that it is retrievable upon request by the
department while the policy is in force and for five years
thereafter.
(2) A licensee discloses, in writing or electronically, to the
person all of the following:
(A) The opt in to receive the record by electronic transmission is
voluntary.
(B) That the person may opt out of receiving the record by
electronic transmission at any time, and the process or system for
the person to opt out.
(C) A description of the record that the person will receive by
electronic transmission.
(D) The process or system to report a change or correction in the
person's email address.
(E) The licensee's contact information, which includes, but is not
limited to, a toll-free number or the licensee's Internet Web site
address.
(3) The opt-in consent disclosure required by paragraph (2) may be
set forth in the application or in a separate document that is part
of the policy approved by the commissioner and shall be bolded or
otherwise set forth in a conspicuous manner. The person's signature
shall be set forth immediately below the opt-in consent disclosure.
If the licensee seeks consent at any time prior to the completion of
the application, consent and signature shall be obtained before the
application is completed. If the person has not opted in at the time
the application is completed, the licensee may receive the opt-in
consent at any time thereafter, pursuant to the same opt-in
requirements that apply at the time of the application. The licensee
shall retain a copy of the signed opt-in consent disclosure with the
policy information so that each is retrievable upon request by the
department while the policy is in force and for five years
thereafter.
(4) The email address of the person who has consented to
electronic transmission shall be set forth on the consent disclosure.
In addition, if the person who consented receives an annual
statement, the email address of the person who has consented shall be
set forth on that record.
(5) The licensee shall annually provide one free printed copy of
any record described in this subdivision upon request by the person.
(6) If a provision of this code requires a licensee to transmit a
record by first class mail, regular mail, does not specify a method
of delivery, or is a record that is required to be provided pursuant
to Article 6.6 (commencing with Section 791), and if the licensee is
not otherwise prohibited from transmitting the record electronically
under subdivision (b) of Section 1633.8 of the Civil Code, then the
record may be transmitted by electronic transmission if the licensee
complies with all of the requirements of Sections 1633.15 and 1633.16
of the Civil Code.
(7) Notwithstanding subdivision (b) of Section 1633.8 of the Civil
Code, if a provision of this code requires a licensee to transmit a
record by return receipt, registered mail, certified mail, signed
written receipt of delivery, or other method of delivery evidencing
actual receipt by the person, and if the licensee is not otherwise
prohibited from transmitting the record electronically under Section
1633.3 of the Civil Code and the provisions of this section, then the
licensee shall maintain a process or system that demonstrates proof
of delivery and actual receipt of the record by the person consistent
with this paragraph. The licensee shall document and retain
information demonstrating delivery and actual receipt so that it is
retrievable, upon request, by the department at least five years
after the policy is no longer in force. The record provided by
electronic transmission shall be treated as if actually received if
the licensee delivers the record to the person in compliance with
applicable statutory delivery deadlines. A licensee may demonstrate
actual delivery and receipt by any of the following:
(A) The person acknowledges receipt of the electronic transmission
of the record by returning an electronic receipt or by executing an
electronic signature.
(B) The record is made part of, or attached to, an email sent to
the email address designated by the person, and there is a
confirmation receipt, or some other evidence that the person received
the email in his or her email account and opened the email.
(C) The record is posted on the licensee's secure Internet Web
site, and there is evidence demonstrating that the person logged onto
the licensee's secure Internet Web site and downloaded, printed, or
otherwise acknowledged receipt of the record.
(D) If a licensee is unable to demonstrate actual delivery and
receipt pursuant to this paragraph, the licensee shall resend the
record by regular mail to the person in the manner originally
specified by the underlying provision of this code.
(8) Notwithstanding any other law, a notice of lapse, nonrenewal,
cancellation, or termination of any product subject to this section
may be transmitted electronically if the licensee demonstrates proof
of delivery as set forth in paragraph (7) and complies with the other
provisions in this section.
(9) If the record is not delivered directly to the electronic
address designated by the person but placed at an electronic address
accessible to the person, a licensee shall notify the person in
plain, clear, and conspicuous language at the electronic address
designated by the person that describes the record, informs that
person that it is available at another location, and provides
instructions to the person as to how to obtain the record.
(10) (A) Upon a licensee receiving information indicating that the
record sent by electronic transmission was not received by the
person, the licensee shall, within five business days, comply with
either clause (i) or (ii):
(i) Contact the person to confirm or update the person's email
address and resend the record by electronic transmission. If the
licensee elects to resend the record by electronic transmission, the
licensee shall demonstrate the transmission was received by the
person, pursuant to paragraph (6), (7), or (8). If the licensee is
unable to confirm or update the person's email address, the licensee
shall resend the record by regular mail to the licensee at the
address shown on the policy, or, if the underlying statute requires
delivery in a specified manner, send the record in that specified
manner.
(ii) Resend the record initially provided by electronic
transmission by regular mail to the insured at the address shown on
the policy, or, if the underlying statute requires
delivery in a specified manner, send
the record in that specified manner.
(B) If the licensee sends the first electronic record within the
time period required by law and the licensee complies with both
paragraph (5) and subparagraph (A) of this paragraph, the record sent
pursuant to clause (i) or (ii) of subparagraph (A) shall be treated
as if mailed in compliance with the applicable statutory regular mail
delivery deadlines.
(11) The licensee shall not charge any person who declines to opt
in to receive a record through electronic transmission from receiving
a record electronically. The licensee shall not provide a discount
or an incentive to any person to opt in to receive electronic
records.
(12) The licensee shall verify a person's email address via paper
writing sent by regular mail when more than 12 months have elapsed
since the license's last electronic communication.
(c) An insurance agent or broker acting under the direction of a
party that enters into a contract by means of an electronic record or
electronic signature shall not be held liable for any deficiency in
the electronic procedures agreed to by the parties under that
contract if all of the following are met:
(1) The insurance agent or broker has not engaged in negligent,
reckless, or intentional tortious conduct.
(2) The insurance agent or broker was not involved in the
development or establishment of the electronic procedures.
(3) The insurance agent or broker did not deviate from the
electronic procedures.
(d) On or before January 1, 2020, the commissioner shall submit a
report to the Governor and to the committees of the Senate and
Assembly having jurisdiction over insurance and the judiciary,
regarding the impact and implementation of the authorization of the
electronic transmission of certain insurance renewal offers, notices,
or disclosures as authorized by this section. The report shall
include input from insurers, consumers, and consumer organizations,
and shall include an assessment of the department's experience
pertaining to the authorization of the electronic transmission of
insurance renewals as authorized by this section.
(e) Notwithstanding paragraph (4) of subdivision (b) of Section
1633.3 of the Civil Code, for any policy of life insurance, as
defined in Section 101, any statutory requirement for a separate
acknowledgment, signature, or initial, which is not expressly
prohibited by subdivision (c) of Section 1633.3 of the Civil Code,
may be transacted using an electronic signature, or by electronic
transaction, subject to all applicable provisions of this section.
(f) The department may suspend a licensee from providing records
by electronic transmission if there is a pattern or practices that
demonstrate the licensee has failed to comply with the requirements
of this section. A licensee may appeal the suspension and resume its
electronic transmission of records upon communication from the
department that the changes the licensee made to its process or
system to comply with the requirements of this section are
satisfactory.
(g) This section shall remain in effect only until January 1,
2021, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2021, deletes or extends
that date.
SEC. 202. Section 10082.5 of the Insurance Code is amended to
read:
10082.5. (a) If an insurer subject to this chapter charges an
additional earthquake insurance premium or deductible because a
dwelling fails to comply with paragraph (1), (2), or (3) and the
dwelling is subsequently brought into compliance with any one of
these paragraphs, then the additional premium or deductible
attributed to noncompliance shall not be charged.
(1) Compliance with Section 19215 of the Health and Safety Code
for the bracing, anchoring, or strapping of all water heaters to
resist falling or horizontal displacement due to earthquake motion.
(2) Compliance with the foundation anchor bolt requirements of the
2007 edition of the California Building Standards Code as specified
in Title 24 of the California Code of Regulations, or a successor
edition of that code, or with any local government modifications to
those requirements.
(3) Compliance with the bracing requirements for cripple walls of
the 2007 edition of the California Building Standards Code as
specified in Title 24 of the California Code of Regulations, or a
successor edition of that code, or with any local government
modifications to those requirements.
(b) A copy of the approved inspection record for the building
permit for work performed pursuant to this section shall be submitted
by the insured to the insurer in order to verify that retrofits
performed pursuant to this section have been performed. The
additional premium or deductible paid shall be refunded to the
insured and prorated as of the date the approved inspection record is
received by the insurer.
SEC. 203. Section 10112.27 of the Insurance Code, as added by
Section 4 of Chapter 648 of the Statutes of 2015, is amended to read:
10112.27. (a) An individual or small group health insurance
policy issued, amended, or renewed on or after January 1, 2017,
shall, at a minimum, include coverage for essential health benefits
pursuant to PPACA and as outlined in this section. This section shall
exclusively govern what benefits a health insurer must cover as
essential health benefits. For purposes of this section, "essential
health benefits" means all of the following:
(1) Health benefits within the categories identified in Section
1302(b) of PPACA: ambulatory patient services, emergency services,
hospitalization, maternity and newborn care, mental health and
substance use disorder services, including behavioral health
treatment, prescription drugs, rehabilitative and habilitative
services and devices, laboratory services, preventive and wellness
services and chronic disease management, and pediatric services,
including oral and vision care.
(2) (A) The health benefits covered by the Kaiser Foundation
Health Plan Small Group HMO 30 plan (federal health product
identification number 40513CA035) as this plan was offered during the
first quarter of 2014, as follows, regardless of whether the
benefits are specifically referenced in the plan contract or evidence
of coverage for that plan:
(i) Medically necessary basic health care services, as defined in
subdivision (b) of Section 1345 of the Health and Safety Code and in
Section 1300.67 of Title 28 of the California Code of Regulations.
(ii) The health benefits mandated to be covered by the plan
pursuant to statutes enacted before December 31, 2011, as described
in the following sections of the Health and Safety Code: Sections
1367.002, 1367.06, and 1367.35 (preventive services for children);
Section 1367.25 (prescription drug coverage for contraceptives);
Section 1367.45 (AIDS vaccine); Section 1367.46 (HIV testing);
Section 1367.51 (diabetes); Section 1367.54 (alpha-fetoprotein
testing); Section 1367.6 (breast cancer screening); Section 1367.61
(prosthetics for laryngectomy); Section 1367.62 (maternity hospital
stay); Section 1367.63 (reconstructive surgery); Section 1367.635
(mastectomies); Section 1367.64 (prostate cancer); Section 1367.65
(mammography); Section 1367.66 (cervical cancer); Section 1367.665
(cancer screening tests); Section 1367.67 (osteoporosis); Section
1367.68 (surgical procedures for jaw bones); Section 1367.71
(anesthesia for dental); Section 1367.9 (conditions attributable to
diethylstilbestrol); Section 1368.2 (hospice care); Section 1370.6
(cancer clinical trials); Section 1371.5 (emergency response
ambulance or ambulance transport services); subdivision (b) of
Section 1373 (sterilization operations or procedures); Section 1373.4
(inpatient hospital and ambulatory maternity); Section 1374.56
(phenylketonuria); Section 1374.17 (organ transplants for HIV);
Section 1374.72 (mental health parity); and Section 1374.73
(autism/behavioral health treatment).
(iii) Any other benefits mandated to be covered by the plan
pursuant to statutes enacted before December 31, 2011, as described
in those statutes.
(iv) The health benefits covered by the plan that are not
otherwise required to be covered under Chapter 2.2 (commencing with
Section 1340) of Division 2 of the Health and Safety Code, to the
extent otherwise required pursuant to Sections 1367.18, 1367.21,
1367.215, 1367.22, 1367.24, and 1367.25 of the Health and Safety
Code, and Section 1300.67.24 of Title 28 of the California Code of
Regulations.
(v) Any other health benefits covered by the plan that are not
otherwise required to be covered under Chapter 2.2 (commencing with
Section 1340) of Division 2 of the Health and Safety Code.
(B) If there are any conflicts or omissions in the plan identified
in subparagraph (A) as compared with the requirements for health
benefits under Chapter 2.2 (commencing with Section 1340) of Division
2 of the Health and Safety Code that were enacted prior to December
31, 2011, the requirements of Chapter 2.2 (commencing with Section
1340) of Division 2 of the Health and Safety Code shall be
controlling, except as otherwise specified in this section.
(C) Notwithstanding subparagraph (B) or any other provision of
this section, the home health services benefits covered under the
plan identified in subparagraph (A) shall be deemed to not be in
conflict with Chapter 2.2 (commencing with Section 1340) of Division
2 of the Health and Safety Code.
(D) For purposes of this section, the Paul Wellstone and Pete
Domenici Mental Health Parity and Addiction Equity Act of 2008
(Public Law 110-343) shall apply to a policy subject to this section.
Coverage of mental health and substance use disorder services
pursuant to this paragraph, along with any scope and duration limits
imposed on the benefits, shall be in compliance with the Paul
Wellstone and Pete Domenici Mental Health Parity and Addiction Equity
Act of 2008 (Public Law 110-343), and all rules, regulations, and
guidance issued pursuant to Section 2726 of the federal Public Health
Service Act (42 U.S.C. Sec. 300gg-26).
(3) With respect to habilitative services, in addition to any
habilitative services and devices identified in paragraph (2),
coverage shall also be provided as required by federal rules,
regulations, or guidance issued pursuant to Section 1302(b) of PPACA.
Habilitative services and devices shall be covered under the same
terms and conditions applied to rehabilitative services and devices
under the policy. Limits on habilitative and rehabilitative services
and devices shall not be combined.
(4) With respect to pediatric vision care, the same health
benefits for pediatric vision care covered under the Federal
Employees Dental and Vision Insurance Program vision plan with the
largest national enrollment as of the first quarter of 2014. The
pediatric vision care services covered pursuant to this paragraph
shall be in addition to, and shall not replace, any vision services
covered under the plan identified in paragraph (2).
(5) With respect to pediatric oral care, the same health benefits
for pediatric oral care covered under the dental benefit received by
children under Medi-Cal as of 2014, including the provision of
medically necessary orthodontic care provided pursuant to the federal
Children's Health Insurance Program Reauthorization Act of 2009. The
pediatric oral care benefits covered pursuant to this paragraph
shall be in addition to, and shall not replace, any dental or
orthodontic services covered under the plan identified in paragraph
(2).
(b) Treatment limitations imposed on health benefits described in
this section shall be no greater than the treatment limitations
imposed by the corresponding plans identified in subdivision (a),
subject to the requirements set forth in paragraph (2) of subdivision
(a).
(c) Except as provided in subdivision (d), nothing in this section
shall be construed to permit a health insurer to make substitutions
for the benefits required to be covered under this section,
regardless of whether those substitutions are actuarially equivalent.
(d) To the extent permitted under Section 1302 of PPACA and any
rules, regulations, or guidance issued pursuant to that section, and
to the extent that substitution would not create an obligation for
the state to defray costs for any individual, an insurer may
substitute its prescription drug formulary for the formulary provided
under the plan identified in subdivision (a) as long as the coverage
for prescription drugs complies with the sections referenced in
clauses (ii) and (iv) of subparagraph (A) of paragraph (2) of
subdivision (a) that apply to prescription drugs.
(e) A health insurer, or its agent, producer, or representative,
shall not issue, deliver, renew, offer, market, represent, or sell
any product, policy, or discount arrangement as compliant with the
essential health benefits requirement in federal law, unless it meets
all of the requirements of this section. This subdivision shall be
enforced in the same manner as Section 790.03, including through the
means specified in Sections 790.035 and 790.05.
(f) This section applies regardless of whether the policy is
offered inside or outside the California Health Benefit Exchange
created by Section 100500 of the Government Code.
(g) This section shall not be construed to exempt a health insurer
or a health insurance policy from meeting other applicable
requirements of law.
(h) This section shall not be construed to prohibit a policy from
covering additional benefits, including, but not limited to,
spiritual care services that are tax deductible under Section 213 of
the Internal Revenue Code.
(i) Subdivision (a) does not apply to any of the following:
(1) A policy that provides excepted benefits as described in
Sections 2722 and 2791 of the federal Public Health Service Act (42
U.S.C. Sec. 300gg-21; 42 U.S.C. Sec. 300gg-91).
(2) A policy that qualifies as a grandfathered health plan under
Section 1251 of PPACA or any binding rules, regulation, or guidance
issued pursuant to that section.
(j) This section shall not be implemented in a manner that
conflicts with a requirement of PPACA.
(k) This section shall be implemented only to the extent essential
health benefits are required pursuant to PPACA.
(l) An essential health benefit is required to be provided under
this section only to the extent that federal law does not require the
state to defray the costs of the benefit.
(m) This section does not obligate the state to incur costs for
the coverage of benefits that are not essential health benefits as
defined in this section.
(n) An insurer is not required to cover, under this section,
changes to health benefits that are the result of statutes enacted on
or after December 31, 2011.
(o) (1) The commissioner may adopt emergency regulations
implementing this section. The commissioner may, on a one-time basis,
readopt any emergency regulation authorized by this section that is
the same as, or substantially equivalent to, an emergency regulation
previously adopted under this section.
(2) The initial adoption of emergency regulations implementing
this section and the readoption of emergency regulations authorized
by this subdivision shall be deemed an emergency and necessary for
the immediate preservation of the public peace, health, safety, or
general welfare. The initial emergency regulations and the readoption
of emergency regulations authorized by this section shall be
submitted to the Office of Administrative Law for filing with the
Secretary of State and each shall remain in effect for no more than
180 days, by which time final regulations may be adopted.
(3) The initial adoption of emergency regulations implementing
this section made during the 2015-16 Regular Session of the
Legislature and the readoption of emergency regulations authorized by
this subdivision shall be deemed an emergency and necessary for the
immediate preservation of the public peace, health, safety, or
general welfare. The initial emergency regulations and the readoption
of emergency regulations authorized by this section shall be
submitted to the Office of Administrative Law for filing with the
Secretary of State and each shall remain in effect for no more than
180 days, by which time final regulations may be adopted.
(4) The commissioner shall consult with the Director of the
Department of Managed Health Care to ensure consistency and
uniformity in the development of regulations under this subdivision.
(5) This subdivision shall become inoperative on July 1, 2018.
(p) Nothing in this section shall impose on health insurance
policies the cost sharing or network limitations of the plans
identified in subdivision (a) except to the extent otherwise required
to comply with provisions of this code, including this section, and
as otherwise applicable to all health insurance policies offered to
individuals and small groups.
(q) For purposes of this section, the following definitions apply:
(1) "Habilitative services" means health care services and devices
that help a person keep, learn, or improve skills and functioning
for daily living. Examples include therapy for a child who is not
walking or talking at the expected age. These services may include
physical and occupational therapy, speech-language pathology, and
other services for people with disabilities in a variety of inpatient
or outpatient settings, or both. Habilitative services shall be
covered under the same terms and conditions applied to rehabilitative
services under the policy.
(2) (A) "Health benefits," unless otherwise required to be defined
pursuant to federal rules, regulations, or guidance issued pursuant
to Section 1302(b) of PPACA, means health care items or services for
the diagnosis, cure, mitigation, treatment, or prevention of illness,
injury, disease, or a health condition, including a behavioral
health condition.
(B) "Health benefits" does not mean any cost-sharing requirements
such as copayments, coinsurance, or deductibles.
(3) "PPACA" means the federal Patient Protection and Affordable
Care Act (Public Law 111-148), as amended by the federal Health Care
and Education Reconciliation Act of 2010 (Public Law 111-152), and
any rules, regulations, or guidance issued thereunder.
(4) "Small group health insurance policy" means a group health
insurance policy issued to a small employer, as defined in Section
10753.
SEC. 204. Section 10123.193 of the Insurance Code, as added by
Section 7 of Chapter 619 of the Statutes of 2015, is amended to read:
10123.193. (a) The Legislature hereby finds and declares all of
the following:
(1) The federal Patient Protection and Affordable Care Act, its
implementing regulations and guidance, and related state law prohibit
discrimination based on a person's expected length of life, present
or predicted disability, degree of medical dependency, quality of
life, or other health conditions, including benefit designs that have
the effect of discouraging the enrollment of individuals with
significant health needs.
(2) The Legislature intends to build on existing state and federal
law to ensure that health coverage benefit designs do not have an
unreasonable discriminatory impact on chronically ill individuals,
and to ensure affordability of outpatient prescription drugs.
(3) Assignment of all or most prescription medications that treat
a specific medical condition to the highest cost tiers of a formulary
may effectively discourage enrollment by chronically ill
individuals, and may result in lower adherence to a prescription drug
treatment regimen.
(b) A nongrandfathered policy of health insurance that is offered,
amended, or renewed on or after January 1, 2017, shall comply with
this section. The cost-sharing limits established by this section
apply only to outpatient prescription drugs covered by the policy
that constitute essential health benefits, as defined by Section
10112.27.
(c) A policy of health insurance that provides coverage for
outpatient prescription drugs shall cover medically necessary
prescription drugs, including nonformulary drugs determined to be
medically necessary consistent with this part.
(d) Copayments, coinsurance, and other cost sharing for outpatient
prescription drugs shall be reasonable so as to allow access to
medically necessary outpatient prescription drugs.
(e) (1) Consistent with federal law and guidance, the formulary or
formularies for outpatient prescription drugs maintained by the
health insurer shall not discourage the enrollment of individuals
with health conditions and shall not reduce the generosity of the
benefit for insureds with a particular condition in a manner that is
not based on a clinical indication or reasonable medical management
practices. Section 1342.7 of the Health and Safety Code and any
regulations adopted pursuant to that section shall be interpreted in
a manner that is consistent with this section.
(2) For combination antiretroviral drug treatments that are
medically necessary for the treatment of AIDS/HIV, a policy of health
insurance shall cover a single-tablet drug regimen that is as
effective as a multitablet regimen unless, consistent with clinical
guidelines and peer-reviewed scientific and medical literature, the
multitablet regimen is clinically equally or more effective and more
likely to result in adherence to a drug regimen.
(3) Any limitation or utilization management shall be consistent
with and based on clinical guidelines and peer-reviewed scientific
and medical literature.
(f) (1) With respect to an individual or group policy of health
insurance subject to Section 10112.28, the copayment, coinsurance, or
any other form of cost sharing for a covered outpatient prescription
drug for an individual prescription for a supply of up to 30 days
shall not exceed two hundred fifty dollars ($250), except as provided
in paragraphs (2) and (3).
(2) With respect to products with actuarial value at or equivalent
to the bronze level, cost sharing for a covered outpatient
prescription drug for an individual prescription for a supply of up
to 30 days shall not exceed five hundred dollars ($500), except as
provided in paragraph (3).
(3) For a policy of health insurance that is a "high deductible
health plan" under the definition set forth in Section 223(c)(2) of
Title 26 of the United States Code, paragraphs (1) and (2) of this
subdivision applies only once an insured's deductible has been
satisfied for the year.
(4) For a nongrandfathered individual or small group policy of
health insurance, the annual deductible for outpatient drugs, if any,
shall not exceed twice the amount specified in paragraph (1) or (2),
respectively.
(5) For purposes of paragraphs (1) and (2), "any other form of
cost sharing" shall not include a deductible.
(g) (1) If a policy of health insurance offered, sold, or renewed
in the nongrandfathered individual or small group market maintains a
drug formulary grouped into tiers that includes a fourth tier, a
policy of health insurance shall use the following definitions for
each tier of the drug formulary:
(A) Tier one shall consist of most generic drugs and low-cost
preferred brand name drugs.
(B) Tier two shall consist of nonpreferred generic drugs,
preferred brand name drugs, and any other drugs recommended by the
health insurer's pharmacy and therapeutics committee based on safety,
efficacy, and cost.
(C) Tier three shall consist of nonpreferred brand name drugs or
drugs that are recommended by the health insurer's pharmacy and
therapeutics committee based on safety, efficacy, and cost, or that
generally have a preferred and often less costly therapeutic
alternative at a lower tier.
(D) Tier four shall consist of drugs that are biologics, drugs
that the FDA or the manufacturer requires to be distributed through a
specialty pharmacy, drugs that require the insured to have special
training or clinical monitoring for self-administration, or drugs
that cost the health insurer more than six hundred dollars ($600) net
of rebates for a one-month supply.
(2) In placing specific drugs on specific tiers, or choosing to
place a drug on the formulary, the insurer shall take into account
the other provisions of this section and this part.
(3) A policy of health insurance may maintain a drug formulary
with fewer than four tiers.
(4) This section shall not be construed to limit a health insurer
from placing any drug in a lower tier.
(h) This section shall not be construed to require a health
insurer to impose cost sharing. This section shall not be construed
to require cost sharing for prescription drugs that state or federal
law otherwise requires to be provided without cost sharing.
(i) A policy of health insurance shall ensure that the placement
of prescription drugs on formulary tiers is based on clinically
indicated, reasonable medical management practices.
(j) In the provision of outpatient prescription drug coverage, a
health insurer may utilize formulary, prior authorization, step
therapy, or other reasonable medical management practices consistent
with this part.
(k) This section shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.
SEC. 205. Section 10133.15 of the Insurance Code is amended to
read:
10133.15. (a) Commencing July 1, 2016, a health insurer that
contracts with providers for alternative rates of payment pursuant to
Section 10133 shall publish and maintain provider directory or
directories with information on contracting providers that deliver
health care services to the insurer's insureds, including those that
accept new patients. A provider directory shall not list or include
information on a provider that is not currently under contract with
the insurer.
(b) An insurer shall provide the online directory or directories
for the specific network offered for each product using a consistent
method of network and product naming, numbering, or other
classification method that ensures the public, insureds, potential
insureds, the department, and other state or federal agencies can
easily identify the networks and insurer products in which a provider
participates. By July 31, 2017, or 12 months after the date provider
directory standards are developed under subdivision (k), whichever
occurs later, an insurer shall use the naming, numbering, or
classification method developed by the department pursuant to
subdivision (k).
(c) (1) An online provider directory or directories shall be
available on the insurer's Internet Web site to the public, potential
insureds, insureds, and providers without any restrictions or
limitations. The directory or directories shall be accessible without
any requirement that an individual seeking the directory information
demonstrate coverage with the insurer, indicate interest in
obtaining coverage with the insurer, provide a member identification
or policy number, provide any other identifying information, or
create or access an account.
(2) The online provider directory or directories shall be
accessible on the insurer's public Internet Web site through an
identifiable link or tab and in a manner that is accessible and
searchable by insureds, potential insureds, the public, and
providers. By July 1, 2017, or 12 months after the date provider
directory standards are developed under subdivision (k), whichever
occurs later, the insurer's public Internet Web site shall allow
provider searches by, at a minimum, name, practice address, city, ZIP
Code, California license number, National Provider Identifier
number, admitting privileges to an identified hospital, product,
tier, provider language or languages, provider group, hospital name,
facility name, or clinic name, as appropriate.
(d) (1) An insurer shall allow insureds, potential insureds,
providers, and members of the public to request a printed copy of the
provider directory or directories by contacting the insurer through
the insurer's toll-free telephone number, electronically, or in
writing. A printed copy of the provider directory or directories
shall include the information required in subdivisions (h) and (i).
The printed copy of the provider directory or directories shall be
provided to the requester by mail postmarked no later than five
business days following the date of the request and may be limited to
the geographic region in which the requester resides or works or
intends to reside or work.
(2) An insurer shall update its printed provider directory or
directories at least quarterly, or more frequently, if required by
federal law.
(e) (1) The insurer shall update the online provider directory or
directories, at least weekly, or more frequently, if required by
federal law, when informed of and upon confirmation by the insurer of
any of the following:
(A) A contracting provider is no longer accepting new patients for
that product, or an individual provider within a provider group is
no longer accepting new patients.
(B) A contracted provider is no longer under contract for a
particular product.
(C) A provider's practice location or other information required
under subdivision (h) or (i) has changed.
(D) Upon the completion of the investigation described in
subdivision (o), a change is necessary based on an insured complaint
that a provider was not accepting new patients, was otherwise not
available, or whose contact information was listed incorrectly.
(E) Any other information that affects the content or accuracy of
the provider directory or directories.
(2) Upon confirmation of any of the following, the insurer shall
delete a provider from the directory or directories when:
(A) A provider has retired or otherwise has ceased to practice.
(B) A provider or provider group is no longer under contract with
the insurer for any reason.
(C) The contracting provider group has informed the insurer that
the provider is no longer associated with the provider group and is
no longer under contract with the insurer.
(f) The provider directory or directories shall include both an
email address and a telephone number for members of the public and
providers to notify the insurer if the provider directory information
appears to be inaccurate. This information shall be disclosed
prominently in the directory or directories and on the insurer's
Internet Web site.
(g) The provider directory or directories shall include the
following disclosures informing insureds that they are entitled to
both of the following:
(1) Language interpreter services, at no cost to the insured,
including how to obtain interpretation services in accordance with
Section 10133.8.
(2) Full and equal access to covered services, including insureds
with disabilities as required under the federal Americans with
Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of
1973.
(h) The insurer and a specialized mental health insurer shall
include all of the following information in the provider directory or
directories:
(1) The provider's name, practice location or locations, and
contact information.
(2) Type of practitioner.
(3) National Provider Identifier number.
(4) California license number and type of license.
(5) The area of specialty, including board certification, if any.
(6) The provider's office email address, if available.
(7) The name of each affiliated provider group currently under
contract with the insurer through which the provider sees enrollees.
(8) A listing for each of the following providers that are under
contract with the insurer:
(A) For physicians and surgeons, the provider group, and admitting
privileges, if any, at hospitals contracted with the insurer.
(B) Nurse practitioners, physician assistants, psychologists,
acupuncturists, optometrists, podiatrists, chiropractors, licensed
clinical social workers, marriage and family therapists, professional
clinical counselors, qualified autism service providers, as defined
in Section 10144.51, nurse midwives, and dentists.
(C) For federally qualified health centers or primary care
clinics, the name of the federally qualified health center or clinic.
(D) For any provider described in subparagraph (A) or (B) who is
employed by a federally qualified health center or primary care
clinic, and to the extent their services may be accessed and are
covered through the contract with the insurer, the name of the
provider, and the name of the federally qualified health center or
clinic.
(E) Facilities, including, but not limited to, general acute care
hospitals, skilled nursing facilities, urgent care clinics,
ambulatory surgery centers, inpatient hospice, residential care
facilities, and inpatient rehabilitation facilities.
(F) Pharmacies, clinical laboratories, imaging centers, and other
facilities providing contracted health care services.
(9) The provider directory or directories may note that
authorization or referral may be required to access some providers.
(10) Non-English language, if any, spoken by a health care
provider or other medical professional as well as non-English
language spoken by a qualified medical interpreter, in accordance
with Section 10133.8, if any, on the provider's staff.
(11) Identification of providers who no longer accept new patients
for some or all of the insurer's products.
(12) The network tier to which the provider is assigned, if the
provider is not in the lowest tier, as applicable. Nothing in this
section shall be construed to require the use of network tiers other
than contract and noncontracting tiers.
(13) All other information necessary to conduct a search pursuant
to paragraph (2) of subdivision (c).
(i) A vision, dental, or other specialized insurer, except for a
specialized mental health insurer, shall include all of the following
information for each provider directory or directories used by the
insurer for its networks:
(1) The provider's name, practice location or locations, and
contact information.
(2) Type of practitioner.
(3) National Provider Identifier number.
(4) California license number and type of license, if applicable.
(5) The area of specialty, including board certification, or other
accreditation, if any.
(6) The provider's office email address, if available.
(7) The name of each affiliated provider group or specialty
insurer practice group currently under contract with the insurer
through which the provider sees insureds.
(8) The names of each allied health care professional to the
extent there is a direct contract for those services covered through
a contract with the insurer.
(9) The non-English language, if any, spoken by a health care
provider or other medical professional as well as non-English
language spoken by a qualified medical interpreter, in accordance
with Section 10133.8, if any, on the provider's staff.
(10) Identification of providers who no longer accept new patients
for some or all of the insurer's products.
(11) All other applicable information necessary to conduct a
provider search pursuant to paragraph (2) of subdivision (c).
(j) (1) The contract between the insurer and a provider shall
include a requirement that the provider inform the insurer within
five business days when either of the following occurs:
(A) The provider is not accepting new patients.
(B) If the provider had previously not accepted new patients, the
provider is currently accepting new patients.
(2) If a provider who is not accepting new patients is contacted
by an insured or potential insured seeking to become a new patient,
the provider shall direct the insurer or potential insured to both
the insurer for additional assistance in finding a provider and to
the department to report any inaccuracy with the insurer's directory
or directories.
(3) If an insured or potential insured informs an insurer of a
possible inaccuracy in the provider directory or directories, the
insurer shall promptly investigate and, if necessary, undertake
corrective action within 30 business days to ensure the accuracy of
the directory or directories.
(k) (1) On or before December 31, 2016, the department shall
develop uniform provider directory standards to permit consistency in
accordance with subdivision (b) and paragraph (2) of subdivision (c)
and development of a multiplan directory by another entity. Those
standards shall not be subject to the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code), until January 1, 2021. No more
than two revisions of those standards shall be exempt from the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code)
pursuant to this subdivision.
(2) In developing the standards under this subdivision, the
department shall seek input from interested parties throughout the
process of developing the standards and shall hold at least one
public meeting. The department shall take into consideration any
requirements for provider directories established by the federal
Centers for Medicare and Medicaid Services and the State Department
of Health Care Services.
(3) By July 31, 2017, or 12 months after the date provider
directory standards are developed under this subdivision, whichever
occurs later, an insurer shall use the standards developed by the
department for each product offered by the insurer.
(l) (1) An insurer shall take appropriate steps to ensure the
accuracy of the information concerning each provider listed in the
insurer's provider directory or directories in accordance with this
section, and shall, at least annually, review and update the entire
provider directory or directories for each product offered. Each
calendar year the insurer shall notify all contracted providers
described in subdivisions (h) and (i) as follows:
(A) For individual providers who are not affiliated with a
provider group described in subparagraph (A) or (B) of paragraph (8)
of subdivision (h) and providers described in subdivision (i), the
insurer shall notify each provider at least once every six months.
(B) For all other providers described in subdivision (h) who are
not subject to the requirements of subparagraph (A), the insurer
shall notify its contracted providers to ensure that all of the
providers are contacted by the insurer at least once annually.
(2) The notification shall include all of the following:
(A) The information the insurer has in its directory or
directories regarding the provider or provider group, including a
list of networks and products that include the contracted provider or
provider group.
(B) A statement that the failure to respond to the notification
may result in a delay of payment or reimbursement of a claim pursuant
to subdivision (p).
(C) Instructions on how the provider or provider group can update
the information in the provider directory or directories using the
online interface developed pursuant to subdivision (m).
(3) The insurer shall require an affirmative response from the
provider or provider group acknowledging that the notification was
received. The provider or provider group shall confirm that the
information in the provider directory or directories is current and
accurate or update the information required to be in the directory or
directories pursuant to this section, including whether or not the
provider group is accepting new patients for each product.
(4) If the insurer does not receive an affirmative response and
confirmation from the provider that the information is current and
accurate or, as an alternative, updates any information required to
be in the directory or directories pursuant to this section, within
30 business days, the insurer shall take no more than 15 business
days to verify whether the provider's information is correct or
requires updates. The insurer shall document the receipt and outcome
of each attempt to verify the information. If the insurer is unable
to verify whether the provider's information is correct or requires
updates, the insurer shall notify the provider 10 business days in
advance of removal that the provider will be removed from the
directory or directories. The provider shall be removed from the
directory or directories at the next required update of the provider
directory or directories after the 10-business day notice period. A
provider shall not be removed from the provider directory or
directories if he or she responds before the end of the 10-business
day notice period.
(5) General acute care hospitals shall be exempt from the
requirements in paragraphs (3) and (4).
(m) An insurer shall establish policies and procedures with regard
to the regular updating of its provider directory or directories,
including the weekly, quarterly, and annual updates required pursuant
to this section, or more frequently, if required by federal law or
guidance.
(1) The policies and procedures described under this subdivision
shall be submitted by an insurer annually to the department for
approval and in a format described by the department.
(2) Every insurer shall ensure processes are in place to allow
providers to promptly verify or submit changes to the information
required to be in the directory or directories pursuant to this
section. Those processes shall, at a minimum, include an online
interface for providers to submit verification or changes
electronically and shall generate an acknowledgment of receipt from
the insurer. Providers shall verify or submit changes to information
required to be in the directory or directories pursuant to this
section using the process required by the insurer.
(3) The insurer shall establish and maintain a process for
insureds, potential insureds, other providers, and the public to
identify and report possible inaccurate, incomplete, or misleading
information currently listed in the insurer's provider directory or
directories. This process shall, at a minimum, include a telephone
number and a dedicated email address at which the insurer will accept
these reports, as well as a hyperlink on the insurer's provider
directory Internet Web site linking to a form where the information
can be reported directly to the insurer through its Internet Web
site.
(n) (1) This section does not prohibit an insurer from requiring
its provider groups or contracting specialized health insurers to
provide information to the insurer that is required by the insurer to
satisfy the requirements of this section for each of the providers
that contract with the provider group or contracting specialized
health insurer. This responsibility shall be specifically documented
in a written contract between the insurer and the provider group or
contracting specialized health insurer.
(2) If an insurer requires its contracting provider groups or
contracting specialized health insurers to provide the insurer with
information described in paragraph (1), the insurer shall continue to
retain responsibility for ensuring that the requirements of this
section are satisfied.
(3) A provider group may terminate a contract with a provider for
a pattern or repeated failure of the provider to update the
information required to be in the directory or directories pursuant
to this section.
(4) A provider group is not subject to the payment delay described
in subdivision (p) if all of the following occurs:
(A) A provider does not respond to the provider group's attempt to
verify the provider's information. As used in this paragraph,
"verify" means to contact the provider in writing, electronically,
and by telephone to confirm whether the provider's information is
correct or requires updates.
(B) The provider group documents its efforts to verify the
provider's information.
(C) The provider group reports to the insurer that the provider
should be deleted from the provider group in the insurer's provider
directory or directories.
(5) Section 10133.65, known as the Health Care Providers' Bill of
Rights, applies to any material change to a provider contract
pursuant to this section.
(o) (1) Whenever an insurer receives a report indicating that
information listed in its provider directory or directories is
inaccurate, the insurer shall promptly investigate the reported
inaccuracy and, no later than 30 business days following receipt of
the report, either verify the accuracy of the information or update
the information in its provider directory or directories, as
applicable.
(2) When investigating a report regarding its provider directory
or directories, the insurer shall, at a minimum, do the following:
(A) Contact the affected provider no later than five business days
following receipt of the report.
(B) Document the receipt and outcome of each report. The
documentation shall include the provider's name, location, and a
description of the insurer's investigation, the outcome of the
investigation, and any changes or updates made to its provider
directory or directories.
(C) If changes to an insurer's provider directory or directories
are required as a result of the insurer's investigation, the changes
to the online provider directory or directories shall be made no
later than the next scheduled weekly update, or the update
immediately following that update, or sooner if required by federal
law or regulations. For printed provider directories, the change
shall be made no later than the next required update, or sooner if
required by federal law or regulations.
(p) (1) Notwithstanding Sections 10123.13 and 10123.147, an
insurer may delay payment or reimbursement owed to a provider or
provider group for any claims payment made to a provider or provider
group for up to one calendar month beginning on the first day of the
following month, if the provider or provider group fails to respond
to the insurer's attempts to verify the provider's information as
required under subdivision (l). The insurer shall not delay payment
unless it has attempted to verify the provider's or provider group's
information. As used in this subdivision, "verify" means to contact
the provider or provider group in writing, electronically, and by
telephone to confirm whether the provider's or provider group's
information is correct or requires updates. An insurer may seek to
delay payment or reimbursement owed to a provider or provider group
only after the 10-business day notice period described in paragraph
(4) of subdivision (l) has lapsed.
(2) An insurer shall notify the provider or provider group 10 days
before it seeks to delay payment or reimbursement to a provider or
provider group pursuant to this subdivision. If the insurer delays a
payment or reimbursement pursuant to this subdivision, the insurer
shall reimburse the full amount of any payment or reimbursement
subject to delay to the provider or provider group according to
either of the following timelines, as applicable:
(A) No later than three business days following the date on which
the insurer receives the information required to be submitted by the
provider or provider group pursuant to subdivision (l).
(B) At the end of the one-calendar-month delay described in
paragraph (1), if the provider or provider group fails to provide the
information required to be submitted to the insurer pursuant to
subdivision (l).
(3) An insurer may terminate a contract for a pattern or repeated
failure of the provider or provider group to alert the insurer to a
change in the information required to be in the directory or
directories pursuant to this section.
(4) An insurer that delays payment or reimbursement under this
subdivision shall document each instance a payment or reimbursement
was delayed and report this information to the department in a format
described by the department. This information shall be submitted
along with the policies and procedures required to be submitted
annually to the department pursuant to paragraph (1) of subdivision
(m).
(q) In circumstances where the department finds that an insured
reasonably relied upon materially inaccurate, incomplete, or
misleading information contained in an insurer's provider directory
or directories, the department may require the insurer to provide
coverage for all covered health care services provided to the insured
and to reimburse the insured for any amount beyond what the insured
would have paid, had the services been delivered by an in-network
provider under the insured's health insurance policy. Prior to
requiring reimbursement in these circumstances, the department shall
conclude that the services received by the insured were covered
services under the insured's health insurance policy. In those
circumstances, the fact that the services were rendered or delivered
by a noncontracting or out-of-network provider shall not be used as a
basis to deny reimbursement to the insured.
(r) Whenever an insurer determines as a result of this section
that there has been a 10-percent change in the network for a product
in a region, the insurer shall file a statement with the
commissioner.
(s) An insurer that contracts with multiple employer welfare
agreements regulated pursuant to Article 4.7 (commencing with Section
742.20) of Chapter 1 of Part 2 of Division 1 shall meet the
requirements of this section.
(t) This section shall not be construed to alter a provider's
obligation to provide health care services to an insured pursuant to
the provider's contract with the insurer.
(u) As part of the department's routine examination of a health
insurer pursuant to Section 730, the department shall include a
review of the health insurer's compliance with subdivision (p).
(v) For purposes of this section, "provider group" means a medical
group, independent practice association, or other similar group of
providers.
SEC. 206. Section 10169 of the Insurance Code, as added by Section
19 of Chapter 348 of the Statutes of 2015, is amended to read:
10169. (a) Commencing January 1, 2001, there is hereby
established in the department the Independent Medical Review System.
(b) For the purposes of this chapter, "disputed health care
service" means any health care service eligible for coverage and
payment under a disability insurance contract that has been denied,
modified, or delayed by a decision of the insurer, or by one of its
contracting providers, in whole or in part due to a finding that the
service is not medically necessary. A decision regarding a disputed
health care service relates to the practice of medicine and is not a
coverage decision. A disputed health care service does not include
services provided by a group or individual policy of vision- or
dental-only coverage, except to the extent that (1) the service
involves the practice of medicine, or (2) is provided pursuant to a
contract with a disability insurer that covers hospital, medical, or
surgical benefits. If an insurer, or one of its contracting
providers, issues a decision denying, modifying, or delaying health
care services, based in whole or in part on a finding that the
proposed health care services are not a covered benefit under the
contract that applies to the insured, the statement of decision shall
clearly specify the provision in the contract that excludes that
coverage.
(c) For the purposes of this chapter, "coverage decision" means
the approval or denial of health care services by a disability
insurer, or by one of its contracting entities, substantially based
on a finding that the provision of a particular service is included
or excluded as a covered benefit under the terms and conditions of
the disability insurance contract. A coverage decision does not
encompass a disability insurer or contracting provider decision
regarding a disputed health care service.
(d) (1) All insured grievances involving a disputed health care
service are eligible for review under the Independent Medical Review
System if the requirements of this article are met. If the department
finds that an insured grievance involving a disputed health care
service does not meet the requirements of this article for review
under the Independent Medical Review System, the insured request for
review shall be treated as a request for the department to review the
grievance. All other insured grievances, including grievances
involving coverage decisions, remain eligible for review by the
department.
(2) In any case in which an insured or provider asserts that a
decision to deny, modify, or delay health care services was based, in
whole or in part, on consideration of medical necessity, the
department shall have the final authority to determine whether the
grievance is more properly resolved pursuant to an independent
medical review as provided under this article.
(3) The department shall be the final arbiter when there is a
question as to whether an insured grievance is a disputed health care
service or a coverage decision. The department shall establish a
process to complete an initial screening of an insured grievance. If
there appears to be any medical necessity issue, the grievance shall
be resolved pursuant to an independent medical review as provided
under this article.
(e) Every disability insurance contract that is issued, amended,
renewed, or delivered in this state on or after January 1, 2000,
shall provide an insured with the opportunity to seek an independent
medical review whenever health care services have been denied,
modified, or delayed by the insurer, or by one of its contracting
providers, if the decision was based in whole or in part on a finding
that the proposed health care services are not medically necessary.
For purposes of this article, an insured may designate an agent to
act on his or her behalf. The provider may join with or otherwise
assist the insured in seeking an independent medical review, and may
advocate on behalf of the insured.
(f) Medicare beneficiaries enrolled in Medicare + Choice products
shall not be excluded unless expressly preempted by federal law.
(g) The department may seek to integrate the quality of care and
consumer protection provisions, including remedies, of the
Independent Medical Review System with related dispute resolution
procedures of other health care agency programs, including the
Medicare program, in a way that minimizes the potential for
duplication, conflict, and added costs. Nothing in this subdivision
shall be construed to limit any rights conferred upon insureds under
this chapter.
(h) The independent medical review process authorized by this
article is in addition to any other procedures or remedies that may
be available.
(i) Every disability insurer shall prominently display in every
insurer member handbook or relevant informational brochure, in every
insurance contract, on insured evidence of coverage forms, on copies
of insurer procedures for resolving grievances, on letters of denials
issued by either the insurer or its contracting organization, and on
all written responses to grievances, information concerning the
right of an insured to request an independent medical review when the
insured believes that health care services have been improperly
denied, modified, or delayed by the insurer, or by one of its
contracting providers. The department's telephone number,
1-800-927-4357, and Internet Web site, www.insurance.ca.gov, shall
also be displayed.
(j) An insured may apply to the department for an independent
medical review when all of the following conditions are met:
(1) (A) The insured's provider has recommended a health care
service as medically necessary, or
(B) The insured has received urgent care or emergency services
that a provider determined was medically necessary, or
(C) The insured, in the absence of a provider recommendation under
subparagraph (A) or the receipt of urgent care or emergency services
by a provider under subparagraph (B), has been seen by a contracting
provider for the diagnosis or treatment of the medical condition for
which the insured seeks independent review. The insurer shall
expedite access to a contracting provider upon request of an insured.
The contracting provider need not recommend the disputed health care
service as a condition for the insured to be eligible for an
independent review.
For purposes of this article, the insured's provider may be a
noncontracting provider. However, the insurer shall have no liability
for payment of services provided by a noncontracting provider,
except as provided pursuant to Section 10169.3.
(2) The disputed health care service has been denied, modified, or
delayed by the insurer, or by one of its contracting providers,
based in whole or in part on a decision that the health care service
is not medically necessary.
(3) The insured has filed a grievance with the insurer or its
contracting provider, and the disputed decision is upheld or the
grievance remains unresolved after 30 days. The insured shall not be
required to participate in the insurer's grievance process for more
than 30 days. In the case of a grievance that requires expedited
review, the insured shall not be required to participate in the
insurer's grievance process for more than three days.
(k) An insured may apply to the department for an independent
medical review of a decision to deny, modify, or delay health care
services, based in whole or in part on a finding that the disputed
health care services are not medically necessary, within six months
of any of the qualifying periods or events under subdivision (j). The
commissioner may extend the application deadline beyond six months
if the circumstances of a case warrant the extension.
( l ) The insured shall pay no application or
processing fees of any kind.
(m) As part of its notification to the insured regarding a
disposition of the insured's grievance that denies, modifies, or
delays health care services, the insurer shall provide the insured
with a one- or two-page application form approved by the department,
and an addressed envelope, which the insured may return to initiate
an independent medical review. The insurer shall include on the form
any information required by the department to facilitate the
completion of the independent medical review, such as the insured's
diagnosis or condition, the nature of the disputed health care
service sought by the insured, a means to identify the insured's
case, and any other material information. The form shall also include
the following:
(1) Notice that a decision not to participate in the independent
review process may cause the insured to forfeit any statutory right
to pursue legal action against the insurer regarding the disputed
health care service.
(2) A statement indicating the insured's consent to obtain any
necessary medical records from the insurer, any of its contracting
providers, and any noncontracting provider the insured may have
consulted on the matter, to be signed by the insured.
(3) Notice of the insured's right to provide information or
documentation, either directly or through the insured's provider,
regarding any of the following:
(A) A provider recommendation indicating that the disputed health
care service is medically necessary for the insured's medical
condition.
(B) Medical information or justification that a disputed health
care service, on an urgent care or emergency basis, was medically
necessary for the insured's medical condition.
(C) Reasonable information supporting the insured's position that
the disputed health care service is or was medically necessary for
the insured's medical condition, including all information provided
to the insured by the insurer or any of its contracting providers,
still in the possession of the insured, concerning an insurer or
provider decision regarding disputed health care services, and a copy
of any materials the insured submitted to the insurer, still in the
possession of the insured, in support of the grievance, as well as
any additional material that the insured believes is relevant.
(4) A section designed to collect information on the insured's
ethnicity, race, and primary language spoken that includes both of
the following:
(A) A statement of intent indicating that the information is used
for statistics only, in order to ensure that all insureds get the
best care possible.
(B) A statement indicating that providing this information is
optional and will not affect the independent medical review process
in any way.
(n) Upon notice from the department that the insured has applied
for an independent medical review, the insurer or its contracting
providers, shall provide to the independent medical review
organization designated by the department a copy of all of the
following documents within three business days of the insurer's
receipt of the department's notice of a request by an insured for an
independent review:
(1) (A) A copy of all of the insured's medical records in the
possession of the insurer or its contracting providers relevant to
each of the following:
(i) The insured's medical condition.
(ii) The health care services being provided by the insurer and
its contracting providers for the condition.
(iii) The disputed health care services requested by the insured
for the condition.
(B) Any newly developed or discovered relevant medical records in
the possession of the insurer or its contracting providers after the
initial documents are provided to the independent medical review
organization shall be forwarded immediately to the independent
medical review organization. The insurer shall concurrently provide a
copy of medical records required by this subparagraph to the insured
or the insured's provider, if authorized by the insured, unless the
offer of medical records is declined or otherwise prohibited by law.
The confidentiality of all medical record information shall be
maintained pursuant to applicable state and federal laws.
(2) A copy of all information provided to the insured by the
insurer and any of its contracting providers concerning insurer and
provider decisions regarding the insured's condition and care, and a
copy of any materials the insured or the insured's provider submitted
to the insurer and to the insurer's contracting providers in support
of the insured's request for disputed health care services. This
documentation shall include the written response to the insured's
grievance. The confidentiality of any insured medical information
shall be maintained pursuant to applicable state and federal laws.
(3) A copy of any other relevant documents or information used by
the insurer or its contracting providers in determining whether
disputed health care services should have been provided, and any
statements by the insurer and its contracting providers explaining
the reasons for the decision to deny, modify, or delay disputed
health care services on the basis of medical necessity. The insurer
shall concurrently provide a copy of documents required by this
paragraph, except for any information found by the commissioner to be
legally privileged information, to the insured and the insured's
provider. The department and the independent medical review
organization shall maintain the confidentiality of any information
found by the commissioner to be the proprietary information of the
insurer.
(o) This section shall become operative on January 1, 2017.
SEC. 207. Section 10192.18 of the Insurance Code, as added by
Section 21 of Chapter 348 of the Statutes of 2015, is amended to
read:
10192.18. (a) Application forms shall include the following
questions designed to elicit information as to whether, as of the
date of the application, the applicant currently has Medicare
supplement, Medicare Advantage, Medi-Cal coverage, or another health
insurance policy or certificate in force or whether a Medicare
supplement policy or certificate is intended to replace any other
disability policy or certificate presently in force. A supplementary
application or other form to be signed by the applicant and agent
containing those questions and statements may be used.
(Statements)
(1) You do not need more than one Medicare supplement policy.
(2) If you purchase this policy, you may want to evaluate your
existing health coverage and decide if you need multiple coverages.
(3) You may be eligible for benefits under Medi-Cal and may not
need a Medicare supplement policy.
(4) If after purchasing this policy you become eligible for
Medi-Cal, the benefits and premiums under your Medicare supplement
policy can be suspended, if requested, during your entitlement to
benefits under Medi-Cal for 24 months. You must request this
suspension within 90 days of becoming eligible for Medi-Cal. If you
are no longer entitled to Medi-Cal, your suspended Medicare
supplement policy or if that is no longer available, a substantially
equivalent policy, will be reinstituted if requested within 90 days
of losing Medi-Cal eligibility. If the Medicare supplement policy
provided coverage for outpatient prescription drugs and you enrolled
in Medicare Part D while your policy was suspended, the reinstituted
policy will not have outpatient prescription drug coverage, but will
otherwise be substantially equivalent to your coverage before the
date of the suspension.
(5) If you are eligible for, and have enrolled in, a Medicare
supplement policy by reason of disability and you later become
covered by an employer or union-based group health plan, the benefits
and premiums under your Medicare supplement policy can be suspended,
if requested, while you are covered under the employer or
union-based group health plan. If you suspend your Medicare
supplement policy under these circumstances and later lose your
employer or union-based group health plan, your suspended Medicare
supplement policy or if that is no longer available, a substantially
equivalent policy, will be reinstituted if requested within 90 days
of losing your employer or union-based group health plan. If the
Medicare supplement policy provided coverage for outpatient
prescription drugs and you enrolled in Medicare Part D while your
policy was suspended, the reinstituted policy will not have
outpatient prescription drug coverage, but will otherwise be
substantially equivalent to your coverage before the date of the
suspension.
(6) Counseling services are available in this state to provide
advice concerning your purchase of Medicare supplement insurance and
concerning medical assistance through the Medi-Cal program, including
benefits as a qualified Medicare beneficiary (QMB) and a specified
low-income Medicare beneficiary (SLMB). If you want to discuss buying
Medicare supplement insurance with a trained insurance counselor,
call the California Department of Insurance's toll-free telephone
number 1-800-927-HELP, or access the department's Internet Web site,
www.insurance.ca.gov, and ask how to contact your local Health
Insurance Counseling and Advocacy Program (HICAP) office. HICAP is a
service provided free of charge by the State of California.
(Questions)
If you lost or are losing other health insurance coverage and
received a notice from your prior insurer saying you were eligible
for guaranteed issue of a Medicare supplement insurance policy or
that you had certain rights to buy such a policy, you may be
guaranteed acceptance in one or more of our Medicare supplement
plans. Please include a copy of the notice from your prior insurer
with your application. PLEASE ANSWER ALL QUESTIONS.
Please mark Yes or No below with an "X."]
To the best of your knowledge,
(1) (a) Did you turn 65 years of age in the last 6 months?
Yes____ No____
(b) Did you enroll in Medicare Part B in the last 6 months?
Yes____ No____
(c) If yes, what is the effective date? ___________________
(2) Are you covered for medical assistance through California's
Medi-Cal program?
NOTE TO APPLICANT: If you have a share of cost under the Medi-Cal
program, please answer NO to this question.
Yes____ No____
If yes,
(a) Will Medi-Cal pay your premiums for this Medicare supplement
policy?
Yes____ No____
(b) Do you receive benefits from Medi-Cal OTHER THAN payments
toward your Medicare Part B premium?
Yes____ No____
(3) (a) If you had coverage from any Medicare plan other than
original Medicare within the past 63 days (for example, a Medicare
Advantage plan or a Medicare HMO or PPO), fill in your start and end
dates below. If you are still covered under this plan, leave "END"
blank.
START __/__/__ END __/__/__
(b) If you are still covered under the Medicare plan, do you
intend to replace your current coverage with this new Medicare
supplement policy?
Yes____ No____
(c) Was this your first time in this type of Medicare plan?
Yes____ No____
(d) Did you drop a Medicare supplement policy to enroll in the
Medicare plan?
Yes____ No____
(4) (a) Do you have another Medicare supplement policy in force?
Yes____ No____
(b) If so, with what company, and what plan do you have? optional
for direct mailers]
Yes____ No____
(c) If so, do you intend to replace your current Medicare
supplement policy with this policy?
Yes____ No____
(5) Have you had coverage under any other health insurance within
the past 63 days (For example, an employer, union, or individual
plan)?
Yes____ No____
(a) If so, with what companies and what kind of policy?
________________________________________________
________________________________________________
________________________________________________
________________________________________________
(b) What are your dates of coverage under the other policy?
START __/__/__ END __/__/__
(If you are still covered under the other policy, leave "END"
blank.)
(b) Agents shall list any other health insurance policies they
have sold to the applicant as follows:
(1) List policies sold that are still in force.
(2) List policies sold in the past five years that are no longer
in force.
(c) In the case of a direct response issuer, a copy of the
application or supplemental form, signed by the applicant, and
acknowledged by the issuer, shall be returned to the applicant by the
issuer upon delivery of the policy.
(d) Upon determining that a sale will involve replacement of
Medicare supplement coverage, any issuer, other than a direct
response issuer, or its agent, shall furnish the applicant, prior to
issuance for delivery of the Medicare supplement policy or
certificate, a notice regarding replacement of Medicare supplement
coverage. One copy of the notice signed by the applicant and the
agent, except when the coverage is sold without an agent, shall be
provided to the applicant and an additional signed copy shall be
retained by the issuer as provided in Section 10508. A direct
response issuer shall deliver to the applicant at the time of the
issuance of the policy the notice regarding replacement of Medicare
supplement coverage.
(e) The notice required by subdivision (d) for an issuer shall be
in the form specified by the commissioner, using, to the extent
practicable, a model notice prepared by the National Association of
Insurance Commissioners for this purpose. The replacement notice
shall be printed in no less than 12-point type in substantially the
following form:
Insurer's name and address]
NOTICE TO APPLICANT REGARDING REPLACEMENT OF MEDICARE SUPPLEMENT
COVERAGE OR MEDICARE ADVANTAGE
SAVE THIS NOTICE! IT MAY BE IMPORTANT IN THE FUTURE.
If you intend to cancel or terminate existing Medicare supplement
or Medicare Advantage insurance and replace it with coverage issued
by company name], please review the new coverage carefully and
replace the existing coverage ONLY if the new coverage materially
improves your position. DO NOT CANCEL YOUR PRESENT COVERAGE UNTIL YOU
HAVE RECEIVED YOUR NEW POLICY AND ARE SURE THAT YOU WANT TO KEEP IT.
If you decide to purchase the new coverage, you will have 30 days
after you receive the policy to return it to the insurer, for any
reason, and receive a refund of your money.
If you want to discuss buying Medicare supplement or Medicare
Advantage coverage with a trained insurance counselor, call the
California Department of Insurance's toll-free telephone number
1-800-927-HELP, and ask how to contact your local Health Insurance
Counseling and Advocacy Program (HICAP) office. HICAP is a service
provided free of charge by the State of California.
STATEMENT TO APPLICANT FROM THE INSURER AND AGENT: I have reviewed
your current health insurance coverage. To the best of my knowledge,
the replacement of insurance involved in this transaction does not
duplicate coverage or, if applicable, Medicare Advantage coverage
because you intend to terminate your existing Medicare supplement
coverage or leave your Medicare Advantage plan. In addition, the
replacement coverage contains benefits that are clearly and
substantially greater than your current benefits for the following
reasons:
__ Additional benefits that are: ______
__ No change in benefits, but lower premiums.
__ Fewer benefits and lower premiums.
__ Plan has outpatient prescription drug coverage and applicant is
enrolled in Medicare Part D.
__ Disenrollment from a Medicare Advantage plan. Reasons for
disenrollment:
__ Other reasons specified here: ______
1. Note: If the issuer of the Medicare supplement policy being
applied for does not impose, or is otherwise prohibited from
imposing, preexisting condition limitations, please skip to statement
3 below. Health conditions that you may presently have (preexisting
conditions) may not be immediately or fully covered under the new
policy. This could result in denial or delay of a claim for benefits
under the new policy, whereas a similar claim might have been payable
under your present policy.
2. State law provides that your replacement Medicare supplement
policy may not contain new preexisting conditions, waiting periods,
elimination periods, or probationary periods. The insurer will waive
any time periods applicable to preexisting conditions, waiting
periods, elimination periods, or probationary periods in the new
coverage for similar benefits to the extent that time was spent
(depleted) under the original policy.
3. If you still wish to terminate your present policy and replace
it with new coverage, be certain to truthfully and completely answer
any and all questions on the application concerning your medical and
health history. Failure to include all material medical information
on an application requesting that information may provide a basis for
the insurer to deny any future claims and to refund your premium as
though your policy had never been in force. After the application has
been completed and before you sign it, review it carefully to be
certain that all information has been properly recorded. If the
policy or certificate is guaranteed issue, this paragraph need not
appear.]
DO NOT CANCEL YOUR PRESENT POLICY UNTIL YOU HAVE RECEIVED YOUR NEW
POLICY AND ARE SURE THAT YOU WANT TO KEEP IT.
_________________________________________________
(Signature of Agent, Broker, or Other
Representative)
_________________________________________________
(Signature of Applicant)
_________________________________________________
(Date)
(f) An issuer, broker, agent, or other person shall not cause an
insured to replace a Medicare supplement insurance policy
unnecessarily. In recommending replacement of any Medicare supplement
insurance, an agent shall make reasonable efforts to determine the
appropriateness to the potential insured.
(g) An issuer shall not require, request, or obtain health
information as part of the application process for an applicant who
is eligible for guaranteed issuance of, or open enrollment for, any
Medicare supplement coverage pursuant to Section 10192.11 or
10192.12, except for purposes of paragraph (1) or (2) of subdivision
(a) of Section 10192.11 when the applicant is first enrolled in
Medicare Part B. The application form shall include a clear and
conspicuous statement that the applicant is not required to provide
health information during a period where guaranteed issue or open
enrollment applies, as specified in Section 10192.11 or 10192.12,
except for purposes of paragraph (1) or (2) of subdivision (a) of
Section 10192.11 when the applicant is first enrolled in Medicare
Part B, and shall inform the applicant of those periods of guaranteed
issuance of Medicare supplement coverage. This subdivision does not
prohibit an issuer from requiring proof of eligibility for a
guaranteed issuance of Medicare supplement coverage.
(h) This section shall become operative on January 1, 2017.
SEC. 208. Section 10489.2 of the Insurance Code is amended to
read:
10489.2. For a computation of minimum standard, except as
provided in Sections 10489.3, 10489.4, and 10489.95, the minimum
standard for the valuation of policies and contracts issued prior to
the effective date of the amendments to this section shall be that
provided by the laws in effect immediately prior to that date. Except
as otherwise provided in Sections 10489.3, 10489.4, and 10489.95,
the minimum standard for the valuation of those policies and
contracts shall be the commissioners reserve valuation methods
defined in Sections 10489.5, 10489.6, 10489.9, and 10489.95, 31/2
percent per annum interest, or in the case of life insurance policies
and contracts, other than certain annuity and pure endowment
contracts, issued on or after January 1, 1970, 4 percent per annum
interest for policies issued prior to January 1, 1980, 51/2 percent
per annum interest may be used for single premium life insurance
policies, and 41/2 percent per annum interest for all other policies
issued on or after January 1, 1980, and the following tables:
(a) For ordinary policies of life insurance issued on the standard
basis, excluding any disability and accidental death benefits in
those policies--the Commissioners 1941 Standard Ordinary Mortality
Table for policies issued prior to the operative date of subdivision
(a) of Section 10163.1, and the Commissioners 1958 Standard Ordinary
Mortality Table for policies issued on or after the operative date of
subdivision (a) of Section 10163.1, as amended by Chapter 940 of the
Statutes of 1982, and prior to the operative date of Section
10163.2, as amended by Chapter 28 of the Statutes of 1997, provided
that for any category of policies issued on female risks, all
modified net premiums and present values referred to in this article
may be calculated according to an age not more than six years younger
than the actual age of the insured. For policies issued on or after
the original operative date of Section 10163.2, as amended by Chapter
28 of the Statutes of 1997, the following apply:
(1) The Commissioners 1980 Standard Ordinary Mortality Table.
(2) At the election of the company for any one or more specified
plans of life insurance, the Commissioners 1980 Standard Ordinary
Mortality Table with Ten-Year Select Mortality Factors.
(3) Any ordinary mortality table, adopted after 1980 by the NAIC,
or its successor, that is approved by regulation promulgated or
bulletin issued by the commissioner for use in determining the
minimum standard of valuation for such policies.
(b) For industrial life insurance policies issued on the standard
basis, excluding any disability and accidental death benefits in the
policies, the 1941 Standard Industrial Mortality Table for policies
issued prior to the operative date of subdivision (b) of Section
10163.1, of the Standard Nonforfeiture Law for Life Insurance as
amended, and for policies issued on or after the operative date the
Commissioners 1961 Standard Industrial
Mortality Table or any industrial mortality table adopted
after 1980 by the NAIC that is approved by regulation promulgated or
bulletin issued by the commissioner for use in determining the
minimum standard of valuation for the policies.
(c) For individual annuity and pure endowment contracts issued
prior to the compliance date of Section 10489.3, excluding any
disability and accidental death benefits in the policies: 1937
Standard Annuity Mortality Table or, at the option of the company,
the Annuity Mortality Table for 1949, Ultimate, or any modification
of these tables approved by the commissioner. However, the minimum
standard for such contracts issued from January 1, 1968, through
December 31, 1968, with commencement of benefits deferred not more
than one year from date of issue, may be, at the option of the
company, 4 percent per annum interest, and for contracts issued from
January 1, 1969, to the compliance date of Section 10489.3, with
commencement of benefits deferred not more than 10 years from the
date of issue and with premiums payable in one sum may be, at the
option of the company, 5 percent per annum interest.
(d) For group annuity and pure endowment contracts, excluding any
disability and accidental death benefits in the policies: the Group
Annuity Mortality Table for 1951, a modification of the table
approved by the commissioner, or, at the option of the company, any
of the tables or modifications of the tables specified for individual
annuity and pure endowment contracts. However, the minimum standard
for annuities and pure endowments purchased or to be purchased prior
to the compliance date of Section 10489.3, under group annuity and
pure endowment contracts with considerations received on or after
January 1, 1968, through December 31, 1968, may be, at the option of
the company, 4 percent per annum interest, and for annuities and pure
endowments purchased or to be purchased prior to the compliance date
of Section 10489.3, under group annuity and pure endowment contracts
with considerations received from January 1, 1969, to the compliance
date of Section 10489.3, may be at the option of the company, 5
percent per annum interest.
(e) For total and permanent disability benefits in or
supplementary to ordinary policies or contracts: for policies or
contracts issued on or after January 1, 1966, the tables of Period 2
disablement rates and the 1930 to 1950 termination rates of the 1952
Disability Study of the Society of Actuaries, with due regard to the
type of benefit or any tables of disablement rates and termination
rates, adopted after 1980 by the NAIC that are approved by regulation
promulgated or bulletin issued by the commissioner for use in
determining the minimum standard of valuation for those policies; for
policies or contracts issued on or after January 1, 1961, and prior
to January 1, 1966, either those tables or, at the option of the
company, the Class (3) Disability Table (1926); and for policies
issued prior to January 1, 1961, the Class (3) Disability Table
(1926). Any such table shall, for active lives, be combined with a
mortality table permitted for calculating the reserves for life
insurance policies.
(f) For accidental death benefits in or supplementary to policies
issued on or after January 1, 1966: the 1959 Accidental Death
Benefits Table or any accidental death benefits table, adopted after
1980 by the NAIC that is approved by regulation promulgated or
bulletin issued by the commissioner for use in determining the
minimum standard of valuation for those policies, for policies issued
on or after January 1, 1961, and prior to January 1, 1966, either
that table or, at the option of the company, the Inter-Company Double
Indemnity Mortality Table; and for policies issued prior to January
1, 1961, the Inter-Company Double Indemnity Mortality Table. Either
table shall be combined with a mortality table for calculating the
reserves for life insurance policies.
(g) For group life insurance, life insurance issued on the
substandard basis and other special benefits: tables approved by the
commissioner.
(h) The commissioner may by bulletin withdraw approval to use
tables that have been replaced by newly adopted tables.
SEC. 209. Section 10489.3 of the Insurance Code is amended to
read:
10489.3. (a) Except as provided in Section 10489.4, the minimum
standard of valuation for individual annuity and pure endowment
contracts issued on or after the operative date of this section and
for annuities and pure endowments purchased on or after that
operative date under group annuity and pure endowment contracts,
shall be the commissioners reserve valuation methods defined in
Sections 10489.5 and 10489.6 and the following tables and interest
rates:
(1) For individual annuity and pure endowment contracts issued
prior to January 1, 1980, excluding any disability and accidental
death benefits in those contracts: the 1971 Individual Annuity
Mortality Table, or any modification of this table approved by the
commissioner, and 6 percent per annum interest rate for all contracts
with commencement of benefits deferred not more than 10 years from
the date of issue and with premiums payable in one sum and 4 percent
per annum interest for all other individual annuity and pure
endowment contracts.
(2) For individual single premium immediate annuity contracts
issued on or after January 1, 1980, excluding any disability and
accidental death benefits in those contracts: the 1971 Individual
Annuity Mortality Table or any individual annuity mortality table
adopted after 1980 by the NAIC that is approved by regulation
promulgated or bulletin issued by the commissioner for use in
determining the minimum standard of valuation for these contracts, or
any modification of these tables approved by the commissioner, and
71/2 percent per annum interest.
(3) For individual annuity and pure endowment contracts issued on
or after January 1, 1980, other than single premium immediate annuity
contracts, excluding any disability and accidental death benefits in
those contracts, the 1971 Individual Annuity Mortality Table or any
individual annuity mortality table, adopted after 1980 by the NAIC
that is approved by regulation promulgated or bulletin issued by the
commissioner for use in determining the minimum standard of valuation
for those contracts, or any modification of these tables approved by
the commissioner, and 51/2 percent per annum interest for single
premium deferred annuity and pure endowment contracts, and 41/2
percent per annum interest for all other individual annuity and pure
endowment contracts.
(4) For annuities and pure endowments purchased prior to January
1, 1980, under group annuity and pure endowment contracts, excluding
any disability and accidental death benefits purchased under those
contracts: the 1971 Group Annuity Mortality Table or any modification
of this table approved by the commissioner, and 6 percent per annum
interest.
(5) For annuities and pure endowments purchased on or after
January 1, 1980, under group annuity and pure endowment contracts,
excluding any disability and accidental death benefits purchased
under those contracts: the 1971 Group Annuity Mortality Table, or any
group annuity mortality table adopted after 1980 by the NAIC that is
approved by regulation promulgated or bulletin issued by the
commissioner for use in determining the minimum standard of valuation
for annuities and pure endowments, or any modification of these
tables approved by the commissioner, and 71/2 percent interest.
(6) All individual annuity and pure endowment contracts entered
into prior to January 1, 1980, and all annuities and pure endowments
purchased prior to January 1, 1980, under group annuity and pure
endowment contracts shall remain subject to the provisions of Article
3A (commencing with Section 10489.1) as it existed prior to January
1, 1980.
(b) The commissioner may, by bulletin, withdraw approval to use
tables that have been replaced by newly adopted tables.
SEC. 210. Section 10489.96 of the Insurance Code is amended to
read:
10489.96. (a) For policies issued on or after the operative date
of the valuation manual, the standard prescribed in the valuation
manual is the minimum standard of valuation required under
subdivision (b) of Section 10489.12, except as provided under
subdivision (e) or (g).
(b) (1) The operative date of the valuation manual is January 1 of
the first calendar year following the first July 1 as of which all
of the following have occurred:
(A) The valuation manual has been adopted by the NAIC by an
affirmative vote of at least 42 members, or three-fourths of the
members voting, whichever is greater.
(B) The Standard Valuation Law, as amended by the NAIC in 2009, or
legislation including substantially similar terms and provisions,
has been enacted by states representing greater than 75 percent of
the direct premiums written as reported in the following annual
statements submitted for 2008: life, accident, and health annual
statements, health annual statements, or fraternal annual statements.
(C) The Standard Valuation Law, as amended by the NAIC in 2009, or
legislation including substantially similar terms and provisions,
has been enacted by at least 42 of the following 55 jurisdictions:
The 50 states of the United States, American Samoa, the United States
Virgin Islands, the District of Columbia, Guam, and Puerto Rico.
(2) Notwithstanding paragraph (1), the valuation manual shall not
become operative until the commissioner certifies that adequate
funding has been appropriated by the Legislature, and that all other
necessary resources, including, but not limited to, adequate staff,
are available and sufficient to enable the commissioner to carry out
the duties required pursuant to Section 10489.992, and all other
duties imposed on the commissioner pursuant to Senate Bill 696 of the
2015-16 Regular Session. The commissioner shall make that
certification by submitting a letter to the Chairs of the Assembly
Committee on Insurance and the Senate Committee on Insurance stating
that the funding and other necessary resources are available and
sufficient to carry out those duties. The commissioner shall post a
notice on the department's Internet Web site immediately after
submitting that certification letter stating that the certification
letter has been submitted and that the provisions of the valuation
manual are in effect.
(c) Unless a change in the valuation manual specifies a later
effective date, changes to the valuation manual shall be effective on
January 1 following the date when all of the following have
occurred:
(1) The change to the valuation manual has been adopted by the
NAIC by an affirmative vote representing:
(A) At least three-fourths of the members of the NAIC voting, but
not less than a majority of the total membership.
(B) Members of the NAIC representing jurisdictions totaling
greater than 75 percent of the direct premiums written as reported in
the following annual statements most recently available prior to the
vote in subparagraph (A): life, accident, and health annual
statement, health annual statements, or fraternal annual statements.
(2) The commissioner has issued an order adopting the valuation
manual with the changes. The commissioner shall issue the order only
if he or she finds that the conditions set forth in paragraph (1)
have been satisfied.
(d) The valuation manual shall specify all of the following:
(1) Minimum valuation standards for and definitions of the
policies or contracts subject to subdivision (b) of Section 10489.12.
Those minimum valuation standards shall be:
(A) The commissioners reserve valuation method for life insurance
contracts, other than annuity contracts, subject to subdivision (b)
of Section 10489.12.
(B) The commissioners annuity reserve valuation method for annuity
contracts subject to subdivision (b) of Section 10489.12.
(C) Minimum reserves for all other policies or contracts subject
to subdivision (b) of Section 10489.12.
(2) Which policies or contracts or types of policies or contracts
are subject to the requirements of a principle-based valuation in
subdivision (a) of Section 10489.97 and the minimum valuation
standards consistent with those requirements.
(3) For policies and contracts subject to a principle-based
valuation under Section 10489.97:
(A) Requirements for the format of reports to the commissioner
under paragraph (3) of subdivision (b) of Section 10489.97, which
shall include information necessary to determine if the valuation is
appropriate and in compliance with this article.
(B) Assumptions for risks over which the company does not have
significant control or influence.
(C) Procedures for corporate governance and oversight of the
actuarial function, and a process for appropriate waiver or
modification of those procedures.
(4) For policies not subject to a principle-based valuation under
Section 10489.97, the minimum valuation standard that shall either:
(A) Be consistent with the minimum standard of valuation prior to
the operative date of the valuation manual.
(B) Develop reserves that quantify the benefits and guarantees,
and the funding, associated with the contracts and their risks at a
level of conservatism that reflects conditions that include
unfavorable events that have a reasonable probability of occurring.
(5) Other requirements, including, but not limited to, those
relating to reserve methods, models for measuring risk, generation of
economic scenarios, assumptions, margins, use of company experience,
risk measurement, disclosure, certifications, reports, actuarial
opinions and memorandums, transition rules, and internal controls.
(6) The data and form of the data required pursuant to Section
10489.98, with whom the data is required to be submitted, and may
specify other requirements including data analyses and reporting of
analyses.
(e) In the absence of a specific valuation requirement or if a
specific valuation requirement in the valuation manual is not, in the
opinion of the commissioner, in compliance with, or conflicts with,
this code, then the company shall, with respect to those
requirements, comply with the minimum valuation standards prescribed
by the code or by the commissioner by regulation or bulletin.
(f) The commissioner may engage a qualified actuary, at the
expense of the company, to perform an actuarial examination of the
company and opine on the appropriateness of any reserve assumption or
method used by the company, or to review and opine on a company's
compliance with any requirement set forth in this article. The
commissioner may rely upon the opinion, regarding the provisions
contained within this article, of a qualified actuary engaged by the
commissioner of another state, district, or territory of the United
States. As used in this subdivision, the term "engage" includes
employment and contracting.
(g) The commissioner may require a company to change any
assumption or method that in the opinion of the commissioner is
necessary in order to comply with the requirements of the valuation
manual or this article, and the company shall adjust the reserves as
required by the commissioner. The commissioner may take other
disciplinary action as permitted pursuant to all other applicable
law.
SEC. 211. Section 10489.99 of the Insurance Code is amended to
read:
10489.99. (a) For purposes of this section, "confidential
information" means:
(1) A memorandum in support of an opinion submitted pursuant to
Section 10489.15 and any other documents, materials, and other
information, including, but not limited to, all working papers, and
copies thereof, created, produced, or obtained by or disclosed to the
commissioner or any other person in connection with the memorandum.
(2) All documents, materials, and other information, including,
but not limited to, all working papers, and copies thereof, created,
produced, or obtained by or disclosed to the commissioner or any
other person in the course of an examination made under subdivision
(f) of Section 10489.96. However, if an examination report or other
material prepared in connection with an examination made under
Article 4 (commencing with Section 729) of Chapter 1 of Part 2 of
Division 1 is not held as private and confidential information under
that article, an examination report or other material prepared in
connection with an examination made under subdivision (f) of Section
10489.96 shall not be "confidential information" to the same extent
as if the examination report or other material had been prepared
under Article 4 (commencing with Section 729) of Chapter 1 of Part 2
of Division 1.
(3) Any reports, documents, materials, and other information
developed by a company in support of, or in connection with, an
annual certification by the company under paragraph (2) of
subdivision (b) of Section 10489.97 evaluating the effectiveness of
the company's internal controls with respect to a principle-based
valuation and any other documents, materials, and other information,
including, but not limited to, all working papers, and copies
thereof, created, produced, or obtained by or disclosed to the
commissioner or any other person in connection with those reports,
documents, materials, and other information.
(4) Any principle-based valuation report developed under paragraph
(3) of subdivision (b) of Section 10489.97 and any other documents,
materials, and other information, including, but not limited to, all
working papers, and copies thereof, created, produced, or obtained by
or disclosed to the commissioner or any other person in connection
with the report.
(5) All of the following:
(A) Any documents, materials, data, and other information
submitted by a company pursuant to Section 10489.98, to be known
collectively, as "experience data."
(B) Experience data plus any other documents, materials, data, and
other information, including, but not limited to, all working
papers, and copies thereof, created or produced in connection with
the experience data, in each case that includes any potentially
company-identifying or personally identifiable information, that is
provided to or obtained by the commissioner, to be known,
collectively, as "experience materials."
(C) Any other documents, materials, data, and other information,
including, but not limited to, all working papers, and copies
thereof, created, produced, or obtained by or disclosed to the
commissioner or any other person in connection with the experience
materials.
(b) (1) Except as provided in this section, a company's
confidential information shall be confidential by law and privileged,
shall not be subject to disclosure pursuant to the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division
7 of Title 1 of the Government Code), and shall not be subject to
subpoena or discovery or admissible in evidence in any private civil
action. However, the commissioner is authorized to use the
confidential information in a regulatory or legal action brought
against the company as a part of the commissioner's official duties.
(2) The commissioner, any person who received confidential
information while acting under the authority of the commissioner, or
any person with whom those documents, materials, or other information
are shared pursuant to paragraph (3), shall not be permitted or
required to testify in a private civil action concerning any
confidential information.
(3) In order to assist in the performance of the commissioner's
duties, the commissioner may share confidential information with the
following recipients, provided that the recipient agrees, and has the
legal authority to agree, to maintain the confidentiality and
privileged status of the documents, materials, data, and other
information in the same manner and to the same extent as required for
the commissioner:
(A) Other state, federal, and international regulatory agencies
and with the NAIC and its affiliates and subsidiaries.
(B) In the case of confidential information specified in
paragraphs (1) and (4) of subdivision (a) of Section 10489.99 only,
with the Actuarial Board for Counseling and Discipline or its
successor upon request stating that the confidential information is
required for the purpose of professional disciplinary proceedings and
with state, federal, and international law enforcement officials.
(4) The commissioner may receive documents, materials, data, and
other information, including otherwise confidential and privileged
documents, materials, data, or information, from the NAIC and its
affiliates and subsidiaries, from regulatory or law enforcement
officials of other foreign or domestic jurisdictions, and from the
Actuarial Board for Counseling and Discipline or its successor and
shall maintain as confidential or privileged any document, material,
data, or other information received with notice or the understanding
that it is confidential or privileged under the laws of the
jurisdiction that is the source of the document, material, or other
information.
(5) The commissioner may enter into agreements governing sharing
and use of information consistent with this subdivision.
(6) A waiver of any applicable privilege or claim of
confidentiality in the information shall not occur as a result of
disclosure to the commissioner under this section or as a result of
sharing as authorized in paragraph (3).
(7) A privilege established under the law of any state or
jurisdiction that is substantially similar to the privilege
established under this subdivision shall be available and enforced in
any proceeding in, and in any court of, this state.
(8) For purposes of this section, "regulatory agency," "law
enforcement agency," and the "NAIC" include, but are not limited to,
their employees, agents, consultants, and contractors.
(c) Notwithstanding subdivision (b), any confidential information
specified in paragraphs (1) and (4) of subdivision (a):
(1) May be subject to subpoena for the purpose of defending an
action seeking damages from the appointed actuary submitting the
related memorandum in support of an opinion submitted under Section
10489.15 or principle-based valuation report developed under
paragraph (3) of subdivision (b) of Section 10489.97 by reason of an
action required by this article or by regulations promulgated
pursuant to this article.
(2) May otherwise be released by the commissioner with the written
consent of the company.
(3) Once any portion of a memorandum in support of an opinion
submitted under Section 10489.15 or a principle-based valuation
report developed pursuant to paragraph (3) of subdivision (b) of
Section 10489.97 is cited by the company in its marketing or is
publicly volunteered to or before a governmental agency other than a
state insurance department or is released by the company to the news
media, all portions of the memorandum or report shall no longer be
confidential.
(d) This section shall not be construed to limit the right of
access to, or prohibit the admissibility as evidence in a private
civil action of, any information, documents, data, or other materials
not held for the purposes of this article by the commissioner or a
person acting under the authority of the commissioner, including
nondepartment actuaries and other consultants hired to implement this
article, or a person with whom the commissioner has shared
confidential information pursuant to paragraph (3) of subdivision
(b).
SEC. 212. Section 10603 of the Insurance Code is amended to read:
10603. (a) (1) On or before April 1, 1975, the commissioner shall
promulgate a standard supplemental disclosure form for all
disability insurance policies. Upon the appropriate disclosure form
as prescribed by the commissioner, each insurer shall provide, in
easily understood language and in a uniform, clearly organized
manner, as prescribed and required by the commissioner, the summary
information about each disability insurance policy offered by the
insurer as the commissioner finds is necessary to provide for full
and fair disclosure of the provisions of the policy.
(2) On and after January 1, 2014, a disability insurer offering
health insurance coverage subject to Section 2715 of the federal
Public Health Service Act (42 U.S.C. Sec. 300gg-15) shall satisfy the
requirements of this section and the implementing regulations by
providing the uniform summary of benefits and coverage required under
Section 2715 of the federal Public Health Service Act and any rules
or regulations issued thereunder. An insurer that issues the federal
uniform summary of benefits referenced in this paragraph shall ensure
that all applicable disclosures required in this chapter and its
implementing regulations are met in other documents provided to
policyholders and insureds. An insurer subject to this paragraph
shall provide the uniform summary of benefits and coverage to the
commissioner together with the corresponding health insurance policy
pursuant to Section 10290.
(3) Commencing October 1, 2016, the uniform summary of benefits
and coverage referenced in this subdivision shall constitute a vital
document for the purposes of Section 10133.8. Not later than July 1,
2016, the commissioner shall develop written translations of the
template uniform summary of benefits and coverage for all language
groups identified by the State Department of Health Care Services in
all plan letters as of August 27, 2014, for translation services
pursuant to Section 14029.91 of the Welfare and Institutions Code,
except for any language group for which the United States Department
of Labor has already prepared a written translation. Not later than
July 1, 2016, the commissioner shall make available on the department'
s Internet Web site written translations of the template uniform
summary of benefits and coverage developed by the commissioner, and
written translations prepared by the United States Department of
Labor, if available, for any language group to which this
subparagraph applies.
(b) This section does not preclude the disclosure form from being
included with the evidence of coverage or certificate of coverage or
policy.
SEC. 213. Section 12389 of the Insurance Code, as added by Section
3 of Chapter 370 of the Statutes of 2015, is amended to read:
12389. (a) On and after July 1, 2016, an underwritten title
company as defined in Section 12340.5 that is a stock corporation
may, subject to subdivision (b), (1) engage in the business of
preparing title searches, title reports, title examinations, or
certificates or abstracts of title, upon the basis of which a title
insurer writes title policies, and (2) conduct
escrow services through business locations, as
defined in Section 12340.13, in counties in which the underwritten
title company is licensed to conduct escrow services regardless of
the location of the real or personal property involved in the
transaction.
(b) (1) Only a domestic corporation may be licensed under this
section and no underwritten title company, as defined in Section
12340.5, may become licensed under this section, or change the name
under which it is licensed or operates, unless it has first complied
with Section 881.
(2) (A) Depending upon the county or counties in which the company
is licensed to transact business, it shall maintain required minimum
net worth and a bond or cash deposit as follows:
Aggregate number of
documents
recorded and documents
filed in
the
preceding calendar year
in all
counties
where the company is
licensed to
transact
business
Amount of Amount of
required bond
Number of documents or
minimum net cash
worth deposit
Less than 50,000.......... $ 75,000 $ 50,000
50,000 to 100,000......... 120,000 50,000
100,000 to 500,000........ 200,000 100,000
500,000 to 1,000,000...... 300,000 100,000
1,000,000 or more......... 400,000 100,000
(B) "Net worth" for the purposes of this section is defined as the
excess of assets over all liabilities and required reserves. The
company may carry as an asset the actual cost of its title plant,
provided the value ascribed to that asset shall not exceed the
aggregate value of all other assets.
(C) If a title plant of an underwritten title company is not
currently maintained, the asset value of the plant shall not exceed
its asset value as determined in the preceding paragraph as of the
date to which that plant is currently maintained, less one-tenth
thereof for each succeeding year or part of the succeeding year that
the plant is not being currently maintained. For the purposes of this
section, a title plant shall be deemed currently maintained so long
as it is used in the normal conduct of the business of title
insurance, and (i) the owner of the plant continues regularly to
obtain and index title record data to the plant or to a continuation
thereof in a format other than that previously used, including, but
not limited to, computerization of the data, or (ii) the owner of the
plant is a participant, in an arrangement for joint use of a title
plant system regularly maintained in any format, provided the owner
is contractually entitled to receive a copy of the title record data
contained in the jointly used title plant system during the period of
the owner's participation therein, either periodically or upon
termination of that participation, at a cost not to exceed the actual
cost of duplication of the title record data.
(D) An underwritten title company shall at all times maintain
current assets of at least ten thousand dollars ($10,000) in excess
of its current liabilities, as current assets and liabilities may be
defined pursuant to regulations made by the commissioner. In making
the regulations, the commissioner shall be guided by generally
accepted accounting principles followed by certified public
accountants in this state.
(3) (A) An underwritten title company shall obtain from the
commissioner a license to transact its business. The license shall
not be granted until the applicant conforms to the requirements of
this section and all other provisions of this code specifically
applicable to the applicant. After issuance the holder of the license
shall continue to comply with the requirements as to its business
set forth in this code, in the applicable rules and regulations of
the commissioner, and in the laws of this state.
(B) An underwritten title company that possesses, or is required
to possess, a license pursuant to this section shall be subject as if
an insurer to the provisions of Article 8 (commencing with Section
820) of Chapter 1 of Part 2 of Division 1, and is deemed to be
subject to authorization by the Insurance Commissioner within the
meaning of subdivision (e) of Section 25100 of the Corporations Code.
(C) The license may be obtained by filing an application on a form
prescribed by the commissioner accompanied by a filing fee of three
hundred fifty-four dollars ($354). The license when issued shall be
for an indefinite term and shall expire with the termination of the
existence of the holder, subject to the annual renewal fee imposed
under Sections 12415 and 12416.
(D) An underwritten title company seeking to extend its license to
an additional county shall pay a two-hundred-seven-dollar ($207) fee
for each additional county, and shall furnish to the commissioner
evidence, at least sufficient to meet the minimum net worth
requirements of paragraph (2), of its financial ability to expand its
business operation to include the additional county or counties.
(4) (A) An underwritten title company shall furnish an audit to
the commissioner on the forms provided by the commissioner annually,
either on a calendar year basis on or before March 31 or, if approved
in writing by the commissioner in respect to any individual company,
on a fiscal year basis on or before 90 days after the end of the
fiscal year. The time for furnishing any audit required by this
paragraph may be extended, for good cause shown, on written approval
of the commissioner for a period, not to exceed 60 days. Failure to
submit an audit on time, or within the extended time that the
commissioner may grant, is grounds for an order by the commissioner
to accept no new business pursuant to subdivision (g). The audits
shall be private, except that a synopsis of the balance sheet on a
form prescribed by the commissioner may be made available to the
public.
(B) The audits shall be made in accordance with generally accepted
auditing standards by an independent certified public accountant or
independent licensed public accountant whose certification or license
is in good standing at the time of the preparation. The fee for
filing the audit shall be three hundred thirteen dollars ($313).
(C) The commissioner may refuse to accept an audit or order a new
audit for any of the following reasons:
(i) An adverse result in any proceeding before the California
Board of Accountancy affecting the auditor's license.
(ii) The auditor has an affiliation with the underwritten title
company or any of its officers or directors that would prevent his or
her reports on the company from being reasonably objective.
(iii) The auditor has been convicted of a misdemeanor or felony
based on his or her activities as an accountant.
(iv) A judgment adverse to the auditor in any civil action finding
him or her guilty of fraud, deceit, or misrepresentation in the
practice of his or her profession.
(D) A company that fails to file an audit or other report on or
before the date it is due shall pay to the commissioner a penalty fee
of one hundred eighteen dollars ($118) and on failure to pay that or
another fee or file the audit required by this section shall forfeit
the privilege of accepting new business until the delinquency is
corrected.
(c) An underwritten title company may engage in the escrow
business and act as escrow agent, provided that:
(1) It maintains a record of all receipts and disbursements of
escrow funds.
(2) (A) It maintains a bond satisfactory to the commissioner in
the amount set forth in subparagraph (A) of paragraph (2) of
subdivision (b). The bond shall run to the state for the use of the
state, and for any person who has cause against the obligor of the
bond or under the provisions of this chapter.
(B) (i) In lieu of the bond described in subparagraph (A), the
company may maintain a deposit in the amount set forth in
subparagraph (A) of paragraph (2) of subdivision (b), and in a form
permitted by Section 12351, with the commissioner, who shall
immediately make a special deposit in that amount in the State
Treasury. The deposit shall be subject to Sections 12353, 12356,
12357, and 12358. As long as there are no claims against the deposit,
all interest and dividends thereon shall be paid to the depositor.
The deposit shall be security for the same beneficiaries and purposes
as the bond, as set forth in subdivision (d). The deposit shall be
maintained until four years after all escrows handled by the
depositor have been closed.
(ii) The commissioner may release the deposit prior to the passage
of the four-year period described in clause (i) upon presentation of
evidence satisfactory to the commissioner of either a statutory
merger of the depositor into a licensee subject to the jurisdiction
of the commissioner, or a valid assumption agreement under which the
liability of the depositor stemming from escrow transactions handled
by it is assumed by a licensee subject to the jurisdiction of the
commissioner.
(iii) With the foregoing exceptions, the deposit shall be returned
to the depositor or lawful successor in interest following the
four-year period described in clause (i) upon presentation of
evidence satisfactory to the commissioner that there are no claims
against the deposit arising out of escrow transactions handled by the
depositor. If claims against the deposit are presented to the
commissioner, the commissioner may pay a valid claim or claims until
the deposit amount is exhausted. If the commissioner has evidence of
one or more claims against the depositor, and the depositor is in
conservatorship, bankruptcy, or liquidation proceedings, the
commissioner may release the deposit to the conservator, trustee, or
liquidator. If the depositor is not in conservatorship, bankruptcy or
liquidation, the commissioner may interplead the deposit by special
endorsement to a court of competent jurisdiction for distribution to
claimants on the deposit.
(d) (1) The bond provided by a surety insurer pursuant to
subdivision (c) naming the underwritten title company as principal
obligor or the letter of credit of an issuing bank shall be subject
to the following conditions:
(A) The licensee shall faithfully conform to and abide by the
provisions of this chapter and all of the rules made by the
commissioner under this chapter concerning the conduct of escrow
services.
(B) The licensee will honestly and faithfully apply all funds
received, and will faithfully and honestly perform all obligations
and undertakings under this chapter, concerning the conduct of escrow
services.
(2) In determining the liability of the principal and the sureties
under the bond, any money recovered to restore any deficiency in the
trust shall not be considered as an asset of the liquidation subject
to the assessment for the cost of the liquidation.
(3) The surety under the bond, or the issuing bank of a letter of
credit, may pay the full amount of its liability thereunder to the
commissioner as conservator, liquidator, receiver, or anyone
appointed by the commissioner as a conservator, liquidator, or
receiver in lieu of payment to the state or persons having a cause of
action against the principal of a bond or applicant under a letter
of credit, and upon such payment the surety on the bond, or the
issuing bank under a letter of credit shall be completely released,
discharged, and exonerated from further liability under the bond or
letter of credit, as applicable. The conservator, liquidator, or
receiver may use the proceeds of the bond, or letter of credit, for
any purposes, including the funding of the costs of conservatorship,
receivership, or liquidation.
(4) If there is no reasonable or adequate admitted market for
surety bonds as required by this section, the commissioner may act
pursuant to Section 1763.1 or, for good cause shown, may permit a
letter of credit in lieu thereof, and in the amount of the bond or
deposit required by this section. In that case, the commissioner may
fashion the letter of credit requirements as appropriate to the
circumstances and cause.
(e) (1) On and after July 1, 2016, the commissioner shall promptly
release to the depositor, upon application, all escrow-related
deposits previously made pursuant to paragraph (2) as that paragraph
read on June 30, 2016, if any of the following occurs:
(A) The underwritten title company has provided to the
commissioner bond coverage, a deposit, or an approved irrevocable
letter of credit as set forth in this subdivision.
(B) Upon presentation of evidence satisfactory to the commissioner
of either a statutory merger of the underwritten title company
depositor into a licensee or certificate holder subject to the
jurisdiction of the commissioner, or a valid assumption agreement
under which all liability of the depositor stemming from escrow
transactions handled by it is assumed by a licensee or certificate
holder subject to the jurisdiction of the commissioner.
(2) Otherwise, the deposit shall be promptly returned to the
depositor, its duly appointed trustee in bankruptcy, or its lawful
successor in interest upon application for release following the
four-year period specified in paragraph (2) of subdivision (c) as
that paragraph read on June 30, 2016, unless the commissioner has
received claims against the deposit stemming from escrow transactions
handled by the depositor. If the commissioner has received one or
more claims against the depositor, and the depositor is not in
conservatorship, bankruptcy, or liquidation, the commissioner may
interplead the deposit by special endorsement to a court of competent
jurisdiction for distribution on the basis that claims against the
depositor stemming from escrow transactions handled by the depositor
have priority in the distribution over other claims against the
depositor.
(f) The commissioner shall, whenever it appears necessary, examine
the business and affairs of a company licensed under this section.
The examination shall be at the expense of the company.
(g) (1) At any time that the commissioner determines, after notice
and hearing, that a company licensed under this section has
willfully failed to comply with a provision of this section, the
commissioner shall make his or her order prohibiting the company from
conducting its business for a period of not more than one year.
(2) A company that violates the commissioner's order is subject to
seizure under Article 14 (commencing with Section 1010) of Chapter 1
of Part 2 of Division 1, is guilty of a misdemeanor, and may have
its license revoked by the commissioner. Any person aiding and
abetting any company in a violation of the commissioner's order is
guilty of a misdemeanor.
(h) The purpose of this section is to maintain the solvency of the
companies subject to this section and to protect the public by
preventing fraud and requiring fair dealing. In order to carry out
these purposes, the commissioner may make reasonable rules and
regulations to govern the conduct of its business of companies
subject to this section. The rules and regulations shall be adopted,
amended, or repealed in accordance with the procedures provided in
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code.
(i) The name under which each underwritten title company is
licensed shall at all times be an approved name. The fee for filing
an application for a change of name shall be one hundred eighteen
dollars ($118). Each company shall be subject to the provisions of
Article 14 (commencing with Section 1010) and Article 14.5
(commencing with Section 1065.1) of Chapter 1 of Part 2 of Division
1.
(j) This section does not prohibit an underwritten title company
from engaging in escrow, settlement, or closing activities on
properties located outside this state if those activities do not
violate the laws of that other state or country.
(k) This section is operative on July 1, 2016.
SEC. 214. Section 139.2 of the Labor Code is amended to read:
139.2. (a) The administrative director shall appoint qualified
medical evaluators in each of the respective specialties as required
for the evaluation of medical-legal issues. The appointments shall be
for two-year terms.
(b) The administrative director shall appoint or reappoint as a
qualified medical evaluator a physician, as defined in Section
3209.3, who is licensed to practice in this state and who
demonstrates that he or she meets the requirements in paragraphs (1),
(2), (6), and (7), and, if the physician is a medical doctor, doctor
of osteopathy, doctor of chiropractic, or a psychologist, that he or
she also meets the applicable requirements in paragraph (3), (4), or
(5).
(1) Prior to his or her appointment as a qualified medical
evaluator, passes an examination written and administered by the
administrative director for the purpose of demonstrating competence
in evaluating medical-legal issues in the workers' compensation
system. Physicians shall not be required to pass an additional
examination as a condition of reappointment. A physician seeking
appointment as a qualified medical evaluator on or after January 1,
2001, shall also complete prior to appointment, a course on
disability evaluation report writing approved by the administrative
director. The administrative director shall specify the curriculum to
be covered by disability evaluation report writing courses, which
shall include, but is not limited to, 12 or more hours of
instruction.
(2) Devotes at least one-third of total practice time to providing
direct medical treatment, or has served as an agreed medical
evaluator on eight or more occasions in the 12 months prior to
applying to be appointed as a qualified medical evaluator.
(3) Is a medical doctor or doctor of osteopathy and meets one of
the following requirements:
(A) Is board certified in a specialty by a board recognized by the
administrative director and either the Medical Board of California
or the Osteopathic Medical Board of California.
(B) Has successfully completed a residency training program
accredited by the Accreditation Council for Graduate Medical
Education or the osteopathic equivalent.
(C) Was an active qualified medical evaluator on June 30, 2000.
(D) Has qualifications that the administrative director and either
the Medical Board of California or the Osteopathic Medical Board of
California, as appropriate, both deem to be equivalent to board
certification in a specialty.
(4) Is a doctor of chiropractic and has been certified in
California workers' compensation evaluation by a provider recognized
by the administrative director. The certification program shall
include instruction on disability evaluation report writing that
meets the standards set forth in paragraph (1).
(5) Is a psychologist and meets one of the following requirements:
(A) Is board certified in clinical psychology by a board
recognized by the administrative director.
(B) Holds a doctoral degree in psychology, or a doctoral degree
deemed equivalent for licensure by the Board of Psychology pursuant
to Section 2914 of the Business and Professions Code, from a
university or professional school recognized by the administrative
director and has not less than five years' postdoctoral experience in
the diagnosis and treatment of emotional and mental disorders.
(C) Has not less than five years' postdoctoral experience in the
diagnosis and treatment of emotional and mental disorders, and has
served as an agreed medical evaluator on eight or more occasions
prior to January 1, 1990.
(6) Does not have a conflict of interest as determined under the
regulations adopted by the administrative director pursuant to
subdivision (o).
(7) Meets any additional medical or professional standards adopted
pursuant to paragraph (6) of subdivision (j).
(c) The administrative director shall adopt standards for
appointment of physicians who are retired or who hold teaching
positions who are exceptionally well qualified to serve as a
qualified medical evaluator even though they do not otherwise qualify
under paragraph (2) of subdivision (b). A physician whose full-time
practice is limited to the forensic evaluation of disability shall
not be appointed as a qualified medical evaluator under this
subdivision.
(d) The qualified medical evaluator, upon request, shall be
reappointed if he or she meets the qualifications of subdivision (b)
and meets all of the following criteria:
(1) Is in compliance with all applicable regulations and
evaluation guidelines adopted by the administrative director.
(2) Has not had more than five of his or her evaluations that were
considered by a workers' compensation administrative law judge at a
contested hearing rejected by the workers' compensation
administrative law judge or the appeals board pursuant to this
section during the most recent two-year period during which the
physician served as a qualified medical evaluator. If the workers'
compensation administrative law judge or the appeals board rejects
the qualified medical evaluator's report on the basis that it fails
to meet the minimum standards for those reports established by the
administrative director or the appeals board, the workers'
compensation administrative law judge or the appeals board, as the
case may be, shall make a specific finding to that effect, and shall
give notice to the medical evaluator and to the administrative
director. Any rejection shall not be counted as one of the five
qualifying rejections until the specific finding has become final and
time for appeal has expired.
(3) Has completed within the previous 24 months at least 12 hours
of continuing education in impairment evaluation or workers'
compensation-related medical dispute evaluation approved by the
administrative director.
(4) Has not been terminated, suspended, placed on probation, or
otherwise disciplined by the administrative director during his or
her most recent term as a qualified medical evaluator.
If the evaluator does not meet any one of these criteria, the
administrative director may, in his or her discretion, reappoint or
deny reappointment according to regulations adopted by the
administrative director. A physician who does not currently meet the
requirements for initial appointment or who has been terminated under
subdivision (e) because his or her license has been revoked or
terminated by the licensing authority shall not be reappointed.
(e) The administrative director may, in his or her discretion,
suspend or terminate a qualified medical evaluator during his or her
term of appointment without a hearing as provided under subdivision
(k) or ( l ) whenever either of the following conditions
occurs:
(1) The evaluator's license to practice in California has been
suspended by the relevant licensing authority so as to preclude
practice, or has been revoked or terminated by the licensing
authority.
(2) The evaluator has failed to timely pay the fee required by the
administrative director pursuant to subdivision (n).
(f) The administrative director shall furnish a physician, upon
request, with a written statement of its reasons for termination of,
or for denying appointment or reappointment as, a qualified medical
evaluator. Upon receipt of a specific response to the statement of
reasons, the administrative director shall review his or her decision
not to appoint or reappoint the physician or to terminate the
physician and shall notify the physician of its final decision within
60 days after receipt of the physician's response.
(g) The administrative director shall establish agreements with
qualified medical evaluators to ensure the expeditious evaluation of
cases assigned to them for comprehensive medical evaluations.
(h) (1) When requested by an employee or employer pursuant to
Section 4062.1, the medical director appointed pursuant to Section
122 shall assign three-member panels of qualified medical evaluators
within five working days after receiving a request for a panel.
Preference in assigning panels shall be given to cases in which the
employee is not represented. If a panel is not assigned within 20
working days, the employee shall have the right to obtain a medical
evaluation from any qualified medical evaluator of his or her choice
within a reasonable geographic area. The medical director shall use a
random selection method for assigning panels of qualified medical
evaluators. The medical director shall select evaluators who are
specialists of the type requested by the employee. The medical
director shall advise the employee that he or she should consult with
his or her treating physician prior to deciding which type of
specialist to request.
(2) The administrative director shall promulgate a form that shall
notify the employee of the physicians selected for his or her panel
after a request has been made pursuant to Section 4062.1 or 4062.2.
The form shall include, for each physician on the panel, the
physician's name, address, telephone number, specialty, number of
years in practice, and a brief description of his or her education
and training, and shall advise the employee that he or she is
entitled to receive transportation expenses and temporary disability
for each day necessary for the examination. The form shall also state
in a clear and conspicuous location and type: "You have the right to
consult with an information and assistance officer at no cost to you
prior to selecting the doctor to prepare your evaluation, or you may
consult with an attorney. If your claim eventually goes to court,
the workers' compensation administrative law judge will consider the
evaluation prepared by the doctor you select to decide your claim."
(3) When compiling the list of evaluators from which to select
randomly, the medical director shall include all qualified medical
evaluators who meet all of the following criteria:
(A) He or she does not have a conflict of interest in the case, as
defined by regulations adopted pursuant to subdivision (o).
(B) He or she is certified by the administrative director to
evaluate in an appropriate specialty and at locations within the
general geographic area of the employee's residence. An evaluator
shall not conduct qualified medical evaluations at more than 10
locations.
(C) He or she has not been suspended or terminated as a qualified
medical evaluator for failure to pay the fee required by the
administrative director pursuant to subdivision (n) or for any other
reason.
(4) When the medical director determines that an employee has
requested an evaluation by a type of specialist that is appropriate
for the employee's injury, but there are not enough qualified medical
evaluators of that type
within the general geographic area of the employee's residence to
establish a three-member panel, the medical director shall include
sufficient qualified medical evaluators from other geographic areas
and the employer shall pay all necessary travel costs incurred in the
event the employee selects an evaluator from another geographic
area.
(i) The medical director appointed pursuant to Section 122 shall
continuously review the quality of comprehensive medical evaluations
and reports prepared by agreed and qualified medical evaluators and
the timeliness with which evaluation reports are prepared and
submitted. The review shall include, but not be limited to, a review
of a random sample of reports submitted to the division, and a review
of all reports alleged to be inaccurate or incomplete by a party to
a case for which the evaluation was prepared. The medical director
shall submit to the administrative director an annual report
summarizing the results of the continuous review of medical
evaluations and reports prepared by agreed and qualified medical
evaluators and make recommendations for the improvement of the system
of medical evaluations and determinations.
(j) After public hearing pursuant to Section 5307.3, the
administrative director shall adopt regulations concerning the
following issues:
(1) (A) Standards governing the timeframes within which medical
evaluations shall be prepared and submitted by agreed and qualified
medical evaluators. Except as provided in this subdivision, the
timeframe for initial medical evaluations to be prepared and
submitted shall be no more than 30 days after the evaluator has seen
the employee or otherwise commenced the medical evaluation procedure.
The administrative director shall develop regulations governing the
provision of extensions of the 30-day period in both of the following
cases:
(i) When the evaluator has not received test results or consulting
physician's evaluations in time to meet the 30-day deadline.
(ii) To extend the 30-day period by not more than 15 days when the
failure to meet the 30-day deadline was for good cause.
(B) For purposes of subparagraph (A), "good cause" means any of
the following:
(i) Medical emergencies of the evaluator or evaluator's family.
(ii) Death in the evaluator's family.
(iii) Natural disasters or other community catastrophes that
interrupt the operation of the evaluator's business.
(C) The administrative director shall develop timeframes governing
availability of qualified medical evaluators for unrepresented
employees under Section 4062.1. These timeframes shall give the
employee the right to the addition of a new evaluator to his or her
panel, selected at random, for each evaluator not available to see
the employee within a specified period of time, but shall also permit
the employee to waive this right for a specified period of time
thereafter.
(2) Procedures to be followed by all physicians in evaluating the
existence and extent of permanent impairment and limitations
resulting from an injury in a manner consistent with Sections 4660
and 4660.1.
(3) Procedures governing the determination of any disputed medical
treatment issues in a manner consistent with Section 5307.27.
(4) Procedures to be used in determining the compensability of
psychiatric injury. The procedures shall be in accordance with
Section 3208.3 and shall require that the diagnosis of a mental
disorder be expressed using the terminology and criteria of the
American Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders, Third Edition-Revised, or the terminology and
diagnostic criteria of other psychiatric diagnostic manuals generally
approved and accepted nationally by practitioners in the field of
psychiatric medicine.
(5) Guidelines for the range of time normally required to perform
the following:
(A) A medical-legal evaluation that has not been defined and
valued pursuant to Section 5307.6. The guidelines shall establish
minimum times for patient contact in the conduct of the evaluations,
and shall be consistent with regulations adopted pursuant to Section
5307.6.
(B) Any treatment procedures that have not been defined and valued
pursuant to Section 5307.1.
(C) Any other evaluation procedure requested by the Insurance
Commissioner, or deemed appropriate by the administrative director.
(6) Any additional medical or professional standards that a
medical evaluator shall meet as a condition of appointment,
reappointment, or maintenance in the status of a medical evaluator.
(k) Except as provided in this subdivision, the administrative
director may, in his or her discretion, suspend or terminate the
privilege of a physician to serve as a qualified medical evaluator if
the administrative director, after hearing pursuant to subdivision (
l ), determines, based on substantial evidence, that a
qualified medical evaluator:
(1) Has violated any material statutory or administrative duty.
(2) Has failed to follow the medical procedures or qualifications
established pursuant to paragraph (2), (3), (4), or (5) of
subdivision (j).
(3) Has failed to comply with the timeframe standards established
pursuant to subdivision (j).
(4) Has failed to meet the requirements of subdivision (b) or (c).
(5) Has prepared medical-legal evaluations that fail to meet the
minimum standards for those reports established by the administrative
director or the appeals board.
(6) Has made material misrepresentations or false statements in an
application for appointment or reappointment as a qualified medical
evaluator.
A hearing shall not be required prior to the suspension or
termination of a physician's privilege to serve as a qualified
medical evaluator when the physician has done either of the
following:
(A) Failed to timely pay the fee required pursuant to subdivision
(n).
(B) Had his or her license to practice in California suspended by
the relevant licensing authority so as to preclude practice, or had
the license revoked or terminated by the licensing authority.
( l ) The administrative director shall cite the
qualified medical evaluator for a violation listed in subdivision (k)
and shall set a hearing on the alleged violation within 30 days of
service of the citation on the qualified medical evaluator. In
addition to the authority to terminate or suspend the qualified
medical evaluator upon finding a violation listed in subdivision (k),
the administrative director may, in his or her discretion, place a
qualified medical evaluator on probation subject to appropriate
conditions, including ordering continuing education or training. The
administrative director shall report to the appropriate licensing
board the name of any qualified medical evaluator who is disciplined
pursuant to this subdivision.
(m) The administrative director shall terminate from the list of
medical evaluators any physician where licensure has been terminated
by the relevant licensing board, or who has been convicted of a
misdemeanor or felony related to the conduct of his or her medical
practice, or of a crime of moral turpitude. The administrative
director shall suspend or terminate as a medical evaluator any
physician who has been suspended or placed on probation by the
relevant licensing board. If a physician is suspended or terminated
as a qualified medical evaluator under this subdivision, a report
prepared by the physician that is not complete, signed, and furnished
to one or more of the parties prior to the date of conviction or
action of the licensing board, whichever is earlier, shall not be
admissible in any proceeding before the appeals board nor shall there
be any liability for payment for the report and any expense incurred
by the physician in connection with the report.
(n) A qualified medical evaluator shall pay a fee, as determined
by the administrative director, for appointment or reappointment.
These fees shall be based on a sliding scale as established by the
administrative director. All revenues from fees paid under this
subdivision shall be deposited into the Workers' Compensation
Administration Revolving Fund and are available for expenditure upon
appropriation by the Legislature, and shall not be used by any other
department or agency or for any purpose other than administration of
the programs of the Division of Workers' Compensation related to the
provision of medical treatment to injured employees.
(o) An evaluator shall not request or accept any compensation or
other thing of value from any source that does or could create a
conflict with his or her duties as an evaluator under this code. The
administrative director, after consultation with the Commission on
Health and Safety and Workers' Compensation, shall adopt regulations
to implement this subdivision.
SEC. 215. Section 1720 of the Labor Code is amended to read:
1720. (a) As used in this chapter, "public works" means:
(1) Construction, alteration, demolition, installation, or repair
work done under contract and paid for in whole or in part out of
public funds, except work done directly by any public utility company
pursuant to order of the Public Utilities Commission or other public
authority. For purposes of this paragraph, "construction" includes
work performed during the design and preconstruction phases of
construction, including, but not limited to, inspection and land
surveying work, and work performed during the postconstruction phases
of construction, including, but not limited to, all cleanup work at
the jobsite. For purposes of this paragraph, "installation" includes,
but is not limited to, the assembly and disassembly of freestanding
and affixed modular office systems.
(2) Work done for irrigation, utility, reclamation, and
improvement districts, and other districts of this type. "Public work"
does not include the operation of the irrigation or drainage system
of any irrigation or reclamation district, except as used in Section
1778 relating to retaining wages.
(3) Street, sewer, or other improvement work done under the
direction and supervision or by the authority of any officer or
public body of the state, or of any political subdivision or district
thereof, whether the political subdivision or district operates
under a freeholder's charter or not.
(4) The laying of carpet done under a building lease-maintenance
contract and paid for out of public funds.
(5) The laying of carpet in a public building done under contract
and paid for in whole or in part out of public funds.
(6) Public transportation demonstration projects authorized
pursuant to Section 143 of the Streets and Highways Code.
(7) (A) Infrastructure project grants from the California Advanced
Services Fund pursuant to Section 281 of the Public Utilities Code.
(B) For purposes of this paragraph, the Public Utilities
Commission is not the awarding body or the body awarding the
contract, as defined in Section 1722.
(b) For purposes of this section, "paid for in whole or in part
out of public funds" means all of the following:
(1) The payment of money or the equivalent of money by the state
or political subdivision directly to or on behalf of the public works
contractor, subcontractor, or developer.
(2) Performance of construction work by the state or political
subdivision in execution of the project.
(3) Transfer by the state or political subdivision of an asset of
value for less than fair market price.
(4) Fees, costs, rents, insurance or bond premiums, loans,
interest rates, or other obligations that would normally be required
in the execution of the contract, that are paid, reduced, charged at
less than fair market value, waived, or forgiven by the state or
political subdivision.
(5) Money loaned by the state or political subdivision that is to
be repaid on a contingent basis.
(6) Credits that are applied by the state or political subdivision
against repayment obligations to the state or political subdivision.
(c) Notwithstanding subdivision (b):
(1) Private residential projects built on private property are not
subject to the requirements of this chapter unless the projects are
built pursuant to an agreement with a state agency, redevelopment
agency, or local public housing authority.
(2) If the state or a political subdivision requires a private
developer to perform construction, alteration, demolition,
installation, or repair work on a public work of improvement as a
condition of regulatory approval of an otherwise private development
project, and the state or political subdivision contributes no more
money, or the equivalent of money, to the overall project than is
required to perform this public improvement work, and the state or
political subdivision maintains no proprietary interest in the
overall project, then only the public improvement work shall thereby
become subject to this chapter.
(3) If the state or a political subdivision reimburses a private
developer for costs that would normally be borne by the public, or
provides directly or indirectly a public subsidy to a private
development project that is de minimis in the context of the project,
an otherwise private development project shall not thereby become
subject to the requirements of this chapter.
(4) The construction or rehabilitation of affordable housing units
for low- or moderate-income persons pursuant to paragraph (5) or (7)
of subdivision (e) of Section 33334.2 of the Health and Safety Code
that are paid for solely with moneys from the Low and Moderate Income
Housing Fund established pursuant to Section 33334.3 of the Health
and Safety Code or that are paid for by a combination of private
funds and funds available pursuant to Section 33334.2 or 33334.3 of
the Health and Safety Code do not constitute a project that is paid
for in whole or in part out of public funds.
(5) Unless otherwise required by a public funding program, the
construction or rehabilitation of privately owned residential
projects is not subject to the requirements of this chapter if one or
more of the following conditions are met:
(A) The project is a self-help housing project in which no fewer
than 500 hours of construction work associated with the homes are to
be performed by the home buyers.
(B) The project consists of rehabilitation or expansion work
associated with a facility operated on a not-for-profit basis as
temporary or transitional housing for homeless persons with a total
project cost of less than twenty-five thousand dollars ($25,000).
(C) Assistance is provided to a household as either mortgage
assistance, downpayment assistance, or for the rehabilitation of a
single-family home.
(D) The project consists of new construction, expansion, or
rehabilitation work associated with a facility developed by a
nonprofit organization to be operated on a not-for-profit basis to
provide emergency or transitional shelter and ancillary services and
assistance to homeless adults and children. The nonprofit
organization operating the project shall provide, at no profit, not
less than 50 percent of the total project cost from nonpublic
sources, excluding real property that is transferred or leased. Total
project cost includes the value of donated labor, materials, and
architectural and engineering services.
(E) The public participation in the project that would otherwise
meet the criteria of subdivision (b) is public funding in the form of
below-market interest rate loans for a project in which occupancy of
at least 40 percent of the units is restricted for at least 20
years, by deed or regulatory agreement, to individuals or families
earning no more than 80 percent of the area median income.
(d) Notwithstanding any provision of this section to the contrary,
the following projects shall not, solely by reason of this section,
be subject to the requirements of this chapter:
(1) Qualified residential rental projects, as defined by Section
142(d) of the Internal Revenue Code, financed in whole or in part
through the issuance of bonds that receive allocation of a portion of
the state ceiling pursuant to Chapter 11.8 (commencing with Section
8869.80) of Division 1 of Title 2 of the Government Code on or before
December 31, 2003.
(2) Single-family residential projects financed in whole or in
part through the issuance of qualified mortgage revenue bonds or
qualified veterans' mortgage bonds, as defined by Section 143 of the
Internal Revenue Code, or with mortgage credit certificates under a
Qualified Mortgage Credit Certificate Program, as defined by Section
25 of the Internal Revenue Code, that receive allocation of a portion
of the state ceiling pursuant to Chapter 11.8 (commencing with
Section 8869.80) of Division 1 of Title 2 of the Government Code on
or before December 31, 2003.
(3) Low-income housing projects that are allocated federal or
state low-income housing tax credits pursuant to Section 42 of the
Internal Revenue Code, Chapter 3.6 (commencing with Section 50199.4)
of Part 1 of Division 31 of the Health and Safety Code, or Section
12206, 17058, or 23610.5 of the Revenue and Taxation Code, on or
before December 31, 2003.
(e) Notwithstanding paragraph (1) of subdivision (a),
construction, alteration, demolition, installation, or repair work on
the electric transmission system located in California constitutes a
public works project for the purposes of this chapter.
(f) If a statute, other than this section, or a regulation, other
than a regulation adopted pursuant to this section, or an ordinance
or a contract applies this chapter to a project, the exclusions set
forth in subdivision (d) do not apply to that project.
(g) For purposes of this section, references to the Internal
Revenue Code mean the Internal Revenue Code of 1986, as amended, and
include the corresponding predecessor sections of the Internal
Revenue Code of 1954, as amended.
(h) The amendments made to this section by either Chapter 938 of
the Statutes of 2001 or the act adding this subdivision shall not be
construed to preempt local ordinances requiring the payment of
prevailing wages on housing projects.
SEC. 216. Section 2750.8 of the Labor Code is amended to read:
2750.8. (a) The Labor Commissioner and the Employment Development
Department shall administer the Motor Carrier Employer Amnesty
Program pursuant to which, notwithstanding any law, an eligible motor
carrier performing drayage services at any port shall be relieved of
liability for statutory or civil penalties associated with the
misclassification of commercial drivers as independent contractors,
as provided by this program, if the eligible motor carrier executes a
settlement agreement with the Labor Commissioner whereby the
eligible motor carrier agrees to, among other things, properly
classify all of its commercial drivers as employees.
(b) As used in this section, the following terms shall have the
following meanings:
(1) "Commercial driver" means a person who holds a valid
commercial driver's license who is hired or contracted to provide
port drayage services.
(2) "Department" means the Employment Development Department.
(3) "Eligible motor carrier" means a motor carrier that shall not
have any of the following on the date it applies to participate in
the program:
(A) A civil lawsuit that was filed on or before December 31, 2015,
pending against it in a state or federal court that alleges or
involves a misclassification of a commercial driver.
(B) A penalty assessed by the department pursuant to Section 1128
of the Unemployment Insurance Code that is final imposition of that
penalty.
(4) "Motor carrier" means a registered owner, lessee, licensee, or
bailee of a commercial motor vehicle, as set forth in subdivision
(b) of Section 15210 of the Vehicle Code, that operates or directs
the operation of a commercial motor vehicle on a for-hire or
not-for-hire basis to perform port drayage services.
(5) "Port" means any sea or river port located in this state.
(6) "Program" means the Motor Carrier Employer Amnesty Program
established by this section and as provided by Article 8.6
(commencing with Section 1160) of Chapter 4 of Part 1 of Division 1
of the Unemployment Insurance Code.
(c) (1) A motor carrier shall only apply to participate in the
program by doing all of the following:
(A) Submit an application to the Labor Commissioner, on a form
provided by the Labor Commissioner. The application shall, at a
minimum, require the motor carrier to establish it qualifies as an
eligible motor carrier.
(B) Report on the results of a self-audit in accordance with the
guidelines provided by the Labor Commissioner.
(2) A motor carrier that voluntarily or as a result of a final
disposition in a civil proceeding reclassified its commercial drivers
as employees on or before January 1, 2016, shall, in addition to
other information requested by the Labor Commissioner, also submit
with its application all of the following:
(A) Documentation demonstrating that the motor carrier
reclassified its commercial drivers as employees, including the
commencement period applicable to the reclassification.
(B) The identification of each commercial driver reclassified in
the documents provided in subparagraph (A), the amounts paid to each
commercial driver to compensate for the previous misclassification,
and the time period applicable to the amount paid to each commercial
driver prior to reclassification.
(C) A report of a self-audit for all commercial drivers
reclassified by the motor carrier identified in subparagraphs (A) and
(B), and also include a separate self-audit report for any
commercial driver who is subject to reclassification, but is not
identified in subparagraph (B).
(3) A proceeding or action against a motor carrier pursuant to
Sections 2698 to 2699.5, inclusive, shall not be initiated after the
motor carrier has submitted an application for participation in the
program, but may be initiated if the motor carrier's application is
denied.
(4) If a motor carrier's application to participate in the program
is denied by the Labor Commissioner, the application or its
submission shall not be considered an acknowledgment or admission by
the motor carrier that it misclassified its commercial drivers as
independent contractors, and the application or its submission shall
not be construed in any way to support an evidentiary inference that
the motor carrier failed to properly classify its commercial drivers
as employees.
(d) The Labor Commissioner shall analyze the information provided
pursuant to paragraph (2) of subdivision (c) for the purpose of
evaluating the scope of a prior reclassification of an eligible motor
carrier's commercial drivers to employees and has discretionary
authority to determine whether the scope was sufficient to afford
relief to the misclassified commercial drivers.
(e) Before January 1, 2017, the Labor Commissioner, with the
cooperation and consent of the department, may negotiate and execute
a settlement agreement with an eligible motor carrier pursuant to the
program that applied to participate in the program. The Labor
Commissioner shall not execute a settlement agreement on or after
January 1, 2017.
(f) Prior to the Labor Commissioner executing a settlement
agreement, an eligible motor carrier shall file its contribution
returns and report unreported wages and taxes for the time period it
seeks relief under the settlement agreement.
(g) A settlement agreement executed by the Labor Commissioner and
an eligible motor carrier pursuant to the program shall require an
eligible motor carrier to do all of the following:
(1) Pay all wages, benefits, and taxes owed, if any, to or in
relation to all of its commercial drivers reclassified from
independent contractors to employees for the period of time from the
first date of misclassification to the date the settlement agreement
is executed, but not exceeding the applicable statute of limitations.
(2) Maintain any converted commercial driver positions as employee
positions.
(3) Consent that any future commercial drivers hired to perform
the same or similar duties as those employees converted pursuant to
the settlement agreement shall be presumed to have employee status
and that the eligible motor carrier shall have the burden to prove by
clear and convincing evidence that they are not employees in any
administrative or judicial proceeding in which their employment
status is an issue.
(4) Immediately after the execution of the settlement agreement,
secure the workers' compensation coverage that is legally required
for the commercial drivers who were reclassified as employees,
effective on or before the date the settlement agreement is executed.
(5) Provide the Labor Commissioner and the department with proof
of workers' compensation insurance coverage in compliance with
paragraph (4) within five days of securing the coverage.
(6) Pay the costs authorized by subdivision (h), if required.
(7) Perform any other requirements or provisions the Labor
Commissioner and the department deem necessary to carry out the
intent of this section, the program, or to enforce the settlement
agreement.
(h) A settlement agreement may require an eligible motor carrier
to pay the reasonable, actual costs of the Labor Commissioner and the
department for their respective review, approval, and compliance
monitoring of the settlement agreement. The costs shall be deposited
into the Labor Enforcement and Compliance Fund. The portion of the
costs attributable to the department shall be transferred to the
department upon appropriation by the Legislature.
(i) The settlement agreement may include provisions for an
eligible motor carrier to make installment payments of amounts due
pursuant to paragraphs (1) and (6) of subdivision (g) in lieu of a
full payment. An installment payment agreement shall be included
within the settlement agreement and charge interest on the
outstanding amounts due at the rate prescribed in Sections 1113 and
1129 of the Unemployment Insurance Code. Interest on amounts due
shall be charged from the day after the date the settlement agreement
is executed. The settlement agreement shall contain a provision that
if a motor carrier fails, without good cause, to fully comply with
terms of the settlement agreement authorizing installment payments,
the settlement agreement shall be null and void and the total amount
of tax, interest, and penalties for the time period covered by the
settlement agreement shall be immediately due and payable.
(j) The Labor Commissioner and the department may share any
information necessary to carry out the program. Sharing information
pursuant to this subdivision shall not
constitute a waiver of any applicable
confidentiality requirements and the party receiving the information
shall be subject to any existing confidentiality requirements for
that information.
(k) (1) Notwithstanding any other law and pursuant to the program,
an eligible motor carrier that executed and performed its
obligations pursuant to a settlement agreement shall not be liable,
and the Labor Commissioner or the department shall not enforce, any
civil or statutory penalties, including, but not limited to, remedies
available under subdivision (e) of Section 226, that might have
become due and payable for the time period covered by the settlement
agreement, except for the following penalties:
(A) A penalty charged under Section 1128 of the Unemployment
Insurance Code that is final on the date of the settlement agreement
is executed, unless the penalty is reversed by the California
Unemployment Insurance Appeals Board.
(B) A penalty for an amount an eligible motor carrier admitted was
based on fraud or made with the intent to evade the reporting
requirements set forth in this division or authorized regulations.
(C) A penalty based on a violation of this division or Division 6
(commencing with Section 13000) of the Unemployment Insurance Code
and either of the following:
(i) The eligible motor carrier was on notice of a criminal
investigation due to a complaint having been filed or by written
notice having been mailed to the eligible motor carrier informing the
motor carrier that it is under criminal investigation.
(ii) A criminal court proceeding has already been initiated
against the eligible motor carrier.
(2) (A) Notwithstanding any other law and pursuant to the program,
an eligible motor carrier that executed and performed its
obligations pursuant to a settlement agreement shall not be liable,
and the Labor Commissioner or the department shall not enforce, any
unpaid penalties, and interest owed on unpaid penalties, on or before
the date the settlement agreement was executed, pursuant to Sections
1112.5, 1126, and 1127 of the Unemployment Insurance Code for the
tax reporting periods for which the settlement agreement is
applicable, that are owed as a result of the nonpayment of tax
liabilities due to the misclassification of one or more commercial
drivers as independent contractors and the reclassification of these
commercial drivers as employees, except that penalties, and interest
owed on penalties, established as a result of an assessment issued by
the department before the date the settlement agreement was executed
shall not be waived pursuant to the program.
(B) For purposes of paragraph (1), state personal income taxes
required to be withheld by Section 13020 of the Unemployment
Insurance Code and owed by the motor carrier pursuant to Section
13070 of the Unemployment Insurance Code shall not be collected, if
the eligible motor carrier issued an information return pursuant to
Section 6041A of the Internal Revenue Code reporting payment or if
the commercial driver certifies that the state personal tax has been
paid or that he or she has reported to the Franchise Tax Board the
payment against which the state personal income tax would have been
imposed.
(3) A refund or credit for any penalty or interest paid prior to
the date an eligible motor carrier applied to participate in the
program shall not be granted.
(4) Except for violations described in Section 2119 of the
Unemployment Insurance Code, the department shall not bring a
criminal action for failing to report tax liabilities against an
eligible motor carrier that executed and performed its obligations
pursuant to a settlement agreement for the tax reporting periods
subject to the settlement agreement.
(l) The statute of limitations on any claim or liability that
might have been asserted against a motor carrier based on the motor
carrier having misclassified a commercial driver as an independent
contractor shall be tolled from the date a motor carrier applies for
participation in the program through the date the Labor Commissioner
either denies the motor carrier participation in the program or the
motor carrier, as an eligible motor carrier, has failed to perform an
obligation under the settlement agreement, whichever is later.
(m) The recovery obtained by the Labor Commissioner on behalf of a
reclassified commercial driver pursuant to a settlement agreement
shall be tendered to the commercial driver on the condition that the
commercial driver shall execute a release of all claims the
commercial driver may have against the eligible motor carrier based
on the eligible motor carrier's failure to classify the commercial
driver as an employee. A commercial driver shall not be under any
obligation to accept the terms of a settlement agreement. If a
commercial driver declines to accept the terms of a settlement
agreement, the commercial driver shall not be bound by the settlement
agreement, except that the eligible motor carrier shall still
reclassify the commercial driver as an employee and that commercial
driver shall be precluded from pursuing a claim for civil penalties
or statutory penalties covered by the period of time covered by the
settlement agreement. If a commercial driver does not accept the
terms of a settlement agreement, the motor carrier shall be excused
from performing its requirement under the settlement agreement to pay
the amount acknowledged in the settlement agreement to be due to
that commercial driver.
(n) (1) If the Labor Commissioner determines an eligible motor
carrier violated or failed to perform any of its obligations under a
settlement agreement, the Labor Commissioner may file a civil action
to enforce the settlement agreement.
(2) (A) If the Labor Commissioner files a civil action seeking
only recovery of the amounts due to commercial drivers under the
settlement agreement, the Labor Commissioner may obtain judicial
enforcement by filing a petition for entry of judgment for the
liabilities due and remaining pursuant to the settlement agreement.
(B) After filing a petition pursuant to subparagraph (A), the
Labor Commissioner may file an application for an order to show cause
and serve it on the eligible motor carrier. Within 60 days of the
date the Labor Commissioner filed the order to show cause, the court
shall hold a hearing and enter a judgment. The judgment shall be in
amounts which are due and owing to commercial drivers pursuant to the
settlement agreement with credits, if any, for applicable payments
the eligible motor carrier made under the settlement agreement. A
judgment entered pursuant to this paragraph shall not preclude
subsequent action to recover civil penalties or statutory penalties
by the Labor Commissioner, or by an employee pursuant to Sections
2698 to 2699.5, inclusive.
(3) If the court determines in any action filed by the Labor
Commissioner that a motor carrier has violated or otherwise failed to
perform any of its obligations under a settlement agreement, the
court shall award the Labor Commissioner costs and reasonable
attorney's fees.
SEC. 217. Section 3503 of the Labor Code is amended to read:
3503. A person is not a dependent of a deceased employee unless
in good faith a member of the family or household of the employee, or
unless the person bears to the employee the relation of husband or
wife, child, posthumous child, adopted child or stepchild,
grandchild, father or mother, father-in-law or mother-in-law,
grandfather or grandmother, brother or sister, uncle or aunt,
brother-in-law or sister-in-law, or nephew or niece.
SEC. 218. Section 4663 of the Labor Code is amended to read:
4663. (a) Apportionment of permanent disability shall be based on
causation.
(b) A physician who prepares a report addressing the issue of
permanent disability due to a claimed industrial injury shall address
in that report the issue of causation of the permanent disability.
(c) In order for a physician's report to be considered complete on
the issue of permanent disability, the report must include an
apportionment determination. A physician shall make an apportionment
determination by finding what approximate percentage of the permanent
disability was caused by the direct result of injury arising out of
and occurring in the course of employment and what approximate
percentage of the permanent disability was caused by other factors
both before and subsequent to the industrial injury, including prior
industrial injuries. If the physician is unable to include an
apportionment determination in his or her report, the physician shall
state the specific reasons why the physician could not make a
determination of the effect of that prior condition on the permanent
disability arising from the injury. The physician shall then consult
with other physicians or refer the employee to another physician from
whom the employee is authorized to seek treatment or evaluation in
accordance with this division in order to make the final
determination.
(d) An employee who claims an industrial injury shall, upon
request, disclose all previous permanent disabilities or physical
impairments.
(e) Subdivisions (a), (b), and (c) do not apply to injuries or
illnesses covered under Sections 3212, 3212.1, 3212.2, 3212.3,
3212.4, 3212.5, 3212.6, 3212.7, 3212.8, 3212.85, 3212.9, 3212.10,
3212.11, 3212.12, 3213, and 3213.2.
SEC. 219. Section 451 of the Military and Veterans Code is amended
to read:
451. (a) The constitution and jurisdiction of general
courts-martial, special courts-martial, summary courts-martial, and
courts of inquiry, the form and manner in which the proceedings are
conducted and recorded, the forms of oaths and affirmations taken in
the administration of military law by such courts, the limits of
punishment, and the proceedings in the revision thereof, shall be
governed by the terms of the laws and regulations governing the
United States Army, Air Force, or Navy, and the law and procedure of
similar courts of the United States Army, Air Force, or Navy, except
as otherwise provided in this chapter.
(b) The Uniform Code of Military Justice, and the rules and
regulations published thereunder, shall govern and be applicable to
the active militia, including the California National Guard, except
as otherwise provided in this code, the California Manual for
Courts-Martial, or other regulations as adopted by the Governor or
Adjutant General.
SEC. 220. Section 136.2 of the Penal Code is amended to read:
136.2. (a) (1) Upon a good cause belief that harm to, or
intimidation or dissuasion of, a victim or witness has occurred or is
reasonably likely to occur, a court with jurisdiction over a
criminal matter may issue orders, including, but not limited to, the
following:
(A) An order issued pursuant to Section 6320 of the Family Code.
(B) An order that a defendant shall not violate any provision of
Section 136.1.
(C) An order that a person before the court other than a
defendant, including, but not limited to, a subpoenaed witness or
other person entering the courtroom of the court, shall not violate
any provision of Section 136.1.
(D) An order that a person described in this section shall have no
communication whatsoever with a specified witness or a victim,
except through an attorney under reasonable restrictions that the
court may impose.
(E) An order calling for a hearing to determine if an order as
described in subparagraphs (A) to (D), inclusive, should be issued.
(F) (i) An order that a particular law enforcement agency within
the jurisdiction of the court provide protection for a victim or a
witness, or both, or for immediate family members of a victim or a
witness who reside in the same household as the victim or witness or
within reasonable proximity of the victim's or witness' household, as
determined by the court. The order shall not be made without the
consent of the law enforcement agency except for limited and
specified periods of time and upon an express finding by the court of
a clear and present danger of harm to the victim or witness or
immediate family members of the victim or witness.
(ii) For purposes of this paragraph, "immediate family members"
include the spouse, children, or parents of the victim or witness.
(G) (i) An order protecting a victim or witness of violent crime
from all contact by the defendant, or contact, with the intent to
annoy, harass, threaten, or commit acts of violence, by the
defendant. The court or its designee shall transmit orders made under
this paragraph to law enforcement personnel within one business day
of the issuance, modification, extension, or termination of the
order, pursuant to subdivision (a) of Section 6380 of the Family
Code. It is the responsibility of the court to transmit the
modification, extension, or termination orders made under this
paragraph to the same agency that entered the original protective
order into the Domestic Violence Restraining Order System.
(ii) (I) If a court does not issue an order pursuant to clause (i)
in a case in which the defendant is charged with a crime involving
domestic violence as defined in Section 13700 or in Section 6211 of
the Family Code, the court on its own motion shall consider issuing a
protective order upon a good cause belief that harm to, or
intimidation or dissuasion of, a victim or witness has occurred or is
reasonably likely to occur, that provides as follows:
(ia) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
(ib) The defendant shall relinquish any firearms that he or she
owns or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(II) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive, a firearm while this protective
order is in effect is punishable pursuant to Section 29825.
(iii) An order issued, modified, extended, or terminated by a
court pursuant to this subparagraph shall be issued on forms adopted
by the Judicial Council of California that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable.
(iv) A protective order issued under this subparagraph may require
the defendant to be placed on electronic monitoring if the local
government, with the concurrence of the county sheriff or the chief
probation officer with jurisdiction, adopts a policy to authorize
electronic monitoring of defendants and specifies the agency with
jurisdiction for this purpose. If the court determines that the
defendant has the ability to pay for the monitoring program, the
court shall order the defendant to pay for the monitoring. If the
court determines that the defendant does not have the ability to pay
for the electronic monitoring, the court may order electronic
monitoring to be paid for by the local government that adopted the
policy to authorize electronic monitoring. The duration of electronic
monitoring shall not exceed one year from the date the order is
issued. At no time shall the electronic monitoring be in place if the
protective order is not in place.
(2) For purposes of this subdivision, a minor who was not a victim
of, but who was physically present at the time of, an act of
domestic violence, is a witness and is deemed to have suffered harm
within the meaning of paragraph (1).
(b) A person violating an order made pursuant to subparagraphs (A)
to (G), inclusive, of paragraph (1) of subdivision (a) may be
punished for any substantive offense described in Section 136.1, or
for a contempt of the court making the order. A finding of contempt
shall not be a bar to prosecution for a violation of Section 136.1.
However, a person so held in contempt shall be entitled to credit for
punishment imposed therein against a sentence imposed upon
conviction of an offense described in Section 136.1. A conviction or
acquittal for a substantive offense under Section 136.1 shall be a
bar to a subsequent punishment for contempt arising out of the same
act.
(c) (1) (A) Notwithstanding subdivision (e), an emergency
protective order issued pursuant to Chapter 2 (commencing with
Section 6250) of Part 3 of Division 10 of the Family Code or Section
646.91 shall have precedence in enforcement over any other
restraining or protective order, provided the emergency protective
order meets all of the following requirements:
(i) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(ii) The emergency protective order restrains the individual who
is the restrained person in the other restraining or protective order
specified in clause (i).
(iii) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
clause (i).
(B) An emergency protective order that meets the requirements of
subparagraph (A) shall have precedence in enforcement over the
provisions of any other restraining or protective order only with
respect to those provisions of the emergency protective order that
are more restrictive in relation to the restrained person.
(2) Except as described in paragraph (1), a no-contact order, as
described in Section 6320 of the Family Code, shall have precedence
in enforcement over any other restraining or protective order.
(d) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, or receive, or attempt to
purchase or receive, a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) A person who owns, possesses, purchases, or receives, or
attempts to purchase or receive, a firearm while the protective order
is in effect is punishable pursuant to Section 29825.
(e) (1) In all cases in which the defendant is charged with a
crime involving domestic violence, as defined in Section 13700 or in
Section 6211 of the Family Code, or a violation of Section 261,
261.5, or 262, or any crime that requires the defendant to register
pursuant to subdivision (c) of Section 290, the court shall consider
issuing the above-described orders on its own motion. All interested
parties shall receive a copy of those orders. In order to facilitate
this, the court's records of all criminal cases involving domestic
violence or a violation of Section 261, 261.5, or 262, or any crime
that requires the defendant to register pursuant to subdivision (c)
of Section 290, shall be marked to clearly alert the court to this
issue.
(2) In those cases in which a complaint, information, or
indictment charging a crime involving domestic violence, as defined
in Section 13700 or in Section 6211 of the Family Code, or a
violation of Section 261, 261.5, or 262, or any crime that requires
the defendant to register pursuant to subdivision (c) of Section 290,
has been issued, except as described in subdivision (c), a
restraining order or protective order against the defendant issued by
the criminal court in that case has precedence in enforcement over a
civil court order against the defendant.
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (f),
but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to, and, if there is not an emergency protective order
that has precedence in enforcement pursuant to paragraph (1) of
subdivision (c), or a no-contact order, as described in Section 6320
of the Family Code, acknowledge the precedence of enforcement of, an
appropriate criminal protective order. On or before July 1, 2014, the
Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(f) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for the timely coordination
of all orders against the same defendant and in favor of the same
named victim or victims. The protocol shall include, but shall not be
limited to, mechanisms for ensuring appropriate communication and
information sharing between criminal, family, and juvenile courts
concerning orders and cases that involve the same parties, and shall
permit a family or juvenile court order to coexist with a criminal
court protective order subject to the following conditions:
(1) An order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no-contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(g) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.
(h) (1) In any case in which a complaint, information, or
indictment charging a crime involving domestic violence, as defined
in Section 13700 or in Section 6211 of the Family Code, has been
filed, the court may consider, in determining whether good cause
exists to issue an order under subparagraph (A) of paragraph (1) of
subdivision (a), the underlying nature of the offense charged, and
the information provided to the court pursuant to Section 273.75.
(2) In any case in which a complaint, information, or indictment
charging a violation of Section 261, 261.5, or 262, or any crime that
requires the defendant to register pursuant to subdivision (c) of
Section 290, has been filed, the court may consider, in determining
whether good cause exists to issue an order under paragraph (1) of
subdivision (a), the underlying nature of the offense charged, the
defendant's relationship to the victim, the likelihood of continuing
harm to the victim, any current restraining order or protective order
issued by any civil or criminal court involving the defendant, and
the defendant's criminal history, including, but not limited to,
prior convictions for a violation of Section 261, 261.5, or 262, a
crime that requires the defendant to register pursuant to subdivision
(c) of Section 290, any other forms of violence, or any weapons
offense.
(i) (1) In all cases in which a criminal defendant has been
convicted of a crime involving domestic violence as defined in
Section 13700 or in Section 6211 of the Family Code, a violation of
Section 261, 261.5, or 262, or any crime that requires the defendant
to register pursuant to subdivision (c) of Section 290, the court, at
the time of sentencing, shall consider issuing an order restraining
the defendant from any contact with the victim. The order may be
valid for up to 10 years, as determined by the court. This protective
order may be issued by the court regardless of whether the defendant
is sentenced to the state prison or a county jail or subject to
mandatory supervision, or whether imposition of sentence is suspended
and the defendant is placed on probation. It is the intent of the
Legislature in enacting this subdivision that the duration of any
restraining order issued by the court be based upon the seriousness
of the facts before the court, the probability of future violations,
and the safety of the victim and his or her immediate family.
(2) An order under this subdivision may include provisions for
electronic monitoring if the local government, upon receiving the
concurrence of the county sheriff or the chief probation officer with
jurisdiction, adopts a policy authorizing electronic monitoring of
defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order the electronic monitoring to be paid
for by the local government that adopted the policy authorizing
electronic monitoring. The duration of the electronic monitoring
shall not exceed one year from the date the order is issued.
(j) For purposes of this section, "local government" means the
county that has jurisdiction over the protective order.
SEC. 221. Section 186.2 of the Penal Code is amended to read:
186.2. For purposes of this chapter, the following definitions
apply:
(a) "Criminal profiteering activity" means any act committed or
attempted or any threat made for financial gain or advantage, which
act or threat may be charged as a crime under any of the following
sections:
(1) Arson, as defined in Section 451.
(2) Bribery, as defined in Sections 67, 67.5, and 68.
(3) Child pornography or exploitation, as defined in subdivision
(b) of Section 311.2, or Section 311.3 or 311.4, which may be
prosecuted as a felony.
(4) Felonious assault, as defined in Section 245.
(5) Embezzlement, as defined in Sections 424 and 503.
(6) Extortion, as defined in Section 518.
(7) Forgery, as defined in Section 470.
(8) Gambling, as defined in Sections 337a to 337f, inclusive, and
Section 337i, except the activities of a person who participates
solely as an individual bettor.
(9) Kidnapping, as defined in Section 207.
(10) Mayhem, as defined in Section 203.
(11) Murder, as defined in Section 187.
(12) Pimping and pandering, as defined in Section 266.
(13) Receiving stolen property, as defined in Section 496.
(14) Robbery, as defined in Section 211.
(15) Solicitation of crimes, as defined in Section 653f.
(16) Grand theft, as defined in Section 487 or subdivision (a) of
Section 487a.
(17) Trafficking in controlled substances, as defined in Sections
11351, 11352, and 11353 of the Health and Safety Code.
(18) Violation of the laws governing corporate securities, as
defined in Section 25541 of the Corporations Code.
(19) Offenses contained in Chapter 7.5
(commencing with Section 311) of Title 9, relating to obscene matter,
or in Chapter 7.6 (commencing with Section 313) of Title 9, relating
to harmful matter that may be prosecuted as a felony.
(20) Presentation of a false or fraudulent claim, as defined in
Section 550.
(21) False or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code.
(22) Money laundering, as defined in Section 186.10.
(23) Offenses relating to the counterfeit of a registered mark, as
specified in Section 350, or offenses relating to piracy, as
specified in Section 653w.
(24) Offenses relating to the unauthorized access to computers,
computer systems, and computer data, as specified in Section 502.
(25) Conspiracy to commit any of the crimes listed above, as
defined in Section 182.
(26) Subdivision (a) of Section 186.22, or a felony subject to
enhancement as specified in subdivision (b) of Section 186.22.
(27) Offenses related to fraud or theft against the state's
beverage container recycling program, including, but not limited to,
those offenses specified in this subdivision and those criminal
offenses specified in the California Beverage Container Recycling and
Litter Reduction Act, commencing at Section 14500 of the Public
Resources Code.
(28) Human trafficking, as defined in Section 236.1.
(29) Any crime in which the perpetrator induces, encourages, or
persuades a person under 18 years of age to engage in a commercial
sex act. For purposes of this paragraph, a commercial sex act means
any sexual conduct on account of which anything of value is given or
received by any person.
(30) Any crime in which the perpetrator, through force, fear,
coercion, deceit, violence, duress, menace, or threat of unlawful
injury to the victim or to another person, causes a person under 18
years of age to engage in a commercial sex act. For purposes of this
paragraph, a commercial sex act means any sexual conduct on account
of which anything of value is given or received by any person.
(31) Theft of personal identifying information, as defined in
Section 530.5.
(32) Offenses involving the theft of a motor vehicle, as specified
in Section 10851 of the Vehicle Code.
(33) Abduction or procurement by fraudulent inducement for
prostitution, as defined in Section 266a.
(34) Offenses relating to insurance fraud, as specified in
Sections 2106, 2108, 2109, 2110, 2110.3, 2110.5, 2110.7, and 2117 of
the Unemployment Insurance Code.
(b) (1) "Pattern of criminal profiteering activity" means engaging
in at least two incidents of criminal profiteering, as defined by
this chapter, that meet the following requirements:
(A) Have the same or a similar purpose, result, principals,
victims, or methods of commission, or are otherwise interrelated by
distinguishing characteristics.
(B) Are not isolated events.
(C) Were committed as a criminal activity of organized crime.
(2) Acts that would constitute a "pattern of criminal profiteering
activity" may not be used by a prosecuting agency to seek the
remedies provided by this chapter unless the underlying offense
occurred after the effective date of this chapter and the prior act
occurred within 10 years, excluding any period of imprisonment, of
the commission of the underlying offense. A prior act may not be used
by a prosecuting agency to seek remedies provided by this chapter if
a prosecution for that act resulted in an acquittal.
(c) "Prosecuting agency" means the Attorney General or the
district attorney of any county.
(d) "Organized crime" means crime that is of a conspiratorial
nature and that is either of an organized nature and seeks to supply
illegal goods or services such as narcotics, prostitution, pimping
and pandering, loan-sharking, counterfeiting of a registered mark in
violation of Section 350, the piracy of a recording or audiovisual
work in violation of Section 653w, gambling, and pornography, or
that, through planning and coordination of individual efforts, seeks
to conduct the illegal activities of arson for profit, hijacking,
insurance fraud, smuggling, operating vehicle theft rings, fraud
against the beverage container recycling program, embezzlement,
securities fraud, insurance fraud in violation of the provisions
listed in paragraph (34) of subdivision (a), grand theft, money
laundering, forgery, or systematically encumbering the assets of a
business for the purpose of defrauding creditors. "Organized crime"
also means crime committed by a criminal street gang, as defined in
subdivision (f) of Section 186.22. "Organized crime" also means false
or fraudulent activities, schemes, or artifices, as described in
Section 14107 of the Welfare and Institutions Code, and the theft of
personal identifying information, as defined in Section 530.5.
(e) "Underlying offense" means an offense enumerated in
subdivision (a) for which the defendant is being prosecuted.
SEC. 222. Section 186.11 of the Penal Code is amended to read:
186.11. (a) (1) Any person who commits two or more related
felonies, a material element of which is fraud or embezzlement, which
involve a pattern of related felony conduct, and the pattern of
related felony conduct involves the taking of, or results in the loss
by another person or entity of, more than one hundred thousand
dollars ($100,000), shall be punished, upon conviction of two or more
felonies in a single criminal proceeding, in addition and
consecutive to the punishment prescribed for the felony offenses of
which he or she has been convicted, by an additional term of
imprisonment in the state prison as specified in paragraph (2) or
(3). This enhancement shall be known as the aggravated white collar
crime enhancement. The aggravated white collar crime enhancement
shall only be imposed once in a single criminal proceeding. For
purposes of this section, "pattern of related felony conduct" means
engaging in at least two felonies that have the same or similar
purpose, result, principals, victims, or methods of commission, or
are otherwise interrelated by distinguishing characteristics, and
that are not isolated events. For purposes of this section, "two or
more related felonies" means felonies committed against two or more
separate victims, or against the same victim on two or more separate
occasions.
(2) If the pattern of related felony conduct involves the taking
of, or results in the loss by another person or entity of, more than
five hundred thousand dollars ($500,000), the additional term of
punishment shall be two, three, or five years in the state prison.
(3) If the pattern of related felony conduct involves the taking
of, or results in the loss by another person or entity of, more than
one hundred thousand dollars ($100,000), but not more than five
hundred thousand dollars ($500,000), the additional term of
punishment shall be the term specified in paragraph (1) or (2) of
subdivision (a) of Section 12022.6.
(b) (1) The additional prison term and penalties provided for in
subdivisions (a), (c), and (d) shall not be imposed unless the facts
set forth in subdivision (a) are charged in the accusatory pleading
and admitted or found to be true by the trier of fact.
(2) The additional prison term provided in paragraph (2) of
subdivision (a) shall be in addition to any other punishment provided
by law, including Section 12022.6, and shall not be limited by any
other provision of law.
(c) Any person convicted of two or more felonies, as specified in
subdivision (a), shall also be liable for a fine not to exceed five
hundred thousand dollars ($500,000) or double the value of the
taking, whichever is greater, if the existence of facts that would
make the person subject to the aggravated white collar crime
enhancement have been admitted or found to be true by the trier of
fact. However, if the pattern of related felony conduct involves the
taking of more than one hundred thousand dollars ($100,000), but not
more than five hundred thousand dollars ($500,000), the fine shall
not exceed one hundred thousand dollars ($100,000) or double the
value of the taking, whichever is greater.
(d) (1) If a person is alleged to have committed two or more
felonies, as specified in subdivision (a), and the aggravated white
collar crime enhancement is also charged, or a person is charged in
an accusatory pleading with a felony, a material element of which is
fraud or embezzlement, that involves the taking or loss of more than
one hundred thousand dollars ($100,000), and an allegation as to the
existence of those facts, any asset or property that is in the
control of that person, and any asset or property that has been
transferred by that person to a third party, subsequent to the
commission of any criminal act alleged pursuant to subdivision (a),
other than in a bona fide purchase, whether found within or outside
the state, may be preserved by the superior court in order to pay
restitution and fines. Upon conviction of two or more felonies, as
specified in subdivision (a), or a felony, a material element of
which is fraud or embezzlement, that involves the taking or loss of
more than one hundred thousand dollars ($100,000), this property may
be levied upon by the superior court to pay restitution and fines if
the existence of facts that would make the person subject to the
aggravated white collar crime enhancement or that demonstrate the
taking or loss of more than one hundred thousand dollars ($100,000)
in the commission of a felony, a material element of which is fraud
or embezzlement, have been charged in the accusatory pleading and
admitted or found to be true by the trier of fact.
(2) To prevent dissipation or secreting of assets or property, the
prosecuting agency may, at the same time as or subsequent to the
filing of a complaint or indictment charging two or more felonies, as
specified in subdivision (a), and the enhancement specified in
subdivision (a), or a felony, a material element of which is fraud or
embezzlement, that involves the taking or loss of more than one
hundred thousand dollars ($100,000), and an allegation as to the
existence of those facts, file a petition with the criminal division
of the superior court of the county in which the accusatory pleading
was filed, seeking a temporary restraining order, preliminary
injunction, the appointment of a receiver, or any other protective
relief necessary to preserve the property or assets. This petition
shall commence a proceeding that shall be pendent to the criminal
proceeding and maintained solely to affect the criminal remedies
provided for in this section. The proceeding shall not be subject to
or governed by the provisions of the Civil Discovery Act as set forth
in Title 4 (commencing with Section 2016.010) of Part 4 of the Code
of Civil Procedure. The petition shall allege that the defendant has
been charged with two or more felonies, as specified in subdivision
(a), and is subject to the aggravated white collar crime enhancement
specified in subdivision (a) or that the defendant has been charged
with a felony, a material element of which is fraud or embezzlement,
that involves the taking or loss of more than one hundred thousand
dollars ($100,000), and an allegation as to the existence of those
facts. The petition shall identify that criminal proceeding and the
assets and property to be affected by an order issued pursuant to
this section.
(3) A notice regarding the petition shall be provided, by personal
service or registered mail, to every person who may have an interest
in the property specified in the petition. Additionally, the notice
shall be published for at least three successive weeks in a newspaper
of general circulation in the county where the property affected by
an order issued pursuant to this section is located. The notice shall
state that any interested person may file a verified claim with the
superior court stating the nature and amount of their claimed
interest. The notice shall set forth the time within which a claim of
interest in the protected property is required to be filed.
(4) If the property to be preserved is real property, the
prosecuting agency shall record, at the time of filing the petition,
a lis pendens in each county in which the real property is situated
which specifically identifies the property by legal description, the
name of the owner of record as shown on the latest equalized
assessment roll, and the assessor's parcel number.
(5) If the property to be preserved are assets under the control
of a banking or financial institution, the prosecuting agency, at the
time of the filing of the petition, may obtain an order from the
court directing the banking or financial institution to immediately
disclose the account numbers and value of the assets of the accused
held by the banking or financial institution. The prosecuting agency
shall file a supplemental petition, specifically identifying which
banking or financial institution accounts shall be subject to a
temporary restraining order, preliminary injunction, or other
protective remedy.
(6) Any person claiming an interest in the protected property may,
at any time within 30 days from the date of the first publication of
the notice of the petition, or within 30 days after receipt of
actual notice, file with the superior court of the county in which
the action is pending a verified claim stating the nature and amount
of his or her interest in the property or assets. A verified copy of
the claim shall be served by the claimant on the Attorney General or
district attorney, as appropriate.
(7) The imposition of fines and restitution pursuant to this
section shall be determined by the superior court in which the
underlying criminal offense is sentenced. Any judge who is assigned
to the criminal division of the superior court in the county where
the petition is filed may issue a temporary restraining order in
conjunction with, or subsequent to, the filing of an allegation
pursuant to this section. Any subsequent hearing on the petition
shall also be heard by a judge assigned to the criminal division of
the superior court in the county in which the petition is filed. At
the time of the filing of an information or indictment in the
underlying criminal case, any subsequent hearing on the petition
shall be heard by the superior court judge assigned to the underlying
criminal case.
(e) Concurrent with or subsequent to the filing of the petition,
the prosecuting agency may move the superior court for, and the
superior court may issue, the following pendente lite orders to
preserve the status quo of the property alleged in the petition:
(1) An injunction to restrain any person from transferring,
encumbering, hypothecating, or otherwise disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that the property
may be maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of any property
or assets that are subject to the provisions of this section.
(3) A bond or other undertaking, in lieu of other orders, of a
value sufficient to ensure the satisfaction of restitution and fines
imposed pursuant to this section.
(f) (1) No preliminary injunction may be granted or receiver
appointed by the court without notice that meets the requirements of
paragraph (3) of subdivision (d) to all known and reasonably
ascertainable interested parties and upon a hearing to determine that
an order is necessary to preserve the property pending the outcome
of the criminal proceedings. A temporary restraining order may be
issued by the court, ex parte, pending that hearing in conjunction
with or subsequent to the filing of the petition upon the application
of the prosecuting attorney. The temporary restraining order may be
based upon the sworn declaration of a peace officer with personal
knowledge of the criminal investigation that establishes probable
cause to believe that aggravated white collar crime or a felony, a
material element of which is fraud or embezzlement, that involves the
taking or loss of more than one hundred thousand dollars ($100,000)
has taken place and that the amount of restitution and fines exceeds
or equals the worth of the assets subject to the temporary
restraining order. The declaration may include the hearsay statements
of witnesses to establish the necessary facts. The temporary
restraining order may be issued without notice upon a showing of good
cause to the court.
(2) The defendant, or a person who has filed a verified claim as
provided in paragraph (6) of subdivision (d), shall have the right to
have the court conduct an order to show cause hearing within 10 days
of the service of the request for hearing upon the prosecuting
agency, in order to determine whether the temporary restraining order
should remain in effect, whether relief should be granted from any
lis pendens recorded pursuant to paragraph (4) of subdivision (d), or
whether any existing order should be modified in the interests of
justice. Upon a showing of good cause, the hearing shall be held
within two days of the service of the request for hearing upon the
prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of the dissipation of assets outweighs the
potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give significant
weight to the following factors:
(A) The public interest in preserving the property or assets
pendente lite.
(B) The difficulty of preserving the property or assets pendente
lite where the underlying alleged crimes involve issues of fraud and
moral turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of white collar crimes.
(D) The likelihood that substantial public harm has occurred where
aggravated white collar crime is alleged to have been committed.
(E) The significant public interest involved in compensating the
victims of white collar crime and paying court-imposed restitution
and fines.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, any necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making any order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of any innocent third persons, including an innocent
spouse, who were not involved in the commission of any criminal
activity.
(6) Any petition filed pursuant to this section is part of the
criminal proceedings for purposes of appointment of counsel and shall
be assigned to the criminal division of the superior court of the
county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (e), the court may order an
interlocutory sale of property named in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value thereof. The proceeds of the
interlocutory sale shall be deposited with the court or as directed
by the court pending determination of the proceeding pursuant to this
section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of any lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this action.
(9) In making its orders, the court shall seek to prevent any
asset subject to a temporary restraining order or preliminary
injunction from perishing, spoiling, going to waste, or otherwise
being significantly reduced in value. Where the potential for
diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property or asset.
(10) A preservation order shall not be issued against any assets
of a business that are not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.
(g) If the allegation that the defendant is subject to the
aggravated white collar crime enhancement or has committed a felony,
a material element of which is fraud or embezzlement, that involves
the taking or loss of more than one hundred thousand dollars
($100,000) is dismissed or found by the trier of fact to be untrue,
any preliminary injunction or temporary restraining order issued
pursuant to this section shall be dissolved. If a jury is the trier
of fact, and the jury is unable to reach a unanimous verdict, the
court shall have the discretion to continue or dissolve all or a
portion of the preliminary injunction or temporary restraining order
based upon the interests of justice. However, if the prosecuting
agency elects not to retry the case, any preliminary injunction or
temporary restraining order issued pursuant to this section shall be
dissolved.
(h) (1) (A) If the defendant is convicted of two or more felonies,
as specified in subdivision (a), and the existence of facts that
would make the person subject to the aggravated white collar crime
enhancement have been admitted or found to be true by the trier of
fact, or the defendant is convicted of a felony, a material element
of which is fraud or embezzlement, that involves the taking or loss
of more than one hundred thousand dollars ($100,000), and an
allegation as to the existence of those facts has been admitted or
found to be true by the trier of fact, the trial judge shall continue
the preliminary injunction or temporary restraining order until the
date of the criminal sentencing and shall make a finding at that time
as to what portion, if any, of the property or assets subject to the
preliminary injunction or temporary restraining order shall be
levied upon to pay fines and restitution to victims of the crime. The
order imposing fines and restitution may exceed the total worth of
the property or assets subjected to the preliminary injunction or
temporary restraining order. The court may order the immediate
transfer of the property or assets to satisfy any judgment and
sentence made pursuant to this section. Additionally, upon motion of
the prosecution, the court may enter an order as part of the judgment
and sentence making the order imposing fines and restitution
pursuant to this section enforceable pursuant to Title 9 (commencing
with Section 680.010) of Part 2 of the Code of Civil Procedure.
(B) Additionally, the court shall order the defendant to make full
restitution to the victim or to make restitution to the victim based
on his or her ability to pay, as defined in subdivision (e) of
Section 1203.1b. The payment of the restitution ordered by the court
pursuant to this section shall be made a condition of any probation
granted by the court if the existence of facts that would make the
defendant subject to the aggravated white collar crime enhancement or
of facts demonstrating the person committed a felony, a material
element of which is fraud or embezzlement, that involves the taking
or loss of more than one hundred thousand dollars ($100,000) have
been admitted or found to be true by the trier of fact.
Notwithstanding any other provision of law, the court may order that
the period of probation continue for up to 10 years or until full
restitution is made to the victim, whichever is earlier.
(C) The sentencing court shall retain jurisdiction to enforce the
order to pay additional fines and restitution and, in appropriate
cases, may initiate probation violation proceedings or contempt of
court proceedings against a defendant who is found to have willfully
failed to comply with any lawful order of the court.
(D) If the execution of judgment is stayed pending an appeal of an
order of the superior court pursuant to this section, the
preliminary injunction or temporary restraining order shall be
maintained in full force and effect during the pendency of the
appellate period.
(2) The order imposing fines and restitution shall not affect the
interest in real property of any third party that was acquired prior
to the recording of the lis pendens, unless the property was obtained
from the defendant other than as a bona fide purchaser for value. If
any assets or property affected by this section are subject to a
valid lien, mortgage, security interest, or interest under a
conditional sales contract and the amount due to the holder of the
lien, mortgage, interest, or contract is less than the appraised
value of the property, that person may pay to the state or the local
government that initiated the proceeding the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local entity shall
relinquish all claims to the property. If the holder of the interest
elects not to make that payment to the state or local governmental
entity, the interest in the property shall be deemed transferred to
the state or local governmental entity and any indicia of ownership
of the property shall be confirmed in the state or local governmental
entity. The appraised value shall be determined as of the date
judgment is entered either by agreement between the holder of the
lien, mortgage, security interest, or interest under a conditional
sales contract and the governmental entity involved, or if they
cannot agree, then by a court-appointed appraiser for the county in
which the action is
brought. A person holding a valid lien, mortgage, security interest,
or interest under a conditional sales contract shall be paid the
appraised value of his or her interest.
(3) In making its final order, the court shall seek to protect the
legitimately acquired interests of any innocent third persons,
including an innocent spouse, who were not involved in the commission
of any criminal activity.
(i) In all cases where property is to be levied upon pursuant to
this section, a receiver appointed by the court shall be empowered to
liquidate all property or assets which shall be distributed in the
following order of priority:
(1) To the receiver, or court-appointed appraiser, for all
reasonable expenditures made or incurred by him or her in connection
with the sale of the property or liquidation of assets, including all
reasonable expenditures for any necessary repairs, storage, or
transportation of any property levied upon under this section.
(2) To any holder of a valid lien, mortgage, or security interest
up to the amount of his or her interest in the property or proceeds.
(3) To any victim as restitution for any fraudulent or unlawful
acts alleged in the accusatory pleading that were proven by the
prosecuting agency as part of the pattern of fraudulent or unlawful
acts.
(4) For payment of any fine imposed pursuant to this section. The
proceeds obtained in payment of a fine shall be paid to the treasurer
of the county in which the judgment was entered, or if the action
was undertaken by the Attorney General, to the Treasurer. If the
payment of any fine imposed pursuant to this section involved losses
resulting from violation of Section 550 of this code or Section
1871.4 of the Insurance Code, one-half of the fine collected shall be
paid to the treasurer of the county in which the judgment was
entered, and one-half of the fine collected shall be paid to the
Department of Insurance for deposit in the appropriate account in the
Insurance Fund. The proceeds from the fine first shall be used by a
county to reimburse local prosecutors and enforcement agencies for
the reasonable costs of investigation and prosecution of cases
brought pursuant to this section.
(5) To the Restitution Fund, or in cases involving convictions
relating to insurance fraud, to the Insurance Fund as restitution for
crimes not specifically pleaded and proven in the accusatory
pleading.
(j) If, after distribution pursuant to paragraphs (1) and (2) of
subdivision (i), the value of the property to be levied upon pursuant
to this section is insufficient to pay for restitution and fines,
the court shall order an equitable sharing of the proceeds of the
liquidation of the property, and any other recoveries, which shall
specify the percentage of recoveries to be devoted to each purpose.
At least 70 percent of the proceeds remaining after distribution
pursuant to paragraphs (1) and (2) of subdivision (i) shall be
devoted to restitution.
(k) Unless otherwise expressly provided, the remedies or penalties
provided by this section are cumulative to each other and to the
remedies or penalties available under all other laws of this state,
except that two separate actions against the same defendant and
pertaining to the same fraudulent or unlawful acts may not be brought
by a district attorney or the Attorney General pursuant to this
section and Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7 of the Business and Professions Code. If a fine is imposed
under this section, it shall be in lieu of all other fines that may
be imposed pursuant to any other provision of law for the crimes for
which the defendant has been convicted in the action.
SEC. 223. Section 186.12 of the Penal Code is amended to read:
186.12. (a) (1) A felony for purposes of this section means a
felony violation of subdivision (d) or (e) of Section 368, or a
felony violation of subdivision (c) of Section 15656 of the Welfare
and Institutions Code, that involves the taking or loss of more than
one hundred thousand dollars ($100,000).
(2) If a person is charged with a felony as described in paragraph
(1) and an allegation as to the existence of those facts has been
made, any property that is in the control of that person, and any
property that has been transferred by that person to a third party,
subsequent to the commission of any criminal act alleged pursuant to
this subdivision, other than in a bona fide purchase, whether found
within or outside the state, may be preserved by the superior court
in order to pay restitution imposed pursuant to this section. Upon
conviction of the felony, this property may be levied upon by the
superior court to pay restitution imposed pursuant to this section.
(b) (1) To prevent dissipation or secreting of property, the
prosecuting agency may, at the same time as or subsequent to the
filing of a complaint or indictment charging a felony subject to this
section, file a petition with the criminal division of the superior
court of the county in which the accusatory pleading was filed,
seeking a temporary restraining order, preliminary injunction, the
appointment of a receiver, or any other protective relief necessary
to preserve the property. The filing of the petition shall commence a
proceeding that shall be pendent to the criminal proceeding and
maintained solely to affect the criminal remedies provided for in
this section. The proceeding shall not be subject to or governed by
the provisions of the Civil Discovery Act as set forth in Title 4
(commencing with Section 2016.010) of Part 4 of the Code of Civil
Procedure. The petition shall allege that the defendant has been
charged with a felony as described in paragraph (1) of subdivision
(a) and shall identify that criminal proceeding and the property to
be affected by an order issued pursuant to this section.
(2) A notice regarding the petition shall be provided, by personal
service or registered mail, to every person who may have an interest
in the property specified in the petition. Additionally, the notice
shall be published for at least three successive weeks in a newspaper
of general circulation in the county where the property affected by
an order issued pursuant to this section is located. The notice shall
state that any interested person may file a verified claim with the
superior court stating the nature and amount of their claimed
interest. The notice shall set forth the time within which a claim of
interest in the protected property is required to be filed.
(3) If the property to be preserved is real property, the
prosecuting agency shall record, at the time of filing the petition,
a lis pendens in each county in which the real property is situated
which specifically identifies the property by legal description, the
name of the owner of record as shown on the latest equalized
assessment roll, and the assessor's parcel number.
(4) If the property to be preserved are assets under the control
of a banking or financial institution, the prosecuting agency, at the
time of the filing of the petition, may obtain an order from the
court directing the banking or financial institution to immediately
disclose the account numbers and value of the assets of the accused
held by the banking or financial institution. The prosecuting agency
shall file a supplemental petition, specifically identifying which
banking or financial institution accounts shall be subject to a
temporary restraining order, preliminary injunction, or other
protective remedy.
(5) Any person claiming an interest in the protected property may,
at any time within 30 days from the date of the first publication of
the notice of the petition, or within 30 days after receipt of
actual notice, file with the superior court of the county in which
the action is pending a verified claim stating the nature and amount
of his or her interest in the property. A verified copy of the claim
shall be served by the claimant on the Attorney General or district
attorney, as appropriate.
(6) The imposition of restitution pursuant to this section shall
be determined by the superior court in which the underlying criminal
offense is sentenced. Any judge who is assigned to the criminal
division of the superior court in the county where the petition is
filed may issue a temporary restraining order in conjunction with, or
subsequent to, the filing of an allegation pursuant to this section.
Any subsequent hearing on the petition shall also be heard by a
judge assigned to the criminal division of the superior court in the
county in which the petition is filed. At the time of the filing of
an information or indictment in the underlying criminal case, any
subsequent hearing on the petition shall be heard by the superior
court judge assigned to the underlying criminal case.
(c) Concurrent with or subsequent to the filing of the petition
pursuant to this section, the prosecuting agency may move the
superior court for, and the superior court may issue, the following
pendente lite orders to preserve the status quo of the property
identified in the petition:
(1) An injunction to restrain any person from transferring,
encumbering, hypothecating, or otherwise disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the properties so that the property may be
maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of any property
that is subject to this section.
(3) A bond or other undertaking, in lieu of other orders, of a
value sufficient to ensure the satisfaction of restitution imposed
pursuant to this section.
(d) (1) No preliminary injunction may be granted or receiver
appointed by the court without notice that meets the requirements of
paragraph (2) of subdivision (b) to all known and reasonably
ascertainable interested parties and upon a hearing to determine that
an order is necessary to preserve the property pending the outcome
of the criminal proceedings. A temporary restraining order may be
issued by the court, ex parte, pending that hearing in conjunction
with or subsequent to the filing of the petition upon the application
of the prosecuting attorney. The temporary restraining order may be
based upon the sworn declaration of a peace officer with personal
knowledge of the criminal investigation that establishes probable
cause to believe that a felony has taken place and that the amount of
restitution established by this section exceeds or equals the worth
of the property subject to the temporary restraining order. The
declaration may include the hearsay statements of witnesses to
establish the necessary facts. The temporary restraining order may be
issued without notice upon a showing of good cause to the court.
(2) The defendant, or a person who has filed a verified claim as
provided in paragraph (5) of subdivision (b), shall have the right to
have the court conduct an order to show cause hearing within 10 days
of the service of the request for hearing upon the prosecuting
agency, in order to determine whether the temporary restraining order
should remain in effect, whether relief should be granted from any
lis pendens recorded pursuant to paragraph (3) of subdivision (b), or
whether any existing order should be modified in the interests of
justice. Upon a showing of good cause, the hearing shall be held
within two days of the service of the request for hearing upon the
prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of dissipation of the property outweighs
the potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give significant
weight to the following factors:
(A) The public interest in preserving the property pendente lite.
(B) The difficulty of preserving the property pendente lite where
the underlying alleged crimes involve issues of fraud and moral
turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of elder or dependent adult
financial abuse.
(D) The likelihood that substantial public harm has occurred where
a felony is alleged to have been committed.
(E) The significant public interest involved in compensating the
elder or dependent adult victim of financial abuse and paying
court-imposed restitution.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, any necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making any order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of any innocent third persons, including an innocent
spouse, who were not involved in the commission of any criminal
activity.
(6) Any petition filed pursuant to this section shall be part of
the criminal proceedings for purposes of appointment of counsel and
shall be assigned to the criminal division of the superior court of
the county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (c), the court may order an
interlocutory sale of property identified in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value thereof. The proceeds of the
interlocutory sale shall be deposited with the court or as directed
by the court pending determination of the proceeding pursuant to this
section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of any lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this action.
(9) In making its orders, the court shall seek to prevent any
property subject to a temporary restraining order or preliminary
injunction from perishing, spoiling, going to waste, or otherwise
being significantly reduced in value. Where the potential for
diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property.
(10) A preservation order shall not be issued against any assets
of a business that are not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.
(e) If the allegation that the defendant committed a felony
subject to this section is dismissed or found by the trier of fact to
be untrue, any preliminary injunction or temporary restraining order
issued pursuant to this section shall be dissolved. If a jury is the
trier of fact, and the jury is unable to reach a unanimous verdict,
the court shall have the discretion to continue or dissolve all or a
portion of the preliminary injunction or temporary restraining order
based upon the interests of justice. However, if the prosecuting
agency elects not to retry the case, any preliminary injunction or
temporary restraining order issued pursuant to this section shall be
dissolved.
(f) (1) (A) If the defendant is convicted of a felony subject to
this section, the trial judge shall continue the preliminary
injunction or temporary restraining order until the date of the
criminal sentencing and shall make a finding at that time as to what
portion, if any, of the property subject to the preliminary
injunction or temporary restraining order shall be levied upon to pay
restitution to victims of the crime. The order imposing restitution
may exceed the total worth of the property subjected to the
preliminary injunction or temporary restraining order. The court may
order the immediate transfer of the property to satisfy any judgment
and sentence made pursuant to this section. Additionally, upon motion
of the prosecution, the court may enter an order as part of the
judgment and sentence making the order imposing restitution pursuant
to this section enforceable pursuant to Title 9 (commencing with
Section 680.010) of Part 2 of the Code of Civil Procedure.
(B) Additionally, the court shall order the defendant to make full
restitution to the victim or to make restitution to the victim based
on his or her ability to pay, as defined in subdivision (e) of
Section 1203.1b. The payment of the restitution ordered by the court
pursuant to this section shall be made a condition of any probation
granted by the court. Notwithstanding any other provision of law, the
court may order that the period of probation continue for up to 10
years or until full restitution is made to the victim, whichever is
earlier.
(C) The sentencing court shall retain jurisdiction to enforce the
order to pay additional restitution and, in appropriate cases, may
initiate probation violation proceedings or contempt of court
proceedings against a defendant who is found to have willfully failed
to comply with any lawful order of the court.
(D) If the execution of judgment is stayed pending an appeal of an
order of the superior court pursuant to this section, the
preliminary injunction or temporary restraining order shall be
maintained in full force and effect during the pendency of the
appellate period.
(2) The order imposing restitution shall not affect the interest
in real property of any third party that was acquired prior to the
recording of the lis pendens, unless the property was obtained from
the defendant other than as a bona fide purchaser for value. If any
assets or property affected by this section are subject to a valid
lien, mortgage, security interest, or interest under a conditional
sales contract and the amount due to the holder of the lien,
mortgage, interest, or contract is less than the appraised value of
the property, that person may pay to the state or the local
government that initiated the proceeding the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local entity shall
relinquish all claims to the property. If the holder of the interest
elects not to make that payment to the state or local governmental
entity, the interest in the property shall be deemed transferred to
the state or local governmental entity and any indicia of ownership
of the property shall be confirmed in the state or local governmental
entity. The appraised value shall be determined as of the date
judgment is entered either by agreement between the holder of the
lien, mortgage, security interest, or interest under a conditional
sales contract and the governmental entity involved, or if they
cannot agree, then by a court-appointed appraiser for the county in
which the action is brought. A person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract
shall be paid the appraised value of his or her interest.
(3) In making its final order, the court shall seek to protect the
legitimately acquired interests of any innocent third persons,
including an innocent spouse, who were not involved in the commission
of any criminal activity.
(g) In all cases where property is to be levied upon pursuant to
this section, a receiver appointed by the court shall be empowered to
liquidate all property, the proceeds of which shall be distributed
in the following order of priority:
(1) To the receiver, or court-appointed appraiser, for all
reasonable expenditures made or incurred by him or her in connection
with the sale or liquidation of the property, including all
reasonable expenditures for any necessary repairs, storage, or
transportation of any property levied upon under this section.
(2) To any holder of a valid lien, mortgage, or security interest
up to the amount of his or her interest in the property or proceeds.
(3) To any victim as restitution for any fraudulent or unlawful
acts alleged in the accusatory pleading that were proven by the
prosecuting agency as part of the pattern of fraudulent or unlawful
acts.
(h) Unless otherwise expressly provided, the remedies or penalties
provided by this section are cumulative to each other and to the
remedies or penalties available under all other laws of this state,
except that two separate actions against the same defendant and
pertaining to the same fraudulent or unlawful acts may not be brought
by a district attorney or the Attorney General pursuant to this
section and Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7 of the Business and Professions Code.
SEC. 223.5. Section 236.1 of the Penal Code is amended to read:
236.1. (a) A person who deprives or violates the personal liberty
of another with the intent to obtain forced labor or services, is
guilty of human trafficking and shall be punished by imprisonment in
the state prison for 5, 8, or 12 years and a fine of not more than
five hundred thousand dollars ($500,000).
(b) A person who deprives or violates the personal liberty of
another with the intent to effect or maintain a violation of Section
266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6,
or 518 is guilty of human trafficking and shall be punished by
imprisonment in the state prison for 8, 14, or 20 years and a fine of
not more than five hundred thousand dollars ($500,000).
(c) A person who causes, induces, or persuades, or attempts to
cause, induce, or persuade, a person who is a minor at the time of
commission of the offense to engage in a commercial sex act, with the
intent to effect or maintain a violation of Section 266, 266h, 266i,
266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is
guilty of human trafficking. A violation of this subdivision is
punishable by imprisonment in the state prison as follows:
(1) Five, 8, or 12 years and a fine of not more than five hundred
thousand dollars ($500,000).
(2) Fifteen years to life and a fine of not more than five hundred
thousand dollars ($500,000) when the offense involves force, fear,
fraud, deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim or to another person.
(d) In determining whether a minor was caused, induced, or
persuaded to engage in a commercial sex act, the totality of the
circumstances, including the age of the victim, his or her
relationship to the trafficker or agents of the trafficker, and any
handicap or disability of the victim, shall be considered.
(e) Consent by a victim of human trafficking who is a minor at the
time of the commission of the offense is not a defense to a criminal
prosecution under this section.
(f) Mistake of fact as to the age of a victim of human trafficking
who is a minor at the time of the commission of the offense is not a
defense to a criminal prosecution under this section.
(g) The Legislature finds that the definition of human trafficking
in this section is equivalent to the federal definition of a severe
form of trafficking found in Section 7102(9) of Title 22 of the
United States Code.
(h) For purposes of this chapter, the following definitions apply:
(1) "Coercion" includes a scheme, plan, or pattern intended to
cause a person to believe that failure to perform an act would result
in serious harm to or physical restraint against any person; the
abuse or threatened abuse of the legal process; debt bondage; or
providing and facilitating the possession of a controlled substance
to a person with the intent to impair the person's judgment.
(2) "Commercial sex act" means sexual conduct on account of which
anything of value is given or received by a person.
(3) "Deprivation or violation of the personal liberty of another"
includes substantial and sustained restriction of another's liberty
accomplished through force, fear, fraud, deceit, coercion, violence,
duress, menace, or threat of unlawful injury to the victim or to
another person, under circumstances where the person receiving or
apprehending the threat reasonably believes that it is likely that
the person making the threat would carry it out.
(4) "Duress" includes a direct or implied threat of force,
violence, danger, hardship, or retribution sufficient to cause a
reasonable person to acquiesce in or perform an act which he or she
would otherwise not have submitted to or performed; a direct or
implied threat to destroy, conceal, remove, confiscate, or possess an
actual or purported passport or immigration document of the victim;
or knowingly destroying, concealing, removing, confiscating, or
possessing an actual or purported passport or immigration document of
the victim.
(5) "Forced labor or services" means labor or services that are
performed or provided by a person and are obtained or maintained
through force, fraud, duress, or coercion, or equivalent conduct that
would reasonably overbear the will of the person.
(6) "Great bodily injury" means a significant or substantial
physical injury.
(7) "Minor" means a person less than 18 years of age.
(8) "Serious harm" includes any harm, whether physical or
nonphysical, including psychological, financial, or reputational
harm, that is sufficiently serious, under all the surrounding
circumstances, to compel a reasonable person of the same background
and in the same circumstances to perform or to continue performing
labor, services, or commercial sexual acts in order to avoid
incurring that harm.
(i) The total circumstances, including the age of the victim, the
relationship between the victim and the trafficker or agents of the
trafficker, and any handicap or disability of the victim, shall be
factors to consider in determining the presence of "deprivation or
violation of the personal
liberty of another," "duress," and "coercion" as described in this
section.
SEC. 224. Section 241 of the Penal Code is amended to read:
241. (a) An assault is punishable by a fine not exceeding one
thousand dollars ($1,000), or by imprisonment in the county jail not
exceeding six months, or by both the fine and imprisonment.
(b) When an assault is committed against the person of a parking
control officer engaged in the performance of his or her duties, and
the person committing the offense knows or reasonably should know
that the victim is a parking control officer, the assault is
punishable by a fine not exceeding two thousand dollars ($2,000), or
by imprisonment in the county jail not exceeding six months, or by
both the fine and imprisonment.
(c) When an assault is committed against the person of a peace
officer, firefighter, emergency medical technician, mobile intensive
care paramedic, lifeguard, process server, traffic officer, code
enforcement officer, animal control officer, or search and rescue
member engaged in the performance of his or her duties, or a
physician or nurse engaged in rendering emergency medical care
outside a hospital, clinic, or other health care facility, and the
person committing the offense knows or reasonably should know that
the victim is a peace officer, firefighter, emergency medical
technician, mobile intensive care paramedic, lifeguard, process
server, traffic officer, code enforcement officer, animal control
officer, or search and rescue member engaged in the performance of
his or her duties, or a physician or nurse engaged in rendering
emergency medical care, the assault is punishable by a fine not
exceeding two thousand dollars ($2,000), or by imprisonment in a
county jail not exceeding one year, or by both the fine and
imprisonment.
(d) As used in this section, the following definitions apply:
(1) Peace officer means any person defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2.
(2) "Emergency medical technician" means a person possessing a
valid course completion certificate from a program approved by the
State Department of Health Care Services for the medical training and
education of ambulance personnel, and who meets the standards of
Division 2.5 (commencing with Section 1797) of the Health and Safety
Code.
(3) "Mobile intensive care paramedic" refers to a person who meets
the standards set forth in Division 2.5 (commencing with Section
1797) of the Health and Safety Code.
(4) "Nurse" means a person who meets the standards of Division 2.5
(commencing with Section 1797) of the Health and Safety Code.
(5) "Lifeguard" means a person who is:
(A) Employed as a lifeguard by the state, a county, or a city, and
is designated by local ordinance as a public officer who has a duty
and responsibility to enforce local ordinances and misdemeanors
through the issuance of citations.
(B) Wearing distinctive clothing which includes written
identification of the person's status as a lifeguard and which
clearly identifies the employing organization.
(6) "Process server" means any person who meets the standards or
is expressly exempt from the standards set forth in Section 22350 of
the Business and Professions Code.
(7) "Traffic officer" means any person employed by a county or
city to monitor and enforce state laws and local ordinances relating
to parking and the operation of vehicles.
(8) "Animal control officer" means any person employed by a county
or city for purposes of enforcing animal control laws or
regulations.
(9) (A) "Code enforcement officer" means any person who is not
described in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2 and who is employed by any governmental subdivision, public or
quasi-public corporation, public agency, public service corporation,
any town, city, county, or municipal corporation, whether
incorporated or chartered, that has enforcement authority for health,
safety, and welfare requirements, and whose duties include
enforcement of any statute, rules, regulations, or standards, and who
is authorized to issue citations, or file formal complaints.
(B) "Code enforcement officer" also includes any person who is
employed by the Department of Housing and Community Development who
has enforcement authority for health, safety, and welfare
requirements pursuant to the Employee Housing Act (Part 1 (commencing
with Section 17000) of Division 13 of the Health and Safety Code);
the State Housing Law (Part 1.5 (commencing with Section 17910) of
Division 13 of the Health and Safety Code); the Manufactured Housing
Act of 1980 (Part 2 (commencing with Section 18000) of Division 13 of
the Health and Safety Code); the Mobilehome Parks Act (Part 2.1
(commencing with Section 18200) of Division 13 of the Health and
Safety Code); and the Special Occupancy Parks Act (Part 2.3
(commencing with Section 18860) of Division 13 of the Health and
Safety Code).
(10) "Parking control officer" means any person employed by a
city, county, or city and county, to monitor and enforce state laws
and local ordinances relating to parking.
(11) "Search and rescue member" means any person who is part of an
organized search and rescue team managed by a governmental agency.
SEC. 225. Section 502.8 of the Penal Code is amended to read:
502.8. (a) Any person who knowingly advertises illegal
telecommunications equipment is guilty of a misdemeanor.
(b) Any person who possesses or uses illegal telecommunications
equipment intending to avoid the payment of any lawful charge for
telecommunications service or to facilitate other criminal conduct is
guilty of a misdemeanor.
(c) Any person found guilty of violating subdivision (b), who has
previously been convicted of the same offense, shall be guilty of a
felony, punishable by imprisonment in state prison, a fine of up to
fifty thousand dollars ($50,000), or both.
(d) Any person who possesses illegal telecommunications equipment
with intent to sell, transfer, or furnish or offer to sell, transfer,
or furnish the equipment to another, intending to avoid the payment
of any lawful charge for telecommunications service or to facilitate
other criminal conduct is guilty of a misdemeanor punishable by one
year in a county jail or imprisonment in state prison or a fine of up
to ten thousand dollars ($10,000), or both.
(e) Any person who possesses 10 or more items of illegal
telecommunications equipment with intent to sell or offer to sell the
equipment to another, intending to avoid payment of any lawful
charge for telecommunications service or to facilitate other criminal
conduct, is guilty of a felony, punishable by imprisonment in state
prison, a fine of up to fifty thousand dollars ($50,000), or both.
(f) Any person who manufactures 10 or more items of illegal
telecommunications equipment with intent to sell or offer to sell the
equipment to another, intending to avoid the payment of any lawful
charge for telecommunications service or to facilitate other criminal
conduct is guilty of a felony punishable by imprisonment in state
prison or a fine of up to fifty thousand dollars ($50,000), or both.
(g) For purposes of this section, "illegal telecommunications
equipment" means equipment that operates to evade the lawful charges
for any telecommunications service; surreptitiously intercept
electronic serial numbers or mobile identification numbers; alter
electronic serial numbers; circumvent efforts to confirm legitimate
access to a telecommunications account; conceal from any
telecommunications service provider or lawful authority the
existence, place of origin, or destination of any telecommunication;
or otherwise facilitate any other criminal conduct. "Illegal
telecommunications equipment" includes, but is not limited to, any
unauthorized electronic serial number or mobile identification
number, whether incorporated into a wireless telephone or other
device or otherwise. Items specified in this subdivision shall be
considered illegal telecommunications equipment notwithstanding any
statement or disclaimer that the items are intended for educational,
instructional, or similar purposes.
(h) (1) In the event that a person violates the provisions of this
section with the intent to avoid the payment of any lawful charge
for telecommunications service to a telecommunications service
provider, the court shall order the person to pay restitution to the
telecommunications service provider in an amount that is the greater
of the following:
(A) Five thousand dollars ($5,000).
(B) Three times the amount of actual damages, if any, sustained by
the telecommunications service provider, plus reasonable attorney
fees.
(2) It is not a necessary prerequisite to an order of restitution
under this section that the telecommunications service provider has
suffered, or be threatened with, actual damages.
SEC. 226. Section 670 of the Penal Code is amended to read:
670. (a) Any person who violates Section 7158 or 7159 of, or
subdivision (b), (c), (d), or (e) of Section 7161 of, the Business
and Professions Code or Section 470, 484, 487, or 532 of this code as
part of a plan or scheme to defraud an owner or lessee of a
residential or nonresidential structure in connection with the offer
or performance of repairs to the structure for damage caused by a
natural disaster specified in subdivision (b), shall be subject to
the penalties and enhancements specified in subdivisions (c) and (d).
The existence of any fact which would bring a person under this
section shall be alleged in the information or indictment and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by trial by the
court sitting without a jury.
(b) This section applies to natural disasters for which a state of
emergency is proclaimed by the Governor pursuant to Section 8625 of
the Government Code or for which an emergency or major disaster is
declared by the President of the United States.
(c) The maximum or prescribed amounts of fines for offenses
subject to this section shall be doubled. If the person has been
previously convicted of a felony offense specified in subdivision
(a), the person shall receive a one-year enhancement in addition to,
and to run consecutively to, the term of imprisonment for any felony
otherwise prescribed by this subdivision.
(d) Additionally, the court shall order any person sentenced
pursuant to this section to make full restitution to the victim or to
make restitution to the victim based on the person's ability to pay,
as defined in subdivision (e) of Section 1203.1b. The payment of the
restitution ordered by the court pursuant to this subdivision shall
be made a condition of any probation granted by the court for an
offense punishable under this section. Notwithstanding any other
provision of law, the period of probation shall be at least five
years or until full restitution is made to the victim, whichever
first occurs.
(e) Notwithstanding any other provision of law, the prosecuting
agency shall be entitled to recover its costs of investigation and
prosecution from any fines imposed for a conviction under this
section.
SEC. 227. Section 679.10 of the Penal Code is amended to read:
679.10. (a) For purposes of this section, a "certifying entity"
is any of the following:
(1) A state or local law enforcement agency.
(2) A prosecutor.
(3) A judge.
(4) Any other authority that has responsibility for the detection
or investigation or prosecution of a qualifying crime or criminal
activity.
(5) Agencies that have criminal detection or investigative
jurisdiction in their respective areas of expertise, including, but
not limited to, child protective services, the Department of Fair
Employment and Housing, and the Department of Industrial Relations.
(b) For purposes of this section, a "certifying official" is any
of the following:
(1) The head of the certifying entity.
(2) A person in a supervisory role who has been specifically
designated by the head of the certifying entity to issue Form I-918
Supplement B certifications on behalf of that agency.
(3) A judge.
(4) Any other certifying official defined under Section 214.14 (a)
(2) of Title 8 of the Code of Federal Regulations.
(c) "Qualifying criminal activity" means qualifying criminal
activity pursuant to Section 101(a)(15)(U)(iii) of the federal
Immigration and Nationality Act which includes, but is not limited
to, the following crimes:
(1) Rape.
(2) Torture.
(3) Human trafficking.
(4) Incest.
(5) Domestic violence.
(6) Sexual assault.
(7) Abusive sexual conduct.
(8) Prostitution.
(9) Sexual exploitation.
(10) Female genital mutilation.
(11) Being held hostage.
(12) Peonage.
(13) Perjury.
(14) Involuntary servitude.
(15) Slavery.
(16) Kidnaping.
(17) Abduction.
(18) Unlawful criminal restraint.
(19) False imprisonment.
(20) Blackmail.
(21) Extortion.
(22) Manslaughter.
(23) Murder.
(24) Felonious assault.
(25) Witness tampering.
(26) Obstruction of justice.
(27) Fraud in foreign labor contracting.
(28) Stalking.
(d) A "qualifying crime" includes criminal offenses for which the
nature and elements of the offenses are substantially similar to the
criminal activity described in subdivision (c), and the attempt,
conspiracy, or solicitation to commit any of those offenses.
(e) Upon the request of the victim or victim's family member, a
certifying official from a certifying entity shall certify victim
helpfulness on the Form I-918 Supplement B certification, when the
victim was a victim of a qualifying criminal activity and has been
helpful, is being helpful, or is likely to be helpful to the
detection or investigation or prosecution of that qualifying criminal
activity.
(f) For purposes of determining helpfulness pursuant to
subdivision (e), there is a rebuttable presumption that a victim is
helpful, has been helpful, or is likely to be helpful to the
detection or investigation or prosecution of that qualifying criminal
activity, if the victim has not refused or failed to provide
information and assistance reasonably requested by law enforcement.
(g) The certifying official shall fully complete and sign the Form
I-918 Supplement B certification and, regarding victim helpfulness,
include specific details about the nature of the crime investigated
or prosecuted and a detailed description of the victim's helpfulness
or likely helpfulness to the detection or investigation or
prosecution of the criminal activity.
(h) A certifying entity shall process a Form I-918 Supplement B
certification within 90 days of request, unless the noncitizen is in
removal proceedings, in which case the certification shall be
processed within 14 days of request.
(i) A current investigation, the filing of charges, and a
prosecution or conviction are not required for the victim to request
and obtain the Form I-918 Supplement B certification from a
certifying official.
(j) A certifying official may only withdraw the certification if
the victim refuses to provide information and assistance when
reasonably requested.
(k) A certifying entity is prohibited from disclosing the
immigration status of a victim or person requesting the Form I-918
Supplement B certification, except to comply with federal law or
legal process, or if authorized by the victim or person requesting
the Form I-918 Supplement B certification.
(l) A certifying entity that receives a request for a Form I-918
Supplement B certification shall report to the Legislature, on or
before January 1, 2017, and annually thereafter, the number of
victims that requested Form I-918 Supplement B certifications from
the entity, the number of those certification forms that were signed,
and the number that were denied. A report pursuant to this
subdivision shall comply with Section 9795 of the Government Code.
SEC. 228. Section 832.3 of the Penal Code, as amended by Section 1
of Chapter 207 of the Statutes of 2015, is amended to read:
832.3. (a) Except as provided in subdivision (e), any sheriff,
undersheriff, or deputy sheriff of a county, any police officer of a
city, and any police officer of a district authorized by statute to
maintain a police department, who is first employed after January 1,
1975, shall successfully complete a course of training prescribed by
the Commission on Peace Officer Standards and Training before
exercising the powers of a peace officer, except while participating
as a trainee in a supervised field training program approved by the
Commission on Peace Officer Standards and Training. Each police
chief, or any other person in charge of a local law enforcement
agency, appointed on or after January 1, 1999, as a condition of
continued employment, shall complete the course of training pursuant
to this subdivision within two years of appointment. The training
course for a sheriff, an undersheriff, and a deputy sheriff of a
county, and a police chief and a police officer of a city or any
other local law enforcement agency, shall be the same.
(b) For the purpose of ensuring competent peace officers and
standardizing the training required in subdivision (a), the
commission shall develop a testing program, including standardized
tests that enable (1) comparisons between presenters of the training
and (2) assessments of trainee achievement. The trainees' test scores
shall be used only for the purposes enumerated in this subdivision
and those research purposes as shall be approved in advance by the
commission. The commission shall take all steps necessary to maintain
the confidentiality of the test scores, test items, scoring keys,
and other examination data used in the testing program required by
this subdivision. The commission shall determine the minimum passing
score for each test and the conditions for retesting students who
fail. Passing these tests shall be required for successful completion
of the training required in subdivision (a). Presenters approved by
the commission to provide the training required in subdivision (a)
shall administer the standardized tests or, at the commission's
option, shall facilitate the commission's administration of the
standardized tests to all trainees.
(c) Community colleges may give preference in enrollment to
employed law enforcement trainees who shall complete training as
prescribed by this section. At least 15 percent of each presentation
shall consist of non-law-enforcement trainees if they are available.
Preference should only be given when the trainee could not complete
the course within the time required by statute, and only when no
other training program is reasonably available. Average daily
attendance for these courses shall be reported for state aid.
(d) Prior to July 1, 1987, the commission shall make a report to
the Legislature on academy proficiency testing scores. This report
shall include an evaluation of the correlation between academy
proficiency test scores and performance as a peace officer.
(e) (1) Any deputy sheriff described in subdivision (c) of Section
830.1 shall be exempt from the training requirements specified in
subdivisions (a) and (b) as long as his or her assignments remain
custodial related.
(2) Deputy sheriffs described in subdivision (c) of Section 830.1
shall complete the training for peace officers pursuant to
subdivision (a) of Section 832, and within 120 days after the date of
employment, shall complete the training required by the Board of
State and Community Corrections for custodial personnel pursuant to
Section 6035, and the training required for custodial personnel of
local detention facilities pursuant to Subchapter 1 (commencing with
Section 100) of Chapter 1 of Division 1 of Title 15 of the California
Code of Regulations.
(3) Deputy sheriffs described in subdivision (c) of Section 830.1
shall complete the course of training pursuant to subdivision (a)
prior to being reassigned from custodial assignments to duties with
responsibility for the prevention and detection of crime and the
general enforcement of the criminal laws of this state. A deputy
sheriff who has completed the course of training pursuant to
subdivision (a) and has been hired as a deputy sheriff described in
subdivision (c) of Section 830.1 shall be eligible to be reassigned
from custodial assignments to duties with the responsibility for the
prevention and detection of crime and the general enforcement of the
criminal laws of this state within three years of completing the
training pursuant to subdivision (a). A deputy sheriff shall be
eligible for reassignment within five years of having completed the
training pursuant to subdivision (a) without having to complete a
requalification for the regular basic course provided that all of the
following are satisfied:
(A) The deputy sheriff remains continuously employed by the same
department in which the deputy sheriff is being reassigned from
custodial assignments to duties with the responsibility for the
prevention and detection of crime and the general enforcement of the
criminal laws of this state.
(B) The deputy sheriff maintains the perishable skills training
required by the commission for peace officers assigned to duties with
the responsibility for the prevention and detection of crime and the
general enforcement of the criminal laws of this state.
(f) Any school police officer first employed by a K-12 public
school district or California Community College district after July
1, 1999, shall successfully complete a basic course of training as
prescribed by subdivision (a) before exercising the powers of a peace
officer. A school police officer shall not be subject to this
subdivision while participating as a trainee in a supervised field
training program approved by the Commission on Peace Officer
Standards and Training.
(g) The commission shall prepare a specialized course of
instruction for the training of school peace officers, as defined in
Section 830.32, to meet the unique safety needs of a school
environment. This course is intended to supplement any other training
requirements.
(h) Any school peace officer first employed by a K-12 public
school district or California Community College district before July
1, 1999, shall successfully complete the specialized course of
training prescribed in subdivision (g) no later than July 1, 2002.
Any school police officer first employed by a K-12 public school
district or California Community College district after July 1, 1999,
shall successfully complete the specialized course of training
prescribed in subdivision (g) within two years of the date of first
employment.
(i) This section shall remain in effect only until January 1,
2019, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2019, deletes or extends
that date.
SEC. 229. Section 832.3 of the Penal Code, as added by Section 2
of Chapter 207 of the Statutes of 2015, is amended to read:
832.3. (a) Except as provided in subdivision (e), any sheriff,
undersheriff, or deputy sheriff of a county, any police officer of a
city, and any police officer of a district authorized by statute to
maintain a police department, who is first employed after January 1,
1975, shall successfully complete a course of training prescribed by
the Commission on Peace Officer Standards and Training before
exercising the powers of a peace officer, except while participating
as a trainee in a supervised field training program approved by the
Commission on Peace Officer Standards and Training. Each police
chief, or any other person in charge of a local law enforcement
agency, appointed on or after January 1, 1999, as a condition of
continued employment, shall complete the course of training pursuant
to this subdivision within two years of appointment. The training
course for a sheriff, an undersheriff, and a deputy sheriff of a
county, and a police chief and a police officer of a city or any
other local law enforcement agency, shall be the same.
(b) For the purpose of ensuring competent peace officers and
standardizing the training required in subdivision (a), the
commission shall develop a testing program, including standardized
tests that enable (1) comparisons between presenters of the training
and (2) assessments of trainee achievement. The trainees' test scores
shall be used only for the purposes enumerated in this subdivision
and those research purposes as shall be approved in advance by the
commission. The commission shall take all steps necessary to maintain
the confidentiality of the test scores, test items, scoring keys,
and other examination data used in the testing program required by
this subdivision. The commission shall determine the minimum passing
score for each test and the conditions for retesting students who
fail. Passing these tests shall be required for successful completion
of the training required in subdivision (a). Presenters approved by
the commission to provide the training required in subdivision (a)
shall administer the standardized tests or, at the commission's
option, shall facilitate the commission's administration of the
standardized tests to all trainees.
(c) Community colleges may give preference in enrollment to
employed law enforcement trainees who shall complete training as
prescribed by this section. At least 15 percent of each presentation
shall consist of non-law-enforcement trainees if they are available.
Preference should only be given when the trainee could not complete
the course within the time required by statute, and only when no
other training program is reasonably available. Average daily
attendance for these courses shall be reported for state aid.
(d) Prior to July 1, 1987, the commission shall make a report to
the Legislature on academy proficiency testing scores. This report
shall include an evaluation of the correlation between academy
proficiency test scores and performance as a peace officer.
(e) (1) Any deputy sheriff described in subdivision (c) of Section
830.1 shall be exempt from the training requirements specified in
subdivisions (a) and (b) as long as his or her assignments remain
custodial related.
(2) Deputy sheriffs described in subdivision (c) of Section 830.1
shall complete the training for peace officers pursuant to
subdivision (a) of Section 832, and within 120 days after the date of
employment, shall complete the training required by the Board of
State and Community Corrections for custodial personnel pursuant to
Section 6035, and the training required for
custodial personnel of local detention
facilities pursuant to Subchapter 1 (commencing with Section 100) of
Chapter 1 of Division 1 of Title 15 of the California Code of
Regulations.
(3) Deputy sheriffs described in subdivision (c) of Section 830.1
shall complete the course of training pursuant to subdivision (a)
prior to being reassigned from custodial assignments to duties with
responsibility for the prevention and detection of crime and the
general enforcement of the criminal laws of this state.
(f) Any school police officer first employed by a K-12 public
school district or California Community College district after July
1, 1999, shall successfully complete a basic course of training as
prescribed by subdivision (a) before exercising the powers of a peace
officer. A school police officer shall not be subject to this
subdivision while participating as a trainee in a supervised field
training program approved by the Commission on Peace Officer
Standards and Training.
(g) The commission shall prepare a specialized course of
instruction for the training of school peace officers, as defined in
Section 830.32, to meet the unique safety needs of a school
environment. This course is intended to supplement any other training
requirements.
(h) Any school peace officer first employed by a K-12 public
school district or California Community College district before July
1, 1999, shall successfully complete the specialized course of
training prescribed in subdivision (g) no later than July 1, 2002.
Any school police officer first employed by a K-12 public school
district or California Community College district after July 1, 1999,
shall successfully complete the specialized course of training
prescribed in subdivision (g) within two years of the date of first
employment.
(i) This section shall become operative January 1, 2019.
SEC. 230. Section 1214.5 of the Penal Code is amended to read:
1214.5. (a) In any case in which the defendant is ordered to pay
more than fifty dollars ($50) in restitution as a condition of
probation, the court may, as an additional condition of probation
since the court determines that the defendant has the ability to pay,
as defined in subdivision (e) of Section 1203.1b, order the
defendant to pay interest at the rate of 10 percent per annum on the
principal amount remaining unsatisfied.
(b) (1) Except as provided in paragraph (2), interest commences to
accrue on the date of entry of the judgment or order.
(2) Unless the judgment or order otherwise provides, if
restitution is payable in installments, interest commences to accrue
as to each installment on the date the installment becomes due.
SEC. 231. Section 1524.2 of the Penal Code is amended to read:
1524.2. (a) As used in this section, the following terms have the
following meanings:
(1) The terms "electronic communication services" and "remote
computing services" shall be construed in accordance with the
Electronic Communications Privacy Act of 1986 in Chapter 121
(commencing with Section 2701) of Part I of Title 18 of the United
States Code. This section does not apply to corporations that do not
provide those services to the general public.
(2) An "adverse result" occurs when notification of the existence
of a search warrant results in:
(A) Danger to the life or physical safety of an individual.
(B) A flight from prosecution.
(C) The destruction of or tampering with evidence.
(D) The intimidation of potential witnesses.
(E) Serious jeopardy to an investigation or undue delay of a
trial.
(3) "Applicant" refers to the peace officer to whom a search
warrant is issued pursuant to subdivision (a) of Section 1528.
(4) "California corporation" refers to any corporation or other
entity that is subject to Section 102 of the Corporations Code,
excluding foreign corporations.
(5) "Foreign corporation" refers to any corporation that is
qualified to do business in this state pursuant to Section 2105 of
the Corporations Code.
(6) "Properly served" means that a search warrant has been
delivered by hand, or in a manner reasonably allowing for proof of
delivery if delivered by United States mail, overnight delivery
service, or facsimile to a person or entity listed in Section 2110 of
the Corporations Code, or any other means specified by the recipient
of the search warrant, including email or submission via an Internet
Web portal that the recipient has designated for the purpose of
service of process.
(b) The following provisions apply to any search warrant issued
pursuant to this chapter allowing a search for records that are in
the actual or constructive possession of a foreign corporation that
provides electronic communication services or remote computing
services to the general public, where those records would reveal the
identity of the customers using those services, data stored by, or on
behalf of, the customer, the customer's usage of those services, the
recipient or destination of communications sent to or from those
customers, or the content of those communications.
(1) When properly served with a search warrant issued by the
California court, a foreign corporation subject to this section shall
provide to the applicant, all records sought pursuant to that
warrant within five business days of receipt, including those records
maintained or located outside this state.
(2) If the applicant makes a showing and the magistrate finds that
failure to produce records within less than five business days would
cause an adverse result, the warrant may require production of
records within less than five business days. A court may reasonably
extend the time required for production of the records upon finding
that the foreign corporation has shown good cause for that extension
and that an extension of time would not cause an adverse result.
(3) A foreign corporation seeking to quash the warrant must seek
relief from the court that issued the warrant within the time
required for production of records pursuant to this section. The
issuing court shall hear and decide that motion no later than five
court days after the motion is filed.
(4) The foreign corporation shall verify the authenticity of
records that it produces by providing an affidavit that complies with
the requirements set forth in Section 1561 of the Evidence Code.
Those records shall be admissible in evidence as set forth in Section
1562 of the Evidence Code.
(c) A California corporation that provides electronic
communication services or remote computing services to the general
public, when served with a warrant issued by another state to produce
records that would reveal the identity of the customers using those
services, data stored by, or on behalf of, the customer, the customer'
s usage of those services, the recipient or destination of
communications sent to or from those customers, or the content of
those communications, shall produce those records as if that warrant
had been issued by a California court.
(d) A cause of action shall not lie against any foreign or
California corporation subject to this section, its officers,
employees, agents, or other specified persons for providing records,
information, facilities, or assistance in accordance with the terms
of a warrant issued pursuant to this chapter.
SEC. 232. Section 1526 of the Penal Code is amended to read:
1526. (a) The magistrate, before issuing the warrant, may examine
on oath the person seeking the warrant and any witnesses the person
may produce, and shall take his or her affidavit or their affidavits
in writing, and cause the affidavit or affidavits to be subscribed by
the party or parties making them.
(b) In lieu of the written affidavit required in subdivision (a),
the magistrate may take an oral statement under oath under one of the
following conditions:
(1) The oath shall be made under penalty of perjury and recorded
and transcribed. The transcribed statement shall be deemed to be an
affidavit for the purposes of this chapter. In these cases, the
recording of the sworn oral statement and the transcribed statement
shall be certified by the magistrate receiving it and shall be filed
with the clerk of the court. In the alternative in these cases, the
sworn oral statement shall be recorded by a certified court reporter
and the transcript of the statement shall be certified by the
reporter, after which the magistrate receiving it shall certify the
transcript which shall be filed with the clerk of the court.
(2) The oath is made using telephone and facsimile transmission
equipment, telephone and email, or telephone and computer server, as
follows:
(A) The oath is made during a telephone conversation with the
magistrate, after the affiant has signed his or her affidavit in
support of the application for the search warrant and transmitted the
proposed search warrant and all supporting affidavits and documents
to the magistrate. The affiant's signature may be in the form of a
digital signature or electronic signature if email or computer server
is used for transmission to the magistrate.
(B) The magistrate shall confirm with the affiant the receipt of
the search warrant and the supporting affidavits and attachments. The
magistrate shall verify that all the pages sent have been received,
that all pages are legible, and that the affiant's signature, digital
signature, or electronic signature is acknowledged as genuine.
(C) If the magistrate decides to issue the search warrant, he or
she shall:
(i) Sign the warrant. The magistrate's signature may be in the
form of a digital signature or electronic signature if email or
computer server is used for transmission by the magistrate.
(ii) Note on the warrant the exact date and time of the issuance
of the warrant.
(iii) Indicate on the warrant that the oath of the affiant was
administered orally over the telephone.
(D) The magistrate shall transmit via facsimile transmission
equipment, email, or computer server, the signed search warrant to
the affiant. The completed search warrant, as signed by the
magistrate and received by the affiant, shall be deemed to be the
original warrant. The original warrant and any affidavits or
attachments in support thereof shall be returned as provided in
Section 1534.
SEC. 233. Section 1546 of the Penal Code is amended to read:
1546. For purposes of this chapter, the following definitions
apply:
(a) An "adverse result" means any of the following:
(1) Danger to the life or physical safety of an individual.
(2) Flight from prosecution.
(3) Destruction of or tampering with evidence.
(4) Intimidation of potential witnesses.
(5) Serious jeopardy to an investigation or undue delay of a
trial.
(b) "Authorized possessor" means the possessor of an electronic
device when that person is the owner of the device or has been
authorized to possess the device by the owner of the device.
(c) "Electronic communication" means the transfer of signs,
signals, writings, images, sounds, data, or intelligence of any
nature in whole or in part by a wire, radio, electromagnetic,
photoelectric, or photo-optical system.
(d) "Electronic communication information" means any information
about an electronic communication or the use of an electronic
communication service, including, but not limited to, the contents,
sender, recipients, format, or location of the sender or recipients
at any point during the communication, the time or date the
communication was created, sent, or received, or any information
pertaining to any individual or device participating in the
communication, including, but not limited to, an IP address.
"Electronic communication information" does not include subscriber
information as defined in this chapter.
(e) "Electronic communication service" means a service that
provides to its subscribers or users the ability to send or receive
electronic communications, including any service that acts as an
intermediary in the transmission of electronic communications, or
stores electronic communication information.
(f) "Electronic device" means a device that stores, generates, or
transmits information in electronic form.
(g) "Electronic device information" means any information stored
on or generated through the operation of an electronic device,
including the current and prior locations of the device.
(h) "Electronic information" means electronic communication
information or electronic device information.
(i) "Government entity" means a department or agency of the state
or a political subdivision thereof, or an individual acting for or on
behalf of the state or a political subdivision thereof.
(j) "Service provider" means a person or entity offering an
electronic communication service.
(k) "Specific consent" means consent provided directly to the
government entity seeking information, including, but not limited to,
when the government entity is the addressee or intended recipient or
a member of the intended audience of an electronic communication.
Specific consent does not require that the originator of the
communication have actual knowledge that an addressee, intended
recipient, or member of the specific audience is a government entity.
(l) "Subscriber information" means the name, street address,
telephone number, email address, or similar contact information
provided by the subscriber to the service provider to establish or
maintain an account or communication channel, a subscriber or account
number or identifier, the length of service, and the types of
services used by a user of or subscriber to a service provider.
SEC. 234. Section 1546.1 of the Penal Code is amended to read:
1546.1. (a) Except as provided in this section, a government
entity shall not do any of the following:
(1) Compel the production of or access to electronic communication
information from a service provider.
(2) Compel the production of or access to electronic device
information from any person or entity other than the authorized
possessor of the device.
(3) Access electronic device information by means of physical
interaction or electronic communication with the electronic device.
This section does not prohibit the intended recipient of an
electronic communication from voluntarily disclosing electronic
communication information concerning that communication to a
government entity.
(b) A government entity may compel the production of or access to
electronic communication information from a service provider, or
compel the production of or access to electronic device information
from any person or entity other than the authorized possessor of the
device only under the following circumstances:
(1) Pursuant to a warrant issued pursuant to Chapter 3 (commencing
with Section 1523) and subject to subdivision (d).
(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.
(3) Pursuant to an order for electronic reader records issued
pursuant to Section 1798.90 of the Civil Code.
(4) Pursuant to a subpoena issued pursuant to existing state law,
provided that the information is not sought for the purpose of
investigating or prosecuting a criminal offense, and compelling the
production of or access to the information via the subpoena is not
otherwise prohibited by state or federal law. Nothing in this
paragraph shall be construed to expand any authority under state law
to compel the production of or access to electronic information.
(c) A government entity may access electronic device information
by means of physical interaction or electronic communication with the
device only as follows:
(1) Pursuant to a warrant issued pursuant to Chapter 3 (commencing
with Section 1523) and subject to subdivision (d).
(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4
(commencing with Section 629.50) of Title 15 of Part 1.
(3) With the specific consent of the authorized possessor of the
device.
(4) With the specific consent of the owner of the device, only
when the device has been reported as lost or stolen.
(5) If the government entity, in good faith, believes that an
emergency involving danger of death or serious physical injury to any
person requires access to the electronic device information.
(6) If the government entity, in good faith, believes the device
to be lost, stolen, or abandoned, provided that the entity shall only
access electronic device information in order to attempt to
identify, verify, or contact the owner or authorized possessor of the
device.
(7) Except where prohibited by state or federal law, if the device
is seized from an inmate's possession or found in an area of a
correctional facility under the jurisdiction of the Department of
Corrections and Rehabilitation where inmates have access and the
device is not in the possession of an individual and the device is
not known or believed to be the possession of an authorized visitor.
This paragraph shall not be construed to supersede or override
Section 4576.
(d) Any warrant for electronic information shall comply with the
following:
(1) The warrant shall describe with particularity the information
to be seized by specifying the time periods covered and, as
appropriate and reasonable, the target individuals or accounts, the
applications or services covered, and the types of information
sought.
(2) The warrant shall require that any information obtained
through the execution of the warrant that is unrelated to the
objective of the warrant shall be sealed and not subject to further
review, use, or disclosure without a court order. A court shall issue
such an order upon a finding that there is probable cause to believe
that the information is relevant to an active investigation, or
review, use, or disclosure is required by state or federal law.
(3) The warrant shall comply with all other provisions of
California and federal law, including any provisions prohibiting,
limiting, or imposing additional requirements on the use of search
warrants. If directed to a service provider, the warrant shall be
accompanied by an order requiring the service provider to verify the
authenticity of electronic information that it produces by providing
an affidavit that complies with the requirements set forth in Section
1561 of the Evidence Code. Admission of that information into
evidence shall be subject to Section 1562 of the Evidence Code.
(e) When issuing any warrant or order for electronic information,
or upon the petition from the target or recipient of the warrant or
order, a court may, at its discretion, do either or both of the
following:
(1) Appoint a special master, as described in subdivision (d) of
Section 1524, charged with ensuring that only information necessary
to achieve the objective of the warrant or order is produced or
accessed.
(2) Require that any information obtained through the execution of
the warrant or order that is unrelated to the objective of the
warrant be destroyed as soon as feasible after the termination of the
current investigation and any related investigations or proceedings.
(f) A service provider may voluntarily disclose electronic
communication information or subscriber information when that
disclosure is not otherwise prohibited by state or federal law.
(g) If a government entity receives electronic communication
information voluntarily provided pursuant to subdivision (f), it
shall destroy that information within 90 days unless one or more of
the following circumstances apply:
(1) The entity has or obtains the specific consent of the sender
or recipient of the electronic communications about which information
was disclosed.
(2) The entity obtains a court order authorizing the retention of
the information. A court shall issue a retention order upon a finding
that the conditions justifying the initial voluntary disclosure
persist, in which case the court shall authorize the retention of the
information only for so long as those conditions persist, or there
is probable cause to believe that the information constitutes
evidence that a crime has been committed.
(3) The entity reasonably believes that the information relates to
child pornography and the information is retained as part of a
multiagency database used in the investigation of child pornography
and related crimes.
(h) If a government entity obtains electronic information pursuant
to an emergency involving danger of death or serious physical injury
to a person, that requires access to the electronic information
without delay, the entity shall, within three days after obtaining
the electronic information, file with the appropriate court an
application for a warrant or order authorizing obtaining the
electronic information or a motion seeking approval of the emergency
disclosures that shall set forth the facts giving rise to the
emergency, and if applicable, a request supported by a sworn
affidavit for an order delaying notification under paragraph (1) of
subdivision (b) of Section 1546.2. The court shall promptly rule on
the application or motion and shall order the immediate destruction
of all information obtained, and immediate notification pursuant to
subdivision (a) of Section 1546.2 if such notice has not already been
given, upon a finding that the facts did not give rise to an
emergency or upon rejecting the warrant or order application on any
other ground.
(i) This section does not limit the authority of a government
entity to use an administrative, grand jury, trial, or civil
discovery subpoena to do any of the following:
(1) Require an originator, addressee, or intended recipient of an
electronic communication to disclose any electronic communication
information associated with that communication.
(2) Require an entity that provides electronic communications
services to its officers, directors, employees, or agents for the
purpose of carrying out their duties, to disclose electronic
communication information associated with an electronic communication
to or from an officer, director, employee, or agent of the entity.
(3) Require a service provider to provide subscriber information.
SEC. 235. Section 1546.2 of the Penal Code is amended to read:
1546.2. (a) Except as otherwise provided in this section, any
government entity that executes a warrant, or obtains electronic
information in an emergency pursuant to Section 1546.1, shall serve
upon, or deliver to by registered or first-class mail, electronic
mail, or other means reasonably calculated to be effective, the
identified targets of the warrant or emergency access, a notice that
informs the recipient that information about the recipient has been
compelled or obtained, and states with reasonable specificity the
nature of the government investigation under which the information is
sought. The notice shall include a copy of the warrant or a written
statement setting forth facts giving rise to the emergency. The
notice shall be provided contemporaneously with the execution of a
warrant, or, in the case of an emergency, within three days after
obtaining the electronic information.
(b) (1) When a warrant is sought or electronic information is
obtained in an emergency under Section 1546.1, the government entity
may submit a request supported by a sworn affidavit for an order
delaying notification and prohibiting any party providing information
from notifying any other party that information has been sought. The
court shall issue the order if the court determines that there is
reason to believe that notification may have an adverse result, but
only for the period of time that the court finds there is reason to
believe that the notification may have that adverse result, and not
to exceed 90 days.
(2) The court may grant extensions of the delay of up to 90 days
each on the same grounds as provided in paragraph (1).
(3) Upon expiration of the period of delay of the notification,
the government entity shall serve upon, or deliver to by registered
or first-class mail, electronic mail, or other means reasonably
calculated to be effective as specified by the court issuing the
order authorizing delayed notification, the identified targets of the
warrant or emergency access, a document that includes the
information described in subdivision (a), a copy of all electronic
information obtained or a summary of that information, including, at
a minimum, the number and types of records disclosed, the date and
time when the earliest and latest records were created, and a
statement of the grounds for the court's determination to grant a
delay in notifying the individual.
(c) If there is no identified target of a warrant or emergency
access at the time of its issuance, the government entity shall
submit to the Department of Justice within three days of the
execution of the warrant or issuance of the request all of the
information required in subdivision (a). If an order delaying notice
is obtained pursuant to subdivision (b), the government entity shall
submit to the department upon the expiration of the period of delay
of the notification all of the information required in paragraph (3)
of subdivision (b). The department shall publish all those reports on
its Internet Web site within 90 days of receipt. The department may
redact names or other personal identifying information from the
reports.
(d) Except as otherwise provided in this section, nothing in this
chapter shall prohibit or limit a service provider or any other party
from disclosing information about any request or demand for
electronic information.
SEC. 236. Section 3000.08 of the Penal Code is amended to read:
3000.08. (a) A person released from state prison prior to or on
or after July 1, 2013, after serving a prison term, or whose sentence
has been deemed served pursuant to Section 2900.5, for any of the
following crimes is subject to parole supervision by the Department
of Corrections and Rehabilitation and the jurisdiction of the court
in the county in which the parolee is released, resides, or in which
an alleged violation of supervision has occurred, for the purpose of
hearing petitions to revoke parole and impose a term of custody:
(1) A serious felony as described in subdivision (c) of Section
1192.7.
(2) A violent felony as described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any crime for which the person is classified as a high-risk
sex offender.
(5) Any crime for which the person is required, as a condition of
parole, to undergo treatment by the State Department of State
Hospitals pursuant to
Section 2962.
(b) Notwithstanding any other law, all other offenders released
from prison shall be placed on postrelease supervision pursuant to
Title 2.05 (commencing with Section 3450).
(c) At any time during the period of parole of a person subject to
this section, if any parole agent or peace officer has probable
cause to believe that the parolee is violating any term or condition
of his or her parole, the agent or officer may, without warrant or
other process and at any time until the final disposition of the
case, arrest the person and bring him or her before the court, or the
court may, in its discretion, issue a warrant for that person's
arrest pursuant to Section 1203.2. Notwithstanding Section 3056, and
unless the parolee is otherwise serving a period of flash
incarceration, whenever a supervised person who is subject to this
section is arrested, with or without a warrant or the filing of a
petition for revocation as described in subdivision (f), the court
may order the release of the parolee from custody under any terms and
conditions the court deems appropriate.
(d) Upon review of the alleged violation and a finding of good
cause that the parolee has committed a violation of law or violated
his or her conditions of parole, the supervising parole agency may
impose additional and appropriate conditions of supervision,
including rehabilitation and treatment services and appropriate
incentives for compliance, and impose immediate, structured, and
intermediate sanctions for parole violations, including flash
incarceration in a city or a county jail. Periods of "flash
incarceration," as defined in subdivision (e) are encouraged as one
method of punishment for violations of a parolee's conditions of
parole. This section does not preclude referrals to a reentry court
pursuant to Section 3015.
(e) "Flash incarceration" is a period of detention in a city or a
county jail due to a violation of a parolee's conditions of parole.
The length of the detention period can range between one and 10
consecutive days. Shorter, but if necessary more frequent, periods of
detention for violations of a parolee's conditions of parole shall
appropriately punish a parolee while preventing the disruption in a
work or home establishment that typically arises from longer periods
of detention.
(f) If the supervising parole agency has determined, following
application of its assessment processes, that intermediate sanctions
up to and including flash incarceration are not appropriate, the
supervising parole agency shall, pursuant to Section 1203.2, petition
either the court in the county in which the parolee is being
supervised or the court in the county in which the alleged violation
of supervision occurred, to revoke parole. At any point during the
process initiated pursuant to this section, a parolee may waive, in
writing, his or her right to counsel, admit the parole violation,
waive a court hearing, and accept the proposed parole modification or
revocation. The petition shall include a written report that
contains additional information regarding the petition, including the
relevant terms and conditions of parole, the circumstances of the
alleged underlying violation, the history and background of the
parolee, and any recommendations. The Judicial Council shall adopt
forms and rules of court to establish uniform statewide procedures to
implement this subdivision, including the minimum contents of
supervision agency reports. Upon a finding that the person has
violated the conditions of parole, the court shall have authority to
do any of the following:
(1) Return the person to parole supervision with modifications of
conditions, if appropriate, including a period of incarceration in a
county jail.
(2) Revoke parole and order the person to confinement in a county
jail.
(3) Refer the person to a reentry court pursuant to Section 3015
or other evidence-based program in the court's discretion.
(g) Confinement pursuant to paragraphs (1) and (2) of subdivision
(f) shall not exceed a period of 180 days in a county jail.
(h) Notwithstanding any other law, if Section 3000.1 or paragraph
(4) of subdivision (b) of Section 3000 applies to a person who is on
parole and the court determines that the person has committed a
violation of law or violated his or her conditions of parole, the
person on parole shall be remanded to the custody of the Department
of Corrections and Rehabilitation and the jurisdiction of the Board
of Parole Hearings for the purpose of future parole consideration.
(i) Notwithstanding subdivision (a), any of the following persons
released from state prison shall be subject to the jurisdiction of,
and parole supervision by, the Department of Corrections and
Rehabilitation for a period of parole up to three years or the parole
term the person was subject to at the time of the commission of the
offense, whichever is greater:
(1) The person is required to register as a sex offender pursuant
to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1,
and was subject to a period of parole exceeding three years at the
time he or she committed a felony for which they were convicted and
subsequently sentenced to state prison.
(2) The person was subject to parole for life pursuant to Section
3000.1 at the time of the commission of the offense that resulted in
a conviction and state prison sentence.
(j) Parolees subject to this section who have a pending
adjudication for a parole violation on July 1, 2013, are subject to
the jurisdiction of the Board of Parole Hearings. Parole revocation
proceedings conducted by the Board of Parole Hearings prior to July
1, 2013, if reopened on or after July 1, 2013, are subject to the
jurisdiction of the Board of Parole Hearings.
(k) Except as described in subdivision (c), any person who is
convicted of a felony that requires community supervision and who
still has a period of state parole to serve shall discharge from
state parole at the time of release to community supervision.
( l ) Any person released to parole supervision
pursuant to subdivision (a) shall, regardless of any subsequent
determination that the person should have been released pursuant to
subdivision (b), remain subject to subdivision (a) after having
served 60 days under supervision pursuant to subdivision (a).
SEC. 237. Section 3016 of the Penal Code is amended to read:
3016. (a) The Secretary of the Department of Corrections and
Rehabilitation shall establish the Case Management Reentry Pilot
Program for offenders under the jurisdiction of the department who
have been sentenced to a term of imprisonment under Section 1170 and
are likely to benefit from a case management reentry strategy
designed to address homelessness, joblessness, mental disorders, and
developmental disabilities among offenders transitioning from prison
into the community. The purpose of the pilot program is to implement
promising and evidence-based practices and strategies that promote
improved public safety outcomes for offenders reentering society
after serving a term in state prison and while released to parole.
(b) The program shall be initiated in at least three counties over
three years, supported by department employees focusing primarily on
case management services for eligible parolees selected for the
pilot program. Department employees shall be experienced or trained
to work as social workers with a parole population. Selection of a
parolee for participation in the pilot program does not guarantee the
availability of services.
(c) Case management social workers shall assist offenders on
parole who are assigned to the program in managing basic needs,
including housing, job training and placement, medical and mental
health care, and any additional programming or responsibilities
attendant to the terms of the offender's reentry requirements. Case
management social workers also shall work closely with offenders to
prepare, monitor, revise, and fulfill individualized offender reentry
plans consistent with this section during the term of the program.
(d) Individualized offender reentry plans shall focus on
connecting offenders to services for which the offender is eligible
under existing federal, state, and local rules.
(e) Case management services shall be prioritized for offenders
identified as potentially benefiting from assistance with the
following:
(1) Food, including the immediate need and long-term planning for
obtaining food.
(2) Clothing, including the immediate need to obtain appropriate
clothing.
(3) Shelter, including obtaining housing consistent with the goals
of the most independent, least restrictive and potentially durable
housing in the local community and that are feasible for the
circumstances of each reentering offender.
(4) Benefits, including, but not limited to, the California Work
Opportunity and Responsibility to Kids program, general assistance,
benefits administered by the federal Social Security Administration,
Medi-Cal, and veterans benefits.
(5) Health services, including assisting parolee clients with
accessing community mental health, medical, and dental treatment.
(6) Substance abuse services, including assisting parolee clients
with obtaining community substance abuse treatment or related 12-step
program information and locations.
(7) Income, including developing and implementing a feasible plan
to obtain an income and employment reflecting the highest level of
work appropriate for a reentering offender's abilities and
experience.
(8) Identification cards, including assisting reentering offenders
with obtaining state identification cards.
(9) Life skills, including assisting with the development of
skills concerning money management, job interviewing, resume writing,
and activities of daily living.
(10) Activities, including working with reentering offenders in
choosing and engaging in suitable and productive activities.
(11) Support systems, including working with reentering offenders
on developing a support system, which may consist of prosocial
friends, family, and community groups and activities, such as
religious activities, recovery groups, and other social events.
(12) Academic and vocational programs, including assisting
reentering offenders in developing and implementing a realistic plan
to achieve an academic education, or vocational training, or both.
(13) Discharge planning, including developing postparole plans to
sustain parolees' achievements and goals to ensure long-term
community success.
(f) The department shall contract for an evaluation of the pilot
program that will assess its effectiveness in reducing recidivism
among offenders transitioning from prison into the community.
(g) The department shall submit a final report of the findings
from its evaluation of the pilot program to the Legislature and the
Governor no later than July 31, 2017.
(h) Implementation of this article is contingent on the
availability of funds and the pilot program may be limited in scope
or duration based on the availability of funds.
SEC. 238. Section 3056 of the Penal Code is amended to read:
3056. (a) Prisoners on parole shall remain under the supervision
of the department but shall not be returned to prison except as
provided in subdivision (b) or as provided by subdivision (c) of
Section 3000.09. A parolee awaiting a parole revocation hearing may
be housed in a county jail while awaiting revocation proceedings. If
a parolee is housed in a county jail, he or she shall be housed in
the county in which he or she was arrested or the county in which a
petition to revoke parole has been filed or, if there is no county
jail in that county, in the housing facility with which that county
has contracted to house jail inmates. Additionally, except as
provided by subdivision (c) of Section 3000.09, upon revocation of
parole, a parolee may be housed in a county jail for a maximum of 180
days per revocation. When housed in county facilities, parolees
shall be under the sole legal custody and jurisdiction of local
county facilities. A parolee shall remain under the sole legal
custody and jurisdiction of the local county or local correctional
administrator, even if placed in an alternative custody program in
lieu of incarceration, including, but not limited to, work furlough
and electronic home detention. When a parolee is under the legal
custody and jurisdiction of a county facility awaiting parole
revocation proceedings or upon revocation, he or she shall not be
under the parole supervision or jurisdiction of the department.
Unless otherwise serving a period of flash incarceration, whenever a
parolee who is subject to this section has been arrested, with or
without a warrant or the filing of a petition for revocation with the
court, the court may order the release of the parolee from custody
under any terms and conditions the court deems appropriate. When
released from the county facility or county alternative custody
program following a period of custody for revocation of parole or
because no violation of parole is found, the parolee shall be
returned to the parole supervision of the department for the duration
of parole.
(b) Inmates paroled pursuant to Section 3000.1 may be returned to
prison following the revocation of parole by the Board of Parole
Hearings until July 1, 2013, and thereafter by a court pursuant to
Section 3000.08.
(c) A parolee who is subject to subdivision (a), but who is under
18 years of age, may be housed in a facility of the Division of
Juvenile Facilities, Department of Corrections and Rehabilitation.
SEC. 239. Section 4030 of the Penal Code is amended to read:
4030. (a) (1) The Legislature finds and declares that law
enforcement policies and practices for conducting strip or body
cavity searches of detained persons vary widely throughout
California. Consequently, some people have been arbitrarily subjected
to unnecessary strip and body cavity searches after arrests for
minor misdemeanor and infraction offenses. Some present search
practices violate state and federal constitutional rights to privacy
and freedom from unreasonable searches and seizures.
(2) It is the intent of the Legislature in enacting this section
to protect the state and federal constitutional rights of the people
of California by establishing a statewide policy strictly limiting
strip and body cavity searches.
(b) This section applies only to prearraignment detainees arrested
for infraction or misdemeanor offenses and to any minor detained
prior to a detention hearing on the grounds that he or she is a
person described in Section 300, 601, or 602 of the Welfare and
Institutions Code alleged to have committed a misdemeanor or
infraction offense. This section does not apply to a person in the
custody of the Secretary of the Department of Corrections and
Rehabilitation or the Director of the Division of Juvenile Justice in
the Department of Corrections and Rehabilitation.
(c) As used in this section the following definitions apply:
(1) "Body cavity" only means the stomach or rectal cavity of a
person, and vagina of a female person.
(2) "Physical body cavity search" means physical intrusion into a
body cavity for the purpose of discovering any object concealed in
the body cavity.
(3) "Strip search" means a search which requires a person to
remove or arrange some or all of his or her clothing so as to permit
a visual inspection of the underclothing, breasts, buttocks, or
genitalia of such person.
(4) "Visual body cavity search" means visual inspection of a body
cavity.
(d) Notwithstanding any other law, including Section 40304.5 of
the Vehicle Code, when a person is arrested and taken into custody,
that person may be subjected to patdown searches, metal detector
searches, and thorough clothing searches in order to discover and
retrieve concealed weapons and contraband substances prior to being
placed in a booking cell.
(e) A person arrested and held in custody on a misdemeanor or
infraction offense, except those involving weapons, controlled
substances, or violence, or a minor detained prior to a detention
hearing on the grounds that he or she is a person described in
Section 300, 601, or 602 of the Welfare and Institutions Code, except
for those minors alleged to have committed felonies or offenses
involving weapons, controlled substances, or violence, shall not be
subjected to a strip search or visual body cavity search prior to
placement in the general jail population, unless a peace officer has
determined there is reasonable suspicion, based on specific and
articulable facts, to believe that person is concealing a weapon or
contraband, and a strip search will result in the discovery of the
weapon or contraband. A strip search or visual body cavity search, or
both, shall not be conducted without the prior written authorization
of the supervising officer on duty. The authorization shall include
the specific and articulable facts and circumstances upon which the
reasonable suspicion determination was made by the supervisor.
(f) (1) Except pursuant to the provisions of paragraph (2), a
person arrested and held in custody on a misdemeanor or infraction
offense not involving weapons, controlled substances, or violence,
shall not be confined in the general jail population unless all of
the following are true:
(A) The person is not cited and released.
(B) The person is not released on his or her own recognizance
pursuant to Article 9 (commencing with Section 1318) of Chapter 1 of
Title 10 of Part 2.
(C) The person is not able to post bail within a reasonable time,
not less than three hours.
(2) A person shall not be housed in the general jail population
prior to release pursuant to the provisions of paragraph (1) unless a
documented emergency exists and there is no reasonable alternative
to that placement. The person shall be placed in the general
population only upon prior written authorization documenting the
specific facts and circumstances of the emergency. The written
authorization shall be signed by the uniformed supervisor of the
facility or by a uniformed watch commander. A person confined in the
general jail population pursuant to paragraph (1) shall retain all
rights to release on citation, his or her own recognizance, or bail
that were preempted as a consequence of the emergency.
(g) A person arrested on a misdemeanor or infraction offense, or a
minor described in subdivision (b), shall not be subjected to a
physical body cavity search except under the authority of a search
warrant issued by a magistrate specifically authorizing the physical
body cavity search.
(h) A copy of the prior written authorization required by
subdivisions (e) and (f) and the search warrant required by
subdivision (g) shall be placed in the agency's records and made
available, on request, to the person searched or his or her
authorized representative. With regard to a strip search or visual or
physical body cavity search, the time, date, and place of the
search, the name and sex of the person conducting the search, and a
statement of the results of the search, including a list of items
removed from the person searched, shall be recorded in the agency's
records and made available, upon request, to the person searched or
his or her authorized representative.
(i) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.
(j) A physical body cavity search shall be conducted under
sanitary conditions, and only by a physician, nurse practitioner,
registered nurse, licensed vocational nurse, or emergency medical
technician Level II licensed to practice in this state. A physician
engaged in providing health care to detainees and inmates of the
facility may conduct physical body cavity searches.
(k) A person conducting or otherwise present or within sight of
the inmate during a strip search or visual or physical body cavity
search shall be of the same sex as the person being searched, except
for physicians or licensed medical personnel.
( l ) All strip, visual, and physical body cavity
searches shall be conducted in an area of privacy so that the search
cannot be observed by persons not participating in the search.
Persons are considered to be participating in the search if their
official duties relative to search procedure require them to be
present at the time the search is conducted.
(m) A person who knowingly and willfully authorizes or conducts a
strip search or visual or physical body cavity search in violation of
this section is guilty of a misdemeanor.
(n) This section shall not be construed as limiting the common law
or statutory rights of a person regarding an action for damages or
injunctive relief, or as precluding the prosecution under another law
of a peace officer or other person who has violated this section.
(o) Any person who suffers damage or harm as a result of a
violation of this section may bring a civil action to recover actual
damages, or one thousand dollars ($1,000), whichever is greater. In
addition, the court may, in its discretion, award punitive damages,
equitable relief as it deems necessary and proper, and costs,
including reasonable attorney's fees.
SEC. 240. Section 4031 of the Penal Code is amended to read:
4031. (a) This section applies to all minors detained in a
juvenile detention center on the grounds that he or she is a person
described in Section 300, 601, or 602 of the Welfare and Institutions
Code, and all minors adjudged a ward of the court and held in a
juvenile detention center on the grounds he or she is a person
described in Section 300, 601, or 602 of the Welfare and Institutions
Code.
(b) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.
(c) A physical body cavity search shall be conducted under
sanitary conditions, and only by a physician, nurse practitioner,
registered nurse, licensed vocational nurse, or emergency medical
technician Level II licensed to practice in this state. A physician
engaged in providing health care to detainees, wards, and inmates of
the facility may conduct physical body cavity searches.
(d) A person conducting or otherwise present or within sight of
the inmate during a strip search or visual or physical body cavity
search shall be of the same sex as the person being searched, except
for physicians or licensed medical personnel.
(e) All strip searches and visual and physical body cavity
searches shall be conducted in an area of privacy so that the search
cannot be observed by persons not participating in the search.
Persons are considered to be participating in the search if their
official duties relative to search procedure require them to be
present at the time the search is conducted.
(f) A person who knowingly and willfully authorizes or conducts a
strip search and visual or physical body cavity search in violation
of this section is guilty of a misdemeanor.
(g) This section shall not be construed as limiting the common law
or statutory rights of a person regarding an action for damages or
injunctive relief, or as precluding the prosecution under another law
of a peace officer or other person who has violated this section.
(h) Any person who suffers damage or harm as a result of a
violation of this section may bring a civil action to recover actual
damages, or one thousand dollars ($1,000), whichever is greater. In
addition, the court may, in its discretion, award punitive damages,
equitable relief as it deems necessary and proper, and costs,
including reasonable attorney's fees.
(i) This section does not limit the protections granted by Section
4030 to individuals described in subdivision (b) of that section.
SEC. 241. Section 5065.5 of the Penal Code is amended to read:
5065.5. (a) A person or entity that enters into a contract with a
criminal offender for the sale of the story of a crime for which the
offender was convicted shall notify the California Department of
Corrections and Rehabilitation that the parties have entered into a
contract for sale of the offender's story if both of the following
conditions are met:
(1) The offender's conviction was for any offense specified in
paragraph (1), except voluntary manslaughter, (2), (3), (4), (5),
(6), (7), (9), (16), (17), (20), (22), (25), (34), or (35) of
subdivision (c) of Section 1192.7.
(2) Subdivision (b) of Section 340.3 of the Code of Civil
Procedure does not preclude commencement of a civil action against
the criminal offender.
(b) Within 90 days of being notified, the California Department of
Corrections and Rehabilitation shall notify the victim, or if the
victim cannot be reasonably notified, a member of the victim's
immediate family, who has requested notification of the existence of
a contract described by this section.
(c) For purposes of this section, "member of the victim's
immediate family" means a spouse, child, parent, sibling, grandchild,
or grandparent.
SEC. 242. Section 15003 of the Penal Code is amended to read:
15003. Peace officer memorial ceremonies, including the
dedication of the memorial and any subsequent ceremonies, shall be
conducted by the California Peace Officers' Memorial Foundation, Inc.
SEC. 243. Section 33880 of the Penal Code is amended to read:
33880. (a) A city, county, or city and county, or a state agency
may adopt a regulation, ordinance, or resolution imposing a charge
equal to its administrative costs relating to the seizure,
impounding, storage, or release of a firearm or ammunition.
(b) The fee under subdivision (a) shall not exceed the actual
costs incurred for the expenses directly related to taking possession
of a firearm or ammunition, storing the firearm or ammunition, and
surrendering possession of the firearm or ammunition to a licensed
firearms dealer or to the owner.
(c) The administrative costs described in subdivisions (a) and (b)
may be waived by the local or state agency upon verifiable proof
that the firearm or ammunition was reported stolen at the time the
firearm came into the custody or control of the law enforcement
agency.
(d) The following apply to any charges imposed for administrative
costs pursuant to this section:
(1) The charges shall only be imposed on the person claiming title
to the firearm or ammunition.
(2) Any charges shall be collected by the local or state authority
only from the person claiming title to the firearm or ammunition.
(3) The charges shall be in addition to any other charges
authorized or imposed pursuant to this code.
(4) A charge shall not be imposed for a hearing or appeal relating
to the removal, impound, storage, or release of a firearm or
ammunition, unless that hearing or appeal was requested in writing by
the legal owner of the firearm or ammunition. In addition, the
charge may be imposed only upon the person requesting that hearing or
appeal.
(e) Costs for a hearing or appeal related to the release of a
firearm or ammunition shall not be charged to the legal owner who
redeems the firearm or ammunition, unless the legal owner voluntarily
requests the poststorage hearing or appeal. A city, county, city and
county, or state agency shall not require a legal owner to request a
poststorage hearing as a requirement for release of the firearm or
ammunition to the legal owner.
SEC. 244. Section 1490 of the Probate Code is amended to read:
1490. Except as set forth in Section 1510.1, when used in any
statute of this state with reference to an adult or to the person of
a married minor, "guardian" means the conservator of that adult or
the conservator of the person in the case of the married minor.
SEC. 245. Section 1510.1 of the Probate Code is amended to read:
1510.1. (a) (1) With the consent of the proposed ward, the court
may appoint a guardian of the person for an unmarried individual who
is 18 years of age or older, but who has not yet attained 21 years of
age, in connection with a petition to make the necessary findings
regarding special immigrant juvenile status pursuant to subdivision
(b) of Section 155 of the Code of Civil Procedure.
(2) A petition for guardianship of the person of a proposed ward
who is 18 years of age or older, but who has not yet attained 21
years of age, may be filed by a relative or any other person on
behalf of the proposed ward, or the proposed ward.
(b) (1) At the request of, or with the consent of, the ward, the
court may extend an existing guardianship of the person for a ward
past 18 years of age, for purposes of allowing the ward to complete
the application process with the United States Citizenship and
Immigration Services for classification as a special immigrant
juvenile pursuant to Section 1101(a)(27)(J) of Title 8 of the United
States Code.
(2) A relative or any other person on behalf of a ward, or the
ward, may file a petition to extend the guardianship of the person
for a period of time not to extend beyond the ward reaching 21 years
of age.
(c) This section does not authorize the guardian to abrogate any
of the rights that a person who has attained 18 years of age may have
as an adult under state law, including, but not limited to,
decisions regarding the ward's medical treatment, education, or
residence, without the ward's express consent.
(d) For purposes of this division, the terms "child," "minor," and
"ward" include an unmarried individual who is younger than 21 years
of age and who, pursuant to this section, consents to the appointment
of a guardian or extension of a guardianship after he or she attains
18 years of age.
(e) The Judicial Council shall, by July 1, 2016, adopt any rules
and forms needed to implement this section.
SEC. 246. Section 1828 of the Probate Code is amended to read:
1828. (a) Except as provided in subdivision (c), before the
establishment of a conservatorship of the person or estate, or both,
the court shall inform the proposed conservatee of all of the
following:
(1) The nature and purpose of the proceeding.
(2) The establishment of a conservatorship is a legal adjudication
of the proposed conservatee's inability to properly provide for his
or her personal needs or to manage the conservatee's own financial
resources, or both, depending on the allegations made and the
determinations requested in the petition, and the effect of such an
adjudication on the proposed conservatee's basic rights.
(3) (A) The proposed conservatee may be disqualified from voting
pursuant to Section 2208 of the Elections Code if he or she is
incapable of communicating, with or without reasonable
accommodations, a desire to participate in the voting process.
(B) The proposed conservatee shall not be disqualified from voting
on the basis that he or she does, or would need to do, any of the
following to complete an affidavit of voter registration:
(i) Signs the affidavit of voter registration with a mark or a
cross pursuant to subdivision (b) of Section 2150 of the Elections
Code.
(ii) Signs the affidavit of voter registration by means of a
signature stamp pursuant to Section 354.5 of the Elections Code.
(iii) Completes the affidavit of voter registration with the
assistance of another person pursuant to subdivision (d) of Section
2150 of the Elections Code.
(iv) Completes the affidavit of voter registration with reasonable
accommodations.
(4) The identity of the proposed conservator.
(5) The nature and effect on the proposed conservatee's basic
rights of any order requested under Chapter 4 (commencing with
Section 1870), and in the case of an allegedly developmentally
disabled adult, the specific effects of each limitation requested in
such order.
(6) The proposed conservatee has the right to oppose the
proceeding, to have the matter of the establishment of the
conservatorship tried by jury, to be represented by legal counsel if
the proposed conservatee so chooses, and to have legal counsel
appointed by the court if unable to retain legal counsel.
(b) After the court so informs the proposed conservatee and before
the establishment of the conservatorship, the court shall consult
the proposed conservatee to determine the proposed conservatee's
opinion concerning all of the following:
(1) The establishment of the conservatorship.
(2) The appointment of the proposed conservator.
(3) Any order requested under Chapter 4 (commencing with Section
1870), and in the case of an allegedly developmentally disabled
adult, of each limitation requested in such order.
(c) This section does not apply where both of the following
conditions are satisfied:
(1) The proposed conservatee is absent from the hearing and is not
required to attend the hearing under subdivision (a) of Section
1825.
(2) Any showing required by Section 1825 has been made.
SEC. 247. Section 1851 of the Probate Code is amended to read:
1851. (a) (1) If court review is required pursuant to Section
1850, the court investigator shall, without prior notice to the
conservator except as ordered by the court for necessity or to
prevent harm to the conservatee, visit the conservatee. The court
investigator shall inform the conservatee personally that the
conservatee is under a conservatorship and shall give the name of the
conservator to the conservatee. The court investigator shall
determine all of the following:
(A) If the conservatee wishes to petition the court for
termination of the conservatorship.
(B) If the conservatee is still in need of the conservatorship.
(C) If the conservator is acting in the best interests of the
conservatee. In determining if the conservator is acting in the best
interests of the conservatee, the court investigator's evaluation
shall include an examination of the conservatee's placement, the
quality of care, including physical and mental treatment, and the
conservatee's finances. To the extent practicable, the investigator
shall review the accounting with a conservatee who has sufficient
capacity. To the greatest extent possible, the court investigator
shall interview individuals set forth in paragraph (1) of subdivision
(a) of Section 1826, in order to determine if the conservator is
acting in the best interests of the conservatee.
(D) (i) If the conservatee is incapable of communicating, with or
without reasonable accommodations, a desire to participate in the
voting process and may be disqualified from voting pursuant to
Section 2208 or 2209 of the Elections Code.
(ii) The conservatee shall not be disqualified from voting on the
basis that he or she does, or would need to do, any of the following
to complete an affidavit of voter registration:
(I) Signs the affidavit of voter registration with a mark or a
cross pursuant to subdivision (b) of Section 2150 of the Elections
Code.
(II) Signs the affidavit of voter registration by means of a
signature stamp pursuant to Section 354.5 of the Elections Code.
(III) Completes the affidavit of voter registration with the
assistance of another person pursuant to subdivision (d) of Section
2150 of the Elections Code.
(IV) Completes the affidavit of voter registration with reasonable
accommodations.
(2) If the court has made an order under Chapter 4 (commencing
with Section 1870), the court investigator shall determine if the
present condition of the conservatee is such that the terms of the
order should be modified or the order revoked.
(3) Upon request of the court investigator, the conservator shall
make available to the court investigator during the investigation for
inspection and copying all books and records, including receipts and
any expenditures, of the conservatorship.
(b) (1) The findings of the court investigator, including the
facts upon which the findings are based, shall be certified in
writing to the court not less than 15 days before the date of review.
A copy of the report shall be mailed to the conservator and to the
attorneys of record for the conservator and conservatee at the same
time it is certified to the court. A copy of the report, modified as
set forth in paragraph (2), also shall be mailed to the conservatee's
spouse or registered domestic partner, the conservatee's relatives
in the first degree, and if there are no such relatives, to the next
closest relative, unless the court determines that the mailing will
harm the conservatee.
(2) Confidential medical information and confidential information
from the California Law Enforcement Telecommunications System shall
be in a separate attachment to the report and shall not be provided
in copies sent to the conservatee's spouse or registered domestic
partner, the conservatee's relatives in the first degree, and if
there are no such relatives, to the next closest relative.
(c) In the case of a limited conservatee, the court investigator
shall recommend continuing or terminating the limited
conservatorship.
(d) The court investigator may personally visit the conservator
and other persons as may be necessary to determine if the conservator
is acting in the best interests of the conservatee.
(e) The report required by this section shall be confidential and
shall be made available only to parties, persons described in
subdivision (b), persons given notice of the petition who have
requested the report or who have appeared in the proceeding, their
attorneys, and the court. The court shall have discretion at any
other time to release the report if it would serve the interests of
the conservatee. The clerk of the court shall limit disclosure of the
report exclusively to persons entitled to the report under this
section.
(f) A superior court is not required to perform any duties imposed
pursuant to the amendments to this section enacted by Chapter 493 of
the Statutes of 2006 until the Legislature makes an appropriation
identified for this purpose.
SEC. 248. Section 4788 of the Probate Code is amended to read:
4788. (a) For purposes of this section:
(1) "Authority" means the Emergency Medical Services Authority.
(2) "Authorized user" means a person authorized by the authority
to submit information to, or to receive information from, the POLST
eRegistry Pilot, including health care providers, as defined in
Section 4781, and their designees.
(3) "POLST" means a Physician Orders for Life Sustaining Treatment
that fulfills the requirements, in any format, of Section 4780.
(4) "POLST eRegistry Pilot" means the California POLST eRegistry
Pilot program established pursuant to this section to make
electronic, in addition to other modes of submission and
transmission, POLST information available to authorized users.
(b) (1) The authority shall establish a pilot project, in
consultation with stakeholders, to operate an electronic registry
system on a pilot basis, to be known as the California POLST
eRegistry Pilot, for the purpose of collecting a patient's POLST
information received from a physician or physician's designee and
disseminating the information to an authorized user.
(2) The authority shall implement this section only after
determining that sufficient nonstate funds are available to allow for
the development of the POLST eRegistry Pilot, any related startup
costs, and an evaluation of the POLST eRegistry Pilot.
(3) The authority shall coordinate the POLST eRegistry Pilot,
which shall be operated by, and as a part of, the health information
exchange networks, or by an independent contractor, or by a
combination thereof. The POLST eRegistry Pilot may operate in a
single geographic area or multiple geographic areas and may test
various methods of making POLST information available electronically.
The design of the POLST eRegistry Pilot shall be sufficiently
robust, based on the success of the pilot, to inform the permanent,
statewide operation of a POLST eRegistry.
(4) The authority shall adopt guidelines necessary for the
operation of the POLST eRegistry Pilot. In developing these
guidelines, the authority shall seek input from interested parties
and hold at least one public meeting. The adoption, amendment, or
repeal of the guidelines authorized by this paragraph is hereby
exempted from the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code). The guidelines shall include, but not be
limited to, the following:
(A) The means by which initial or subsequent POLST information may
be submitted to, or withdrawn from, the POLST eRegistry Pilot, which
shall include a method for electronic delivery of this information
and the use of legally sufficient electronic signatures.
(B) Appropriate and timely methods by which the information in the
POLST eRegistry Pilot may be disseminated to an authorized user.
(C) Procedures for verifying the identity of an authorized user.
(D) Procedures to ensure the accuracy of, and to appropriately
protect the confidentiality of, POLST information submitted to the
POLST eRegistry Pilot.
(E) The requirement that a patient, or, when appropriate, his or
her legally recognized health care decisionmaker, receive a
confirmation or a receipt that the patient's POLST information has
been received by the POLST eRegistry Pilot.
(F) The ability of a patient, or, when appropriate, his or her
legally recognized health care decisionmaker, with the patient's
health care provider, as defined in Section 4621, to modify or
withdraw POLST information on the POLST eRegistry Pilot.
(5) (A) Prior to implementation of the POLST eRegistry Pilot, the
authority shall submit a detailed plan to the Legislature that
explains how the POLST eRegistry Pilot will operate.
(B) The plan to be submitted pursuant to subparagraph (A) shall be
submitted in compliance with Section 9795 of the Government Code.
(c) The operation of the POLST eRegistry Pilot, for all users,
shall comply with state and federal privacy and security laws and
regulations, including, but not limited to, compliance with the
Confidentiality of Medical Information Act (Part 2.6 (commencing with
Section 56) of Division 1 of the Civil Code) and the regulations
promulgated pursuant to the federal Health Insurance Portability and
Accountability Act of 1996 (Public Law 104-191), found at Parts 160
and 164 of Title 45 of the Code of Federal Regulations.
(d) When the POLST eRegistry Pilot is operable in the geographic
area in which he or she practices or operates, a physician or
physician's designee who completes POLST information with a patient
or his or her legally recognized health care decisionmaker shall
include the POLST information in the patient's official medical
record and shall submit a copy of the POLST form to, or enter the
POLST information into, the POLST eRegistry Pilot, unless the patient
or the legally recognized health care decisionmaker chooses not to
participate in the POLST eRegistry Pilot.
(e) When the POLST eRegistry Pilot is operable in the geographic
area in which they practice or operate, physicians, hospitals, and
health information exchange networks shall make electronic POLST
information available, for use during emergencies, through the POLST
eRegistry Pilot to health care providers, as defined in Section 4781,
that also practice or operate in a geographic area where the POLST
eRegistry Pilot is operable, but that are outside of their health
information exchange networks.
(f) In accordance with Section 4782, a health care provider, as
defined in Section 4781, who honors a patient's request regarding
resuscitative measures obtained from the POLST eRegistry Pilot shall
not be subject to criminal prosecution, civil liability, discipline
for unprofessional conduct, administrative sanction, or any other
sanction, if the health care provider (1) believes in good faith that
the action or decision is consistent with this part, and (2) has no
knowledge that the action or decision would be inconsistent with a
health care decision that the individual signing the request would
have made on his or her own behalf under like circumstances.
(g) An independent contractor approved by the authority shall
perform an evaluation of the POLST eRegistry Pilot.
(h) This section shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.
SEC. 249. Section 5203 of the Probate Code is amended to read:
5203. (a) Words in substantially the following form in a
signature card, passbook, contract, or instrument evidencing an
account, or words to the same effect, executed before, on, or after
July 1, 1990, create the following accounts:
(1) Joint account: "This account or certificate is owned by the
named parties. Upon the death of any of them, ownership passes to the
survivor(s)."
(2) P.O.D. account with single party: "This account or certificate
is owned by the named party. Upon the death of that party, ownership
passes to the named pay-on-death payee(s)."
(3) P.O.D. account with multiple parties: "This account or
certificate is owned by the named parties. Upon the death of any of
them, ownership passes to the survivor(s). Upon the death of all of
them, ownership passes to the named pay-on-death payee(s)."
(4) Joint account of husband and wife with right of survivorship:
"This account or certificate is owned by the named parties, who are
husband and wife, and is presumed to be their community property.
Upon the death of either of them, ownership passes to the survivor."
(5) Community property account of husband and wife: "This account
or certificate is the community property of the named parties who are
husband and wife. The ownership during lifetime and after the death
of a spouse is determined by the law applicable to community property
generally and may be affected by a will."
(6) Tenancy in common account: "This account or certificate is
owned by the named parties as tenants in common. Upon the death of
any party, the ownership interest of that party passes to the named
pay-on-death payee(s) of that party or, if none, to the estate of
that party."
(b) Use of the form language provided in this section is not
necessary to create an account that is governed by this part. If the
contract of deposit creates substantially the same relationship
between the parties as an account created using the form language
provided in this section, this part applies to the same extent as if
the form language had been used.
SEC. 250. Section 16062 of the Probate Code is amended to read:
16062. (a) Except as otherwise provided in this section and in
Section 16064, the trustee shall account at least annually, at the
termination of the trust, and upon a change of trustee, to each
beneficiary to whom income or principal is required or authorized in
the trustee's discretion to be currently distributed.
(b) A trustee of a living trust created by an instrument executed
before July 1, 1987, is not subject to the duty to account provided
by subdivision (a).
(c) A trustee of a trust created by a will executed before July 1,
1987, is not subject to the duty to account provided by subdivision
(a), except that if the trust is removed from continuing court
jurisdiction pursuant to Article 2 (commencing with Section 17350) of
Chapter 4 of Part 5, the duty to account provided by subdivision (a)
applies to the trustee.
(d) Except as provided in Section 16064, the duty of a trustee to
account pursuant to former Section 1120.1a of the Probate Code (as
repealed by Chapter 820 of the Statutes of 1986), under a trust
created by a will executed before July 1, 1977, which has been
removed from continuing court jurisdiction pursuant to former Section
1120.1a, continues to apply after July 1, 1987. The duty to account
under former Section 1120.1a may be satisfied by furnishing an
account that satisfies the requirements of Section 16063.
(e) Any limitation or waiver in a trust instrument of the
obligation to account is against public policy and shall be void as
to any sole trustee who is either of the following:
(1) A disqualified person as defined in former Section 21350.5 (as
repealed by Chapter 620 of the Statutes of 2010).
(2) Described in subdivision (a) of Section 21380, but not
described in Section 21382.
SEC. 251. Section 20111.6 of the Public Contract Code is amended
to read:
20111.6. (a) This section applies only to public projects, as
defined in subdivision (c) of Section 22002, for which the governing
board of the school district uses funds received pursuant to the
Leroy F. Greene School Facilities Act of 1998 (Chapter 12.5
(commencing with Section 17070.10) of Part 10 of Division 1 of Title
1 of the Education Code) or any funds received, including funds
reimbursed, from any future state school bond for a public project
that involves a projected expenditure of one million dollars
($1,000,000) or more.
(b) If the governing board of the school district enters into a
contract meeting the criteria of subdivision (a), then the governing
board of the school district shall require that prospective bidders
for a construction contract complete and submit to the governing
board of the school district a standardized prequalification
questionnaire and financial statement. The questionnaire and
financial statement shall be verified under oath by the bidder in the
manner in which civil pleadings in civil actions are verified. The
questionnaires and financial statements are not public records and
shall not be open to public inspection.
(c) The governing board of the school district shall adopt and
apply a uniform system of rating bidders on the basis of the
completed questionnaires and financial statements. This system shall
also apply to a person, firm, or corporation that constructs a
building described in Section 17406 or 17407 of the Education Code.
(d) The questionnaire and financial statement described in
subdivision (b), and the uniform system of rating bidders described
in subdivision (c), shall cover, at a minimum, the issues covered by
the standardized questionnaire and model guidelines for rating
bidders developed by the Department of Industrial Relations pursuant
to subdivision (a) of Section 20101.
(e) Each prospective bidder shall be furnished by the school
district letting the contract with a standardized proposal form that,
when completed and executed, shall be submitted as his or her bid.
Bids not presented on the forms so furnished shall be disregarded.
(f) A proposal form required pursuant to subdivision (e) shall not
be accepted from any person or other entity that is required to
submit a completed questionnaire and financial statement for
prequalification pursuant to subdivision (b) or from any person or
other entity that uses a subcontractor that is required to submit a
completed questionnaire and financial statement for prequalification
pursuant to subdivision (b), but has not done so at least 10 business
days before the date fixed for the public opening of sealed bids or
has not been prequalified for at least five business days before that
date. The school district may require the completed questionnaire
and financial statement for prequalification to be submitted more
than 10 business days before the fixed date for the public opening of
sealed bids. The school district may also require the
prequalification more than five business days before the fixed date.
(g) (1) The governing board of the school district may establish a
process for prequalifying prospective bidders pursuant to this
section on a quarterly or annual basis and a prequalification
pursuant to this process shall be valid for one calendar year
following the date of initial prequalification.
(2) The governing board of the school district shall establish a
process to prequalify a person, firm, or corporation, including, but
not limited to, the prime contractor and, if used, an electrical,
mechanical, and plumbing subcontractor, to construct a building
described in Section 17406 or 17407 of the Education Code on a
quarterly or annual basis. A prequalification pursuant to this
process shall be valid for one calendar year following the date of
initial prequalification.
(h) This section does not preclude the governing board of the
school district from prequalifying or disqualifying a subcontractor
of any specialty classification described in Section 7058 of the
Business and Professions Code.
(i) For purposes of this section, bidders shall include both of
the following:
(1) A prime contractor, as defined in Section 4113, that is either
of the following:
(A) A general engineering contractor described in Section 7056 of
the Business and Professions Code.
(B) A general building contractor described in Section 7057 of the
Business and Professions Code.
(2) If utilized, each electrical, mechanical, and plumbing
contractor, whether as a prime contractor or as a subcontractor, as
defined in Section 4113.
(j) If a public project covered by this section includes
electrical, mechanical, or plumbing components that will be performed
by electrical, mechanical, or plumbing contractors, a list of
prequalified general contractors and electrical, mechanical, and
plumbing subcontractors shall
be made available by the school district to all bidders at least five
business days before the dates fixed for the public opening of
sealed bids. The school district may require the list to be made
available more than five business days before the fixed dates for the
public opening of sealed bids.
(k) For purposes of this section, electrical, mechanical, and
plumbing subcontractors are contractors licensed pursuant to Section
7058 of the Business and Professions Code, specifically contractors
holding C-4, C-7, C-10, C-16, C-20, C-34, C-36, C-38, C-42, C-43, and
C-46 licenses, pursuant to regulations of the Contractors' State
License Board.
(l) This section does not apply to a school district with an
average daily attendance of less than 2,500.
(m) (1) This section applies only to contracts awarded on or after
January 1, 2014.
(2) The amendments made to this section by Chapter 408 of the
Statutes of 2014 apply only to contracts awarded on or after January
1, 2015.
(n) (1) On or before January 1, 2018, the Director of Industrial
Relations shall (A) submit a report to the Legislature evaluating
whether, during the years this section has applied to contracts,
violations of the Labor Code on school district projects have
decreased as compared to the same number of years immediately
preceding the enactment of this section, and (B) recommend
improvements to the system for prequalifying contractors and
subcontractors on school district projects.
(2) A report to be submitted pursuant to this subdivision shall be
submitted in compliance with Section 9795 of the Government Code.
(o) This section shall become inoperative on January 1, 2019, and,
as of July 1, 2019, is repealed.
SEC. 252. Section 541.5 of the Public Resources Code is amended to
read:
541.5. (a) The department shall not close, or propose to close, a
state park in the 2012-13 or 2013-14 fiscal year. The commission and
the department shall recommend all necessary steps to establish a
sustainable funding strategy for the department to the Legislature on
or before January 1, 2015.
(b) There is hereby appropriated twenty million five hundred
thousand dollars ($20,500,000) to the department from the State Parks
and Recreation Fund, which shall be available for encumbrance until
June 30, 2016, and for liquidation until June 30, 2018, to be
expended as follows:
(1) Ten million dollars ($10,000,000) shall be available to
provide for matching funds pursuant to subdivision (c).
(2) Ten million dollars ($10,000,000) shall be available for the
department to direct funds to parks that remain at risk of closure or
that will keep parks open during the 2012-13 to 2015-16 fiscal
years, inclusive. Priority may be given to parks subject to a donor
or operating agreement or other contractual arrangement with the
department.
(3) Up to five hundred thousand dollars ($500,000) shall be
available for the department to pay for ongoing audits and
investigations as directed by the Joint Legislative Audit Committee,
the office of the Attorney General, the Department of Finance, or
other state agency.
(c) The department shall match on a dollar-for-dollar basis all
financial contributions contributed by a donor pursuant to an
agreement for the 2012-13 fiscal year for which the department
received funds as of July 31, 2013, and for agreements entered into
in the 2013-14 fiscal year. These matching funds shall be used
exclusively in the park unit subject to those agreements.
(d) The department shall notify the Joint Legislative Budget
Committee in writing not less than 30 days before the expenditure of
funds under this section of the funding that shall be expended, the
manner of the expenditure, and the recipient of the expenditure.
(e) The prohibition on the closure, or proposed closure, of a
state park in the 2012-13 or 2013-14 fiscal year, pursuant to
subdivision (a), does not limit or affect the department's authority
to enter into an operating agreement, pursuant to Section 5080.42,
during the 2012-13 or 2013-14 fiscal year, for purposes of the
operation of the entirety of a state park during the 2012-13 or
2013-14 fiscal year.
SEC. 253. Section 5002.2 of the Public Resources Code is amended
to read:
5002.2. (a) (1) Following classification or reclassification of a
unit by the State Park and Recreation Commission, and prior to the
development of any new facilities in any previously classified unit,
the department shall prepare a general plan or revise any existing
plan for the unit.
(2) The general plan shall consist of elements that will evaluate
and define the proposed land uses, facilities, concessions, operation
of the unit, any environmental impacts, and the management of
resources, and shall serve as a guide for the future development,
management, and operation of the unit.
(3) The general plan constitutes a report on a project for the
purposes of Section 21100. The general plan for a unit shall be
submitted by the department to the State Park and Recreation
Commission for approval.
(b) The resource element of the general plan shall evaluate the
unit as a constituent of an ecological region and as a distinct
ecological entity, based upon historical and ecological research of
plant-animal and soil-geological relationships and shall contain a
declaration of purpose, setting forth specific long-range management
objectives for the unit consistent with the unit's classification
pursuant to Article 1.7 (commencing with Section 5019.50), and a
declaration of resource management policy, setting forth the precise
actions and limitations required for the achievement of the
objectives established in the declaration of purpose.
(c) Notwithstanding subdivision (a), the department is not
required to prepare a general plan for a unit that has no general
plan or to revise an existing plan if the only development
contemplated by the department consists of the repair, replacement,
or rehabilitation of an existing facility; the construction of a
temporary facility, if the construction does not result in the
permanent commitment of a resource of the unit; any undertaking
necessary for the protection of public health or safety; or any
emergency measure necessary for the immediate protection of natural
or cultural resources; or any combination of these activities at a
single unit. Any development is subject to the requirements of the
California Environmental Quality Act (Division 13 (commencing with
Section 21000)).
(d) Notwithstanding subdivision (a), the department is not
required to prepare a general plan or revise an existing plan for a
unit to which new development is necessary to comply with public
service delivery obligations, operational or code compliance
upgrades, or resource preservation requirements that are compatible
with the classification of the unit. The department may instead
prepare a management or development plan with appropriate
environmental review and analysis.
(e) Consistent with good planning and sound resource management,
the department shall, in discharging its responsibilities under this
section, attempt to make units of the state park system accessible
and usable by the general public at the earliest opportunity.
(f) The department may prepare a general plan that includes more
than one unit of the state park system for units that are in close
proximity to one another and that have similar resources and
recreational opportunities if that action will facilitate the
protection of public resources and public access to units of the
state park system.
SEC. 254. Section 5071.7 of the Public Resources Code is amended
to read:
5071.7. (a) (1) In planning the system, the director shall
consult with and seek the assistance of the Department of
Transportation. The Department of Transportation shall plan and
design those trail routes that are in need of construction contiguous
to state highways and serve both a transportation and a recreational
need.
(2) The Department of Transportation shall install or supervise
the installation of signs along heritage corridors consistent with
the plan element developed pursuant to this section; provided,
however, that it shall neither install nor supervise the installation
of those signs until it determines that it has available to it
adequate volunteers or funds, or a combination thereof, to install or
supervise the installation of the signs, or until the Legislature
appropriates sufficient funds for the installation or supervision of
installation, whichever occurs first.
(b) The element of the plan relating to boating trails and other
segments of the system which are oriented to waterways shall be
prepared and maintained by the Division of Boating and Waterways
within the Department of Parks and Recreation pursuant to Article 2.6
(commencing with Section 68) of Chapter 2 of Division 1 of the
Harbors and Navigation Code. Those segments shall be integrated with
the California Protected Waterways Plan developed pursuant to Chapter
1278 of the Statutes of 1968, and shall be planned so as to be
consistent with the preservation of rivers of the California Wild and
Scenic Rivers System, as provided in Chapter 1.4 (commencing with
Section 5093.50).
(c) Any element of the plan relating to trails and areas for the
use of off-highway motor vehicles shall be prepared and maintained by
the Division of Off-Highway Motor Vehicle Recreation pursuant to
Chapter 1.25 (commencing with Section 5090.01).
(d) In planning the system, the director shall consult with and
seek the assistance of the Department of Rehabilitation,
representatives of its California Access Network volunteers, and
nonprofit disability access groups to ensure that adequate provision
is made for publicizing the potential use of recreational trails,
including heritage corridors by physically disabled persons.
SEC. 255. Section 8750 of the Public Resources Code is amended to
read:
8750. Unless the context requires otherwise, the following
definitions govern the construction of this division:
(a) "Administrator" means the administrator for oil spill response
appointed by the Governor pursuant to Section 8670.4 of the
Government Code.
(b) "Barges" means any vessel that carries oil in commercial
quantities as cargo but is not equipped with a means of
self-propulsion.
(c) (1) "Best achievable protection" means the highest level of
protection which can be achieved through both the use of the best
achievable technology and those manpower levels, training procedures,
and operational methods which provide the greatest degree of
protection achievable. The administrator's determination of best
achievable protection shall be guided by the critical need to protect
valuable coastal resources and marine waters, while also considering
(A) the protection provided by the measures, (B) the technological
achievability of the measures, and (C) the cost of the measures.
(2) It is not the intent of the Legislature that the administrator
use a cost-benefit or cost-effectiveness analysis or any particular
method of analysis in determining which measures to require. Instead,
it is the intent of the Legislature that the administrator give
reasonable consideration to the protection provided by the measures,
the technological achievability of the measures, and the cost of the
measures when establishing the requirements to provide the best
achievable protection for coastal and marine resources.
(d) "Best achievable technology" means that technology that
provides the greatest degree of protection taking into consideration
(1) processes that are being developed, or could feasibly be
developed anywhere in the world, given overall reasonable
expenditures on research and development, and (2) processes that are
currently in use anywhere in the world. In determining what is best
achievable technology, the administrator shall consider the
effectiveness and engineering feasibility of the technology.
(e) "Commission" means the State Lands Commission.
(f) "Local government" means any chartered or general law city,
chartered or general law county or any city and county.
(g) "Marine facility" means any facility of any kind, other than a
vessel, that is or was used for the purposes of exploring for,
drilling for, producing, storing, handling, transferring, processing,
refining, or transporting oil and is located in marine waters, or is
located where a discharge could impact marine waters unless the
facility (1) is subject to Chapter 6.67 (commencing with Section
25270) or Chapter 6.75 (commencing with Section 25299.10) of Division
20 of the Health and Safety Code or (2) is placed on a farm,
nursery, logging site, or construction site and does not exceed
20,000 gallons in a single storage tank. For the purposes of this
division, a drill ship, semisubmersible drilling platform, jack-up
type drilling rig, or any other floating or temporary drilling
platform is a "marine facility." For the purposes of this division, a
small craft refueling dock is not a "marine facility."
(h) "Marine terminal" means any marine facility used for
transferring oil to or from tankers or barges. For the purposes of
this section, a marine terminal includes all piping not integrally
connected to a tank facility as defined in subdivision (n) of Section
25270.2 of the Health and Safety Code.
(i) "Marine waters" means those waters subject to tidal influence,
except for waters in the Sacramento-San Joaquin Rivers and Delta
upstream from a line running north and south through the point where
Contra Costa, Sacramento, and Solano Counties meet.
(j) "Nonpersistent oil" means a petroleum-based oil, such as
gasoline, diesel, or jet fuel, that evaporates relatively quickly.
Specifically, it is an oil with hydrocarbon fractions, at least 50
percent of which, by volume, distills at a temperature of 645 degrees
Fahrenheit, and at least 95 percent of which, by volume, distills at
a temperature of 700 degrees Fahrenheit.
(k) "Oil" means any kind of petroleum, liquid hydrocarbons, or
petroleum products or any fraction or residues therefrom, including,
but not limited to, crude oil, bunker fuel, gasoline, diesel fuel,
aviation fuel, oil sludge, oil refuse, oil mixed with waste, and
liquid distillates from unprocessed natural gas.
( l ) "Onshore facility" means any facility of any kind
which is located entirely on lands not covered by marine waters.
(m) "Operator" when used in connection with vessels, marine
terminals, pipelines, or facilities, means any person or entity that
owns, has an ownership interest in, charters, leases, rents,
operates, participates in the operation of or uses that vessel,
terminal, pipeline, or facility. "Operator" does not include any
entity that owns the land underlying the facility or the facility
itself, where the entity is not involved in the operations of the
facility.
(n) "Person" means an individual, trust, firm, joint stock
company, or corporation, including, but not limited to, a government
corporation, partnership, limited liability company, and association.
"Person" also includes any city, county, city and county, district,
and the state or any department or agency thereof, and the federal
government, or any department or agency thereof, to the extent
permitted by law.
(o) "Pipeline" means any pipeline used at any time to transport
oil.
(p) "Responsible party" or "party responsible" means either of the
following:
(1) The owner or transporter of oil or a person or entity
accepting responsibility for the oil.
(2) The owner, operator, or lessee of, or person who charters by
demise, any vessel or marine facility or a person or entity accepting
responsibility for the vessel or marine facility.
(q) "Small craft refueling dock" means a fixed facility having
tank storage capacity not exceeding 20,000 gallons in any single
storage tank and that dispenses nonpersistent oil to small craft.
(r) "Spill" or "discharge" means any release of at least one
barrel (42 gallons) of oil not authorized by any federal, state, or
local government entity.
(s) "State oil spill contingency plan" means the California oil
spill contingency plan prepared pursuant to Article 3.5 (commencing
with Section 8574.1) of Chapter 7 of Division 1 of Title 2 of the
Government Code.
(t) "Tanker" means any self-propelled, waterborne vessel,
constructed or adapted for the carriage of oil in bulk or in
commercial quantities as cargo.
(u) "Vessel" means a tanker or barge as defined in this section.
SEC. 256. Section 25401 of the Public Resources Code is amended to
read:
25401. The commission shall continuously carry out studies,
research projects, data collection, and other activities required to
assess the nature, extent, and distribution of energy resources to
meet the needs of the state, including but not limited to, fossil
fuels and solar, nuclear, and geothermal energy resources. It shall
also carry out studies, technical assessments, research projects, and
data collection directed to reducing wasteful, inefficient,
unnecessary, or uneconomic uses of energy, including, but not limited
to, all of the following:
(a) Pricing of electricity and other forms of energy.
(b) Improved building design and insulation.
(c) Restriction of promotional activities designed to increase the
use of electricity by consumers.
(d) Improved appliance efficiency.
(e) Advances in power generation and transmission technology.
(f) Comparisons in the efficiencies of alternative methods of
energy utilization.
The commission shall survey pursuant to this section all forms of
energy on which to base its recommendations to the Governor and
Legislature for elimination of waste or increases in efficiency for
sources or uses of energy. The commission shall transmit to the
Governor and the Legislature, as part of the biennial report
specified in Section 25302, recommendations for state policy and
actions for the orderly development of all potential sources of
energy to meet the state's needs, including, but not limited to,
fossil fuels and solar, nuclear, and geothermal energy resources, and
to reduce wasteful and inefficient uses of energy.
SEC. 257. Section 26003 of the Public Resources Code, as amended
by Section 1.5 of Chapter 788 of the Statutes of 2015, is amended to
read:
26003. (a) As used in this division, unless the context otherwise
requires:
(1) (A) "Advanced manufacturing" means manufacturing processes
that improve existing or create entirely new materials, products, and
processes through the use of science, engineering, or information
technologies, high-precision tools and methods, a high-performance
workforce, and innovative business or organizational models utilizing
any of the following technology areas:
(i) Microelectronics and nanoelectronics, including
semiconductors.
(ii) Advanced materials.
(iii) Integrated computational materials engineering.
(iv) Nanotechnology.
(v) Additive manufacturing.
(vi) Industrial biotechnology.
(B) "Advanced manufacturing" includes any of the following:
(i) Systems that result from substantive advancement, whether
incremental or breakthrough, beyond the current industry standard, in
the production of materials and products. These advancements include
improvements in manufacturing processes and systems that are often
referred to as "smart" or "intelligent" manufacturing systems, which
integrate computational predictability and operational efficiency.
(ii) (I) Sustainable manufacturing systems and manufacturing
technologies that minimize the use of resources while maintaining or
improving cost and performance.
(II) Sustainable manufacturing systems and manufacturing
technologies do not include those required to be undertaken pursuant
to state or federal law or regulations, air district rules or
regulations, memoranda of understanding with a governmental entity,
or legally binding agreements or documents. The State Air Resources
Board shall advise the authority to ensure that the requirements of
this clause are met.
(2) (A) "Advanced transportation technologies" means emerging
commercially competitive transportation-related technologies
identified by the authority as capable of creating long-term,
high-value-added jobs for Californians while enhancing the state's
commitment to energy conservation, pollution and greenhouse gas
emissions reduction, and transportation efficiency.
(B) "Advanced transportation technologies" does not include those
projects required to be undertaken pursuant to state or federal law
or regulations, air district rules or regulations, memoranda of
understanding with a governmental entity, or legally binding
agreements or documents. The State Air Resources Board shall advise
the authority regarding projects that are excluded pursuant to this
subparagraph.
(3) (A) "Alternative sources" means devices or technologies used
for a renewable electrical generation facility, as defined in
paragraph (1) of subdivision (a) of Section 25741, a combined heat
and power system, as defined in Section 2840.2 of the Public
Utilities Code, distributed generation and energy storage
technologies eligible under the self-generation incentive program
pursuant to Section 379.6 of the Public Utilities Code, as determined
by the Public Utilities Commission, or a facility designed for the
production of renewable fuels, the efficient use of which reduces the
use of fossil or nuclear fuels, and energy efficiency devices or
technologies that reduce the need for new electric generation and
reduce emissions of toxic and criteria pollutants and greenhouse
gases.
(B) "Alternative sources" does not include a hydroelectric
facility that does not meet state laws pertaining to the control,
appropriation, use, and distribution of water, including, but not
limited to, the obtaining of applicable licenses and permits.
(4) "Authority" means the California Alternative Energy and
Advanced Transportation Financing Authority established pursuant to
Section 26004, and any board, commission, department, or officer
succeeding to the functions of the authority, or to which the powers
conferred upon the authority by this division shall be given.
(5) "Cost" as applied to a project or portion of the project
financed under this division means all or part of the cost of
construction and acquisition of all lands, structures, real or
personal property or an interest in the real or personal property,
rights, rights-of-way, franchises, easements, and interests acquired
or used for a project; the cost of demolishing or removing any
buildings or structures on land so acquired, including the cost of
acquiring any lands to which those buildings or structures may be
moved; the cost of all machinery, equipment, and furnishings,
financing charges, interest prior to, during, and for a period after,
completion of construction as determined by the authority;
provisions for working capital; reserves for principal and interest
and for extensions, enlargements, additions, replacements,
renovations, and improvements; the cost of architectural,
engineering, financial, accounting, auditing and legal services,
plans, specifications, estimates, administrative expenses, and other
expenses necessary or incidental to determining the feasibility of
constructing any project or incidental to the construction,
acquisition, or financing of a project.
(6) "Financial assistance" includes, but is not limited to, loans,
loan loss reserves, interest rate reductions, proceeds of bonds
issued by the authority, bond insurance, loan guarantees or other
credit enhancements or liquidity facilities, contributions of money,
or a combination thereof, as determined by, and approved by the
resolution of, the board.
(7) (A) "Participating party" means a person, federal or state
agency, department, board, authority, or commission, state or
community college, or university, or a city or county, regional
agency, public district, school district, or other political entity
engaged in the business or operations in the state, whether organized
for profit or not for profit, that applies for financial assistance
from the authority for the purpose of implementing a project.
(B) (i) For purposes of Section 6010.8 of the Revenue and Taxation
Code, "participating party" means an entity specified in
subparagraph (A) that seeks financial assistance pursuant to Section
26011.8.
(ii) For purposes of Section 6010.8 of the Revenue and Taxation
Code, an entity located outside of the state, including an entity
located overseas, is considered to be a participating party and is
eligible to apply for financial assistance pursuant to Section
26011.8 if the participating party commits to, and demonstrates that,
the party will be opening a manufacturing facility in the state.
(iii) It is the intent of the Legislature by adding clause (ii) to
clarify existing law and ensure that an out-of-state entity or
overseas entity is eligible to apply for financial assistance
pursuant to Section 26011.8.
(8) (A) "Project" means a land, building, improvement to the land
or building, rehabilitation, work, property, or structure, real or
personal, stationary or mobile, including, but not limited to,
machinery and equipment utilized in the state, whether or not in
existence or under construction, that utilizes, or is designed to
utilize, an alternative source, or that is utilized for the design,
technology transfer, manufacture, production, assembly, distribution,
or service of advanced transportation technologies or alternative
source components.
(B) "Project," for purposes of Section 26011.8 and Section 6010.8
of the Revenue and Taxation Code, is defined in Section 26011.8.
(9) "Revenue" means all rents, receipts, purchase payments, loan
repayments, and all other income or receipts derived by the authority
from a project, or the sale, lease, or other disposition of
alternative source or advanced transportation technology facilities,
or the making of loans to finance alternative source or advanced
transportation technology facilities, and any income or revenue
derived from the investment of money in any fund or account of the
authority.
(b) This section shall remain in effect only until January 1,
2021, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2021, deletes or extends
that date.
SEC. 258. Section 26003 of the Public Resources Code, as amended
by Section 2.5 of Chapter 788 of the Statutes of 2015, is amended to
read:
26003. (a) As used in this division, unless the context otherwise
requires:
(1)
(A) "Advanced transportation technologies" means emerging
commercially competitive transportation-related technologies
identified by the authority as capable of creating long-term,
high-value-added jobs for Californians while enhancing the state's
commitment to energy conservation, pollution and greenhouse gas
emissions reduction, and transportation efficiency.
(B) "Advanced transportation technologies" does not include those
projects required to be undertaken pursuant to state or federal law
or regulations, air district rules or regulations, memoranda of
understanding with a governmental entity, or legally binding
agreements or documents. The State Air Resources Board shall advise
the authority regarding projects that are excluded pursuant to this
subparagraph.
(2) (A) "Alternative sources" means devices or technologies used
for a renewable electrical generation facility, as defined in
paragraph (1) of subdivision (a) of Section 25741, a combined heat
and power system, as defined in Section 2840.2 of the Public
Utilities Code, distributed generation and energy storage
technologies eligible under the self-generation incentive program
pursuant to Section 379.6 of the Public Utilities Code, as determined
by the Public Utilities Commission, or a facility designed for the
production of renewable fuels, the efficient use of which reduces the
use of fossil or nuclear fuels, and energy efficiency devices or
technologies that reduce the need for new electric generation and
reduce emissions of toxic and criteria pollutants and greenhouse
gases.
(B) "Alternative sources" does not include a hydroelectric
facility that does not meet state laws pertaining to the control,
appropriation, use, and distribution of water, including, but not
limited to, the obtaining of applicable licenses and permits.
(3) "Authority" means the California Alternative Energy and
Advanced Transportation Financing Authority established pursuant to
Section 26004, and any board, commission, department, or officer
succeeding to the functions of the authority, or to which the powers
conferred upon the authority by this division shall be given.
(4) "Cost" as applied to a project or portion of the project
financed under this division means all or part of the cost of
construction and acquisition of all lands, structures, real or
personal property or an interest in the real or personal property,
rights, rights-of-way, franchises, easements, and interests acquired
or used for a project; the cost of demolishing or removing any
buildings or structures on land so acquired, including the cost of
acquiring any lands to which those buildings or structures may be
moved; the cost of all machinery, equipment, and furnishings,
financing charges, interest prior to, during, and for a period after,
completion of construction as determined by the authority;
provisions for working capital; reserves for principal and interest
and for extensions, enlargements, additions, replacements,
renovations, and improvements; the cost of architectural,
engineering, financial, accounting, auditing and legal services,
plans, specifications, estimates, administrative expenses, and other
expenses necessary or incidental to determining the feasibility of
constructing any project or incidental to the construction,
acquisition, or financing of a project.
(5) "Financial assistance" includes, but is not limited to, loans,
loan loss reserves, interest rate reductions, proceeds of bonds
issued by the authority, bond insurance, loan guarantees or other
credit enhancements or liquidity facilities, contributions of money,
or a combination thereof, as determined by, and approved by the
resolution of, the board.
(6) (A) "Participating party" means a person, federal or state
agency, department, board, authority, or commission, state or
community college, or university, or a city or county, regional
agency, public district, school district, or other political entity
engaged in the business or operations in the state, whether organized
for profit or not for profit, that applies for financial assistance
from the authority for the purpose of implementing a project.
(B) (i) For purposes of Section 6010.8 of the Revenue and Taxation
Code, "participating party" means an entity specified in
subparagraph (A) that seeks financial assistance pursuant to Section
26011.8.
(ii) For purposes of Section 6010.8 of the Revenue and Taxation
Code, an entity located outside of the state, including an entity
located overseas, is considered to be a participating party and is
eligible to apply for financial assistance pursuant to Section
26011.8 if the participating party commits to, and demonstrates that,
the party will be opening a manufacturing facility in the state.
(iii) It is the intent of the Legislature by adding clause (ii) to
clarify existing law and ensure that an out-of-state entity or
overseas entity is eligible to apply for financial assistance
pursuant to Section 26011.8.
(7) (A) "Project" means a land, building, improvement to the land
or building, rehabilitation, work, property, or structure, real or
personal, stationary or mobile, including, but not limited to,
machinery and equipment utilized in the state, whether or not in
existence or under construction, that utilizes, or is designed to
utilize, an alternative source, or that is utilized for the design,
technology transfer, manufacture, production, assembly, distribution,
or service of advanced transportation technologies or alternative
source components.
(B) "Project," for purposes of Section 26011.8 and Section 6010.8
of the Revenue and Taxation Code, is defined in Section 26011.8.
(8) "Revenue" means all rents, receipts, purchase payments, loan
repayments, and all other income or receipts derived by the authority
from a project, or the sale, lease, or other disposition of
alternative source or advanced transportation technology facilities,
or the making of loans to finance alternative source or advanced
transportation technology facilities, and any income or revenue
derived from the investment of money in any fund or account of the
authority.
(b) This section shall become operative on January 1, 2021.
SEC. 259. Section 30411 of the Public Resources Code is amended to
read:
30411. (a) The Department of Fish and Wildlife and the Fish and
Game Commission are the principal state agencies responsible for the
establishment and control of wildlife and fishery management programs
and the commission shall not establish or impose any controls with
respect thereto that duplicate or exceed regulatory controls
established by these agencies pursuant to specific statutory
requirements or authorization.
(b) The Department of Fish and Wildlife in consultation with the
commission and the Division of Boating and Waterways within the
Department of Parks and Recreation, may study degraded wetlands and
identify those which can most feasibly be restored in conjunction
with development of a boating facility as provided in subdivision (a)
of Section 30233. Any study conducted under this subdivision shall
include consideration of all of the following:
(1) Whether the wetland is so severely degraded and its natural
processes so substantially impaired that it is not capable of
recovering and maintaining a high level of biological productivity
without major restoration activities.
(2) Whether a substantial portion of the degraded wetland, but in
no event less than 75 percent, can be restored and maintained as a
highly productive wetland in conjunction with a boating facilities
project.
(3) Whether restoration of the wetland's natural values, including
its biological productivity and wildlife habitat features, can most
feasibly be achieved and maintained in conjunction with a boating
facility or whether there are other feasible ways to achieve these
values.
(c) The Legislature finds and declares that salt water or brackish
water aquaculture is a coastal-dependent use which should be
encouraged to augment food supplies and to further the policies set
forth in Chapter 4 (commencing with Section 825) of Division 1. The
Department of Fish and Wildlife may identify coastal sites it
determines to be appropriate for aquaculture facilities. If the
Department of Fish and Wildlife identifies these sites, it shall
transmit information identifying the sites to the commission and the
relevant local government agency. The commission and, where
appropriate, local governments shall, consistent with the coastal
planning requirements of this division, provide for as many coastal
sites identified by the Department of Fish and Wildlife for any uses
that are consistent with the policies of Chapter 3 (commencing with
Section 30200).
(d) Any agency of the state owning or managing land in the coastal
zone for public purposes shall be an active participant in the
selection of suitable sites for aquaculture facilities and shall make
the land available for use in aquaculture when feasible and
consistent with other policies of this division and other law.
SEC. 260. Section 42023.1 of the Public Resources Code is amended
to read:
42023.1. (a) The Recycling Market Development Revolving Loan
Subaccount is hereby created in the account for the purpose of
providing loans for purposes of the Recycling Market Development
Revolving Loan Program established pursuant to this article and for
making payments pursuant to subdivision (g).
(b) Notwithstanding Section 13340 of the Government Code, the
moneys deposited in the subaccount are hereby continuously
appropriated to the department without regard to fiscal year for
making loans pursuant to this article and for making payments
pursuant to subdivision (g).
(c) The department may expend interest earnings on moneys in the
subaccount for administrative expenses incurred in carrying out the
Recycling Market Development Revolving Loan Program, upon the
appropriation of moneys in the subaccount for that purpose in the
annual Budget Act.
(d) The moneys from loan repayments and fees, including, but not
limited to, principal and interest repayments, fees and points,
recovery of collection costs, income earned on an asset recovered
pursuant to a loan default, and funds collected through foreclosure
actions shall be deposited in the subaccount.
(e) All interest accruing on interest payments from loan
applicants shall be deposited in the subaccount.
(f) The department may expend the moneys in the subaccount to make
loans to local governing bodies, private businesses, and nonprofit
entities within recycling market development zones, or in areas
outside zones where partnerships exist with other public entities to
assist local jurisdictions to comply with Section 40051.
(g) The department may expend the moneys in the subaccount to make
payments to local governing bodies within a recycling market zone
for services related to the promotion of the zone. The services may
include, but are not limited to, training, outreach, development of
written promotional materials, and technical analyses of feedstock
availability.
(h) The department shall not fund a loan until it determines that
the applicant has obtained all significant applicable federal, state,
and local permits. The department shall determine which applicable
federal, state, and local permits are significant.
(i) The department shall establish and collect fees for
applications for loans authorized by this section. The application
fee shall be set at a level that is sufficient to fund the department'
s cost of processing applications for loans. In addition, the
department shall establish a schedule of fees or points for loans
that are entered into by the department, to fund the department's
administration of the revolving loan program.
(j) The department may expend moneys in the subaccount for the
administration of the Recycling Market Development Revolving Loan
Program, upon the appropriation of moneys in the subaccount for that
purpose in the annual Budget Act. In addition, the department may
expend moneys in the account to administer the revolving loan
program, upon the appropriation of moneys in the account for that
purpose in the annual Budget Act. However, funding for the
administration of the revolving loan program from the account shall
be provided only if there are not sufficient moneys in the subaccount
to fully fund the administration of the program.
(k) The department, pursuant to subdivision (a) of Section 47901,
may set aside moneys for the purposes of paying costs necessary to
protect the state's position as a lender-creditor. These costs shall
be broadly construed to include, but not be limited to, foreclosure
expenses, auction fees, title searches, appraisals, real estate
brokerage fees, attorney's fees, mortgage payments, insurance
payments, utility costs, repair costs, removal and storage costs for
repossessed equipment and inventory, and additional expenditures to
purchase a senior lien in foreclosure or bankruptcy proceedings.
(l) (1) Except as provided in paragraph (2), this section shall
become inoperative on July 1, 2021, and as of January 1, 2022, is
repealed, unless a later enacted statute, which becomes effective on
or before January 1, 2022, deletes or extends the date on which it
becomes inoperative and is repealed.
(2) The repeal of this section pursuant to paragraph (1) shall not
extinguish any loan obligation or the authority of the state to
pursue appropriate actions for the collection of a loan.
SEC. 261. Section 71103.5 of the Public Resources Code is amended
to read:
71103.5. (a) The Legislature finds and declares all of the
following:
(1) The New River poses an imminent and severe threat to the
public health of residents of Calexico, California, and adjacent
communities in Imperial County. Since the 1940s, the New River has
been recognized as a significant pollution and human health problem,
primarily because of extremely high concentrations of fecal coliform
bacteria.
(2) While there have been recent measurable water quality
improvements as a result of sewage infrastructure projects
implemented and completed during the last 10 years in Mexicali,
Mexico, the residual and projected pollution in the New River coming
from Mexico remains a significant threat to public health and the
environment.
(3) Current bacteria levels in the New River are several orders of
magnitude above the state standards for bacteria. Based on these
levels and the historic levels of pollution, the waterway is believed
to carry pathogens that cause tuberculosis, encephalitis, polio,
cholera, hepatitis, and typhoid. The waterway also carries other
contaminants in concentrations that are in violation of federal,
state, and Mexican water quality standards by several hundredfold.
(4) The New River is listed as an impaired river by the United
States Environmental Protection Agency due to low dissolved oxygen
(DO) and the presence of chlordane, chlorpyrifos, copper,
dichloro-diphenyl-trichloroethane (DDT), diazinon, dieldrin, mercury,
nutrients, pathogens, polychlorinated biphenyls (PCBs), sediment,
selenium, toxaphene, toxicity, trash, and volatile organic compounds
(VOCs).
(5) The New River is a major contributor of pollution to the
Salton Sea, and failure to address water quality problems in the New
River is impeding the ability of the state to implement laws and
programs designed to restore and protect this important environmental
and wildlife habitat resource.
(6) The New River condition in the border area is also an
aesthetic nuisance for Calexico residents and has historically
inhibited the city's socioeconomic well-being and growth.
(7) A coordinated and comprehensive state strategy is needed to
deal with the residual and projected pollution so that the New River
and associated river channel can be enhanced to a condition that will
allow the residents of Calexico and Imperial County to utilize them
as recreational and natural assets as contemplated in the California
River Parkways Act of 2004 (Chapter 3.8 (commencing with Section
5750) of Division 5).
(8) In the Budget Act of 2009, as amended by Chapter 1 of the
Statutes of 2009 Fourth Extraordinary Session, eight hundred thousand
dollars ($800,000) was appropriated to the City of Calexico for
various planning needs necessary to develop a river parkway plan and
river improvement project for the New River. The moneys were
appropriated in order to secure and serve as matching funds for the
four million dollars ($4,000,000) allocated pursuant to the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (Public Law 109-59) to the City of Calexico for the
development of bicycle paths and public park space adjacent to the
New River.
(9) The City of Calexico, as the recipient of funding pursuant to
the California River Parkways Act of 2004, has agreed to provide
necessary financial support to the council for the development of the
council's strategic plan.
(b) As used in this section, the following terms have the
following meanings:
(1) "Agency" means the California Environmental Protection Agency.
(2) "City" means the City of Calexico, California.
(3) "Council" means the California-Mexico Border Relations Council
established pursuant to Section 99522 of the Government Code.
(4) "County" means the County of Imperial, California.
(5) "IBWC" means the International Boundary and Water Commission,
United States Section.
(6) "New River Improvement Project" or "project" means a project
to study, monitor, remediate, and enhance New River water quality in
the County of Imperial to protect human health, and develop a river
parkway suitable for public use and enjoyment.
(c) Pursuant to the authority granted to the council pursuant to
Section 99523 of the Government Code and contingent upon the
execution of an agreement with the City of Calexico for the purpose
of providing the necessary funding, the council shall develop a
strategic plan to guide the implementation of the New River
Improvement Project. The strategic plan shall include, but need not
be limited to, all of the following elements:
(1) Quantification of current and projected New River water
quality impairments and their threat to public health.
(2) Prioritization of the actions necessary to protect public
health and to meet New River water quality objectives and other
environmental goals, such as improving the quality of waterflows into
the Salton Sea.
(3) Identification of potential funds for the implementation of
the project, and potential lead agencies that would be responsible
for environmental review of activities related to the cleanup and
restoration of the New River.
(4) Identification of the appropriate federal, state, and local
agencies with a role in implementing and achieving the New River
Improvement Project.
(d) (1) To the extent permitted by law, the council may work with
appropriate binational, federal, state, local, and nongovernmental
organizations on both sides of the California-Mexico border to
develop the strategic plan and to fund and establish cooperative
water quality monitoring, public health studies, inspection, and
technical assistance programs as needed to support, convene, and
oversee the project.
(2) To further the objectives of this subdivision, the council may
convene and oversee a technical advisory committee. The advisory
committee shall advise the council regarding the necessary studies
and activities to carry out the project, and shall serve at the
pleasure of the council. The advisory committee shall include
representatives from the following:
(A) Impacted cities and counties.
(B) Relevant local, regional, and state agencies and departments.
(C) Nongovernmental organizations.
(D) Other stakeholders deemed necessary by the council.
(3) The council shall appoint the chair of the committee and may
expand the membership and expertise of the committee as it deems
necessary.
(4) The council may enter into an agreement, including an
interagency agreement and memorandum of understanding, with public
agencies, including the city, to accept, manage, and expend funds for
the implementation of this section.
(e) This section does not modify existing roles, responsibilities,
or liabilities of the State of California, the City of Calexico,
Imperial County, or any other governmental agency, under those laws
that regulate, protect, and clean up surface waters entering the
United States from Mexico.
(f) The New River Improvement Project Account is hereby created in
the California Border Environmental and Public Health Protection
Fund to receive moneys for activities related to the New River
Improvement Project from sources identified in Section 71101 and
other sources. Upon appropriation by the Legislature, moneys in the
account shall be expended to implement the purposes identified in
subdivision (c) or Section 71102 that are related to the New River.
SEC. 262. Section 274 of the Public Utilities Code is amended to
read:
274. The commission may on its own order, whenever it determines
it to be necessary, conduct financial audits of the revenues required
to be collected and submitted to the commission for each of the
funds specified in Section 270. The commission may on its own order,
whenever it determines it to be necessary, conduct compliance audits
on the compliance with commission orders with regard to each program
subject to this chapter. The commission shall conduct a financial and
compliance audit of program-related costs and activities at least
once every three years. The first three-year period for a financial
and compliance audit commences on July 1, 2002. The second and
subsequent three-year periods for financial audits commence three
years after the completion of the prior financial audit. The second
and subsequent three-year periods for compliance audits commence
three years after the completion of the prior compliance audit. The
commission may contract with the California State Auditor's Office or
the Department of Finance for all necessary auditing services. All
costs for audits shall be paid from the fund that supports the
activities of the board audited and shall be subject to the
availability of money in that fund.
SEC. 263. Section 387.8 of the Public Utilities Code is amended
and renumbered to read:
2854.5. Notwithstanding paragraphs (2) and (5) of subdivision (d)
of Section 2854, a local publicly owned electric utility may adopt,
implement, and finance a solar initiative program otherwise in
accordance with that section, using monetary incentives authorized by
subdivision (b) of Section 2854, to residential and business
consumers where consumers offset part or all of their electricity
demand with electricity generated by a solar energy system not
located on the premises of the consumer, if all of the following
requirements are met:
(a) The solar energy system meets all of the following conditions:
(1) It is located within the service territory of the local
publicly owned electric utility.
(2) It has a capacity of no more than five megawatts.
(3) It is interconnected to the local publicly owned electric
utility's system at the distribution level.
(b) The local publicly owned electric utility meets all of the
following conditions:
(1) It provides monetary incentives authorized by Section 2854 for
not more than the first megawatt of generating capacity of each
solar energy system.
(2) It has contracted to purchase the total electricity produced
by the solar energy system or owns the solar energy system.
(3) It provides no greater incentive per watt for the solar energy
system than provided for by systems that participate in the
applicable solar initiative program established under Section 2854.
(4) It has received approval for the solar energy system from its
governing board at a publicly noticed and held meeting.
(c) The total megawatt capacity of solar energy systems eligible
for a local publicly owned electric utility program under this
section is both of the following:
(1) Not more than the total megawatt capacity of the combined
residential and commercial solar energy systems installed in the
service area of the local publicly owned electric utility after July
1, 2010, that participate in the applicable solar initiative programs
established under Section 2854.
(2) Not more than 20 percent of the proportionate amount for the
local publicly owned electric utility of the overall 3,000 megawatt
state goal set forth in Section 2854, based on the percentage of the
total statewide load served by that entity.
SEC. 264. Section 635 of the Public Utilities Code is amended to
read:
635. In a long-term plan adopted by an electrical corporation or
in a procurement plan implemented by a local publicly owned electric
utility, the electrical corporation or local publicly owned electric
utility shall adopt a strategy applicable both to newly constructed
and repowered generation owned and procured by the electrical
corporation or local publicly owned electric utility to achieve
efficiency in the use of fossil fuels and to address carbon
emissions.
SEC. 265. Section 873 of the Public Utilities Code is amended to
read:
873. (a) The commission shall annually do all of the following:
(1) Designate a class of lifeline service necessary to meet
minimum communications needs.
(2) Set the rates and charges for that service.
(3) Develop eligibility criteria for that service.
(4) Assess the degree of achievement of universal service,
including telephone penetration rates by income, ethnicity, and
geography.
(b) Minimum communications needs include, but are not limited to,
the ability to originate and receive calls and the ability to access
electronic information services.
SEC. 266. Section 913.8 of the Public Utilities Code is amended to
read:
913.8. In the report prepared pursuant to Section 913.7, the
commission shall include an assessment of each electrical corporation'
s and each gas corporation's implementation of the program developed
pursuant to Section 25943 of the Public Resources Code.
SEC. 267. Section 1701 of the Public Utilities Code is amended to
read:
1701. (a) All hearings, investigations, and proceedings shall be
governed by this part and by rules of practice and procedure adopted
by the commission, and in the conduct thereof the technical rules of
evidence need not be applied. An informality in a hearing,
investigation, or proceeding or in the manner of taking testimony
shall not invalidate an order, decision, or rule made, approved, or
confirmed by the commission.
(b) Notwithstanding Section 11425.10 of
the Government Code, Chapter 4.5 (commencing with Section 11400) of
Part 1 of Division 3 of Title 2 of the Government Code does not apply
to a hearing by the commission under this code.
SEC. 268. Section 2833 of the Public Utilities Code is amended to
read:
2833. (a) The commission shall require a green tariff shared
renewables program to be administered by a participating utility in
accordance with this section.
(b) Generating facilities participating in a participating utility'
s green tariff shared renewables program shall be eligible renewable
energy resources with a nameplate rated generating capacity not
exceeding 20 megawatts, except for those generating facilities
reserved for location in areas identified by the California
Environmental Protection Agency as the most impacted and
disadvantaged communities pursuant to paragraph (1) of subdivision
(d), which shall not exceed one megawatt nameplate rated generating
capacity.
(c) A participating utility shall use commission-approved tools
and mechanisms to procure additional eligible renewable energy
resources for the green tariff shared renewables program from
electrical generation facilities that are in addition to those
required by the California Renewables Portfolio Standard Program
(Article 16 (commencing with Section 399.11) of Chapter 2.3 of Part
1). For purposes of this subdivision, "commission-approved tools and
mechanisms" means those procurement methods approved by the
commission for an electrical corporation to procure eligible
renewable energy resources for purposes of meeting the procurement
requirements of the California Renewables Portfolio Standard Program
(Article 16 (commencing with Section 399.11) of Chapter 2.3 of Part
1).
(d) A participating utility shall permit customers within the
service territory of the utility to purchase electricity pursuant to
the tariff approved by the commission to implement the utility's
green tariff shared renewables program, until the utility meets its
proportionate share of a statewide limitation of 600 megawatts of
customer participation, measured by nameplate rated generating
capacity. The proportionate share shall be calculated based on the
ratio of each participating utility's retail sales to total retail
sales of electricity by all participating utilities. The commission
may place other restrictions on purchases under a green tariff shared
renewables program, including restricting participation to a certain
level of capacity each year. The following restrictions shall apply
to the statewide 600 megawatt limitation:
(1) (A) One hundred megawatts shall be reserved for facilities
that are no larger than one megawatt nameplate rated generating
capacity and that are located in areas previously identified by the
California Environmental Protection Agency as the most impacted and
disadvantaged communities. These communities shall be identified by
census tract, and shall be determined to be the most impacted 20
percent based on results from the best available cumulative impact
screening methodology designed to identify each of the following:
(i) Areas disproportionately affected by environmental pollution
and other hazards that can lead to negative public health effects,
exposure, or environmental degradation.
(ii) Areas with socioeconomic vulnerability.
(B) For purposes of this paragraph, "previously identified" means
identified prior to commencing construction of the facility.
(2) Not less than 100 megawatts shall be reserved for
participation by residential class customers.
(3) Twenty megawatts shall be reserved for the City of Davis.
(e) To the extent possible, a participating utility shall seek to
procure eligible renewable energy resources that are located in
reasonable proximity to enrolled participants.
(f) A participating utility's green tariff shared renewables
program shall support diverse procurement and the goals of commission
General Order 156.
(g) A participating utility's green tariff shared renewables
program shall not allow a customer to subscribe to more than 100
percent of the customer's electricity demand.
(h) Except as authorized by this subdivision, a participating
utility's green tariff shared renewables program shall not allow a
customer to subscribe to more than two megawatts of nameplate
generating capacity. This limitation does not apply to a federal,
state, or local government, school or school district, county office
of education, the California Community Colleges, the California State
University, or the University of California.
(i) A participating utility's green tariff shared renewables
program shall not allow any single entity or its affiliates or
subsidiaries to subscribe to more than 20 percent of any single
calendar year's total cumulative rated generating capacity.
(j) To the extent possible, a participating utility shall actively
market the utility's green tariff shared renewables program to
low-income and minority communities and customers.
(k) Participating customers shall receive bill credits for the
generation of a participating eligible renewable energy resource
using the class average retail generation cost as established in the
participating utility's approved tariff for the class to which the
participating customer belongs, plus a renewables adjustment value
representing the difference between the time-of-delivery profile of
the eligible renewable energy resource used to serve the
participating customer and the class average time-of-delivery profile
and the resource adequacy value, if any, of the resource contained
in the utility's green tariff shared renewables program. The
renewables adjustment value applicable to a time-of-delivery profile
of an eligible renewable energy resource shall be determined
according to rules adopted by the commission. For these purposes,
"time-of-delivery profile" refers to the daily generating pattern of
a participating eligible renewable energy resource over time, the
value of which is determined by comparing the generating pattern of
that participating eligible renewable energy resource to the demand
for electricity over time and other generating resources available to
serve that demand.
(l) Participating customers shall pay a renewable generation rate
established by the commission, the administrative costs of the
participating utility, and any other charges the commission
determines are just and reasonable to fully cover the cost of
procuring a green tariff shared renewables program's resources to
serve a participating customer's needs.
(m) A participating customer's rates shall be debited or credited
with any other commission-approved costs or values applicable to the
eligible renewable energy resources contained in a participating
utility's green tariff shared renewables program's portfolio. These
additional costs or values shall be applied to new customers when
they initially subscribe after the cost or value has been approved by
the commission.
(n) Participating customers shall pay all otherwise applicable
charges without modification.
(o) A participating utility shall permit a participating customer
to subscribe to the program and be provided with a nonbinding
estimate of reasonably anticipated bill credits and bill charges, as
determined by the commission, for a period of up to 20 years.
(p) A participating utility shall provide support for enhanced
community renewables programs to facilitate development of eligible
renewable energy resource projects located close to the source of
demand.
(q) The commission shall ensure that charges and credits
associated with a participating utility's green tariff shared
renewables program are set in a manner that ensures nonparticipant
ratepayer indifference for the remaining bundled service, direct
access, and community choice aggregation customers and ensures that
no costs are shifted from participating customers to nonparticipating
ratepayers.
(r) A participating utility shall track and account for all
revenues and costs to ensure that the utility recovers the actual
costs of the utility's green tariff shared renewables program and
that all costs and revenues are fully transparent and auditable.
(s) Any renewable energy credits associated with electricity
procured by a participating utility for the utility's green tariff
shared renewables program and utilized by a participating customer
shall be retired by the participating utility on behalf of the
participating customer. Those renewable energy credits shall not be
further sold, transferred, or otherwise monetized for any purpose.
Any renewable energy credits associated with electricity procured by
a participating utility for the shared renewable energy
self-generation program, but not utilized by a participating
customer, shall be counted toward meeting that participating utility'
s renewables portfolio standard.
(t) A participating utility shall, in the event of participant
customer attrition or other causes that reduce customer participation
or electrical demand below generation levels, apply the excess
generation from the eligible renewable energy resources procured
through the utility's green tariff shared renewables program to the
utility's renewable portfolio standard procurement obligations or
bank the excess generation for future use to benefit all customers in
accordance with the renewables portfolio standard banking and
procurement rules approved by the commission.
(u) In calculating its procurement requirements to meet the
requirements of the California Renewables Portfolio Standard Program
(Article 16 (commencing with Section 399.11) of Chapter 2.3 of Part
1), a participating utility may exclude from total retail sales the
kilowatthours generated by an eligible renewable energy resource that
is credited to a participating customer pursuant to the utility's
green tariff shared renewables program, commencing with the point in
time at which the generating facility achieves commercial operation.
(v) All renewable energy resources procured on behalf of
participating customers in the participating utility's green tariff
shared renewables program shall comply with the State Air Resources
Board's Voluntary Renewable Electricity Program. California-eligible
greenhouse gas allowances associated with these purchases shall be
retired on behalf of participating customers as part of the board's
Voluntary Renewable Electricity Program.
(w) A participating utility shall provide a municipality with
aggregated consumption data for participating customers within the
municipality's jurisdiction to allow for reporting on progress toward
climate action goals by the municipality. A participating utility
shall also publicly disclose, on a geographic basis, consumption data
and reductions in emissions of greenhouse gases achieved by
participating customers in the utility's green tariff shared
renewables program, on an aggregated basis consistent with privacy
protections as specified in Chapter 5 (commencing with Section 8380)
of Division 4.1.
(x) This section does not prohibit or restrict a community choice
aggregator from offering its own voluntary renewable energy programs
to participating customers of the community choice aggregation.
SEC. 269. Section 2870 of the Public Utilities Code is amended to
read:
2870. (a) As used in this section, the following terms have the
following meanings:
(1) "CARE program" means the California Alternate Rates for Energy
program established pursuant to Section 739.1.
(2) "Program" means the Multifamily Affordable Housing Solar Roofs
Program established pursuant to this chapter.
(3) "Qualified multifamily affordable housing property" means a
multifamily residential building of at least five rental housing
units that is operated to provide deed-restricted low-income
residential housing, as defined in clause (i) of subparagraph (A) of
paragraph (3) of subdivision (a) of Section 2852, and that meets one
or more of the following requirements:
(A) The property is located in a disadvantaged community, as
identified by the California Environmental Protection Agency pursuant
to Section 39711 of the Health and Safety Code.
(B) At least 80 percent of the households have incomes at or below
60 percent of the area median income, as defined in subdivision (f)
of Section 50052.5 of the Health and Safety Code.
(4) "Solar energy system" means a solar energy photovoltaic device
that meets or exceeds the eligibility criteria established pursuant
to Section 25782 of the Public Resources Code.
(b) (1) Adoption and implementation of the Multifamily Affordable
Housing Solar Roofs Program may count toward the satisfaction of the
commission's obligation to ensure that specific alternatives designed
for growth among residential customers in disadvantaged communities
are offered as part of the standard contract or tariff authorized
pursuant to paragraph (1) of subdivision (b) of Section 2827.1.
(2) This section does not preclude electrical corporations from
offering and administering a distributed energy resource program,
including solar energy systems, in disadvantaged communities offered
under current or proposed programs using funds provided under
subdivision (c) of Section 748.5 or programs proposed to comply with
paragraph (1) of subdivision (b) as approved by the commission.
(c) The commission shall annually authorize the allocation of one
hundred million dollars ($100,000,000) or 10 percent of available
funds, whichever is less, from the revenues described in subdivision
(c) of Section 748.5 for the Multifamily Affordable Housing Solar
Roofs Program, beginning with the fiscal year commencing July 1,
2016, and ending with the fiscal year ending June 30, 2020. The
commission shall continue authorizing the allocation of these funds
through June 30, 2026, if the commission determines that revenues are
available after 2020 and that there is adequate interest and
participation in the program.
(d) The commission shall consider the most appropriate program
administration structure, including administration by a qualified
third-party administrator, selected by the commission through a
competitive bidding process, or administration by an electrical
corporation, in an existing or future proceeding.
(e) Not more than 10 percent of the funds allocated to the program
shall be used for administration.
(f) (1) By June 30, 2017, the commission shall authorize the award
of monetary incentives for qualifying solar energy systems that are
installed on qualified multifamily affordable housing properties
through December 31, 2030. The target of the program is to install a
combined generating capacity of at least 300 megawatts on qualified
properties.
(2) The commission shall require that the electricity generated by
qualifying solar energy systems installed pursuant to the program be
primarily used to offset electricity usage by low-income tenants.
These requirements may include required covenants and restrictions in
deeds.
(3) The commission shall require that qualifying solar energy
systems owned by third-party owners are subject to contractual
restrictions to ensure that no additional costs for the system be
passed on to low-income tenants at the properties receiving
incentives pursuant to the program. The commission shall require
third-party owners of solar energy systems to provide ongoing
operations and maintenance of the system, monitor energy production,
and, where necessary, take appropriate action to ensure that the kWh
production levels projected for the system are achieved throughout
the period of the third-party agreement. Such actions may include,
but are not limited to, providing a performance guarantee of annual
production levels or taking corrective actions to resolve
underproduction problems.
(4) The commission shall ensure that incentive levels for
photovoltaic installations receiving incentives through the program
are aligned with the installation costs for solar energy systems in
affordable housing markets and take account of federal investment tax
credits and contributions from other sources to the extent feasible.
(5) The commission shall require that no individual installation
receive incentives at a rate greater than 100 percent of the total
system installation costs.
(6) The commission shall establish local hiring requirements for
the program to provide economic development benefits to disadvantaged
communities.
(7) The commission shall establish energy efficiency requirements
that are equal to the energy efficiency requirements established for
the program described in Section 2852, including participation in a
federal, state, or utility-funded energy efficiency program or
documentation of a recent energy efficiency retrofit.
(g) (1) Low-income tenants who participate in the program shall
receive credits on utility bills from the program. The commission
shall ensure that utility bill reductions are achieved through
tariffs that allow for the allocation of credits, such as virtual net
metering tariffs designed for Multifamily Affordable Solar Housing
Program participants, or other tariffs that may be adopted by the
commission pursuant to Section 2827.1.
(2) The commission shall ensure that electrical corporation tariff
structures affecting the low-income tenants participating in the
program continue to provide a direct economic benefit from the
qualifying solar energy system.
(h) This chapter is not intended to supplant CARE program rates as
the primary mechanism for achieving the goals of the CARE program.
(i) The commission shall determine the eligibility of qualified
multifamily affordable housing property tenants that are customers of
community choice aggregators.
(j) (1) On or before July 30, 2020, and by July 30 of every third
year thereafter through 2029, the commission shall submit to the
Legislature an assessment of the Multifamily Affordable Housing Solar
Roofs Program. That assessment shall include the number of qualified
multifamily affordable housing property sites that have a qualifying
solar energy system for which an award was made pursuant to this
chapter and the dollar value of the award, the electrical generating
capacity of the qualifying renewable energy system, the bill
reduction outcomes of the program for the participants, the cost of
the program, the total electrical system benefits, the environmental
benefits, the progress made toward reaching the goals of the program,
the program's impact on the CARE program budget, and the
recommendations for improving the program to meet its goals. The
report shall include an analysis of pending program commitments,
reservations, obligations, and projected demands for the program to
determine whether future ongoing funding allocations for the program
are warranted. The report shall also include a summary of the other
programs intended to benefit disadvantaged communities, including,
but not limited to, the Single-Family Affordable Solar Homes Program,
the Multifamily Affordable Solar Housing Program, and the Green
Tariff Shared Renewables Program (Chapter 7.6 (commencing with
Section 2831)).
(2) Every three years, the commission shall evaluate the program's
expenditures, commitments, uncommitted balances, future demands,
performance, and outcomes and shall make any necessary adjustments to
the program to ensure the goals of the program are being met. If,
upon review, the commission finds there is insufficient participation
in the program, the commission may credit uncommitted funds back to
ratepayers pursuant to Section 748.5.
(3) As part of the annual workplan required pursuant to Section
321.6, the commission shall provide an annual update of the
Multifamily Affordable Housing Solar Roofs Program that shall
include, but not be limited to, the number of projects approved,
number of projects completed, number of pending projects awaiting
approval, and geographic distribution of the projects.
SEC. 270. Section 7661 of the Public Utilities Code is amended to
read:
7661. (a) The commission shall require every railroad corporation
operating in this state to develop, in consultation with, and with
the approval of, the Office of Emergency Services, a protocol for
rapid communications with the Office of Emergency Services, the
Department of the California Highway Patrol, and designated county
public safety agencies in an endangered area if there is a runaway
train or any other uncontrolled train movement that threatens public
health and safety.
(b) A railroad corporation shall promptly notify the Office of
Emergency Services, the Department of the California Highway Patrol,
and designated county public safety agencies, through a communication
to the California State Warning Center of the Office of Emergency
Services, if there is a runaway train or any other uncontrolled train
movement that threatens public health and safety, in accordance with
the railroad corporation's communications protocol developed
pursuant to subdivision (a).
(c) The notification required pursuant to subdivision (b) shall
include the following information, whether or not an accident or
spill occurs:
(1) The information required by subdivision (c) of Section 7673.
(2) In the event of a runaway train, a train list.
(3) In the event of an uncontrolled train movement or uncontrolled
movement of railcars, a track list or other inventory document if
available.
(d) The division of the commission responsible for consumer
protection and safety shall investigate any incident that results in
a notification required pursuant to subdivision (b).
SEC. 271. Section 8282 of the Public Utilities Code is amended to
read:
8282. For the purposes of this article, the following definitions
apply:
(a) "Control" means exercising the power to make policy decisions.
(b) "Disabled veteran business enterprise" has the same meaning as
defined in Section 999 of the Military and Veterans Code.
(c) "LGBT business enterprise" means a business enterprise that is
at least 51-percent owned by a lesbian, gay, bisexual, or
transgender person or persons; or, in the case of any publicly owned
business, at least 51 percent of the stock of which is owned by one
or more lesbian, gay, bisexual, or transgender persons; and whose
management and daily business operations are controlled by one or
more of those individuals.
(d) "Minority business enterprise" means a business enterprise
that is at least 51-percent owned by a minority group or groups; or,
in the case of any publicly owned business, at least 51 percent of
the stock of which is owned by one or more minority groups, and whose
management and daily business operations are controlled by one or
more of those individuals. The contracting utility shall presume that
minority includes African Americans, Hispanic Americans, Native
Americans, and Asian Pacific Americans.
(e) To "operate" means to be actively involved in the day-to-day
management. It is not enough to merely be an officer or director.
(f) "Renewable energy project" means a project for the development
and operation of an eligible renewable energy resource meeting the
requirements of the California Renewables Portfolio Standard Program
(Article 16 (commencing with Section 399.11) of Chapter 2.3 of Part 1
of Division 1).
(g) "Women business enterprise" means a business enterprise that
is at least 51-percent owned by a woman or women; or, in the case of
any publicly owned business, at least 51 percent of the stock of
which is owned by one or more women; and whose management and daily
business operations are controlled by one or more of those
individuals.
SEC. 272. Section 21252 of the Public Utilities Code is amended to
read:
21252. (a) (1) The department, its members, the director,
officers and employees of the department, and every state and peace
officer charged with the enforcement of state and subordinate laws or
ordinances, may enforce and assist in the enforcement of this part,
the rules and orders issued under this part, and all other laws of
this state relating to aeronautics. In the enforcement of these
rules, orders, and laws, the director, and any officers and employees
as the director may designate, shall have the authority, as public
officers, to arrest without a warrant, any person who, in his
presence, has violated, or as to whom there is probable cause to
believe has violated, any of the rules, orders, or laws.
(2) In any case in which an arrest authorized by this subdivision
is made for an offense declared to be a misdemeanor, and the person
arrested does not demand to be taken before a magistrate, the
arresting officer may, instead of taking that person before a
magistrate, follow the procedure prescribed by Chapter 5C (commencing
with Section 853.5) of Title 3 of Part 2 of the Penal Code. The
provisions of that chapter shall thereafter apply with reference to
any proceeding based upon the issuance of a citation pursuant to this
authority.
(b) There shall not be civil liability on the part of, and a cause
of action shall not arise against, any person, acting pursuant to
subdivision (a) and within the scope of his authority, for false
arrest or false imprisonment arising out of any arrest that is lawful
or for which the arresting officer, at the time of the arrest, had
reasonable cause to believe was lawful. The officer shall not be
deemed an aggressor or lose his right to self-defense by the use of
reasonable force to effect the arrest or to prevent escape or to
overcome resistance.
(c) The director, and any officers and employees as the director
may designate, may serve all processes and notices throughout the
state.
SEC. 273. Section 130350.7 of the Public Utilities Code is amended
to read:
130350.7. (a) The Los Angeles County Metropolitan Transportation
Authority (MTA), in addition to any other tax it is authorized to
impose or has imposed, may impose a transactions and use tax, for a
period to be determined by the MTA, that is applicable in the
incorporated and unincorporated areas of Los Angeles County. The rate
of tax authorized by this section, when combined with the rate of
tax authorized by voter approval of Measure R pursuant to Section
130350.5 during any period when that tax is in effect, and upon the
expiration of that tax, shall not exceed 1 percent.
(b) The ordinance imposing the tax shall contain all of the
following:
(1) An expenditure plan that lists the transportation projects and
programs to be funded from net revenues from the tax. The
expenditure plan shall appear in the ordinance as an exhibit. The
expenditure plan shall include all of the following:
(A) The most recent cost estimates for each project and
program identified in the expenditure plan.
(B) The identification of the accelerated cost, if applicable, for
each project and program in the expenditure plan.
(C) The approximate schedule during which the MTA anticipates
funds will be available for each project and program.
(D) The expected completion dates for each project and program
within a three-year range.
(2) Provisions conforming to the Transactions and Use Tax Law
(Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue
and Taxation Code), except as otherwise provided in subdivision (f).
(3) A provision limiting the MTA's costs of administering the
ordinance and the net revenues from the tax to 1.5 percent of the
total tax revenues.
(4) A requirement that the net revenues from the tax, defined to
mean the total tax revenues less any refunds, costs of administration
by the State Board of Equalization, and the MTA's administration
costs, shall be used by the MTA to fund transportation projects and
programs identified in the expenditure plan.
(5) The rate of the tax.
(c) The MTA shall do both of the following:
(1) Develop a transparent process to determine the most recent
costs estimates for each project and program identified in the
expenditure plan.
(2) At least 30 days before submitting the ordinance described in
subdivision (b) to the voters, post the expenditure plan on its
Internet Web site in a prominent manner.
(d) The ordinance shall be adopted by the MTA board, which shall
also adopt a resolution that submits the ordinance to the voters.
(e) The ordinance shall become operative pursuant to Section
130352 if approved by two-thirds of the voters voting on the measure,
pursuant to subdivision (d) of Section 2 of Article XIII C of the
California Constitution.
(f) (1) If the voters approve the ordinance authorized by this
section, the expenditure plan included as an exhibit to the ordinance
pursuant to paragraph (1) of subdivision (b) shall also be included
in the revised and updated Long Range Transportation Plan within one
year of the date the ordinance takes effect. The revised and updated
Long Range Transportation Plan shall also include capital projects
and capital programs that are adopted by each subregion that are
submitted to the MTA for inclusion in the revised and updated Long
Range Transportation Plan, if the cost and schedule details are
provided by the subregions, in a manner consistent with the
requirements of the plan. Inclusion of a capital project or a capital
program in the Long Range Transportation Plan is not a commitment or
guarantee that the project or program shall receive any future
funding.
(2) For purposes of this subdivision, "subregion" shall have the
same meaning as defined in the Long Range Transportation Plan.
(g) The MTA may incur bonded indebtedness payable from the net
revenues of the tax pursuant to the bond issuance provisions of
Chapter 5 (commencing with Section 130500) and any successor act.
(h) The tax authorized by this section shall be imposed pursuant
to the Transactions and Use Tax Law (Part 1.6 (commencing with
Section 7251) of Division 2 of the Revenue and Taxation Code),
notwithstanding the combined rate limitation in Section 7251.1 of the
Revenue and Taxation Code.
SEC. 274. Section 408 of the Revenue and Taxation Code is amended
to read:
408. (a) Except as otherwise provided in subdivisions (b), (c),
(d), (e), and (g), any information and records in the assessor's
office that are not required by law to be kept or prepared by the
assessor, disabled veterans' exemption claims, and homeowners'
exemption claims, are not public documents and shall not be open to
public inspection. Property receiving the homeowners' exemption shall
be clearly identified on the assessment roll. The assessor shall
maintain records which shall be open to public inspection to identify
those claimants who have been granted the homeowners' exemption.
(b) The assessor may provide any appraisal data in his or her
possession to the assessor of any county.
The assessor shall disclose information, furnish abstracts, or
permit access to all records in his or her office to law enforcement
agencies, the county grand jury, the board of supervisors or their
duly authorized agents, employees, or representatives when conducting
an investigation of the assessor's office pursuant to Section 25303
of the Government Code, the county recorder when conducting an
investigation to determine whether a documentary transfer tax is
imposed, the Controller, employees of the Controller for property tax
postponement purposes, probate referees, employees of the Franchise
Tax Board for tax administration purposes only, staff appraisers of
the Division of Financial Institutions, the Department of
Transportation, the Department of General Services, the State Board
of Equalization, the State Lands Commission, the State Department of
Social Services, the Department of Child Support Services, the
Department of Water Resources, and other duly authorized legislative
or administrative bodies of the state pursuant to their authorization
to examine the records. Whenever the assessor discloses information,
furnishes abstracts, or permits access to records in his or her
office to staff appraisers of the Department of Business Oversight,
the Department of Transportation, the Department of General Services,
the State Lands Commission, or the Department of Water Resources
pursuant to this section, the department shall reimburse the assessor
for any costs incurred as a result thereof.
(c) Upon the request of the tax collector, the assessor shall
disclose and provide to the tax collector information used in the
preparation of that portion of the unsecured roll for which the taxes
thereon are delinquent. The tax collector shall certify to the
assessor that he or she needs the information requested for the
enforcement of the tax lien in collecting those delinquent taxes.
Information requested by the tax collector may include social
security numbers, and the assessor shall recover from the tax
collector his or her actual and reasonable costs for providing the
information. The tax collector shall add the costs described in the
preceding sentence to the assessee's delinquent tax lien and collect
those costs subject to subdivision (e) of Section 2922.
(d) The assessor shall, upon the request of an assessee or his or
her designated representative, permit the assessee or representative
to inspect or copy any market data in the assessor's possession. For
purposes of this subdivision, "market data" means any information in
the assessor's possession, whether or not required to be prepared or
kept by him or her, relating to the sale of any property comparable
to the property of the assessee, if the assessor bases his or her
assessment of the assessee's property, in whole or in part, on that
comparable sale or sales. The assessor shall provide the names of the
seller and buyer of each property on which the comparison is based,
the location of that property, the date of the sale, and the
consideration paid for the property, whether paid in money or
otherwise. However, for purposes of providing market data, the
assessor may not display any document relating to the business
affairs or property of another.
(e) (1) With respect to information, documents, and records, other
than market data as defined in subdivision (d), the assessor shall,
upon request of an assessee of property, or his or her designated
representative, permit the assessee or representative to inspect or
copy all information, documents, and records, including auditors'
narrations and workpapers, whether or not required to be kept or
prepared by the assessor, relating to the appraisal and the
assessment of the assessee's property, and any penalties and interest
thereon.
(2) After enrolling an assessment, the assessor shall respond to a
written request for information supporting the assessment,
including, but not limited to, any appraisal and other data requested
by the assessee.
(3) Except as provided in Section 408.1, an assessee, or his or
her designated representative, may not be permitted to inspect or
copy information and records that also relate to the property or
business affairs of another, unless that disclosure is ordered by a
competent court in a proceeding initiated by a taxpayer seeking to
challenge the legality of the assessment of his or her property.
(f) (1) Permission for the inspection or copying requested
pursuant to subdivision (d) or (e) shall be granted as soon as
reasonably possible to the assessee or his or her designated
representative.
(2) If the assessee, or his or her designated representative,
requests the assessor to make copies of any of the requested records,
the assessee shall reimburse the assessor for the reasonable costs
incurred in reproducing and providing the copies.
(3) If the assessor fails to permit the inspection or copying of
materials or information as requested pursuant to subdivision (d) or
(e) and the assessor introduces any requested materials or
information at any assessment appeals board hearing, the assessee or
his or her representative may request and shall be granted a
continuance for a reasonable period of time. The continuance shall
extend the two-year period specified in subdivision (c) of Section
1604 for a period of time equal to the period of continuance.
(g) Upon the written request of the tax collector, the assessor
shall provide to the tax collector information for the preparation
and enforcement of Part 6 (commencing with Section 3351). The tax
collector shall certify to the assessor that he or she needs the
contact information to assist with the preparation and enforcement of
Part 6 (commencing with Section 3351). The assessor shall provide
the information, which may not include social security numbers. Any
information provided to the tax collector pursuant to this
subdivision shall not become a public record and shall not be open to
public inspection. The tax collector shall reimburse the assessor
for the actual and reasonable costs incurred by the assessor for
providing the information to administer this subdivision. The tax
collector shall add the costs described in the preceding sentence to
the assessee's delinquent taxes and include the costs incurred
subject to Sections 4112 and 4672.2. The tax collector or his or her
designated employee shall, under penalty of perjury, certify to the
assessor that he or she needs the information to assist with the
preparation and enforcement of Part 6 (commencing with Section 3351),
and that the information provided pursuant to this subdivision that
is not public record and that is not open to public inspection shall
not become public record and shall not be open to public inspection.
SEC. 275. Section 423.3 of the Revenue and Taxation Code is
amended to read:
423.3. Any city or county may allow land subject to an
enforceable restriction under the Williamson Act or a migratory
waterfowl habitat contract to be assessed in accordance with one or
more of the following:
(a) Land specified in paragraph (1) of subdivision (a) of Section
16142 of the Government Code shall be assessed at the value
determined as provided in Section 423, but not to exceed a uniformly
applied percentage of its base year value pursuant to Section 110.1,
adjusted to reflect the percentage change in the cost of living not
to exceed 2 percent per year. In no event shall that percentage be
less than 70 percent.
(b) Prime commercial rangeland shall be assessed at the value
determined as provided in Section 423, but not to exceed a uniformly
applied percentage of its base year value pursuant to Section 110.1,
adjusted to reflect the percentage change in the cost of living not
to exceed 2 percent per year. In no event shall that percentage be
less than 80 percent.
For purposes of this subdivision, "prime commercial rangeland"
means rangeland that meets all of the following physical-chemical
parameters:
(1) Soil depth of 12 inches or more.
(2) Soil texture of fine sandy loam to clay.
(3) Soil permeability of rapid to slow.
(4) Soil with at least 2.5 inches of available water holding
capacity in profile.
(5) A slope of less than 30 percent.
(6) A climate with 80 or more frost-free days per year.
(7) Ten inches or more average annual precipitation.
(8) When managed at potential, the land generally requires less
than 17 acres to support one animal unit per year.
Property owners of land specified in this subdivision shall
demonstrate that their land falls within the above definition when
requested by the city or county.
(c) Land specified in paragraph (2) of subdivision (a) of Section
16142 of the Government Code shall be assessed at the value
determined as provided in Section 423, but not to exceed a uniformly
applied percentage of its base year value pursuant to Section 110.1,
adjusted to reflect the percentage change in the cost of living not
to exceed 2 percent per year. In no event shall that percentage be
less than 90 percent.
(d) Waterfowl habitat shall be assessed at the value determined as
provided in Section 423.7 but not to exceed a uniformly applied
percentage of its base year value pursuant to Section 110.1, adjusted
to reflect the percentage change in the cost of living not to exceed
2 percent per year. In no event shall that percentage be less than
90 percent.
SEC. 276. Section 12206 of the Revenue and Taxation Code is
amended to read:
12206. (a) (1) There shall be allowed as a credit against the
"tax" (as described by Section 12201) a state low-income housing tax
credit in an amount equal to the amount determined in subdivision
(c), computed in accordance with Section 42 of the Internal Revenue
Code, except as otherwise provided in this section.
(2) "Taxpayer," for purposes of this section, means the sole owner
in the case of a "C" corporation, the partners in the case of a
partnership, and the shareholders in the case of an "S" corporation.
(3) "Housing sponsor," for purposes of this section, means the
sole owner in the case of a "C" corporation, the partnership in the
case of a partnership, and the "S" corporation in the case of an "S"
corporation.
(b) (1) The amount of the credit allocated to any housing sponsor
shall be authorized by the California Tax Credit Allocation
Committee, or any successor thereof, based on a project's need for
the credit for economic feasibility in accordance with the
requirements of this section.
(A) Except for projects to provide farmworker housing, as defined
in subdivision (h) of Section 50199.7 of the Health and Safety Code,
that are allocated credits solely under the set-aside described in
subdivision (c) of Section 50199.20 of the Health and Safety Code,
the low-income housing project shall be located in California and
shall meet either of the following requirements:
(i) The project's housing sponsor shall have been allocated by the
California Tax Credit Allocation Committee a credit for federal
income tax purposes under Section 42 of the Internal Revenue Code.
(ii) It shall qualify for a credit under Section 42(h)(4)(B) of
the Internal Revenue Code.
(B) The California Tax Credit Allocation Committee shall not
require fees for the credit under this section in addition to those
fees required for applications for the tax credit pursuant to Section
42 of the Internal Revenue Code. The committee may require a fee if
the application for the credit under this section is submitted in a
calendar year after the year the application is submitted for the
federal tax credit.
(C) (i) For a project that receives a preliminary reservation of
the state low-income housing tax credit, allowed pursuant to
subdivision (a), on or after January 1, 2009, and before January 1,
2016, the credit shall be allocated to the partners of a partnership
owning the project in accordance with the partnership agreement,
regardless of how the federal low-income housing tax credit with
respect to the project is allocated to the partners, or whether the
allocation of the credit under the terms of the agreement has
substantial economic effect, within the meaning of Section 704(b) of
the Internal Revenue Code.
(ii) This subparagraph does not apply to a project that receives a
preliminary reservation of state low-income housing tax credits
under the set-aside described in subdivision (c) of Section 50199.20
of the Health and Safety Code unless the project also receives a
preliminary reservation of federal low-income housing tax credits.
(iii) This subparagraph shall cease to be operative with respect
to any project that receives a preliminary reservation of a credit on
or after January 1, 2016.
(2) (A) The California Tax Credit Allocation Committee shall
certify to the housing sponsor the amount of tax credit under this
section allocated to the housing sponsor for each credit period.
(B) In the case of a partnership or an "S" corporation, the
housing sponsor shall provide a copy of the California Tax Credit
Allocation Committee certification to the taxpayer.
(C) The taxpayer shall attach a copy of the certification to any
return upon which a tax credit is claimed under this section.
(D) In the case of a failure to attach a copy of the certification
for the year to the return in which a tax credit is claimed under
this section, no credit under this section shall be allowed for that
year until a copy of that certification is provided.
(E) All elections made by the taxpayer pursuant to Section 42 of
the Internal Revenue Code apply to this section.
(F) (i) Except as described in clause (ii), for buildings located
in designated difficult development areas (DDAs) or qualified census
tracts (QCTs), as defined in Section 42(d)(5)(B) of the Internal
Revenue Code, credits may be allocated under this section in the
amounts prescribed in subdivision (c), provided that the amount of
credit allocated under Section 42 of the Internal Revenue Code is
computed on 100 percent of the qualified basis of the building.
(ii) Notwithstanding clause (i), the California Tax Credit
Allocation Committee may allocate the credit for buildings located in
DDAs or QCTs that are restricted to having 50 percent of its
occupants be special needs households, as defined in the California
Code of Regulations by the California Tax Credit Allocation
Committee, even if the taxpayer receives federal credits pursuant to
Section 42(d)(5)(B) of the Internal Revenue Code, provided that the
credit allowed under this section shall not exceed 30 percent of the
eligible basis of the building.
(G) (i) The California Tax Credit Allocation Committee may
allocate a credit under this section in exchange for a credit
allocated pursuant to Section 42(d)(5)(B) of the Internal Revenue
Code in amounts up to 30 percent of the eligible basis of a building
if the credits allowed under Section 42 of the Internal Revenue Code
are reduced by an equivalent amount.
(ii) An equivalent amount shall be determined by the California
Tax Credit Allocation Committee based upon the relative amount
required to produce an equivalent state tax credit to the taxpayer.
(c) Section 42(b) of the Internal Revenue Code shall be modified
as follows:
(1) In the case of any qualified low-income building that receives
an allocation after 1989 and is a new building not federally
subsidized, the term "applicable percentage" means the following:
(A) For each of the first three years, the percentage prescribed
by the Secretary of the Treasury for new buildings that are not
federally subsidized for the taxable year, determined in accordance
with the requirements of Section 42(b)(2) of the Internal Revenue
Code, in lieu of the percentage prescribed in Section 42(b)(1)(B) of
the Internal Revenue Code.
(B) For the fourth year, the difference between 30 percent and the
sum of the applicable percentages for the first three years.
(2) In the case of any qualified low-income building that receives
an allocation after 1989 and that is a new building that is
federally subsidized or that is an existing building that is "at risk
of conversion," the term "applicable percentage" means the
following:
(A) For each of the first three years, the percentage prescribed
by the Secretary of the Treasury for new buildings that are federally
subsidized for the taxable year.
(B) For the fourth year, the difference between 13 percent and the
sum of the applicable percentages for the first three years.
(3) For purposes of this section, the term "at risk of conversion,"
with respect to an existing property means a property that satisfies
all of the following criteria:
(A) The property is a multifamily rental housing development in
which at least 50 percent of the units receive governmental
assistance pursuant to any of the following:
(i) New construction, substantial rehabilitation, moderate
rehabilitation, property disposition, and loan management set-aside
programs, or any other program providing project-based assistance
pursuant to Section 8 of the United States Housing Act of 1937,
Section 1437f of Title 42 of the United States Code, as amended.
(ii) The Below-Market-Interest-Rate Program pursuant to Section
221(d)(3) of the National Housing Act, Sections 1715 l (d)
(3) and (5) of Title 12 of the United States Code.
(iii) Section 236 of the National Housing Act, Section 1715z-1 of
Title 12 of the United States Code.
(iv) Programs for rent supplement assistance pursuant to Section
101 of the Housing and Urban Development Act of 1965, Section 1701s
of Title 12 of the United States Code, as amended.
(v) Programs pursuant to Section 515 of the Housing Act of 1949,
Section 1485 of Title 42 of the United States Code, as amended.
(vi) The low-income housing credit program set forth in Section 42
of the Internal Revenue Code.
(B) The restrictions on rent and income levels will terminate or
the federal insured mortgage on the property is eligible for
prepayment any time within five years before or after the date of
application to the California Tax Credit Allocation Committee.
(C) The entity acquiring the property enters into a regulatory
agreement that requires the property to be operated in accordance
with the requirements of this section for a period equal to the
greater of 55 years or the life of the property.
(D) The property satisfies the requirements of Section 42(e) of
the Internal Revenue Code regarding rehabilitation expenditures,
except that the provisions of Section 42(e)(3)(A)(ii)(I) do not
apply.
(d) The term "qualified low-income housing project" as defined in
Section 42(c)(2) of the Internal Revenue Code is modified by adding
the following requirements:
(1) The taxpayer shall be entitled to receive a cash distribution
from the operations of the project, after funding required reserves,
which, at the election of the taxpayer, is equal to:
(A) An amount not to exceed 8 percent of the lesser of:
(i) The owner equity which shall include the amount of the capital
contributions actually paid to the housing sponsor and shall not
include any amounts until they are paid on an investor note.
(ii) Twenty percent of the adjusted basis of the building as of
the close of the first taxable year of the credit period.
(B) The amount of the cashflow from those units in the building
that are not low-income units. For purposes of computing cashflow
under this subparagraph, operating costs shall be allocated to the
low-income units using the "floor space fraction," as defined in
Section 42 of the Internal Revenue Code.
(C) Any amount allowed to be distributed under subparagraph (A)
that is not available for distribution during the first five years of
the compliance period may accumulate and be distributed any time
during the first 15 years of the compliance period but not
thereafter.
(2) The limitation on return applies in the aggregate to the
partners if the housing sponsor is a partnership and in the aggregate
to the shareholders if the housing sponsor is an "S" corporation.
(3) The housing sponsor shall apply any cash available for
distribution in excess of the amount eligible to be distributed under
paragraph (1) to reduce the rent on rent-restricted units or to
increase the number of rent-restricted units subject to the tests of
Section 42(g)(1) of the Internal Revenue Code.
(e) The provisions of Section 42(f) of the Internal Revenue Code
shall be modified as follows:
(1) The term "credit period" as defined in Section 42(f)(1) of the
Internal Revenue Code is modified by substituting "four taxable
years" for "10 taxable years."
(2) The special rule for the first taxable year of the credit
period under Section 42(f)(2) of the Internal Revenue Code does not
apply to the tax credit under this section.
(3) Section 42(f)(3) of the Internal Revenue Code is modified to
read:
If, as of the close of any taxable year in the compliance period,
after the first year of the credit period, the qualified basis of any
building exceeds the qualified basis of that building as of the
close of the first year of the credit period, the housing sponsor, to
the extent of its tax credit allocation, shall be eligible for a
credit on the excess in an amount equal to the applicable percentage
determined pursuant to subdivision (c) for the four-year period
beginning with the later of the taxable years in which the increase
in qualified basis occurs.
(f) The provisions of Section 42(h) of the Internal Revenue Code
shall be modified as follows:
(1) Section 42(h)(2) of the Internal Revenue Code does not apply,
and instead the following provisions apply:
The total amount for the four-year credit period of the housing
credit dollars allocated in a calendar year to any building shall
reduce the aggregate housing credit dollar amount of the California
Tax Credit Allocation Committee for the calendar year in which the
allocation is made.
(2) Paragraphs (3), (4), (5), (6)(E)(i)(II), (6)(F), (6)(G), (6)
(I), (7), and (8) of Section 42(h) of the Internal Revenue Code do
not apply.
(g) The aggregate housing credit dollar amount that may be
allocated annually by the California Tax Credit Allocation Committee
pursuant to this section, Section 17058, and Section 23610.5 shall be
an amount equal to the sum of all the following:
(1) Seventy million dollars ($70,000,000) for the 2001 calendar
year, and, for the 2002 calendar year and each calendar year
thereafter, seventy million dollars ($70,000,000) increased by the
percentage, if any, by which the Consumer Price Index for the
preceding calendar
year exceeds the Consumer Price Index for the 2001 calendar year.
For the purposes of this paragraph, the term "Consumer Price Index"
means the last Consumer Price Index for All Urban Consumers published
by the federal Department of Labor.
(2) The unused housing credit ceiling, if any, for the preceding
calendar years.
(3) The amount of housing credit ceiling returned in the calendar
year. For purposes of this paragraph, the amount of housing credit
dollar amount returned in the calendar year equals the housing credit
dollar amount previously allocated to any project that does not
become a qualified low-income housing project within the period
required by this section or to any project with respect to which an
allocation is canceled by mutual consent of the California Tax Credit
Allocation Committee and the allocation recipient.
(4) Five hundred thousand dollars ($500,000) per calendar year for
projects to provide farmworker housing, as defined in subdivision
(h) of Section 50199.7 of the Health and Safety Code.
(5) The amount of any unallocated or returned credits under former
Sections 17053.14, 23608.2, and 23608.3, as those sections read
prior to January 1, 2009, until fully exhausted for projects to
provide farmworker housing, as defined in subdivision (h) of Section
50199.7 of the Health and Safety Code.
(h) The term "compliance period" as defined in Section 42(i)(1) of
the Internal Revenue Code is modified to mean, with respect to any
building, the period of 30 consecutive taxable years beginning with
the first taxable year of the credit period with respect thereto.
(i) (1) Section 42(j) of the Internal Revenue Code does not apply
and the provisions in paragraph (2) shall be substituted in its
place.
(2) The requirements of this section shall be set forth in a
regulatory agreement between the California Tax Credit Allocation
Committee and the housing sponsor, which agreement shall be
subordinated, when required, to any lien or encumbrance of any banks
or other institutional lenders to the project. The regulatory
agreement entered into pursuant to subdivision (f) of Section
50199.14 of the Health and Safety Code, shall apply, providing the
agreement includes all of the following provisions:
(A) A term not less than the compliance period.
(B) A requirement that the agreement be recorded in the official
records of the county in which the qualified low-income housing
project is located.
(C) A provision stating which state and local agencies can enforce
the regulatory agreement in the event the housing sponsor fails to
satisfy any of the requirements of this section.
(D) A provision that the regulatory agreement shall be deemed a
contract enforceable by tenants as third-party beneficiaries thereto
and which allows individuals, whether prospective, present, or former
occupants of the building, who meet the income limitation applicable
to the building, the right to enforce the regulatory agreement in
any state court.
(E) A provision incorporating the requirements of Section 42 of
the Internal Revenue Code as modified by this section.
(F) A requirement that the housing sponsor notify the California
Tax Credit Allocation Committee or its designee and the local agency
that can enforce the regulatory agreement if there is a determination
by the Internal Revenue Service that the project is not in
compliance with Section 42(g) of the Internal Revenue Code.
(G) A requirement that the housing sponsor, as security for the
performance of the housing sponsor's obligations under the regulatory
agreement, assign the housing sponsor's interest in rents that it
receives from the project, provided that until there is a default
under the regulatory agreement, the housing sponsor is entitled to
collect and retain the rents.
(H) The remedies available in the event of a default under the
regulatory agreement that is not cured within a reasonable cure
period, include, but are not limited to, allowing any of the parties
designated to enforce the regulatory agreement to collect all rents
with respect to the project; taking possession of the project and
operating the project in accordance with the regulatory agreement
until the enforcer determines the housing sponsor is in a position to
operate the project in accordance with the regulatory agreement;
applying to any court for specific performance; securing the
appointment of a receiver to operate the project; or any other relief
as may be appropriate.
(j) (1) The committee shall allocate the housing credit on a
regular basis consisting of two or more periods in each calendar year
during which applications may be filed and considered. The committee
shall establish application filing deadlines, the maximum percentage
of federal and state low-income housing tax credit ceiling that may
be allocated by the committee in that period, and the approximate
date on which allocations shall be made. If the enactment of federal
or state law, the adoption of rules or regulations, or other similar
events prevent the use of two allocation periods, the committee may
reduce the number of periods and adjust the filing deadlines, maximum
percentage of credit allocated, and the allocation dates.
(2) The committee shall adopt a qualified allocation plan, as
provided in Section 42(m)(1) of the Internal Revenue Code. In
adopting this plan, the committee shall comply with the provisions of
Sections 42(m)(1)(B) and 42(m)(1)(C) of the Internal Revenue Code.
(3) Notwithstanding Section 42(m) of the Internal Revenue Code,
the California Tax Credit Allocation Committee shall allocate housing
credits in accordance with the qualified allocation plan and
regulations, which shall include the following provisions:
(A) All housing sponsors, as defined by paragraph (3) of
subdivision (a), shall demonstrate at the time the application is
filed with the committee that the project meets the following
threshold requirements:
(i) The housing sponsor shall demonstrate there is a need and
demand for low-income housing in the community or region for which it
is proposed.
(ii) The project's proposed financing, including tax credit
proceeds, shall be sufficient to complete the project and that the
proposed operating income shall be adequate to operate the project
for the extended use period.
(iii) The project shall have enforceable financing commitments,
either construction or permanent financing, for at least 50 percent
of the total estimated financing of the project.
(iv) The housing sponsor shall have and maintain control of the
site for the project.
(v) The housing sponsor shall demonstrate that the project
complies with all applicable local land use and zoning ordinances.
(vi) The housing sponsor shall demonstrate that the project
development team has the experience and the financial capacity to
ensure project completion and operation for the extended use period.
(vii) The housing sponsor shall demonstrate the amount of tax
credit that is necessary for the financial feasibility of the project
and its viability as a qualified low-income housing project
throughout the extended use period, taking into account operating
expenses, a supportable debt service, reserves, funds set aside for
rental subsidies, and required equity, and a development fee that
does not exceed a specified percentage of the eligible basis of the
project prior to inclusion of the development fee in the eligible
basis, as determined by the committee.
(B) The committee shall give a preference to those projects
satisfying all of the threshold requirements of subparagraph (A) if
both of the following apply:
(i) The project serves the lowest income tenants at rents
affordable to those tenants.
(ii) The project is obligated to serve qualified tenants for the
longest period.
(C) In addition to the provisions of subparagraphs (A) and (B),
the committee shall use the following criteria in allocating housing
credits:
(i) Projects serving large families in which a substantial number,
as defined by the committee, of all residential units is comprised
of low-income units with three and more bedrooms.
(ii) Projects providing single-room occupancy units serving very
low income tenants.
(iii) Existing projects that are "at risk of conversion," as
defined by paragraph (3) of subdivision (c).
(iv) Projects for which a public agency provides direct or
indirect long-term financial support for at least 15 percent of the
total project development costs or projects for which the owner's
equity constitutes at least 30 percent of the total project
development costs.
(v) Projects that provide tenant amenities not generally available
to residents of low-income housing projects.
(4) For purposes of allocating credits pursuant to this section,
the committee shall not give preference to any project by virtue of
the date of submission of its application except to break a tie when
two or more of the projects have an equal rating.
(k) Section 42(l) of the Internal Revenue Code shall be modified
as follows:
The term "secretary" shall be replaced by the term "California
Franchise Tax Board."
( l ) In the case where the state credit allowed under
this section exceeds the "tax," the excess may be carried over to
reduce the "tax" in the following year, and succeeding years if
necessary, until the credit has been exhausted.
(m) The provisions of Section 11407(a) of Public Law 101-508,
relating to the effective date of the extension of the low-income
housing credit, apply to calendar years after 1993.
(n) The provisions of Section 11407(c) of Public Law 101-508,
relating to election to accelerate credit, do not apply.
(o) This section shall remain in effect for as long as Section 42
of the Internal Revenue Code, relating to low-income housing credits,
remains in effect.
SEC. 277. Section 17052.6 of the Revenue and Taxation Code is
amended to read:
17052.6. (a) For each taxable year beginning on or after January
1, 2000, there shall be allowed as a credit against the "net tax," as
defined in Section 17039, an amount determined in accordance with
Section 21 of the Internal Revenue Code, except that the amount of
the credit shall be a percentage, as provided in subdivision (b) of
the allowable federal credit without taking into account whether
there is a federal tax liability.
(b) For the purposes of subdivision (a), the percentage of the
allowable federal credit shall be determined as follows:
(1) For taxable years beginning before January 1, 2003:
The percentage
If the adjusted gross income of
is: credit is:
$40,000 or less.............. 63%
Over $40,000 but not over 53%
$70,000......................
Over $70,000 but not over 42%
$100,000.....................
Over $100,000................ 0%
(2) For taxable years beginning on or after January 1, 2003:
The percentage
If the adjusted gross income of
is: credit is:
$40,000 or less.............. 50%
Over $40,000 but not over 43%
$70,000......................
Over $70,000 but not over 34%
$100,000.....................
Over $100,000................ 0%
(c) For purposes of this section, "adjusted gross income" means
adjusted gross income as computed for purposes of paragraph (2) of
subdivision (h) of Section 17024.5.
(d) The credit authorized by this section shall be limited, as
follows:
(1) Employment-related expenses, within the meaning of Section 21
of the Internal Revenue Code, shall be limited to expenses for
household services and care provided in this state.
(2) Earned income, within the meaning of Section 21(d) of the
Internal Revenue Code, shall be limited to earned income subject to
tax under this part. For purposes of this paragraph, compensation
received by a member of the armed forces for active services as a
member of the armed forces, other than pensions or retired pay, shall
be considered earned income subject to tax under this part, whether
or not the member is domiciled in this state.
(e) For purposes of this section, Section 21(b)(1) of the Internal
Revenue Code, relating to a qualifying individual, is modified to
additionally provide that a child, as defined in Section 152(f)(1) of
the Internal Revenue Code, shall be treated, for purposes of Section
152 of the Internal Revenue Code, as applicable for purposes of this
section, as receiving over one-half of his or her support during the
calendar year from the parent having custody for a greater portion
of the calendar year, that parent shall be treated as a "custodial
parent," within the meaning of Section 152(e) of the Internal Revenue
Code, as applicable for purposes of this section, and the child
shall be treated as a qualifying individual under Section 21(b)(1) of
the Internal Revenue Code, as applicable for purposes of this
section, if both of the following apply:
(1) The child receives over one-half of his or her support during
the calendar year from his or her parents who never married each
other and who lived apart at all times during the last six months of
the calendar year.
(2) The child is in the custody of one or both of his or her
parents for more than one-half of the calendar year.
(f) The amendments to this section made by Section 1.5 of Chapter
824 of the Statutes of 2002 apply only to taxable years beginning on
or after January 1, 2002.
(g) The amendments made to this section by Chapter 14 of the
Statutes of 2011 apply to taxable years beginning on or after January
1, 2011.
SEC. 278. Section 17255 of the Revenue and Taxation Code is
amended to read:
17255. (a) Section 179(b)(1) of the Internal Revenue Code,
relating to dollar limitation, shall not apply and in lieu thereof,
the aggregate cost which may be taken into account under Section 179
(a) of the Internal Revenue Code for any taxable year shall not
exceed twenty-five thousand dollars ($25,000).
(b) Section 179(b)(2) of the Internal Revenue Code, relating to
reduction in limitation, does not apply and in lieu thereof, the
limitation under subdivision (a) for any taxable year shall be
reduced, but not to below zero, by the amount by which the cost of
Section 179 property, as defined in Section 179(d)(1) of the Internal
Revenue Code, except as otherwise provided, placed in service during
the taxable year exceeds two hundred thousand dollars ($200,000).
(c) Section 179 of the Internal Revenue Code is modified to
provide that the "aggregate amount disallowed" referred to in Section
179(b)(3)(B) of the Internal Revenue Code shall be computed under
this part as it read on the date the property generating the amount
disallowed was placed in service.
(d) The last sentence in Section 179(c)(2) of the Internal Revenue
Code, relating to election irrevocable, does not apply.
(e) Section 179(d)(1)(A)(ii) of the Internal Revenue Code does not
apply.
(f) Section 179(e) of the Internal Revenue Code, relating to
special rules for qualified disaster assistance property, does not
apply.
SEC. 279. Section 18035.6 of the Revenue and Taxation Code is
repealed.
SEC. 280. Section 18036.6 of the Revenue and Taxation Code is
repealed.
SEC. 281. Section 18805 of the Revenue and Taxation Code is
amended to read:
18805. (a) A taxpayer may designate on the tax return that a
contribution in excess of the tax liability, if any, be made to the
California Peace Officer Memorial Foundation Fund, which is
established by Section 18806. That designation is to be used as a
voluntary checkoff on the tax return.
(b) The contributions shall be in full dollar amounts and may be
made individually by each signatory on the joint return.
(c) A designation shall be made for any taxable year on the
initial return for that taxable year, and once made shall be
irrevocable. In the event that payments and credits reported on the
return, together with any other credits associated with the taxpayer'
s account, do not exceed the taxpayer's liability, the return shall
be treated as though no designation has been made. In the event that
no designee is specified, the contribution shall be transferred to
the General Fund, after reimbursement of the direct actual costs of
the Franchise Tax Board for the collection and the administration of
funds under this article.
(d) In the event a taxpayer designates a contribution to more than
one account or fund listed on the tax return, and the amount
available for designation is insufficient to satisfy the total amount
designated, the contribution shall be allocated among the designees
on a pro rata basis.
(e) The Franchise Tax Board shall revise the forms of the return
to include a space labeled the "California Peace Officer Memorial
Foundation Fund" to allow for the designation permitted. The forms
shall also include in the instructions information that the
contribution may be in the amount of one dollar ($1) or more and that
the contribution shall be used to build and maintain the California
Peace Officers' Memorial in Sacramento, California, and for
activities performed by the California Peace Officers Memorial
Foundation, Inc. in support of families of slain peace officers.
(f) A deduction shall be allowed under Article 6 (commencing with
Section 17201) of Chapter 3 for any contribution made pursuant to
subdivision (a).
SEC. 282. Section 18807 of the Revenue and Taxation Code is
amended to read:
18807. All money transferred to the California Peace Officer
Memorial Foundation Fund, upon appropriation by the Legislature,
shall be allocated as follows:
(a) To the Franchise Tax Board and the Controller for
reimbursement of all costs incurred by the Franchise Tax Board and
the Controller in connection with their duties under this article.
(b) To the Department of the California Highway Patrol for
allocation to the California Peace Officers' Memorial Commission for
building and maintaining the California Peace Officers' Memorial in
Sacramento, California, and for activities performed by the
California Peace Officers Memorial Foundation, Inc. in support of
families of slain peace officers.
(c) All money transferred to the California Peace Officer Memorial
Foundation Fund prior to the enactment of the act adding this
subdivision is hereby appropriated for allocation as described in
subdivisions (a) and (b).
SEC. 283. Section 18808 of the Revenue and Taxation Code is
amended to read:
18808. (a) This article shall remain in effect only until January
1, 2021, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 2021, deletes that date.
(b) If the repeal date specified in subdivision (a) has been
deleted, all of the following apply:
(1) By September 1 of the calendar year beginning after the
effective date of the act deleting the repeal date and by September 1
of each subsequent calendar year that the California Peace Officer
Memorial Foundation Fund appears on a tax return, the Franchise Tax
Board shall do all of the following:
(A) Determine the minimum contribution amount required to be
received during the next calendar year for the fund to appear on the
tax return for the taxable year that includes that next calendar
year.
(B) Provide written notification to the California Peace Officers'
Memorial Commission of the amount determined in subparagraph (A).
(C) Determine whether the amount of contributions estimated to be
received during the calendar year will equal or exceed the minimum
contribution amount determined by the Franchise Tax Board for the
calendar year pursuant to subparagraph (A). The Franchise Tax Board
shall estimate the amount of contributions to be received by using
the actual amounts received and an estimate of the contributions that
will be received by the end of that calendar year.
(2) If the Franchise Tax Board determines that the amount of
contributions estimated to be received during a calendar year will
not at least equal the minimum contribution amount for the calendar
year, this article is repealed with respect to taxable years
beginning on or after January 1 of that calendar year.
(3) For purposes of this section, the minimum contribution amount
for a calendar year means two hundred fifty thousand dollars
($250,000) for the first calendar year beginning after the effective
date of the act that deleted the repeal date specified in subdivision
(a), or the minimum contribution amount adjusted pursuant to
subdivision (c).
(c) For each calendar year, beginning with calendar year 2005, the
Franchise Tax Board shall adjust, on or before September 1 of that
calendar year, the minimum contribution amount specified in
subdivision (b) as follows:
(1) The minimum contribution amount for the calendar year shall be
an amount equal to the product of the minimum contribution amount
for the prior calendar year multiplied by the inflation factor
adjustment as specified in paragraph (2) of subdivision (h) of
Section 17041, rounded off to the nearest dollar.
(2) The inflation factor adjustment used for the calendar year
shall be based on the figures for the percentage change in the
California Consumer Price Index received on or before August 1 of the
calendar year pursuant to paragraph (1) of subdivision (h) of
Section 17041.
(d) Notwithstanding the repeal of this article, any contribution
amounts designated pursuant to this article prior to its repeal shall
continue to be transferred and disbursed in accordance with this
article as in effect immediately prior to that repeal.
SEC. 284. Section 19136 of the Revenue and Taxation Code is
amended to read:
19136. (a) Section 6654 of the Internal Revenue Code, relating to
failure by an individual to pay estimated income tax, applies,
except as otherwise provided.
(b) Section 6654(a)(1) of the Internal Revenue Code is modified to
refer to the rate determined under Section 19521 in lieu of Section
6621 of the Internal Revenue Code.
(c) (1) Section 6654(e)(1) of the Internal Revenue Code, relating
to exceptions where the tax is a small amount, does not apply.
(2) An addition to tax shall not be imposed under this section if
the tax imposed under Section 17041 or 17048 and the tax imposed
under Section 17062 for the preceding taxable year, minus the sum of
any credits against the tax provided by Part 10 (commencing with
Section 17001) or this part, or the tax computed under Section 17041
or 17048 upon the estimated income for the taxable year, minus the
sum of any credits against the tax provided by Part 10 (commencing
with Section 17001) or this part, is less than five hundred dollars
($500), except in the case of a separate return filed by a married
person the amount shall be less than two hundred fifty dollars
($250).
(d) Section 6654(f) of the Internal Revenue Code does not apply
and for purposes of this section the term "tax" means the tax imposed
under Section 17041 or 17048 and the tax imposed under Section 17062
less any credits against the tax provided by Part 10 (commencing
with Section 17001) or this part, other than the credit provided by
subdivision (a) of Section 19002.
(e) (1) The credit for tax withheld on wages, as specified in
Section 6654(g) of the Internal Revenue Code, is the credit allowed
under subdivision (a) of Section 19002.
(2) (A) Section 6654(g)(1) of the Internal Revenue Code is
modified by substituting the phrase "the applicable percentage" for
the phrase "an equal part."
(B) For purposes of this paragraph, "applicable percentage" means
the percentage amount prescribed under Section 6654(d)(1)(A) of the
Internal Revenue Code, as modified by subdivision (a) of Section
19136.1.
(f) This section applies to a nonresident individual.
(g) (1) An addition to tax shall not be imposed under this section
to the extent that the underpayment was created or increased by
either of the following:
(A) Any law that is chaptered during and operative for the taxable
year of the underpayment.
(B) If, for a taxable year prior to its repeal, the adjustment
factor for the credit authorized by Section 17052 for the taxable
year was less than the adjustment factor for that credit for the
preceding taxable year.
(2) (A) Notwithstanding Section 18415, subparagraph (A) of
paragraph (1) applies to penalties imposed under this section on or
after January 1, 2005.
(B) Notwithstanding Section 18415, subparagraph (B) of paragraph
(1) applies to penalties imposed under this section on or after
January 1, 2016.
(h) The amendments made to this section by Section 5 of Chapter
305 of the Statutes of 2008 apply to taxable years beginning on or
after January 1, 2009.
(i) The amendments made to this section by Section 3 of Chapter 15
of the Fourth Extraordinary Session of the Statutes of 2009 apply to
amounts withheld on wages beginning on or after January 1, 2009.
SEC. 285. Section 19161 of the Revenue and Taxation Code is
amended to read:
19161. (a) An addition to tax shall not be made under Section
19132, 19136, or 19142 for failure to make timely payment of tax with
respect to a period during which a case is pending under Title 11 of
the United States Code in either of the following situations:
(1) If that tax was incurred by the estate and the failure
occurred pursuant to an order of the court finding probable
insufficiency of funds of the estate to pay administrative expenses.
(2) If:
(A) That tax was incurred by the debtor before the earlier of the
order for relief or (in the involuntary case) the appointment of a
trustee, and
(B) (i) The petition was filed before the due date prescribed by
law (including extensions) for filing a return of that tax, or
(ii) The date for making the addition to the tax occurs on or
after the day on which the petition was filed.
(b) Subdivision (a) does not apply to any liability for an
addition to the tax which arises from the failure to pay or deposit a
tax withheld or collected from others and required to be paid to the
State of California.
SEC. 286. Section 19255 of the Revenue and Taxation Code is
amended to read:
19255. (a) Except as otherwise provided in subdivisions (b) and
(e), after 20 years have lapsed from the date the latest tax
liability for a taxable year or the date any other liability that is
not associated with a taxable year becomes "due and payable" within
the meaning of Section 19221, the Franchise Tax Board may not collect
that amount and the taxpayer's liability to the state for that
liability is abated by reason of lapse of time. Any actions taken
by the Franchise Tax Board
to collect an uncollectible liability shall be released, withdrawn,
or otherwise terminated by the Franchise Tax Board, and no subsequent
administrative or civil action shall be taken or brought to collect
all or part of that uncollectible amount. Any amounts received in
contravention of this section shall be considered an overpayment that
may be credited and refunded in accordance with Article 1
(commencing with Section 19301) of Chapter 6.
(b) If a timely civil action filed pursuant to Article 2 of
Chapter 6 of this part is commenced, or a claim is filed in a probate
action, the period for which the liability is collectable shall be
extended and shall not expire until that liability, probate claim, or
judgment against the taxpayer arising from that liability is
satisfied or becomes unenforceable under the laws applicable to the
enforcement of civil judgments.
(c) For purposes of this section, both of the following apply:
(1) "Tax liability" means a liability imposed under Part 10
(commencing with Section 17001), Part 11 (commencing with Section
23001), or this part, and includes any additions to tax, interest,
penalties, fees and any other amounts relating to the imposed
liability.
(2) If more than one liability is "due and payable" for a
particular taxable year, with the exception of a liability resulting
from a penalty imposed under Section 19777.5, the "due and payable"
date that is later in time shall be the date upon which the 20-year
limitation of subdivision (a) commences.
(d) This section does not apply to amounts subject to collection
by the Franchise Tax Board pursuant to Article 5.5 or 7 of this
chapter, or any other amount that is not a tax imposed under Part 10
or Part 11, but which the Franchise Tax Board is collecting as though
it were a final personal income tax delinquency.
(e) (1) The expiration of the period of limitation on collection
under this section shall be suspended for the following periods:
(A) The period during which the Franchise Tax Board is prohibited
by reason of a bankruptcy case from collecting, plus six months
thereafter.
(B) The period described under subdivision (d) of Section 19008
relating to installment payment agreements.
(C) The period during which collection is postponed by operation
of law under Section 18571, related to postponement by reason of
service in a combat zone, or under Section 18572, related to
postponement by reason of presidentially declared disaster or
terroristic or military action.
(D) During any other period during which collection of a tax is
suspended, postponed, or extended by operation of law.
(2) A suspension of the period of limitation under this
subdivision applies with respect to both parties of any liability
that is joint and several.
(f) This section shall be applied on and after July 1, 2006, to
any liability "due and payable" before, on, or after that date.
SEC. 287. Section 19533 of the Revenue and Taxation Code is
amended to read:
19533. (a) In the event the debtor has more than one debt being
collected by the Franchise Tax Board and the amount collected by the
Franchise Tax Board is insufficient to satisfy the total amount
owing, the amount collected shall be applied in the following
priority:
(1) Payment of any taxes, additions to tax, penalties, interest,
fees, or other amounts due and payable under Part 7.5 (commencing
with Section 13201), Part 10 (commencing with Section 17001), Part 11
(commencing with Section 23001), or this part, and amounts
authorized to be collected under Section 19722.
(2) Payment of delinquencies collected under Section 10878.
(3) Payment of any amounts due that are referred for collection
under Article 5.5 (commencing with Section 19280) of Chapter 5.
(4) Payment of any delinquencies referred for collection under
Article 7 (commencing with Section 19291) of Chapter 5.
(b) Notwithstanding the payment priority established by this
section, voluntary payments designated by the taxpayer as payment for
a personal income tax liability or as a payment on amounts
authorized to be collected under Section 19722, shall not be applied
pursuant to this priority, but shall instead be applied as
designated.
SEC. 288. Section 19772 of the Revenue and Taxation Code is
amended to read:
19772. (a) Section 6707A of the Internal Revenue Code, relating
to penalty for failure to include reportable transaction information
with a return, shall apply, except as otherwise provided.
(b) (1) Section 6707A(b)(1) of the Internal Revenue Code, relating
to amount of penalty, is modified by substituting the phrase "or
which would have resulted from such transaction if such transaction
were respected for state tax purposes" for the phrase "or which would
have resulted from such transaction if such transaction were
respected for Federal tax purposes."
(2) The penalty amounts in Section 6707A(b)(2)(A) of the Internal
Revenue Code are modified by substituting "$30,000 ($15,000" for
"$200,000 ($100,000."
(3) The penalty amounts in Section 6707A(b)(2)(B) of the Internal
Revenue Code are modified by substituting "$15,000 ($5,000" for
"$50,000 ($10,000."
(4) The penalty amounts in Section 6707A(b)(3) of the Internal
Revenue Code, relating to minimum penalty, are modified by
substituting "$2,500 ($1,250" for "$10,000 ($5,000."
(c) (1) Section 6707A(c)(1) of the Internal Revenue Code, relating
to reportable transaction, is modified to include reportable
transactions within the meaning of paragraph (3) of subdivision (a)
of Section 18407.
(2) Section 6707A(c)(2) of the Internal Revenue Code, relating to
listed transaction, is modified to include listed transactions within
the meaning of paragraph (4) of subdivision (a) of Section 18407.
(d) The penalty under this section only applies to taxpayers with
taxable income greater than two hundred thousand dollars ($200,000).
(e) Section 6707A(e) of the Internal Revenue Code, relating to a
penalty reported to the Securities and Exchange Commission, does not
apply.
(f) Section 6707A(d) of the Internal Revenue Code, relating to
authority to rescind penalty, does not apply, and in lieu thereof,
the following apply:
(1) The Chief Counsel of the Franchise Tax Board may rescind all
or any portion of any penalty imposed by this section with respect to
any violation if all of the following apply:
(A) The violation is with respect to a reportable transaction
other than a listed transaction.
(B) The person on whom the penalty is imposed has a history of
complying with the requirements of this part and Part 10 (commencing
with Section 17001) or Part 11 (commencing with Section 23001).
(C) It is shown that the violation is due to an unintentional
mistake of fact.
(D) Imposing the penalty would be against equity and good
conscience.
(E) Rescinding the penalty would promote compliance with the
requirements of this part and Part 10 (commencing with Section 17001)
or Part 11 (commencing with Section 23001) and effective tax
administration.
(2) The exercise of authority under paragraph (1) shall be at the
sole discretion of the Chief Counsel of the Franchise Tax Board and
may not be delegated.
(3) Notwithstanding any other law or rule of law, any
determination under this subdivision may not be reviewed in any
administrative or judicial proceeding.
(g) Article 3 (commencing with Section 19031) of Chapter 4,
relating to deficiency assessments, does not apply with respect to
the assessment or collection of any penalty imposed under this
section.
(h) The penalty imposed by this section is in addition to any
penalty imposed under Part 10 (commencing with Section 17001), Part
11 (commencing with Section 23001), or this part.
(i) The amendments made to this section by Section 25 of Chapter
359 of the Statutes of 2015 apply to penalties assessed on or after
January 1, 2016.
SEC. 289. Section 20640.3 of the Revenue and Taxation Code is
amended to read:
20640.3. A claimant is an individual who:
(a) Holds a right to a possessory interest pursuant to a validly
recorded instrument conveying such possessory interest for a term of
years no less than 45 years beyond the last day of the calendar year
ending immediately prior to the fiscal year for which taxes are
initially postponed.
(b) Occupies as a principal place of residence the residential
dwelling affixed to such possessory interest real property on the
last day of the year designated in subdivision (d) of Section 20503.
(c) Is either (1) 62 years of age or older on or before December
31 of the fiscal year for which postponement is claimed or (2) blind
or disabled, as defined in Section 12050 of the Welfare and
Institutions Code, at the time of application or on December 10 of
the fiscal year for which the postponement is claimed, whichever is
earlier.
SEC. 290. Section 21021 of the Revenue and Taxation Code is
amended to read:
21021. (a) If any officer or employee of the board recklessly
disregards board published procedures, a taxpayer aggrieved by that
action or omission may bring an action for damages against the State
of California in superior court.
(b) In any action brought under subdivision (a), upon a finding of
liability on the part of the State of California, the state shall be
liable to the plaintiff in an amount equal to the sum of all of the
following:
(1) Actual and direct monetary damages sustained by the plaintiff
as a result of the actions or omissions.
(2) Reasonable litigation costs, as defined for purposes of
Section 19717.
(c) In the awarding of damages under subdivision (b), the court
shall take into consideration the negligence or omissions, if any, on
the part of the plaintiff which contributed to the damages.
(d) Whenever it appears to the court that the taxpayer's position
in the proceedings brought under subdivision (a) is frivolous, the
court may impose a penalty against the plaintiff in an amount not to
exceed ten thousand dollars ($10,000). A penalty so imposed shall be
paid upon notice and demand from the board and shall be collected as
a tax imposed under Part 10 (commencing with Section 17001) or Part
11 (commencing with Section 23001).
SEC. 291. Section 23156 of the Revenue and Taxation Code is
amended to read:
23156. (a) The Franchise Tax Board shall abate, upon written
request by a qualified nonprofit corporation, unpaid qualified taxes,
interest, and penalties for the taxable years in which the qualified
nonprofit corporation certifies, under penalty of perjury, that it
was not doing business, within the meaning of subdivision (a) of
Section 23101.
(b) For purposes of this section:
(1) "Qualified nonprofit corporation" means a nonprofit
corporation identified in Section 5059, 5060, or 5061 of the
Corporations Code or a foreign nonprofit corporation, as defined in
Section 5053 of the Corporations Code that has qualified to transact
intrastate business in this state and that satisfies any of the
following conditions:
(A) Was operating and previously obtained tax-exempt status with
the Franchise Tax Board, but had its tax-exempt status revoked under
subdivision (a) of Section 23777.
(B) Was operating and previously obtained tax-exempt status with
the Internal Revenue Service, but had its tax-exempt status revoked
under Section 6033(j) of the Internal Revenue Code.
(C) Was never doing business, within the meaning of subdivision
(a) of Section 23101, in this state at any time after the time of its
incorporation in this state.
(2) "Qualified taxes, interest, and penalties" means tax imposed
under Section 23153 and associated interest and penalties, and any
penalties imposed under Section 19141. "Qualified taxes, interest,
and penalties" does not include tax imposed under Section 23501 or
23731, or associated interest or penalties.
(c) The qualified corporation must establish that it has ceased
all business operations at the time of filing the request for
abatement under this section.
(d) (1) The abatement of unpaid qualified tax, interest, and
penalties is conditioned on the dissolution of the qualified
corporation within 12 months from the date of filing the request for
abatement under this section.
(2) If the qualified corporation is not dissolved within 12 months
from the date of filing the request for abatement or restarts
business operations at any time after requesting abatement under this
section, the abatement of qualified tax, interest, and penalties
under this section shall be canceled and the qualified taxes,
interest, and penalties subject to that abatement shall be treated as
if the abatement never occurred.
(e) The Franchise Tax Board shall prescribe any rules and
regulations that may be necessary or appropriate to implement this
section. Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code shall not apply to any
standard, criterion, procedure, determination, rule, notice, or
guideline established or issued by the Franchise Tax Board pursuant
to this section.
SEC. 292. Section 23610.5 of the Revenue and Taxation Code is
amended to read:
23610.5. (a) (1) There shall be allowed as a credit against the
"tax" (as defined by Section 23036) a state low-income housing tax
credit in an amount equal to the amount determined in subdivision
(c), computed in accordance with Section 42 of the Internal Revenue
Code of 1986, except as otherwise provided in this section.
(2) "Taxpayer," for purposes of this section, means the sole owner
in the case of a "C" corporation, the partners in the case of a
partnership, and the shareholders in the case of an "S" corporation.
(3) "Housing sponsor," for purposes of this section, means the
sole owner in the case of a "C" corporation, the partnership in the
case of a partnership, and the "S" corporation in the case of an "S"
corporation.
(b) (1) The amount of the credit allocated to any housing sponsor
shall be authorized by the California Tax Credit Allocation
Committee, or any successor thereof, based on a project's need for
the credit for economic feasibility in accordance with the
requirements of this section.
(A) The low-income housing project shall be located in California
and shall meet either of the following requirements:
(i) Except for projects to provide farmworker housing, as defined
in subdivision (h) of Section 50199.7 of the Health and Safety Code,
that are allocated credits solely under the set-aside described in
subdivision (c) of Section 50199.20 of the Health and Safety Code,
the project's housing sponsor has been allocated by the California
Tax Credit Allocation Committee a credit for federal income tax
purposes under Section 42 of the Internal Revenue Code.
(ii) It qualifies for a credit under Section 42(h)(4)(B) of the
Internal Revenue Code.
(B) The California Tax Credit Allocation Committee shall not
require fees for the credit under this section in addition to those
fees required for applications for the tax credit pursuant to Section
42 of the Internal Revenue Code. The committee may require a fee if
the application for the credit under this section is submitted in a
calendar year after the year the application is submitted for the
federal tax credit.
(C) (i) For a project that receives a preliminary reservation of
the state low-income housing tax credit, allowed pursuant to
subdivision (a), on or after January 1, 2009, and before January 1,
2016, the credit shall be allocated to the partners of a partnership
owning the project in accordance with the partnership agreement,
regardless of how the federal low-income housing tax credit with
respect to the project is allocated to the partners, or whether the
allocation of the credit under the terms of the agreement has
substantial economic effect, within the meaning of Section 704(b) of
the Internal Revenue Code.
(ii) To the extent the allocation of the credit to a partner under
this section lacks substantial economic effect, any loss or
deduction otherwise allowable under this part that is attributable to
the sale or other disposition of that partner's partnership interest
made prior to the expiration of the federal credit shall not be
allowed in the taxable year in which the sale or other disposition
occurs, but shall instead be deferred until and treated as if it
occurred in the first taxable year immediately following the taxable
year in which the federal credit period expires for the project
described in clause (i).
(iii) This subparagraph does not apply to a project that receives
a preliminary reservation of state low-income housing tax credits
under the set-aside described in subdivision (c) of Section 50199.20
of the Health and Safety Code unless the project also receives a
preliminary reservation of federal low-income housing tax credits.
(iv) This subparagraph shall cease to be operative with respect to
any project that receives a preliminary reservation of a credit on
or after January 1, 2016.
(2) (A) The California Tax Credit Allocation Committee shall
certify to the housing sponsor the amount of tax credit under this
section allocated to the housing sponsor for each credit period.
(B) In the case of a partnership or an "S" corporation, the
housing sponsor shall provide a copy of the California Tax Credit
Allocation Committee certification to the taxpayer.
(C) The taxpayer shall, upon request, provide a copy of the
certification to the Franchise Tax Board.
(D) All elections made by the taxpayer pursuant to Section 42 of
the Internal Revenue Code apply to this section.
(E) (i) Except as described in clause (ii), for buildings located
in designated difficult development areas (DDAs) or qualified census
tracts (QCTs), as defined in Section 42(d)(5)(B) of the Internal
Revenue Code, credits may be allocated under this section in the
amounts prescribed in subdivision (c), provided that the amount of
credit allocated under Section 42 of the Internal Revenue Code is
computed on 100 percent of the qualified basis of the building.
(ii) Notwithstanding clause (i), the California Tax Credit
Allocation Committee may allocate the credit for buildings located in
DDAs or QCTs that are restricted to having 50 percent of its
occupants be special needs households, as defined in the California
Code of Regulations by the California Tax Credit Allocation
Committee, even if the taxpayer receives federal credits pursuant to
Section 42(d)(5)(B) of the Internal Revenue Code, provided that the
credit allowed under this section shall not exceed 30 percent of the
eligible basis of the building.
(F) (i) The California Tax Credit Allocation Committee may
allocate a credit under this section in exchange for a credit
allocated pursuant to Section 42(d)(5)(B) of the Internal Revenue
Code in amounts up to 30 percent of the eligible basis of a building
if the credits allowed under Section 42 of the Internal Revenue Code
are reduced by an equivalent amount.
(ii) An equivalent amount shall be determined by the California
Tax Credit Allocation Committee based upon the relative amount
required to produce an equivalent state tax credit to the taxpayer.
(c) Section 42(b) of the Internal Revenue Code shall be modified
as follows:
(1) In the case of any qualified low-income building placed in
service by the housing sponsor during 1987, the term "applicable
percentage" means 9 percent for each of the first three years and 3
percent for the fourth year for new buildings (whether or not the
building is federally subsidized) and for existing buildings.
(2) In the case of any qualified low-income building that receives
an allocation after 1989 and is a new building not federally
subsidized, the term "applicable percentage" means the following:
(A) For each of the first three years, the percentage prescribed
by the Secretary of the Treasury for new buildings that are not
federally subsidized for the taxable year, determined in accordance
with the requirements of Section 42(b)(2) of the Internal Revenue
Code, in lieu of the percentage prescribed in Section 42(b)(1)(B) of
the Internal Revenue Code.
(B) For the fourth year, the difference between 30 percent and the
sum of the applicable percentages for the first three years.
(3) In the case of any qualified low-income building that receives
an allocation after 1989 and that is a new building that is
federally subsidized or that is an existing building that is "at risk
of conversion," the term "applicable percentage" means the
following:
(A) For each of the first three years, the percentage prescribed
by the Secretary of the Treasury for new buildings that are federally
subsidized for the taxable year.
(B) For the fourth year, the difference between 13 percent and the
sum of the applicable percentages for the first three years.
(4) For purposes of this section, the term "at risk of conversion,"
with respect to an existing property means a property that satisfies
all of the following criteria:
(A) The property is a multifamily rental housing development in
which at least 50 percent of the units receive governmental
assistance pursuant to any of the following:
(i) New construction, substantial rehabilitation, moderate
rehabilitation, property disposition, and loan management set-aside
programs, or any other program providing project-based assistance
pursuant to Section 8 of the United States Housing Act of 1937,
Section 1437f of Title 42 of the United States Code, as amended.
(ii) The Below-Market-Interest-Rate Program pursuant to Section
221(d)(3) of the National Housing Act, Sections 1715 l (d)
(3) and (5) of Title 12 of the United States Code.
(iii) Section 236 of the National Housing Act, Section 1715z-1 of
Title 12 of the United States Code.
(iv) Programs for rent supplement assistance pursuant to Section
101 of the Housing and Urban Development Act of 1965, Section 1701s
of Title 12 of the United States Code, as amended.
(v) Programs pursuant to Section 515 of the Housing Act of 1949,
Section 1485 of Title 42 of the United States Code, as amended.
(vi) The low-income housing credit program set forth in Section 42
of the Internal Revenue Code.
(B) The restrictions on rent and income levels will terminate or
the federally insured mortgage on the property is eligible for
prepayment any time within five years before or after the date of
application to the California Tax Credit Allocation Committee.
(C) The entity acquiring the property enters into a regulatory
agreement that requires the property to be operated in accordance
with the requirements of this section for a period equal to the
greater of 55 years or the life of the property.
(D) The property satisfies the requirements of Section 42(e) of
the Internal Revenue Code regarding rehabilitation expenditures,
except that the provisions of Section 42(e)(3)(A)(ii)(I) do not
apply.
(d) The term "qualified low-income housing project" as defined in
Section 42(c)(2) of the Internal Revenue Code is modified by adding
the following requirements:
(1) The taxpayer shall be entitled to receive a cash distribution
from the operations of the project, after funding required reserves,
that at the election of the taxpayer, is equal to:
(A) An amount not to exceed 8 percent of the lesser of:
(i) The owner equity, that shall include the amount of the capital
contributions actually paid to the housing sponsor and shall not
include any amounts until they are paid on an investor note.
(ii) Twenty percent of the adjusted basis of the building as of
the close of the first taxable year of the credit period.
(B) The amount of the cashflow from those units in the building
that are not low-income units. For purposes of computing cashflow
under this subparagraph, operating costs shall be allocated to the
low-income units using the "floor space fraction," as defined in
Section 42 of the Internal Revenue Code.
(C) Any amount allowed to be distributed under subparagraph (A)
that is not available for distribution during the first five years of
the compliance period may be accumulated and distributed any time
during the first 15 years of the compliance period but not
thereafter.
(2) The limitation on return applies in the aggregate to the
partners if the housing sponsor is a partnership and in the aggregate
to the shareholders if the housing sponsor is an "S" corporation.
(3) The housing sponsor shall apply any cash available for
distribution in excess of the amount eligible to be distributed under
paragraph (1) to reduce the rent on rent-restricted units or to
increase the number of rent-restricted units subject to the tests of
Section 42(g)(1) of the Internal Revenue Code.
(e) The provisions of Section 42(f) of the Internal Revenue Code
shall be modified as follows:
(1) The term "credit period" as defined in Section 42(f)(1) of the
Internal Revenue Code is modified by substituting "four taxable
years" for "10 taxable years."
(2) The special rule for the first taxable year of the credit
period under Section 42(f)(2) of the Internal Revenue Code shall not
apply to the tax credit under this section.
(3) Section 42(f)(3) of the Internal Revenue Code is modified to
read:
If, as of the close of any taxable year in the compliance period,
after the first year of the credit period, the qualified basis of any
building exceeds the qualified basis of that building as of the
close of the first year of the credit period, the housing sponsor, to
the extent of its tax credit allocation, shall be eligible for a
credit on the excess in an amount equal to the applicable percentage
determined pursuant to subdivision (c) for the four-year period
beginning with the later of the taxable years in which the increase
in qualified basis occurs.
(f) The provisions of Section 42(h) of the Internal Revenue Code
shall be modified as follows:
(1) Section 42(h)(2) of the Internal Revenue Code does not apply
and instead the following provisions apply:
The total amount for the four-year credit period of the housing
credit dollars allocated in a calendar year to any building shall
reduce the aggregate housing credit dollar amount of the California
Tax Credit Allocation Committee for the calendar year in which the
allocation is made.
(2) Paragraphs (3), (4), (5), (6)(E)(i)(II), (6)(F), (6)(G), (6)
(I), (7), and (8) of Section 42(h) of the Internal Revenue Code do
not apply.
(g) The aggregate housing credit dollar amount that may be
allocated annually by the California Tax Credit Allocation Committee
pursuant to this section, Section 12206, and Section 17058 shall be
an amount equal to the sum of all the following:
(1) Seventy million dollars ($70,000,000) for the 2001
calendar year, and, for the 2002 calendar year and each calendar year
thereafter, seventy million dollars ($70,000,000) increased by the
percentage, if any, by which the Consumer Price Index for the
preceding calendar year exceeds the Consumer Price Index for the 2001
calendar year. For the purposes of this paragraph, the term
"Consumer Price Index" means the last Consumer Price Index for All
Urban Consumers published by the federal Department of Labor.
(2) The unused housing credit ceiling, if any, for the preceding
calendar years.
(3) The amount of housing credit ceiling returned in the calendar
year. For purposes of this paragraph, the amount of housing credit
dollar amount returned in the calendar year equals the housing credit
dollar amount previously allocated to any project that does not
become a qualified low-income housing project within the period
required by this section or to any project with respect to which an
allocation is canceled by mutual consent of the California Tax Credit
Allocation Committee and the allocation recipient.
(4) Five hundred thousand dollars ($500,000) per calendar year for
projects to provide farmworker housing, as defined in subdivision
(h) of Section 50199.7 of the Health and Safety Code.
(5) The amount of any unallocated or returned credits under former
Sections 17053.14, 23608.2, and 23608.3, as those sections read
prior to January 1, 2009, until fully exhausted for projects to
provide farmworker housing, as defined in subdivision (h) of Section
50199.7 of the Health and Safety Code.
(h) The term "compliance period" as defined in Section 42(i)(1) of
the Internal Revenue Code is modified to mean, with respect to any
building, the period of 30 consecutive taxable years beginning with
the first taxable year of the credit period with respect thereto.
(i) Section 42(j) of the Internal Revenue Code does not apply and
the following shall be substituted in its place:
The requirements of this section shall be set forth in a
regulatory agreement between the California Tax Credit Allocation
Committee and the housing sponsor, and this agreement shall be
subordinated, when required, to any lien or encumbrance of any banks
or other institutional lenders to the project. The regulatory
agreement entered into pursuant to subdivision (f) of Section
50199.14 of the Health and Safety Code shall apply, provided that the
agreement includes all of the following provisions:
(1) A term not less than the compliance period.
(2) A requirement that the agreement be recorded in the official
records of the county in which the qualified low-income housing
project is located.
(3) A provision stating which state and local agencies can enforce
the regulatory agreement in the event the housing sponsor fails to
satisfy any of the requirements of this section.
(4) A provision that the regulatory agreement shall be deemed a
contract enforceable by tenants as third-party beneficiaries thereto,
and that allows individuals, whether prospective, present, or former
occupants of the building, who meet the income limitation applicable
to the building, the right to enforce the regulatory agreement in
any state court.
(5) A provision incorporating the requirements of Section 42 of
the Internal Revenue Code as modified by this section.
(6) A requirement that the housing sponsor notify the California
Tax Credit Allocation Committee or its designee if there is a
determination by the Internal Revenue Service that the project is not
in compliance with Section 42(g) of the Internal Revenue Code.
(7) A requirement that the housing sponsor, as security for the
performance of the housing sponsor's obligations under the regulatory
agreement, assign the housing sponsor's interest in rents that it
receives from the project, provided that until there is a default
under the regulatory agreement, the housing sponsor is entitled to
collect and retain the rents.
(8) A provision that the remedies available in the event of a
default under the regulatory agreement that is not cured within a
reasonable cure period include, but are not limited to, allowing any
of the parties designated to enforce the regulatory agreement to
collect all rents with respect to the project; taking possession of
the project and operating the project in accordance with the
regulatory agreement until the enforcer determines the housing
sponsor is in a position to operate the project in accordance with
the regulatory agreement; applying to any court for specific
performance; securing the appointment of a receiver to operate the
project; or any other relief as may be appropriate.
(j) (1) The committee shall allocate the housing credit on a
regular basis consisting of two or more periods in each calendar year
during which applications may be filed and considered. The committee
shall establish application filing deadlines, the maximum percentage
of federal and state low-income housing tax credit ceiling that may
be allocated by the committee in that period, and the approximate
date on which allocations shall be made. If the enactment of federal
or state law, the adoption of rules or regulations, or other similar
events prevent the use of two allocation periods, the committee may
reduce the number of periods and adjust the filing deadlines, maximum
percentage of credit allocated, and allocation dates.
(2) The committee shall adopt a qualified allocation plan, as
provided in Section 42(m)(1) of the Internal Revenue Code. In
adopting this plan, the committee shall comply with the provisions of
Sections 42(m)(1)(B) and 42(m)(1)(C) of the Internal Revenue Code.
(3) Notwithstanding Section 42(m) of the Internal Revenue Code,
the California Tax Credit Allocation Committee shall allocate housing
credits in accordance with the qualified allocation plan and
regulations, which shall include the following provisions:
(A) All housing sponsors, as defined by paragraph (3) of
subdivision (a), shall demonstrate at the time the application is
filed with the committee that the project meets the following
threshold requirements:
(i) The housing sponsor shall demonstrate that there is a need for
low-income housing in the community or region for which it is
proposed.
(ii) The project's proposed financing, including tax credit
proceeds, shall be sufficient to complete the project and shall be
adequate to operate the project for the extended use period.
(iii) The project shall have enforceable financing commitments,
either construction or permanent financing, for at least 50 percent
of the total estimated financing of the project.
(iv) The housing sponsor shall have and maintain control of the
site for the project.
(v) The housing sponsor shall demonstrate that the project
complies with all applicable local land use and zoning ordinances.
(vi) The housing sponsor shall demonstrate that the project
development team has the experience and the financial capacity to
ensure project completion and operation for the extended use period.
(vii) The housing sponsor shall demonstrate the amount of tax
credit that is necessary for the financial feasibility of the project
and its viability as a qualified low-income housing project
throughout the extended use period, taking into account operating
expenses, a supportable debt service, reserves, funds set aside for
rental subsidies and required equity, and a development fee that does
not exceed a specified percentage of the eligible basis of the
project prior to inclusion of the development fee in the eligible
basis, as determined by the committee.
(B) The committee shall give a preference to those projects
satisfying all of the threshold requirements of subparagraph (A) if
both of the following apply:
(i) The project serves the lowest income tenants at rents
affordable to those tenants.
(ii) The project is obligated to serve qualified tenants for the
longest period.
(C) In addition to the provisions of subparagraphs (A) and (B),
the committee shall use the following criteria in allocating housing
credits:
(i) Projects serving large families in which a substantial number,
as defined by the committee, of all residential units are low-income
units with three and more bedrooms.
(ii) Projects providing single-room occupancy units serving very
low income tenants.
(iii) Existing projects that are "at risk of conversion," as
defined by paragraph (4) of subdivision (c).
(iv) Projects for which a public agency provides direct or
indirect long-term financial support for at least 15 percent of the
total project development costs or projects for which the owner's
equity constitutes at least 30 percent of the total project
development costs.
(v) Projects that provide tenant amenities not generally available
to residents of low-income housing projects.
(4) For purposes of allocating credits pursuant to this section,
the committee shall not give preference to any project by virtue of
the date of submission of its application except to break a tie when
two or more of the projects have an equal rating.
(5) Not less than 20 percent of the low-income housing tax credits
available annually under this section, Section 12206, and Section
17058 shall be set aside for allocation to rural areas as defined in
Section 50199.21 of the Health and Safety Code. Any amount of credit
set aside for rural areas remaining on or after October 31 of any
calendar year shall be available for allocation to any eligible
project. No amount of credit set aside for rural areas shall be
considered available for any eligible project so long as there are
eligible rural applications pending on October 31.
(k) Section 42( l ) of the Internal Revenue Code shall
be modified as follows:
The term "secretary" shall be replaced by the term "California
Franchise Tax Board."
( l ) In the case in which the state credit allowed
under this section exceeds the "tax," the excess may be carried over
to reduce the "tax" in the following year, and succeeding years if
necessary, until the credit has been exhausted.
(m) A project that received an allocation of a 1989 federal
housing credit dollar amount shall be eligible to receive an
allocation of a 1990 state housing credit dollar amount, subject to
all of the following conditions:
(1) The project was not placed in service prior to 1990.
(2) To the extent the amendments made to this section by the
Statutes of 1990 conflict with any provisions existing in this
section prior to those amendments, the prior provisions of law shall
prevail.
(3) Notwithstanding paragraph (2), a project applying for an
allocation under this subdivision shall be subject to the
requirements of paragraph (3) of subdivision (j).
(n) The credit period with respect to an allocation of credit in
1989 by the California Tax Credit Allocation Committee of which any
amount is attributable to unallocated credit from 1987 or 1988 shall
not begin until after December 31, 1989.
(o) The provisions of Section 11407(a) of Public Law 101-508,
relating to the effective date of the extension of the low-income
housing credit, apply to calendar years after 1989.
(p) The provisions of Section 11407(c) of Public Law 101-508,
relating to election to accelerate credit, do not apply.
(q) (1) A corporation may elect to assign any portion of any
credit allowed under this section to one or more affiliated
corporations for each taxable year in which the credit is allowed.
For purposes of this subdivision, "affiliated corporation" has the
meaning provided in subdivision (b) of Section 25110, as that section
was amended by Chapter 881 of the Statutes of 1993, as of the last
day of the taxable year in which the credit is allowed, except that
"100 percent" is substituted for "more than 50 percent" wherever it
appears in the section, as that section was amended by Chapter 881 of
the Statutes of 1993, and "voting common stock" is substituted for
"voting stock" wherever it appears in the section, as that section
was amended by Chapter 881 of the Statutes of 1993.
(2) The election provided in paragraph (1):
(A) May be based on any method selected by the corporation that
originally receives the credit.
(B) Shall be irrevocable for the taxable year the credit is
allowed, once made.
(C) May be changed for any subsequent taxable year if the election
to make the assignment is expressly shown on each of the returns of
the affiliated corporations that assign and receive the credits.
(r) Any unused credit may continue to be carried forward, as
provided in subdivision ( l ), until the credit has been
exhausted.
(s) The amendments to this section made by the act adding this
subdivision shall apply only to taxable years beginning on or after
January 1, 1994, except that paragraph (1) of subdivision (q), as
amended, shall apply to taxable years beginning on or after January
1, 1993.
(t) This section shall remain in effect on and after December 1,
1990, for as long as Section 42 of the Internal Revenue Code,
relating to low-income housing credit, remains in effect.
SEC. 293. Section 24355.5 of the Revenue and Taxation Code, as
amended and renumbered by Section 493 of Chapter 303 of the Statutes
of 2015, is amended and renumbered to read:
24355.3. For purposes of computing the depreciation deduction
pursuant to Section 24349, the useful life of any Alaska natural gas
pipeline, as defined in Section 168(i)(16) of the Internal Revenue
Code, shall be seven years.
SEC. 294. Section 24356 of the Revenue and Taxation Code is
amended to read:
24356. (a) (1) In the case of Section 24356 property, the term
"reasonable allowance" as used in subdivision (a) of Section 24349,
may, at the election of the taxpayer, include an allowance, for the
first taxable year for which a deduction is allowable under Sections
24349 through 24354 to the taxpayer with respect to such property, of
20 percent of the cost of that property.
(2) If in any one taxable year the cost of Section 24349 property
with respect to which the taxpayer may elect an allowance under
paragraph (1) for that taxable year exceeds ten thousand dollars
($10,000), then paragraph (1) applies with respect to those items
selected by the taxpayer, but only to the extent of an aggregate cost
of ten thousand dollars ($10,000).
(b) (1) In lieu of subdivision (a), Section 179 of the Internal
Revenue Code, relating to election to expense certain depreciable
business assets, applies, except as otherwise provided.
(2) Section 179(b)(1) of the Internal Revenue Code, relating to
dollar limitation, does not apply and in lieu thereof, the aggregate
cost that may be taken into account under Section 179(a) of the
Internal Revenue Code, for any taxable year, shall not exceed
twenty-five thousand dollars ($25,000).
(3) Section 179(b)(2) of the Internal Revenue Code, relating to
reduction in limitation, does not apply and in lieu thereof, the
limitation under paragraph (2), for any taxable year, shall be
reduced, but not below zero, by the amount by which the cost of
Section 179 property, as defined in Section 179(d)(1) of the Internal
Revenue Code, except as otherwise provided, that is placed in
service during the taxable year, exceeds two hundred thousand dollars
($200,000).
(4) Section 179 of the Internal Revenue Code is modified to
provide that the "aggregate amount disallowed" referred to in Section
179(b)(3)(B) of the Internal Revenue Code shall be computed under
this part as that section read on the date the property generating
the amount disallowed was placed in service.
(5) The last sentence in Section 179(c)(2) of the Internal Revenue
Code, relating to election irrevocable, does not apply.
(6) Section 179(d)(1)(A)(ii) of the Internal Revenue Code,
relating to computer software, does not apply.
(7) Section 179(e) of the Internal Revenue Code, relating to
special rules for qualified disaster assistance property, does not
apply.
(c) (1) The election under this section for any taxable year shall
be made within the time prescribed by law (including extensions
thereof) for filing the return for such taxable year. The election
shall be made in such manner as the Franchise Tax Board may by
regulations prescribe.
(2) Any election made under this section shall not be revoked
except with the consent of the Franchise Tax Board.
(d) (1) For purposes of this section, the term "Section 24356
property" means tangible personal property--
(A) Of a character subject to the allowance for depreciation under
Sections 24349 through 24354,
(B) Acquired by purchase after December 31, 1958, for use in a
trade or business, and
(C) With a useful life (determined at the time of such
acquisition) of six years or more.
(2) For purposes of paragraph (1), the term "purchase" means any
acquisition of property, but only if--
(A) The property is not acquired from a person whose relationship
to the person acquiring it would result in the disallowance of losses
under Section 24427 (but, in applying Section 267 of the Internal
Revenue Code, relating to losses, expenses, and interest with respect
to transactions between related taxpayers, for purposes of this
section, Section 267(c)(4) of the Internal Revenue Code shall be
treated as providing that the family of an individual shall include
only his or her spouse, ancestors, and lineal descendants);
(B) The property is not acquired by one member of an affiliated
group from another member of the same affiliated group, and
(C) The basis of the property in the hands of the person acquiring
it is not determined in whole or in part by reference to the
adjusted basis of that property in the hands of the person from whom
acquired.
(3) For purposes of this section, the cost of property does not
include so much of the basis of such property as is determined by
reference to the basis of other property held at any time by the
person acquiring that property.
(4) For purposes of subdivision (a) and subdivision (b) of this
section:
(A) All members of an affiliated group shall be treated as one
taxpayer, and
(B) The Franchise Tax Board shall apportion the dollar limitation
contained in subdivision (a) or subdivision (b) among the members of
the affiliated group in the manner as it shall by regulations
prescribe.
(5) For purposes of paragraphs (2) and (4), the term "affiliated
group" has the meaning assigned to it by Section 1504 of the Internal
Revenue Code, except that, for those purposes, the phrase "more than
50 percent" shall be substituted for the phrase "at least 80 percent"
each place it appears in Section 1504(a) of the Internal Revenue
Code.
(6) In applying Section 24353, the adjustment under paragraph (1)
of subdivision (b) of Section 24916, resulting by reason of an
election made under this section with respect to any Section 24356
property, shall be made before any other deduction allowed by
subdivision (a) of Section 24349 is computed.
(e) The Franchise Tax Board shall prescribe those regulations as
may be necessary to carry out the purposes of this section.
SEC. 295. The heading of Part 13.5 (commencing with Section 31020)
is added to Division 2 of the Revenue and Taxation Code, to read:
PART 13.5. Commercial Cannabis Distribution Reporting
SEC. 296. Section 41030 of the Revenue and Taxation Code, as added
by Section 6 of Chapter 885 of the Statutes of 2014, is repealed.
SEC. 297. Section 13003 of the Unemployment Insurance Code is
amended to read:
13003. (a) Except if the context otherwise requires, the
definitions set forth in this chapter, and in addition the
definitions and provisions of the Personal Income Tax Law referred to
and hereby incorporated by reference as set forth in the following
provisions of the Revenue and Taxation Code, apply to and govern the
construction of this division:
(1) "Corporation" as defined by Section 17009.
(2) "Fiduciary" as defined by Section 17006.
(3) "Fiscal year" as defined by Section 17011.
(4) "Foreign country" as defined by Section 17019.
(5) "Franchise Tax Board" as defined by Section 17003.
(6) "Husband" and "wife" as defined by Section 17021.
(7) "Individual" as defined by Section 17005.
(8) "Military or naval forces" as defined by Section 17022.
(9) "Nonresident" as defined by Section 17015.
(10) "Partnership" as defined by Section 17008.
(11) "Person" as defined by Section 17007.
(12) "Resident" as defined by Sections 17014 and 17016.
(13) "State" as defined by Section 17018.
(14) "Taxable year" as defined by Section 17010.
(15) "Taxpayer" as defined by Section 17004.
(16) "Trade or business" as defined by Section 17020.
(17) "United States" as defined by Section 17017.
(b) The provisions of Part 10 (commencing with Section 17001) and
Part 10.2 (commencing with Section 18401) of Division 2 of the
Revenue and Taxation Code, relating to the following items, are
hereby incorporated by reference and apply to and govern construction
of this division:
(1) Trade or business expense (Article 6 (commencing with Section
17201) of Chapter 3 of Part 10).
(2) Deductions for retirement savings (Article 6 (commencing with
Section 17201) of Chapter 3 of Part 10).
(3) Distributions of property by a corporation to a shareholder
(Chapter 4 (commencing with Section 17321) of Part 10).
(4) Deferred compensation (Chapter 5 (commencing with Section
17501) of Part 10).
(5) Partners and partnerships (Chapter 10 (commencing with Section
17851) of Part 10).
(6) Gross income of nonresident taxpayers (Chapter 11 (commencing
with Section 17951) of Part 10).
(7) Postponement of the time for certain acts by individuals in or
in support of the armed forces (Article 3 (commencing with Section
18621) of Chapter 2 of Part 10.2).
(8) Disclosure of information (Article 2 (commencing with Section
19542) of Chapter 7 of Part 10.2). For this purpose "Franchise Tax
Board" as used therein shall mean the Employment Development
Department in respect to information obtained in the administration
of this division.
SEC. 298. Section 14200 of the Unemployment Insurance Code is
amended to read:
14200. (a) The local chief elected officials in a local workforce
development area shall form, pursuant to guidelines established by
the Governor and the board, a local workforce development board to
plan and oversee the workforce investment system.
(b) The Governor shall periodically certify one local board for
each local area in the state, following the requirements of the
federal Workforce Innovation and Opportunity Act of 2014.
(c) The Governor shall establish, through the California Workforce
Development Board, standards for certification of high-performance
local workforce development boards. The California Workforce
Development Board shall, in consultation with representatives from
local workforce development boards, initiate a stakeholder process to
determine the appropriate measurable metrics and standards for
high-performance certification. These standards shall be implemented
on or before January 1, 2013, and the first certification of
high-performance boards shall occur on or before July 1, 2013.
Certification and recertification of each high-performance local
workforce development board shall occur thereafter midway through the
implementation of the local and regional plans required by the
Workforce Innovation and Opportunity Act. In order to meet the
standards for certification, a high-performance local workforce
development board shall do all of the following:
(1) Consistently meet or exceed negotiated performance goals for
all of the measures in each of the three federal Workforce Innovation
and Opportunity Act of 2014 customer groups, which consist of
adults, dislocated workers, and youth.
(2) Consistently meet the statutory requirements of this division.
(3) Develop and implement local policies and a local strategic
plan that meets all of the following requirements:
(A) Meets all local and regional planning requirements specified
under the federal Workforce Innovation and Development Act of 2014.
(B) Is consistent with the California Workforce Development Board
State Plan.
(C) Describes the actions that the board shall take to implement
local policies in furtherance of its goals.
(D) Serves as a written account of intended future courses of
action aimed at achieving the specific goals of the local and state
board within a specific timeframe.
(E) Explains what needs to be done, by whom, and when each action
is required to occur in order to meet those goals.
(4) Demonstrate that the local planning process involves key
stakeholders, including the major employers and industry groups in
the relevant regional economy and organized labor.
(5) Demonstrate that the local planning process takes into account
the entire workforce training pipeline for the relevant regional
economy, including partners in K-12 education, career technical
education, the community college system, other postsecondary
institutions, and other local workforce development areas operating
in the relevant regional economy.
(6) Demonstrate that the local planning process and plan are data
driven, and that policy decisions at the local level are evidence
based. Each high-performance local workforce development board shall
use labor market data to develop and implement the local plan, taking
care to steer resources into programs and services that are relevant
to the needs of each workforce development area's relevant regional
labor market and high-wage industry sectors. Local workforce
development areas shall demonstrate an evidence-based approach to
policymaking by establishing performance benchmarks and targets to
measure progress toward local goals and objectives.
(7) Demonstrate investment in workforce initiatives, and,
specifically, training programs that promote skills development and
career ladders relevant to the needs of each workforce investment
area's regional labor market and high-wage industry sectors.
(8) Establish a youth strategy aligned with the needs of each
workforce investment area's regional labor market and high-wage
industry sectors.
(9) Establish a business service plan that integrates local
business involvement with workforce initiatives. This plan at a
minimum shall include all of the following:
(A) Efforts to partner with businesses to identify the workforce
training and educational barriers to attract jobs in the relevant
regional economy, existing skill gaps reducing the competitiveness of
local businesses in the relevant regional economies, and potential
emerging industries that
would likely contribute to job growth in the relevant regional
economy if investments were made for training and educational
programs.
(B) An electronic system for both businesses and job seekers to
communicate about job opportunities.
(C) A subcommittee of the local workforce development board that
further develops and makes recommendations for the business service
plan for each local workforce development board in an effort to
increase employer involvement in the activities of the local
workforce development board. The subcommittee members should be
comprised of business representatives on the local workforce
development board who represent both the leading industries and
employers in the relevant regional economy and potential emerging
sectors that have significant potential to contribute to job growth
in the relevant regional economy if investments were made for
training and educational programs.
(d) The Governor and the Legislature, as part of the annual budget
process, in consultation with the California Workforce Development
Board, shall annually reserve a portion of the 15-percent
discretionary fund made available pursuant to the federal Workforce
Innovation and Opportunity Act of 2014 for the purpose of providing
performance incentives to high-performance local workforce
development boards. The remaining discretionary funds shall continue
to be available for other discretionary purposes as provided for in
the federal Workforce Innovation and Opportunity Act of 2014.
(e) Only a workforce development board that is certified as a
high-performance local workforce development board by the California
Workforce Development Board shall be eligible to receive any
incentive money reserved for high-performance local workforce
development boards, as described in subdivision (d). A board that is
not certified as a high-performance local workforce development board
shall not receive any portion of the money reserved for
high-performance local workforce development boards, as described in
subdivision (d).
(f) The California Workforce Development Board shall establish a
policy for the allocation of incentive moneys to high-performance
local workforce development boards.
(g) To the extent permitted by the Workforce Innovation and
Opportunity Act of 2014, the California Workforce Development Board
may consider the utilization of incentive grants, or direct
assistance, or both, to local workforce development boards for the
purposes of this section.
(h) There shall not be a requirement to set aside federal
Workforce Innovation and Opportunity Act of 2014 funds for the
purposes of subdivision (d), (e), (f), or (g) in years when the
federal government significantly reduces the share of federal
Workforce Innovation and Opportunity Act of 2014 funds appropriated
to the state for statewide discretionary purposes below the federal
statutory amount of 15 percent.
SEC. 299. Section 2404.5 of the Vehicle Code is amended to read:
2404.5. The department shall obtain a vehicle suitable for
registration and commercial safety inspections at border crossings
into Mexico.
SEC. 300. Section 11102.6 of the Vehicle Code is amended to read:
11102.6. (a) Notwithstanding Section 11102.5, a driving school
operator who is first licensed to operate a driving school on or
after July 1, 2016, and who offers no behind-the-wheel driver
training, shall meet all of the following requirements:
(1) Within three attempts, pass an examination that the department
requires on traffic laws, safe driving practices, operation of motor
vehicles, teaching methods and techniques, driving school statutes
and regulations, and office procedures and recordkeeping.
(2) Pay the department a fee for each examination taken, not to
exceed the reasonable cost of administering the examination.
(3) Be 21 years of age or older.
(4) Have successfully completed an educational program of not less
than 60 hours that is acceptable to the department. The program
shall include a minimum of 40 hours of classroom instruction and 20
hours of behind-the-wheel instruction. The program shall include, but
not be limited to, driving school operator responsibilities, current
vehicle laws, and regulations in Article 4.6 of Chapter 1 of
Division 1 of Title 13 of the California Code of Regulations. The
instruction may be provided by generally accredited educational
institutions, private vocational schools, and education programs and
seminars offered by professional societies, organizations, trade
associations, and other educational and technical programs that meet
the requirements of this section.
(b) The qualifying requirements referred to in this section shall
be met within one year from the date of application for a license, or
a new application, examination, and a fee for the examination not to
exceed the reasonable cost of administering the examination shall be
required.
SEC. 301. Section 16377 of the Vehicle Code, as added by Section
39 of Chapter 451 of the Statutes of 2015, is amended to read:
16377. (a) For the purposes of this chapter, every judgment shall
be deemed satisfied if any of the following apply:
(1) Fifteen thousand dollars ($15,000) has been credited, upon any
judgment in excess of that amount, or upon all judgments,
collectively, which together total in excess of that amount, for
personal injury to, or death of, one person as a result of any one
accident.
(2) Subject to the limit of fifteen thousand dollars ($15,000) as
to one person, the sum of thirty thousand dollars ($30,000) has been
credited, upon any judgment in excess of that amount, or upon all
judgments, collectively, which together total in excess of that
amount, for personal injury to, or death of, more than one person as
a result of any one accident.
(3) Five thousand dollars ($5,000) has been credited, upon any
judgment in excess of that amount, or upon all judgments,
collectively, each of which is in excess of one thousand dollars
($1,000), and which together total in excess of five thousand dollars
($5,000), for damage to property of others as a result of any one
accident.
(4) The judgment debtor or a person designated by him or her has
deposited with the department a sum equal to the amount of the
unsatisfied judgment for which the suspension action was taken and
presents proof, satisfactory to the department, of inability to
locate the judgment creditor.
(b) This section shall become operative on January 1, 2017.
SEC. 302. Section 21294 of the Vehicle Code is amended to read:
21294. (a) An electrically motorized board shall only operate
upon a highway designated with a speed limit of 35 miles per hour or
less, unless the electrically motorized board is operated entirely
within a designated Class II or Class IV bikeway.
(b) A person shall not operate an electrically motorized board
upon a highway, bikeway, or any other public bicycle path, sidewalk,
or trail, at a speed in excess of 15 miles per hour.
(c) Notwithstanding subdivision (b), a person shall not operate an
electrically motorized board at a speed greater than is reasonable
or prudent having due regard for weather, visibility, pedestrian and
vehicular traffic, and the surface and width of the highway, bikeway,
public bicycle path, sidewalk, or trail, and in no event at a speed
that endangers the safety of any person or property.
SEC. 303. Section 22507.1 of the Vehicle Code is amended to read:
22507.1. (a) A local authority may, by ordinance or resolution,
designate certain streets or portions of streets for the exclusive or
nonexclusive parking privilege of motor vehicles participating in a
car share vehicle program or ridesharing program. The ordinance or
resolution shall establish the criteria for a public or private
company or organization to participate in the program, and may limit
the types of motor vehicles that may be included in the program.
Under the car share vehicle program, a car share vehicle or
ridesharing vehicle shall be assigned a permit, if necessary, by the
local authority that allows that vehicle to park in the exclusive or
nonexclusive designated parking areas.
(b) If exclusive parking privilege is authorized, the ordinance or
resolution described in subdivision (a) does not apply until signs
or markings giving adequate notice thereof have been placed.
(c) A local ordinance or resolution adopted pursuant to
subdivision (a) may contain provisions that are reasonable and
necessary to ensure the effectiveness of a car share vehicle program
or ridesharing program.
(d) For purposes of this section, a "car share vehicle" is a motor
vehicle that is operated as part of a regional fleet by a public or
private car sharing company or organization and provides hourly or
daily service.
SEC. 304. Section 40215 of the Vehicle Code is amended to read:
40215. (a) For a period of 21 calendar days from the issuance of
a notice of parking violation or 14 calendar days from the mailing of
a notice of delinquent parking violation, exclusive of any days from
the day the processing agency receives a request for a copy or
facsimile of the original notice of parking violation pursuant to
Section 40206.5 and the day the processing agency complies with the
request, a person may request an initial review of the notice by the
issuing agency. The request may be made by telephone, in writing, or
in person. There shall not be a charge for this review. If, following
the initial review, the issuing agency is satisfied that the
violation did not occur, that the registered owner was not
responsible for the violation, or that extenuating circumstances make
dismissal of the citation appropriate in the interest of justice,
the issuing agency shall cancel the notice of parking violation or
notice of delinquent parking violation. The issuing agency shall
advise the processing agency, if any, of the cancellation. The
issuing agency or the processing agency shall mail the results of the
initial review to the person contesting the notice, and, if
following that review, cancellation of the notice does not occur,
include a reason for that denial, notification of the ability to
request an administrative hearing, and notice of the procedure
adopted pursuant to subdivision (b) for waiving prepayment of the
parking penalty based upon an inability to pay.
(b) If the person is dissatisfied with the results of the initial
review, the person may request an administrative hearing of the
violation no later than 21 calendar days following the mailing of the
results of the issuing agency's initial review. The request may be
made by telephone, in writing, or in person. The person requesting an
administrative hearing shall deposit the amount of the parking
penalty with the processing agency. The issuing agency shall adopt a
written procedure to allow a person to request an administrative
hearing without payment of the parking penalty upon satisfactory
proof of an inability to pay the amount due. An administrative
hearing shall be held within 90 calendar days following the receipt
of a request for an administrative hearing, excluding time tolled
pursuant to this article. The person requesting the hearing may
request one continuance, not to exceed 21 calendar days.
(c) The administrative hearing process shall include the
following:
(1) The person requesting a hearing shall have the choice of a
hearing by mail or in person. An in-person hearing shall be conducted
within the jurisdiction of the issuing agency. If an issuing agency
contracts with an administrative provider, hearings shall be held
within the jurisdiction of the issuing agency or within the county of
the issuing agency.
(2) If the person requesting a hearing is a minor, that person
shall be permitted to appear at a hearing or admit responsibility for
the parking violation without the necessity of the appointment of a
guardian. The processing agency may proceed against the minor in the
same manner as against an adult.
(3) The administrative hearing shall be conducted in accordance
with written procedures established by the issuing agency and
approved by the governing body or chief executive officer of the
issuing agency. The hearing shall provide an independent, objective,
fair, and impartial review of contested parking violations.
(4) (A) The issuing agency's governing body or chief executive
officer shall appoint or contract with qualified examiners or
administrative hearing providers that employ qualified examiners to
conduct the administrative hearings. Examiners shall demonstrate
those qualifications, training, and objectivity necessary to conduct
a fair and impartial review. An examiner shall not be employed,
managed, or controlled by a person whose primary duties are parking
enforcement or parking citation, processing, collection, or issuance.
The examiner shall be separate and independent from the citation,
collection, or processing function. An examiner's continued
employment, performance evaluation, compensation, and benefits shall
not, directly or indirectly, be linked to the amount of fines
collected by the examiner.
(B) (i) Examiners shall have a minimum of 20 hours of training.
The examiner is responsible for the costs of the training. The
issuing agency may reimburse the examiner for those costs.
(ii) Training may be provided through any of the following:
(I) An accredited college or university.
(II) A program conducted by the Commission on Peace Officer
Standards and Training.
(III) American Arbitration Association or a similar established
organization.
(IV) Through any program approved by the governing board of the
issuing agency, including a program developed and provided by, or
for, the issuing agency.
(iii) Training programs may include topics relevant to the
administrative hearing, including, but not limited to, applicable
laws and regulations, parking enforcement procedures, due process,
evaluation of evidence, hearing procedures, and effective oral and
written communication.
(iv) Upon the approval of the governing board of the issuing
agency, up to 12 hours of relevant experience may be substituted for
up to 12 hours of training. In addition, up to eight hours of the
training requirements described in clause (i) may be credited to an
individual, at the discretion of the governing board of the issuing
agency, based upon training programs or courses described in clause
(ii) that the individual attended within the last five years.
(5) The officer or person who issues a notice of parking violation
shall not be required to participate in an administrative hearing.
The issuing agency shall not be required to produce any evidence
other than the notice of parking violation or copy of the notice and
information received from the Department of Motor Vehicles
identifying the registered owner of the vehicle. The documentation in
proper form shall be prima facie evidence of the violation.
(6) The examiner's decision following the administrative hearing
may be personally delivered to the person by the examiner or sent by
first-class mail, and, if the notice is not cancelled, include a
written reason for that denial.
(7) The examiner or the issuing agency may, at any stage of the
initial review or the administrative hearing process, and consistent
with the written guidelines established by the issuing agency, allow
payment of the parking penalty in installments, or the issuing agency
may allow for deferred payment, if the person provides evidence
satisfactory to the examiner or the issuing agency, as the case may
be, of an inability to pay the parking penalty in full. If authorized
by the governing board of the issuing agency, the examiner may
permit the performance of community service in lieu of payment of a
parking penalty.
(d) The provisions of this section relating to the administrative
appeal process do not apply to an issuing agency that is a law
enforcement agency if the issuing agency does not also act as the
processing agency.
SEC. 305. Section 377 of the Water Code is amended to read:
377. (a) From and after the publication or posting of any
ordinance or resolution pursuant to Section 376, a violation of a
requirement of a water conservation program adopted pursuant to
Section 376 is a misdemeanor. A person convicted under this
subdivision shall be punished by imprisonment in the county jail for
not more than 30 days, or by a fine not exceeding one thousand
dollars ($1,000), or by both.
(b) A court or public entity may hold a person civilly liable in
an amount not to exceed ten thousand dollars ($10,000) for a
violation of any of the following:
(1) An ordinance or resolution adopted pursuant to Section 376.
(2) An emergency regulation adopted by the board under Section
1058.5, unless the board regulation provides that it cannot be
enforced under this section.
(c) Commencing on the 31st day after the public entity notified a
person of a violation described in subdivision (b), the person
additionally may be civilly liable in an amount not to exceed ten
thousand dollars ($10,000) plus five hundred dollars ($500) for each
additional day on which the violation continues.
(d) Remedies prescribed in this section are cumulative and not
alternative, except that no liability shall be recoverable under this
section for any violation of paragraph (2) of subdivision (b) if the
board has filed a complaint pursuant to Section 1846 alleging the
same violation.
(e) A public entity may administratively impose the civil
liability described in subdivisions (b) and (c) after providing
notice and an opportunity for a hearing. The public entity shall
initiate a proceeding under this subdivision by a complaint issued
pursuant to Section 377.5. The public entity shall issue the
complaint at least 30 days before the hearing on the complaint and
the complaint shall state the basis for the proposed civil liability
order.
(f) (1) In determining the amount of civil liability to assess, a
court or public entity shall take into consideration all relevant
circumstances, including, but not limited to, the nature and
persistence of the violation, the extent of the harm caused by the
violation, the length of time over which the violation occurs, and
any corrective action taken by the violator.
(2) The civil liability calculated pursuant to paragraph (1) for
the first violation of subdivision (b) by a residential water user
shall not exceed one thousand dollars ($1,000) except in
extraordinary situations where the court or public entity finds all
of the following:
(A) The residential user had actual notice of the requirement
found to be violated.
(B) The conduct was intentional.
(C) The amount of water involved was substantial.
(g) Civil liability imposed pursuant to this section shall be paid
to the public entity and expended solely for the purposes of this
chapter.
(h) An order setting administrative civil liability shall become
effective and final upon issuance of the order and payment shall be
made. Judicial review of any final order shall be pursuant to Section
1094.5 of the Code of Civil Procedure.
(i) In addition to the remedies prescribed in this section, a
public entity may enforce water use limitations established by an
ordinance or resolution adopted pursuant to this chapter, or as
otherwise authorized by law, by a volumetric penalty in an amount
established by the public entity.
SEC. 306. Section 10608.34 of the Water Code is amended to read:
10608.34. (a) (1) On or before January 1, 2017, the department
shall adopt rules for all of the following:
(A) The conduct of standardized water loss audits by urban retail
water suppliers in accordance with the method adopted by the American
Water Works Association in the third edition of Water Audits and
Loss Control Programs, Manual M36 and in the Free Water Audit
Software, version 5.0.
(B) The process for validating a water loss audit report prior to
submitting the report to the department. For the purposes of this
section, "validating" is a process whereby an urban retail water
supplier uses a technical expert to confirm the basis of all data
entries in the urban retail water supplier's water loss audit report
and to appropriately characterize the quality of the reported data.
The validation process shall follow the principles and terminology
laid out by the American Water Works Association in the third edition
of Water Audits and Loss Control Programs, Manual M36 and in the
Free Water Audit Software, version 5.0. A validated water loss audit
report shall include the name and technical qualifications of the
person engaged for validation.
(C) The technical qualifications required of a person to engage in
validation, as described in subparagraph (B).
(D) The certification requirements for a person selected by an
urban retail water supplier to provide validation of its own water
loss audit report.
(E) The method of submitting a water loss audit report to the
department.
(2) The department shall update rules adopted pursuant to
paragraph (1) no later than six months after the release of
subsequent editions of the American Water Works Association's Water
Audits and Loss Control Programs, Manual M36. Except as provided by
the department, until the department adopts updated rules pursuant to
this paragraph, an urban retail water supplier may rely upon a
subsequent edition of the American Water Works Association's Water
Audits and Loss Control Programs, Manual M36 or the Free Water Audit
Software.
(b) On or before October 1, 2017, and on or before October 1 of
each year thereafter, each urban retail water supplier shall submit a
completed and validated water loss audit report for the previous
calendar year or the previous fiscal year as prescribed by the
department pursuant to subdivision (a). Water loss audit reports
submitted on or before October 1, 2017, may be completed and
validated with assistance as described in subdivision (c).
(c) Using funds available for the 2016-17 fiscal year, the board
shall contribute up to four hundred thousand dollars ($400,000)
towards procuring water loss audit report validation assistance for
urban retail water suppliers.
(d) Each water loss audit report submitted to the department shall
be accompanied by information, in a form specified by the
department, identifying steps taken in the preceding year to increase
the validity of data entered into the final audit, reduce the volume
of apparent losses, and reduce the volume of real losses.
(e) At least one of the following employees of an urban retail
water supplier shall attest to each water loss audit report submitted
to the department:
(1) The chief financial officer.
(2) The chief engineer.
(3) The general manager.
(f) The department shall deem incomplete and return to the urban
retail water supplier any final water loss audit report found by the
department to be incomplete, not validated, unattested, or
incongruent with known characteristics of water system operations. A
water supplier shall resubmit a completed water loss audit report
within 90 days of an audit being returned by the department.
(g) The department shall post all validated water loss audit
reports on its Internet Web site in a manner that allows for
comparisons across water suppliers. The department shall make the
validated water loss audit reports available for public viewing in a
timely manner after their receipt.
(h) Using available funds, the department shall provide technical
assistance to guide urban retail water suppliers' water loss
detection programs, including, but not limited to, metering
techniques, pressure management techniques, condition-based
assessment techniques for transmission and distribution pipelines,
and utilization of portable and permanent water loss detection
devices.
(i) No earlier than January 1, 2019, and no later than July 1,
2020, the board shall adopt rules requiring urban retail water
suppliers to meet performance standards for the volume of water
losses. In adopting these rules, the board shall employ full
life-cycle cost accounting to evaluate the costs of meeting the
performance standards. The board may consider establishing a minimum
allowable water loss threshold that, if reached and maintained by an
urban water supplier, would exempt the urban water supplier from
further water loss reduction requirements.
SEC. 307. Section 50906 of the Water Code, as amended by Section 1
of Chapter 134 of the Statutes of 2015, is amended to read:
50906. (a) A reclamation district specified in subdivision (d)
may construct, maintain, and operate a plant for the generation of
hydroelectric power, together with transmission lines for the
conveyance thereof and with other facilities that may be necessary or
appropriate for the construction, maintenance, and operation of that
plant. Construction of the plant and transmission lines may be
financed by the issuance of time warrants pursuant to Article 3
(commencing with Section 53040) of Chapter 1 of Part 9 to pay the
cost of construction of the plant, transmission lines, and related
facilities, except that the board may, by resolution, provide for the
payment of those time warrants solely from the proceeds derived from
the operation of the hydroelectric powerplant, in lieu of the
assessment described in Section 53040, and may, in that event, pledge
the plant, transmission lines, and related facilities and the
revenues from the operation of the hydroelectric powerplant as the
sole security for the payment of the time warrants.
(b) The hydroelectric powerplant, transmission lines, and related
facilities constructed pursuant to this section may be leased for
operation to, or the power generated may be sold to, a public utility
or public agency engaged in the distribution, use, or sale of
electricity, but shall not be offered for sale directly by the
district to customers other than a public utility or public agency.
(c) Proceeds from the sale of electricity shall be utilized to
retire any time warrants issued for construction of the facilities
and otherwise for the powers and purposes for which the district was
formed.
(d) This section applies only to the following reclamation
districts:
(1) Reclamation District No. 1004 acting in conjunction with the
County of Colusa.
(2) Reclamation District No. 108.
(e) This section shall remain in effect only until January 1,
2021, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2021, deletes or extends
that date.
SEC. 308. Section 50906 of the Water Code, as added by Section 2
of Chapter 134 of the Statutes of 2015, is amended to read:
50906. (a) A reclamation district specified in subdivision (d)
may construct, maintain, and operate a plant for the generation of
hydroelectric power, together with transmission lines for the
conveyance thereof and with other facilities that may be necessary or
appropriate for the construction, maintenance, and operation of that
plant. Construction of the plant and transmission lines may be
financed by the issuance of time warrants pursuant to Article 3
(commencing with Section 53040) of Chapter 1 of Part 9 to pay the
cost of construction of the plant, transmission lines, and related
facilities, except that the board may, by resolution, provide for the
payment of those time warrants solely from the proceeds derived from
the operation of the hydroelectric powerplant, in lieu of the
assessment described in Section 53040, and may, in that event, pledge
the plant, transmission lines, and related facilities and the
revenues from the operation of the hydroelectric powerplant as the
sole security for the payment of the time warrants.
(b) The hydroelectric powerplant, transmission lines, and related
facilities constructed pursuant to this section may be leased for
operation to, or the power generated may be sold to, a public utility
or public agency engaged in the distribution, use, or sale of
electricity, but shall not be offered for sale directly by the
district to customers other than a public utility or public agency.
(c) Proceeds from the sale of electricity shall be utilized to
retire any time warrants issued for construction of the facilities
and otherwise for the powers and purposes for which the district was
formed.
(d) This section applies only to Reclamation District No. 1004
acting in conjunction with the County of Colusa.
(e) This section shall become operative on January 1, 2021.
SEC. 309. Section 290.2 of the Welfare and Institutions Code, as
amended by Section 3 of Chapter 219 of the Statutes of 2015, is
amended to read:
290.2. Upon the filing of a petition by a probation officer or
social worker, the clerk of the juvenile court shall issue notice, to
which shall be attached a copy of the petition, and he or she shall
cause the same to be served as prescribed in this section.
(a) Notice shall be given to the following persons whose address
is known or becomes known prior to the initial petition hearing:
(1) The mother.
(2) The father or fathers, presumed and alleged.
(3) The legal guardian or guardians.
(4) The child, if the child is 10 years of age or older.
(5) Any known sibling of the child who is the subject of the
hearing if that sibling either is the subject of a dependency
proceeding or has been adjudged to be a dependent child of the
juvenile court. If the sibling is 10 years of age or older, the
sibling, the sibling's caregiver, and the sibling's attorney. If the
sibling is under 10 years of age, the sibling's caregiver and the
sibling's attorney. However, notice is not required to be given to
any sibling whose matter is calendared in the same court on the same
day.
(6) If there is no parent or guardian residing in California, or,
if the residence is unknown, to any adult relative residing within
the county, or, if none, the adult relative residing nearest the
court.
(7) Upon reasonable notification by counsel representing the
child, parent, or guardian, the clerk of the court shall give notice
to that counsel as soon as possible.
(8) The district attorney, if the district attorney has notified
the clerk of the court that he or she wishes to receive the petition,
containing the time, date, and place of the hearing.
(9) The probate department of the superior court that appointed
the guardian, if the child is a ward of a guardian appointed pursuant
to the Probate Code.
(b) Notice is not required for a parent whose parental rights have
been terminated.
(c) Notice shall be served as follows:
(1) If the child is retained in custody, the notice shall be given
to the persons required to be noticed as soon as possible, and at
least five days before the hearing, unless the hearing is set to be
heard in less than five days in which case notice shall be given at
least 24 hours prior to the hearing.
(2) If the child is not retained in custody, the notice shall be
given to those persons required to be noticed at least 10 days prior
to the date of the hearing. If any person who is required to be given
notice is known to reside outside of the county, the clerk of the
juvenile court shall mail the notice and copy of the petition by
first-class mail to that person as soon as possible after the filing
of the petition and at least 10 days before the time set for hearing.
Failure to respond to the notice is not cause for an arrest or
detention. In the instance of a failure to appear after notice by
first-class mail, the court shall direct that the notice and copy of
the petition be personally served on all persons required to receive
the notice and copy of the petition. For these purposes, personal
service of the notice and copy of the petition outside of the county
at least 10 days before the time set for hearing is equivalent to
service by first-class mail. Service may be waived by any person by a
voluntary appearance entered in the minutes of the court or by a
written waiver of service filed with the clerk of the court at, or
prior to, the hearing.
(3) Except as provided in subdivision (e), (f), or (g), notice may
be served by electronic mail in lieu of notice by first-class mail
if the county, or city and county, and the court choose to permit
service by electronic mail and the person to be served has consented
to service by electronic mail by signing Judicial Council Form
EFS-005.
(d) The notice of the initial petition hearing shall include all
of the following:
(1) The date, time, and place of the hearing.
(2) The name of the child.
(3) A copy of the petition.
(e) If the court knows or has reason to know that an Indian child
is involved, notice shall be given in accordance with Section 224.2.
(f) Except as provided in subdivision (g), if notice is required
to be provided to a child pursuant to paragraph (4) or (5) of
subdivision (a), written notice may be served on the child by
electronic mail only if all of the following requirements are
satisfied:
(1) The county, or city and county, and the court choose to permit
service by electronic mail.
(2) The child is 16 years of age or older.
(3) The child has consented to service by electronic mail by
signing Judicial Council Form EFS-005.
(4) The attorney for the child has consented to service of the
minor by electronic mail by signing Judicial Council Form EFS-005.
(g) If notice is required to be provided to a child pursuant to
paragraph (4) or (5) of subdivision (a), written notice may be served
on the child by electronic mail, as well as by regular mail, if all
of the following requirements are satisfied:
(1) The county, or city and county, and the court choose to permit
service by electronic mail.
(2) The child is 14 or 15 years of age.
(3) The child has consented to service by electronic mail by
signing Judicial Council Form EFS-005.
(4) The attorney for the child has consented to service of the
minor by electronic mail by signing Judicial Council Form EFS-005.
(h) This section shall remain in effect only until January 1,
2019, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2019, deletes or extends
that date.
SEC. 310. Section 290.2 of the Welfare and Institutions Code, as
added by Section 4 of Chapter 219 of the Statutes of 2015, is amended
to read:
290.2. Upon the filing of a petition by a probation officer or
social worker, the clerk of the juvenile court shall issue notice, to
which shall be attached a copy of the petition, and he or she shall
cause the same to be served as prescribed in this section.
(a) Notice shall be given to the following persons whose address
is known or becomes known prior to the initial petition hearing:
(1) The mother.
(2) The father or fathers, presumed and alleged.
(3) The legal guardian or guardians.
(4) The child, if the child is 10 years of age or older.
(5) Any known sibling of the child who is the subject of the
hearing if that sibling either is the subject of a dependency
proceeding or has been adjudged to be a dependent child of the
juvenile court. If the sibling is 10 years of age or older, the
sibling, the sibling's caregiver, and the sibling's attorney. If the
sibling is under 10 years of age, the sibling's caregiver and the
sibling's attorney. However, notice is not required to be given to
any sibling whose matter is calendared in the same court on the same
day.
(6) If there is no parent or guardian residing in California, or,
if the residence is unknown, to any adult relative residing within
the county, or, if none, the adult relative residing nearest the
court.
(7) Upon reasonable notification by counsel representing the
child, parent, or guardian, the clerk of the court shall give notice
to that counsel as soon as possible.
(8) The district attorney, if the district attorney has notified
the clerk of the court that he or she wishes to receive the petition,
containing the time, date, and place of the hearing.
(9) The probate department of the superior court that appointed
the guardian, if the child is a ward of a guardian appointed pursuant
to the Probate Code.
(b) Notice is not required for a parent whose parental rights have
been terminated.
(c) Notice shall be served as follows:
(1) If the child is retained in custody, the notice shall be given
to the persons required to be noticed as soon as possible, and at
least five days before the hearing, unless the hearing is set to be
heard in less than five days in which case notice shall be given at
least 24 hours prior to the hearing.
(2) If the child is not retained in custody, the notice shall be
given to those persons required to be noticed at least 10 days prior
to the date of the hearing. If any person who is required to be given
notice is known to reside outside of the county, the clerk of the
juvenile court shall mail the notice and copy of the petition by
first-class mail to that person as soon as possible after the filing
of the petition and at least 10 days before the time set for hearing.
Failure to respond to the notice is not cause for an arrest or
detention. In the instance of a failure to appear after notice by
first-class mail, the court shall direct that the notice and copy of
the petition be personally served on all persons required to receive
the notice and copy of the petition. For these purposes, personal
service of the notice and copy of the petition outside of the county
at least 10 days before the time set for hearing is equivalent to
service by first-class mail. Service may be waived by any person by a
voluntary appearance entered in the minutes of the court or by a
written waiver of service filed with the clerk of the court at, or
prior to, the hearing.
(d) The notice of the initial petition hearing shall include all
of the following:
(1) The date, time, and place of the hearing.
(2) The name of the child.
(3) A copy of the petition.
(e) If the court knows or has reason to know that an Indian child
is involved, notice shall be given in accordance with Section 224.2.
(f) This section shall become operative on January 1, 2019.
SEC. 311. Section 366.21 of the Welfare and Institutions Code is
amended to read:
366.21. (a) Every hearing conducted by the juvenile court
reviewing the status of a dependent child shall be placed on the
appearance calendar. The court shall advise all persons present at
the hearing of the date of the future hearing and of their right to
be present and represented by counsel.
(b) Except as provided in Sections 294 and 295, notice of the
hearing shall be provided pursuant to Section 293.
(c) At least 10 calendar days prior to the hearing, the social
worker shall file a supplemental report with the court regarding the
services provided or offered to the parent or legal guardian to
enable him or her to assume custody and the efforts made to achieve
legal permanence for the child if efforts to reunify fail, including,
but not limited to, efforts to maintain relationships between a
child who is 10 years of age or older and has been in out-of-home
placement for six months or longer and individuals who are important
to the child, consistent with the child's best interests; the
progress made; and, where relevant, the prognosis for return of the
child to the physical custody of his or her parent or legal guardian;
and shall make his or her recommendation for disposition. If the
child is a member of a sibling group described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, the report and
recommendation may also take into account those factors described in
subdivision (e) relating to the child's sibling group. If the
recommendation is not to return the child to a parent or legal
guardian, the report shall specify why the return of the child would
be detrimental to the child. The social worker shall provide the
parent or legal guardian, counsel for the child, and any
court-appointed child advocate with a copy of the report, including
his or her recommendation for disposition, at least 10 calendar days
prior to the hearing. In the case of a child removed from the
physical custody of his or her parent or legal guardian, the social
worker shall, at least 10 calendar days prior to the hearing, provide
a summary of his or her recommendation for disposition to any foster
parents, relative caregivers, and certified foster parents who have
been approved for adoption by the State Department of Social Services
when it is acting as an adoption agency or by a county adoption
agency, community care facility, or foster family agency having the
physical custody of the child. The social worker shall include a copy
of the Judicial Council Caregiver Information Form (JV-290) with the
summary of recommendations to the child's foster parents, relative
caregivers, or foster parents approved for adoption, in the caregiver'
s primary language when available, along with information on how to
file the form with the court.
(d) Prior to any hearing involving a child in the physical custody
of a community care facility or a foster family agency that may
result in the return of the child to the physical custody of his or
her parent or legal guardian, or in adoption or the creation of a
legal guardianship, or in the case of an Indian child, in
consultation with the child's tribe, tribal customary adoption, the
facility or agency shall file with the court a report, or a Judicial
Council Caregiver Information Form (JV-290), containing its
recommendation for disposition. Prior to the hearing involving a
child in the physical custody of a foster parent, a relative
caregiver, or a certified foster parent who has been approved for
adoption by the State Department of Social Services when it is acting
as an adoption agency or by a county adoption agency, the foster
parent, relative caregiver, or the certified foster parent who has
been approved for adoption by the State Department of Social Services
when it is acting as an adoption agency or by a county adoption
agency, may file with the court a report containing his or her
recommendation for disposition. The court shall consider the report
and recommendation filed pursuant to this subdivision prior to
determining any disposition.
(e) (1) At the review hearing held six months after the initial
dispositional hearing, but no later than 12 months after the date the
child entered foster care as determined in Section 361.49, whichever
occurs earlier, after considering the admissible and relevant
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the hearing, the court
shall consider the criminal history, obtained pursuant to paragraph
(1) of subdivision (f) of Section 16504.5, of the parent or legal
guardian subsequent to the child's removal to the extent that the
criminal record is substantially related to the welfare of the child
or the parent's or guardian's ability to exercise custody and control
regarding his or her child, provided the parent or legal guardian
agreed to submit fingerprint images to obtain criminal history
information as part of the case plan. The court shall also consider
whether the child can be returned to the custody of his or her parent
who is enrolled in a certified substance abuse treatment facility
that allows a dependent child to reside with his or her parent. The
fact that the parent is enrolled in a certified substance abuse
treatment facility shall not be, for that reason alone, prima facie
evidence of detriment. The failure of the parent or legal guardian to
participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would
be detrimental. In making its determination, the court shall review
and consider the social worker's report and recommendations and the
report and recommendations of any child advocate appointed pursuant
to Section 356.5; and shall consider the efforts or progress, or
both, demonstrated by the parent or legal guardian and the extent to
which he or she availed himself or herself of services provided,
taking into account the particular barriers to a minor parent or a
nonminor dependent parent, or an incarcerated, institutionalized,
detained, or deported parent's or legal guardian's access to those
court-mandated services and ability to maintain contact with his or
her child.
(2) Regardless of whether the child is returned to a parent or
legal guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental or would not be
detrimental. The court also shall make appropriate findings pursuant
to subdivision (a) of Section 366; and, when relevant, shall order
any additional services reasonably believed to facilitate the return
of the child to the custody of his or her parent or legal guardian.
The court shall also inform the parent or legal guardian that if the
child cannot be returned home by the 12-month permanency hearing, a
proceeding pursuant to Section 366.26 may be instituted. This section
does not apply in a case in which, pursuant to Section 361.5, the
court has ordered that reunification services shall not be provided.
(3) If the child was under three years of age on the date of the
initial removal, or is a member of a sibling group described in
subparagraph (C) of paragraph (1) of subdivision (a) of Section
361.5, and the court finds by clear and convincing evidence that the
parent failed to participate regularly and make substantive progress
in a court-ordered treatment plan, the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court
finds there is a substantial probability that the child, who was
under three years of age on the date of initial removal or is a
member of a sibling group described in subparagraph (C) of paragraph
(1) of subdivision (a) of Section 361.5, may be returned to his or
her parent or legal guardian within six months or that reasonable
services have not been provided, the court shall continue the case to
the 12-month permanency hearing.
(4) For the purpose of placing and maintaining a sibling group
together in a permanent home, the court, in making its determination
to schedule a hearing pursuant to Section 366.26 for some or all
members of a sibling group, as described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, shall review and
consider the social worker's report and recommendations. Factors the
report shall address, and the court shall consider, may include, but
need not be limited to, whether the sibling group was removed from
parental care as a group, the closeness and strength of the sibling
bond, the ages of the siblings, the appropriateness of maintaining
the sibling group together, the detriment to the child if sibling
ties are not maintained, the likelihood of finding a permanent home
for the sibling group, whether the sibling group is currently placed
together in a preadoptive home or has a concurrent plan goal of legal
permanency in the same home, the wishes of each child whose age and
physical and emotional condition permits a meaningful response, and
the best interests of each child in the sibling group. The court
shall specify the factual basis for its finding that it is in the
best interests of each child to schedule a hearing pursuant to
Section 366.26 within 120 days for some or all of the members of the
sibling group.
(5) If the child was removed initially under subdivision (g) of
Section 300 and the court finds by clear and convincing evidence that
the whereabouts of the parent are still unknown, or the parent has
failed to contact and visit the child, the court may schedule a
hearing pursuant to Section 366.26 within 120 days. The court shall
take into account any particular barriers to a parent's ability to
maintain contact with his or her child due to the parent's
incarceration, institutionalization, detention by the United States
Department of Homeland Security, or deportation. If the court finds
by clear and convincing evidence that the parent has been convicted
of a felony indicating parental unfitness, the court may schedule a
hearing pursuant to Section 366.26 within 120 days.
(6) If the child had been placed under court supervision with a
previously noncustodial parent pursuant to Section 361.2, the court
shall determine whether supervision is still necessary. The court may
terminate supervision and transfer permanent custody to that parent,
as provided for by paragraph (1) of subdivision (b) of Section
361.2.
(7) In all other cases, the court shall direct that any
reunification services previously ordered shall continue to be
offered to the parent or legal guardian pursuant to the time periods
set forth in subdivision (a) of Section 361.5, provided that the
court may modify the terms and conditions of those services.
(8) If the child is not returned to his or her parent or legal
guardian, the court shall determine whether reasonable services that
were designed to aid the parent or legal guardian in overcoming the
problems that led to the initial removal and the continued custody of
the child have been provided or offered to the parent or legal
guardian. The court shall order that those services be initiated,
continued, or terminated.
(f) (1) The permanency hearing shall be held no later than 12
months after the date the child entered foster care, as that date is
determined pursuant to Section 361.49. At the permanency hearing, the
court shall determine the permanent plan for the child, which shall
include a determination of whether the child will be returned to the
child's home and, if so, when, within the time limits of subdivision
(a) of Section 361.5. After considering the relevant and admissible
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment.
(A) At the permanency hearing, the court shall consider the
criminal history, obtained pursuant to paragraph (1) of subdivision
(f) of Section 16504.5, of the parent or legal guardian subsequent to
the child's removal to the extent that the criminal record is
substantially related to the welfare of the child or the parent's or
legal guardian's ability to exercise custody and control regarding
his or her child, provided that the parent or legal guardian agreed
to submit fingerprint images to obtain criminal history information
as part of the case plan. The court shall also determine whether
reasonable services that were designed to aid the parent or legal
guardian to overcome the problems that led to the initial removal and
continued custody of the child have been provided or offered to the
parent or legal guardian.
(B) The court shall also consider whether the child can be
returned to the custody of his or her parent who is enrolled in a
certified substance abuse treatment facility that allows a dependent
child to reside with his or her parent. The fact that the parent is
enrolled in a certified substance abuse treatment facility shall not
be, for that reason alone, prima facie evidence of detriment. The
failure of the parent or legal guardian to participate regularly and
make substantive progress in court-ordered treatment programs shall
be prima facie evidence that return would be detrimental.
(C) In making its determination, the court shall review and
consider the social worker's report and recommendations and the
report and recommendations of any child advocate appointed pursuant
to Section 356.5, shall consider the efforts or progress, or both,
demonstrated by the parent or legal guardian and the extent to which
he or she availed himself or herself of services provided, taking
into account the particular barriers to a minor parent or a nonminor
dependent parent, or an incarcerated, institutionalized, detained, or
deported parent's or legal guardian's access to those court-mandated
services and ability to maintain contact with his or her child, and
shall make appropriate findings pursuant to subdivision (a) of
Section 366.
(D) For each youth 16 years of age and older, the court shall also
determine whether services have been made available to assist him or
her in making the transition from foster care to successful
adulthood.
(2) Regardless of whether the child is returned to his or her
parent or legal guardian, the court shall specify the factual basis
for its decision. If the child is not returned to a parent or legal
guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental. The court also shall
make a finding pursuant to subdivision (a) of Section 366. If the
child is not returned to his or her parent or legal guardian, the
court shall consider,
and state for the record, in-state and out-of-state placement
options. If the child is placed out of the state, the court shall
make a determination whether the out-of-state placement continues to
be appropriate and in the best interests of the child.
(g) If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in
subparagraph (A), (B), or (C) of paragraph (1) of subdivision (a) of
Section 361.5, as appropriate, and a child is not returned to the
custody of a parent or legal guardian at the permanency hearing held
pursuant to subdivision (f), the court shall do one of the following:
(1) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian. The court shall continue the
case only if it finds that there is a substantial probability that
the child will be returned to the physical custody of his or her
parent or legal guardian and safely maintained in the home within the
extended period of time or that reasonable services have not been
provided to the parent or legal guardian. For the purposes of this
section, in order to find a substantial probability that the child
will be returned to the physical custody of his or her parent or
legal guardian and safely maintained in the home within the extended
period of time, the court shall be required to find all of the
following:
(A) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(B) That the parent or legal guardian has made significant
progress in resolving problems that led to the child's removal from
the home.
(C) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
(i) For purposes of this subdivision, the court's decision to
continue the case based on a finding or substantial probability that
the child will be returned to the physical custody of his or her
parent or legal guardian is a compelling reason for determining that
a hearing held pursuant to Section 366.26 is not in the best
interests of the child.
(ii) The court shall inform the parent or legal guardian that if
the child cannot be returned home by the next permanency review
hearing, a proceeding pursuant to Section 366.26 may be instituted.
The court shall not order that a hearing pursuant to Section 366.26
be held unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(2) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian, if the parent has been arrested
and issued an immigration hold, detained by the United States
Department of Homeland Security, or deported to his or her country of
origin, and the court determines either that there is a substantial
probability that the child will be returned to the physical custody
of his or her parent or legal guardian and safely maintained in the
home within the extended period of time or that reasonable services
have not been provided to the parent or legal guardian.
(3) For purposes of paragraph (2), in order to find a substantial
probability that the child will be returned to the physical custody
of his or her parent or legal guardian and safely maintained in the
home within the extended period of time, the court shall find all of
the following:
(A) The parent or legal guardian has consistently and regularly
contacted and visited with the child, taking into account any
particular barriers to a parent's ability to maintain contact with
his or her child due to the parent's arrest and receipt of an
immigration hold, detention by the United States Department of
Homeland Security, or deportation.
(B) The parent or legal guardian has made significant progress in
resolving the problems that led to the child's removal from the home.
(C) The parent or legal guardian has demonstrated the capacity or
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
(4) Order that a hearing be held within 120 days, pursuant to
Section 366.26, but only if the court does not continue the case to
the permanency planning review hearing and there is clear and
convincing evidence that reasonable services have been provided or
offered to the parents or legal guardians. On and after January 1,
2012, a hearing pursuant to Section 366.26 shall not be ordered if
the child is a nonminor dependent, unless the nonminor dependent is
an Indian child and tribal customary adoption is recommended as the
permanent plan.
(5) Order that the child remain in foster care, but only if the
court finds by clear and convincing evidence, based upon the evidence
already presented to it, including a recommendation by the State
Department of Social Services when it is acting as an adoption agency
or by a county adoption agency, that there is a compelling reason
for determining that a hearing held pursuant to Section 366.26 is not
in the best interests of the child because the child is not a proper
subject for adoption and has no one willing to accept legal
guardianship as of the hearing date. For purposes of this section, a
recommendation by the State Department of Social Services when it is
acting as an adoption agency or by a county adoption agency that
adoption is not in the best interests of the child shall constitute a
compelling reason for the court's determination. That recommendation
shall be based on the present circumstances of the child and shall
not preclude a different recommendation at a later date if the child'
s circumstances change. On and after January 1, 2012, the nonminor
dependent's legal status as an adult is in and of itself a compelling
reason not to hold a hearing pursuant to Section 366.26. The court
may order that a nonminor dependent who otherwise is eligible
pursuant to Section 11403 remain in a planned, permanent living
arrangement.
(A) The court shall make factual findings identifying any barriers
to achieving the permanent plan as of the hearing date. When the
child is under 16 years of age, the court shall order a permanent
plan of return home, adoption, tribal customary adoption in the case
of an Indian child, legal guardianship, or placement with a fit and
willing relative, as appropriate. When the child is 16 years of age
or older, or is a nonminor dependent, and no other permanent plan is
appropriate at the time of the hearing, the court may order another
planned permanent living arrangement, as described in paragraph (2)
of subdivision (i) of Section 16501.
(B) If the court orders that a child who is 10 years of age or
older remain in foster care, the court shall determine whether the
agency has made reasonable efforts to maintain the child's
relationships with individuals other than the child's siblings who
are important to the child, consistent with the child's best
interests, and may make any appropriate order to ensure that those
relationships are maintained.
(C) If the child is not returned to his or her parent or legal
guardian, the court shall consider, and state for the record,
in-state and out-of-state options for permanent placement. If the
child is placed out of the state, the court shall make a
determination whether the out-of-state placement continues to be
appropriate and in the best interests of the child.
(h) In any case in which the court orders that a hearing pursuant
to Section 366.26 shall be held, it shall also order the termination
of reunification services to the parent or legal guardian. The court
shall continue to permit the parent or legal guardian to visit the
child pending the hearing unless it finds that visitation would be
detrimental to the child. The court shall make any other appropriate
orders to enable the child to maintain relationships with
individuals, other than the child's siblings, who are important to
the child, consistent with the child's best interests. When the court
orders a termination of reunification services to the parent or
legal guardian, it shall also order that the child's caregiver
receive the child's birth certificate in accordance with Sections
16010.4 and 16010.5. Additionally, when the court orders a
termination of reunification services to the parent or legal
guardian, it shall order, when appropriate, that a child who is 16
years of age or older receive his or her birth certificate.
(i) (1) Whenever a court orders that a hearing pursuant to Section
366.26, including, when, in consultation with the child's tribe,
tribal customary adoption is recommended, shall be held, it shall
direct the agency supervising the child and the county adoption
agency, or the State Department of Social Services when it is acting
as an adoption agency, to prepare an assessment that shall include:
(A) Current search efforts for an absent parent or parents or
legal guardians.
(B) A review of the amount of and nature of any contact between
the child and his or her parents or legal guardians and other members
of his or her extended family since the time of placement. Although
the extended family of each child shall be reviewed on a case-by-case
basis, "extended family" for the purpose of this subparagraph shall
include, but not be limited to, the child's siblings, grandparents,
aunts, and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
including the prospective tribal customary adoptive parent,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed guardian is a relative of
the minor, the assessment shall also consider, but need not be
limited to, all of the factors specified in subdivision (a) of
Section 361.3 and in Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or guardianship, a
statement from the child concerning placement and the adoption or
guardianship, and whether the child, if over 12 years of age, has
been consulted about the proposed relative guardianship arrangements,
unless the child's age or physical, emotional, or other condition
precludes his or her meaningful response, and if so, a description of
the condition.
(F) A description of efforts to be made to identify a prospective
adoptive parent or legal guardian, including, but not limited to,
child-specific recruitment and listing on an adoption exchange within
the state or out of the state.
(G) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(H) In the case of an Indian child, in addition to subparagraphs
(A) to (G), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
tribal customary adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(j) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver, and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program, as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385), as applicable, of
Chapter 2 of Part 3 of Division 9.
(k) As used in this section, "relative" means an adult who is
related to the minor by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of those persons even
if the marriage was terminated by death or dissolution. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under the Kin-GAP Program, as
provided for in Article 4.7 (commencing with Section 11385) of
Chapter 2 of Part 3 of Division 9, "relative" as used in this section
has the same meaning as "relative" as defined in subdivision (c) of
Section 11391.
(l) For purposes of this section, evidence of any of the following
circumstances shall not, in and of itself, be deemed a failure to
provide or offer reasonable services:
(1) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(2) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(3) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
SEC. 312. Section 786 of the Welfare and Institutions Code is
amended to read:
786. (a) If a minor satisfactorily completes (1) an informal
program of supervision pursuant to Section 654.2, (2) probation under
Section 725, or (3) a term of probation for any offense, the court
shall order the petition dismissed. The court shall order sealed all
records pertaining to that dismissed petition in the custody of the
juvenile court, and in the custody of law enforcement agencies, the
probation department, or the Department of Justice. The court shall
send a copy of the order to each agency and official named in the
order, direct the agency or official to seal its records, and specify
a date by which the sealed records shall be destroyed. Each agency
and official named in the order shall seal the records in its custody
as directed by the order, shall advise the court of its compliance,
and, after advising the court, shall seal the copy of the court's
order that was received. The court shall also provide notice to the
minor and minor's counsel that it has ordered the petition dismissed
and the records sealed in the case. The notice shall include an
advisement of the minor's right to nondisclosure of the arrest and
proceedings, as specified in subdivision (b).
(b) Upon the court's order of dismissal of the petition, the
arrest and other proceedings in the case shall be deemed not to have
occurred and the person who was the subject of the petition may reply
accordingly to any inquiry by employers, educational institutions,
or other persons or entities regarding the arrest and proceedings in
the case.
(c) (1) For purposes of this section, satisfactory completion of
an informal program of supervision or another term of probation
described in subdivision (a) shall be deemed to have occurred if the
person has no new findings of wardship or conviction for a felony
offense or a misdemeanor involving moral turpitude during the period
of supervision or probation and if he or she has not failed to
substantially comply with the reasonable orders of supervision or
probation that are within his or her capacity to perform. The period
of supervision or probation shall not be extended solely for the
purpose of deferring or delaying eligibility for dismissal of the
petition and sealing of the records under this section.
(2) An unfulfilled order or condition of restitution, including a
restitution fine that can be converted to a civil judgment under
Section 730.6 or an unpaid restitution fee shall not be deemed to
constitute unsatisfactory completion of supervision or probation
under this section.
(d) A court shall not seal a record or dismiss a petition pursuant
to this section if the petition was sustained based on the
commission of an offense listed in subdivision (b) of Section 707
that was committed when the individual was 14 years of age or older
unless the finding on that offense was dismissed or was reduced to a
lesser offense that is not listed in subdivision (b) of Section 707.
(e) (1) The court may, in making its order to seal the record and
dismiss the instant petition pursuant to this section, include an
order to seal a record relating to, or to dismiss, any prior petition
or petitions that have been filed or sustained against the
individual and that appear to the satisfaction of the court to meet
the sealing and dismissal criteria otherwise described in this
section.
(2) An individual who has a record that is eligible to be sealed
under this section may ask the court to order the sealing of a record
pertaining to the case that is in the custody of a public agency
other than a law enforcement agency, the probation department, or the
Department of Justice, and the court may grant the request and order
that the public agency record be sealed if the court determines that
sealing the additional record will promote the successful reentry
and rehabilitation of the individual.
(f) (1) A record that has been ordered sealed by the court under
this section may be accessed, inspected, or utilized only under any
of the following circumstances:
(A) By the prosecuting attorney, the probation department, or the
court for the limited purpose of determining whether the minor is
eligible and suitable for deferred entry of judgment pursuant to
Section 790 or is ineligible for a program of supervision as defined
in Section 654.3.
(B) By the court for the limited purpose of verifying the prior
jurisdictional status of a ward who is petitioning the court to
resume its jurisdiction pursuant to subdivision (e) of Section 388.
(C) If a new petition has been filed against the minor for a
felony offense, by the probation department for the limited purpose
of identifying the minor's previous court-ordered programs or
placements, and in that event solely to determine the individual's
eligibility or suitability for remedial programs or services. The
information obtained pursuant to this subparagraph shall not be
disseminated to other agencies or individuals, except as necessary to
implement a referral to a remedial program or service, and shall not
be used to support the imposition of penalties, detention, or other
sanctions upon the minor.
(D) Upon a subsequent adjudication of a minor whose record has
been sealed under this section and a finding that the minor is a
person described by Section 602 based on the commission of a felony
offense, by the probation department, the prosecuting attorney,
counsel for the minor, or the court for the limited purpose of
determining an appropriate juvenile court disposition. Access,
inspection, or use of a sealed record as provided under this
subparagraph shall not be construed as a reversal or modification of
the court's order dismissing the petition and sealing record in the
prior case.
(E) Upon the prosecuting attorney's motion, made in accordance
with Section 707, to initiate court proceedings to determine the
minor's fitness to be dealt with under the juvenile court law, by the
probation department, the prosecuting attorney, counsel for the
minor, or the court for the limited purpose of evaluating and
determining the minor's fitness to be dealt with under the juvenile
court law. Access, inspection, or use of a sealed record as provided
under this subparagraph shall not be construed as a reversal or
modification of the court's order dismissing the petition and sealing
the record in the prior case.
(F) By the person whose record has been sealed, upon his or her
request and petition to the court to permit inspection of the
records.
(G) By the probation department of any county to access the
records for the limited purpose of meeting federal Title IV-B and
Title IV-E compliance.
(2) Access to, or inspection of, a sealed record authorized by
paragraph (1) shall not be deemed an unsealing of the record and
shall not require notice to any other agency.
(g) (1) This section does not prohibit a court from enforcing a
civil judgment for an unfulfilled order of restitution ordered
pursuant to Section 730.6. A minor is not relieved from the
obligation to pay victim restitution, restitution fines, and
court-ordered fines and fees because the minor's records are sealed.
(2) A victim or a local collection program may continue to enforce
victim restitution orders, restitution fines, and court-ordered
fines and fees after a record is sealed. The juvenile court shall
have access to any records sealed pursuant to this section for the
limited purpose of enforcing a civil judgment or restitution order.
(h) This section does not prohibit the State Department of Social
Services from meeting its obligations to monitor and conduct periodic
evaluations of, and provide reports on, the programs carried under
federal Title IV-B and Title IV-E as required by Sections 622, 629 et
seq., and 671(a)(7) and (22) of Title 42 of the United States Code,
as implemented by federal regulation and state statute.
(i) The Judicial Council shall adopt rules of court, and shall
make available appropriate forms, providing for the standardized
implementation of this section by the juvenile courts.
SEC. 313. Section 4474.1 of the Welfare and Institutions Code is
amended to read:
4474.1. (a) Whenever the State Department of Developmental
Services proposes the closure of a state developmental center, the
department shall be required to submit a detailed plan to the
Legislature not later than April 1 immediately prior to the fiscal
year in which the plan is to be implemented, and as a part of the
Governor's proposed budget. A plan submitted to the Legislature
pursuant to this section, including any modifications made pursuant
to subdivision (b), shall not be implemented without the approval of
the Legislature.
(b) A plan submitted on or before April 1 immediately prior to the
fiscal year in which the plan is to be implemented may be
subsequently modified during the legislative review process.
(c) Prior to submission of the plan to the Legislature, the
department shall solicit input from the State Council on
Developmental Disabilities, the Association of Regional Center
Agencies, the protection and advocacy agency specified in Section
4901, the local regional center, consumers living in the
developmental center, parents, family members, guardians, and
conservators of persons living in the developmental centers or their
representative organizations, persons with developmental disabilities
living in the community, developmental center employees and employee
organizations, community care providers, the affected city and
county governments, and business and civic organizations, as may be
recommended by local state Senate and Assembly representatives.
(d) Prior to the submission of the plan to the Legislature, the
department shall confer with the county in which the developmental
center is located, the regional centers served by the developmental
center, and other state departments using similar occupational
classifications, to develop a program for the placement of staff of
the developmental center planned for closure in other developmental
centers, as positions become vacant, or in similar positions in
programs operated by, or through contract with, the county, regional
centers, or other state departments, including, but not limited to,
the community state staff program, use of state staff for mobile
health and crisis teams in the community, and use of state staff in
new state-operated models that may be developed as a component of the
closure plan.
(e) Prior to the submission of the plan to the Legislature, the
department shall confer with the county in which the developmental
center is located, and shall consider recommendations for the use of
the developmental center property.
(f) Prior to the submission of the plan to the Legislature, the
department shall hold at least one public hearing in the community in
which the developmental center is located, with public comment from
that hearing summarized in the plan.
(g) The plan submitted to the Legislature pursuant to this section
shall include all of the following:
(1) A description of the land and buildings at the developmental
center.
(2) A description of existing lease arrangements at the
developmental center.
(3) A description of resident characteristics, including, but not
limited to, age, gender, ethnicity, family involvement, years of
developmental center residency, developmental disability, and other
factors that will determine service and support
needs.
(4) A description of stakeholder input provided pursuant to
subdivisions (c), (d), and (e), including a description of local
issues, concerns, and recommendations regarding the proposed closure,
and alternative uses of the developmental center property.
(5) The impact on residents and their families.
(6) A description of the unique and specialized services provided
by the developmental center, including, but not limited to, crisis
facilities, health and dental clinics, and adaptive technology
services.
(7) A description of the assessment process and community
placement decision process that will ensure necessary services and
supports are in place prior to a resident transitioning into the
community.
(8) Anticipated alternative placements for residents.
(9) A description of how the department will transition the client
rights advocacy contract provided at the developmental center
pursuant to Section 4433 to the community.
(10) A description of how the well-being of the residents will be
monitored during and following their transition into the community.
(11) The impact on regional center services.
(12) Where services will be obtained that, upon closure of the
developmental center, will no longer be provided by that facility.
(13) A description of the potential job opportunities for
developmental center employees, activities the department will
undertake to support employees through the closure process, and other
efforts made to mitigate the effect of the closure on employees.
(14) The fiscal impact of the closure.
(15) The timeframe in which closure will be accomplished.
SEC. 314. Section 11203 of the Welfare and Institutions Code is
amended to read:
11203. (a) During those times as the federal government provides
funds for the care of a needy relative with whom a needy child or
needy children are living, aid to the child or children for any month
includes aid to meet the needs of that relative, if money payments
are made with respect to the child or children for that month, and if
the relative is not receiving aid under Chapter 3 (commencing with
Section 12000) or 5.1 (commencing with Section 13000) of this part or
Part A of Title XVI of the Social Security Act for that month. Needy
relatives under this chapter include only natural or adoptive
parents, the spouse of a natural or adoptive parent, and other needy
caretaker relatives.
(b) (1) The parent or parents shall be considered living with the
needy child or needy children for a period of up to 180 consecutive
days of the needy child's or children's absence from the family
assistance unit and the parent or parents shall be eligible for
services under this chapter, including services funded under Sections
15204.2 and 15204.8, if all of the following conditions are met:
(A) The child has been removed from the parent or parents and
placed in out-of-home care.
(B) When the child was removed from the parent or parents, the
family was receiving aid under this section.
(C) The county has determined that the provision of services under
this chapter, including services funded under Sections 15204.2 and
15204.8, is necessary for reunification.
(2) For purposes of this subdivision, the parent or parents shall
not be eligible for any payment of aid under Section 11450.
(c) The department shall revise its state Temporary Assistance for
Needy Families plan to incorporate the provisions of subdivision (b)
and to incorporate the good cause exception provisions authorized by
paragraph (10) of subsection (a) of Section 608 of Title 42 of the
United States Code with respect to cases in which reunification
occurs after 180 consecutive days from the date of the removal of the
child or children from the home.
SEC. 315. Section 11469 of the Welfare and Institutions Code is
amended to read:
11469. (a) The department shall develop, following consultation
with group home providers, the County Welfare Directors Association
of California, the Chief Probation Officers of California, the County
Behavioral Health Directors Association of California, the State
Department of Health Care Services, and stakeholders, performance
standards and outcome measures for determining the effectiveness of
the care and supervision, as defined in subdivision (b) of Section
11460, provided by group homes under the AFDC-FC program pursuant to
Sections 11460 and 11462. These standards shall be designed to
measure group home program performance for the client group that the
group home program is designed to serve.
(1) The performance standards and outcome measures shall be
designed to measure the performance of group home programs in areas
over which the programs have some degree of influence, and in other
areas of measurable program performance that the department can
demonstrate are areas over which group home programs have meaningful
managerial or administrative influence.
(2) These standards and outcome measures shall include, but are
not limited to, the effectiveness of services provided by each group
home program, and the extent to which the services provided by the
group home assist in obtaining the child welfare case plan objectives
for the child.
(3) In addition, when the group home provider has identified as
part of its program for licensing, ratesetting, or county placement
purposes, or has included as a part of a child's case plan by mutual
agreement between the group home and the placing agency, specific
mental health, education, medical, and other child-related services,
the performance standards and outcome measures may also measure the
effectiveness of those services.
(b) Regulations regarding the implementation of the group home
performance standards system required by this section shall be
adopted no later than one year prior to implementation. The
regulations shall specify both the performance standards system and
the manner by which the AFDC-FC rate of a group home program shall be
adjusted if performance standards are not met.
(c) Except as provided in subdivision (d), effective July 1, 1995,
group home performance standards shall be implemented. Any group
home program not meeting the performance standards shall have its
AFDC-FC rate, set pursuant to Section 11462, adjusted according to
the regulations required by this section.
(d) A group home program shall be classified at rate
classification level 13 or 14 only if all of the following are met:
(1) The program generates the requisite number of points for rate
classification level 13 or 14.
(2) The program only accepts children with special treatment needs
as determined through the assessment process pursuant to paragraph
(2) of subdivision (a) of Section 11462.01.
(3) The program meets the performance standards designed pursuant
to this section.
(e) Notwithstanding subdivision (c), the group home program
performance standards system shall not be implemented prior to the
implementation of the AFDC-FC performance standards system.
(f) On or before January 1, 2016, the department shall develop,
following consultation with the County Welfare Directors Association
of California, the Chief Probation Officers of California, the County
Behavioral Health Directors Association of California, research
entities, foster children, advocates for foster children, foster care
provider business entities organized and operated on a nonprofit
basis, Indian tribes, and other stakeholders, additional performance
standards and outcome measures that require group homes to implement
programs and services to minimize law enforcement contacts and
delinquency petition filings arising from incidents of allegedly
unlawful behavior by minors occurring in group homes or under the
supervision of group home staff, including individualized behavior
management programs, emergency intervention plans, and conflict
resolution processes.
(g) On or before January 1, 2017, the department shall develop,
following consultation with the County Welfare Directors Association
of California, the Chief Probation Officers of California, the County
Behavioral Health Directors Association of California, the Medical
Board of California, research entities, foster children, advocates
for foster children, foster care provider business entities organized
and operated on a nonprofit basis, Indian tribes, and other
stakeholders, additional performance standards and outcome measures
that require group homes to implement alternative programs and
services, including individualized behavior management programs,
emergency intervention plans, and conflict resolution processes.
SEC. 316. Section 11477 of the Welfare and Institutions Code is
amended to read:
11477. As a condition of eligibility for aid paid under this
chapter, each applicant or recipient shall do all of the following:
(a) (1) Do either of the following:
(A) For applications received before October 1, 2009, assign to
the county any rights to support from any other person the applicant
or recipient may have on his or her own behalf or on behalf of any
other family member for whom the applicant or recipient is applying
for or receiving aid, not exceeding the total amount of cash
assistance provided to the family under this chapter. Receipt of
public assistance under this chapter operates as an assignment by
operation of law. An assignment of support rights to the county shall
also constitute an assignment to the state. If support rights are
assigned pursuant to this subdivision, the assignee may become an
assignee of record by the local child support agency or other public
official filing with the court clerk an affidavit showing that an
assignment has been made or that there has been an assignment by
operation of law. This procedure does not limit any other means by
which the assignee may become an assignee of record.
(B) For applications received on or after October 1, 2009, assign
to the county any rights to support from any other person the
applicant or recipient may have on his or her own behalf, or on
behalf of any other family member for whom the applicant or recipient
is applying for or receiving aid. The assignment shall apply only to
support that accrues during the period of time that the applicant is
receiving assistance under this chapter, and shall not exceed the
total amount of cash assistance provided to the family under this
chapter. Receipt of public assistance under this chapter shall
operate as an assignment by operation of law. An assignment of
support rights to the county shall also constitute an assignment to
the state. If support rights are assigned pursuant to this
subdivision, the assignee may become an assignee of record by the
local child support agency or other public official filing with the
court clerk an affidavit showing that an assignment has been made or
that there has been an assignment by operation of law. This procedure
does not limit any other means by which the assignee may become an
assignee of record.
(2) Support that has been assigned pursuant to paragraph (1) and
that accrues while the family is receiving aid under this chapter
shall be permanently assigned until the entire amount of aid paid has
been reimbursed.
(3) If the federal government does not permit states to adopt the
same order of distribution for preassistance and postassistance child
support arrears that are assigned on or after October 1, 1998,
support arrears that accrue before the family receives aid under this
chapter that are assigned pursuant to this subdivision shall be
assigned as follows:
(A) Child support assigned prior to January 1, 1998, shall be
permanently assigned until aid is no longer received and the entire
amount of aid has been reimbursed.
(B) Child support assigned on or after January 1, 1998, but prior
to October 1, 2000, shall be temporarily assigned until aid under
this chapter is no longer received and the entire amount of aid paid
has been reimbursed or until October 1, 2000, whichever comes first.
(C) On or after October 1, 2000, support assigned pursuant to this
subdivision that was not otherwise permanently assigned shall be
temporarily assigned to the county until aid is no longer received.
(D) On or after October 1, 2000, support that was temporarily
assigned pursuant to this subdivision shall, when a payment is
received from the federal tax intercept program, be temporarily
assigned until the entire amount of aid paid has been reimbursed.
(4) If the federal government permits states to adopt the same
order of distribution for preassistance and postassistance child
support arrears, child support arrears shall be assigned, as follows:
(A) Child support assigned pursuant to this subdivision prior to
October 1, 1998, shall be assigned until aid under this chapter is no
longer received and the entire amount has been reimbursed.
(B) On or after October 1, 1998, child support assigned pursuant
to this subdivision that accrued before the family receives aid under
this chapter and that was not otherwise permanently assigned shall
be temporarily assigned until aid under this chapter is no longer
received.
(C) On or after October 1, 1998, support that was temporarily
assigned pursuant to this subdivision shall, when a payment is
received from the federal tax intercept program, be temporarily
assigned until the entire amount of aid paid has been reimbursed.
(b) (1) Cooperate with the county welfare department and local
child support agency in establishing the paternity of a child of the
applicant or recipient born out of wedlock with respect to whom aid
is claimed, and in establishing, modifying, or enforcing a support
order with respect to a child of the individual for whom aid is
requested or obtained, unless the applicant or recipient qualifies
for a good cause exception pursuant to Section 11477.04. The granting
of aid shall not be delayed or denied if the applicant is otherwise
eligible, completes the necessary forms, and agrees to cooperate with
the local child support agency in securing support and determining
paternity, if applicable. The local child support agency shall have
staff available, in person or by telephone, at all county welfare
offices and shall conduct an interview with each applicant to obtain
information necessary to establish paternity and establish, modify,
or enforce a support order at the time of the initial interview with
the welfare office. The local child support agency shall make the
determination of cooperation. If the applicant or recipient attests
under penalty of perjury that he or she cannot provide the
information required by this subdivision, the local child support
agency shall make a finding regarding whether the individual could
reasonably be expected to provide the information before the local
child support agency determines whether the individual is
cooperating. In making the finding, the local child support agency
shall consider all of the following:
(A) The age of the child for whom support is sought.
(B) The circumstances surrounding the conception of the child.
(C) The age or mental capacity of the parent or caretaker of the
child for whom aid is being sought.
(D) The time that has elapsed since the parent or caretaker last
had contact with the alleged father or obligor.
(2) Cooperation includes all of the following:
(A) Providing the name of the alleged parent or obligor and other
information about that person if known to the applicant or recipient,
such as address, social security number, telephone number, place of
employment or school, and the names and addresses of relatives or
associates.
(B) Appearing at interviews, hearings, and legal proceedings,
provided the applicant or recipient is provided with reasonable
advance notice of the interview, hearing, or legal proceeding and
does not have good cause not to appear.
(C) If paternity is at issue, submitting to genetic tests,
including genetic testing of the child, if necessary.
(D) Providing any additional information known to, or reasonably
obtainable by, the applicant or recipient necessary to establish
paternity or to establish, modify, or enforce a child support order.
(3) A recipient or applicant shall not be required to sign a
voluntary declaration of paternity, as set forth in Chapter 3
(commencing with Section 7570) of Part 2 of Division 12 of the Family
Code, as a condition of cooperation.
(c) (1) This section does not apply if all of the adults are
excluded from the assistance unit pursuant to Section 11251.3, 11454,
or 11486.5, or if all eligible adults have been subject to Section
11327.5 for at least 12 consecutive months.
(2) It is the intent of the Legislature that the regular receipt
of child support in the preceding reporting period be considered in
determining reasonably anticipated income for the following reporting
period.
(3) In accordance with Sections 11265.2 and 11265.46, if the
income of an assistance unit described in paragraph (1) includes
reasonably anticipated income derived from child support, the amount
established in Section 17504 of the Family Code and Section 11475.3
of the Welfare and Institutions Code of any amount of child support
received each month shall not be considered income or resources and
shall not be deducted from the amount of aid to which the assistance
unit otherwise would be eligible.
SEC. 317. Section 14094.3 of the Welfare and Institutions Code is
amended to read:
14094.3. (a) Notwithstanding this article or Section 14093.05 or
14094.1, CCS covered services shall not be incorporated into any
Medi-Cal managed care contract entered into after August 1, 1994,
pursuant to Article 2.7 (commencing with Section 14087.3), Article
2.8 (commencing with Section 14087.5), Article 2.9 (commencing with
Section 14088), Article 2.91 (commencing with Section 14089), Article
2.95 (commencing with Section 14092); or either Article 1
(commencing with Section 14200), or Article 7 (commencing with
Section 14490) of Chapter 8, until January 1, 2017, except for
contracts entered into for county organized health systems or
Regional Health Authority in the Counties of San Mateo, Santa
Barbara, Solano, Yolo, Marin, and Napa.
(b) Notwithstanding any other provision of this chapter, providers
serving children under the CCS program who are enrolled with a
Medi-Cal managed care contractor but who are not enrolled in a pilot
project pursuant to subdivision (c) shall continue to submit billing
for CCS covered services on a fee-for-service basis until CCS covered
services are incorporated into the Medi-Cal managed care contracts
described in subdivision (a).
(c) (1) The department may authorize a pilot project in Solano
County in which reimbursement for conditions eligible under the CCS
program may be reimbursed on a capitated basis pursuant to Section
14093.05, and provided all CCS program's guidelines, standards, and
regulations are adhered to, and the CCS program's case management is
utilized.
(2) During the time period described in subdivision (a), the
department may approve, implement, and evaluate limited pilot
projects under the CCS program to test alternative managed care
models tailored to the special health care needs of children under
the CCS program. The pilot projects may include, but need not be
limited to, coverage of different geographic areas, focusing on
certain subpopulations, and the employment of different payment and
incentive models. Pilot project proposals from CCS program-approved
providers shall be given preference. All pilot projects shall utilize
CCS program-approved standards and providers pursuant to Section
14094.1.
(d) For purposes of this section, CCS covered services include all
program benefits administered by the program specified in Section
123840 of the Health and Safety Code regardless of the funding
source.
(e) This section shall not be construed to exclude or restrict CCS
eligible children from enrollment with a managed care contractor, or
from receiving from the managed care contractor with which they are
enrolled primary and other health care unrelated to the treatment of
the CCS eligible condition.
SEC. 318. Section 14126.022 of the Welfare and Institutions Code
is amended to read:
14126.022. (a) (1) By August 1, 2011, the department shall
develop the Skilled Nursing Facility Quality and Accountability
Supplemental Payment System, subject to approval by the federal
Centers for Medicare and Medicaid Services, and the availability of
federal, state, or other funds.
(2) (A) The system shall be utilized to provide supplemental
payments to skilled nursing facilities that improve the quality and
accountability of care rendered to residents in skilled nursing
facilities, as defined in subdivision (c) of Section 1250 of the
Health and Safety Code, and to penalize those facilities that do not
meet measurable standards.
(B) A freestanding pediatric subacute care facility, as defined in
Section 51215.8 of Title 22 of the California Code of Regulations,
shall be exempt from the Skilled Nursing Facility Quality and
Accountability Supplemental Payment System.
(3) The system shall be phased in, beginning with the 2010-11 rate
year.
(4) The department may utilize the system to do all of the
following:
(A) Assess overall facility quality of care and quality of care
improvement, and assign quality and accountability payments to
skilled nursing facilities pursuant to performance measures described
in subdivision (i).
(B) Assign quality and accountability payments or penalties
relating to quality of care, or direct care staffing levels, wages,
and benefits, or both.
(C) Limit the reimbursement of legal fees incurred by skilled
nursing facilities engaged in the defense of governmental legal
actions filed against the facilities.
(D) Publish each facility's quality assessment and quality and
accountability payments in a manner and form determined by the
director, or his or her designee.
(E) Beginning with the 2011-12 fiscal year, establish a base year
to collect performance measures described in subdivision (i).
(F) Beginning with the 2011-12 fiscal year, in coordination with
the State Department of Public Health, publish the direct care
staffing level data and the performance measures required pursuant to
subdivision (i).
(5) The department, in coordination with the State Department of
Public Health, shall report to the relevant Assembly and Senate
budget subcommittees by May 1, 2016, information regarding the
quality and accountability supplemental payments, including, but not
limited to, its assessment of whether the payments are adequate to
incentivize quality care and to sustain the program.
(b) (1) There is hereby created in the State Treasury, the Skilled
Nursing Facility Quality and Accountability Special Fund. The fund
shall contain moneys deposited pursuant to subdivisions (g) and (j)
to (m), inclusive. Notwithstanding Section 16305.7 of the Government
Code, the fund shall contain all interest and dividends earned on
moneys in the fund.
(2) Notwithstanding Section 13340 of the Government Code, the fund
shall be continuously appropriated without regard to fiscal year to
the department for making quality and accountability payments, in
accordance with subdivision (n), to facilities that meet or exceed
predefined measures as established by this section.
(3) Upon appropriation by the Legislature, moneys in the fund may
also be used for any of the following purposes:
(A) To cover the administrative costs incurred by the State
Department of Public Health for positions and contract funding
required to implement this section.
(B) To cover the administrative costs incurred by the State
Department of Health Care Services for positions and contract funding
required to implement this section.
(C) To provide funding assistance for the Long-Term Care Ombudsman
Program activities pursuant to Chapter 11 (commencing with Section
9700) of Division 8.5.
(c) No appropriation associated with Chapter 717 of the Statutes
of 2010 is intended to implement the provisions of Section 1276.65 of
the Health and Safety Code.
(d) (1) There is hereby appropriated for the 2010-11 fiscal year,
one million nine hundred thousand dollars ($1,900,000) from the
Skilled Nursing Facility Quality and Accountability Special Fund to
the California Department of Aging for the Long-Term Care Ombudsman
Program activities pursuant to Chapter 11 (commencing with Section
9700) of Division 8.5. It is the intent of the Legislature for the
one million nine hundred thousand dollars ($1,900,000) from the fund
to be in addition to the four million one hundred sixty-eight
thousand dollars ($4,168,000) proposed in the Governor's May Revision
for the 2010-11 Budget. It is further the intent of the Legislature
to increase this level of appropriation in subsequent years to
provide support sufficient to carry out the mandates and activities
pursuant to Chapter 11 (commencing with Section 9700) of Division
8.5.
(2) The department, in partnership with the California Department
of Aging, shall seek approval from the federal Centers for Medicare
and Medicaid Services to obtain federal Medicaid reimbursement for
activities conducted by the Long-Term Care Ombudsman Program. The
department shall report to the fiscal committees of the Legislature
during budget hearings on progress being made and any unresolved
issues during the 2011-12 budget deliberations.
(e) There is hereby created in the Special Deposit Fund
established pursuant to Section 16370 of the Government Code, the
Skilled Nursing Facility Minimum Staffing Penalty Account. The
account shall contain all moneys deposited pursuant to subdivision
(f).
(f) (1) Beginning with the 2010-11 fiscal year, the State
Department of Public Health shall use the direct care staffing level
data it collects to determine whether a skilled nursing facility has
met the nursing hours per patient per day requirements pursuant to
Section 1276.5 of the Health and Safety Code.
(2) (A) Beginning with the 2010-11 fiscal year, the State
Department of Public Health shall assess a skilled nursing facility,
licensed pursuant to subdivision (c) of Section 1250 of the Health
and Safety Code, an administrative penalty if the State Department of
Public Health determines that the skilled nursing facility fails to
meet the nursing hours per patient per day requirements pursuant to
Section 1276.5 of the Health and Safety Code, as follows:
(i) Fifteen thousand dollars ($15,000) if the facility fails to
meet the requirements for 5 percent or more of the audited days up to
49 percent.
(ii) Thirty thousand dollars ($30,000) if the facility fails to meet
the requirements for over 49 percent or more of the audited days.
(B) (i) If the skilled nursing facility does not dispute the
determination or assessment, the penalties shall be paid in full by
the licensee to the State Department of Public Health within 30 days
of the facility's receipt of the notice of penalty and deposited into
the Skilled Nursing Facility Minimum Staffing Penalty Account.
(ii) The State Department of Public Health may, upon written
notification to the licensee, request that the department offset any
moneys owed to the licensee by the Medi-Cal program or any other
payment program administered by the department to recoup the penalty
provided for in this section.
(C) (i) If a facility disputes the determination or assessment
made pursuant to this paragraph, the facility shall, within 15 days
of the facility's receipt of the determination and assessment,
simultaneously submit a request for appeal to both the department and
the State Department of Public Health. The request shall include a
detailed statement describing the reason for appeal and include all
supporting documents the facility will present at the hearing.
(ii) Within 10 days of the State Department of Public Health's
receipt of the facility's request for appeal, the State Department of
Public Health shall submit, to both the facility and the department,
all supporting documents that will be presented at the hearing.
(D) The department shall hear a timely appeal and issue a decision
as follows:
(i) The hearing shall commence within 60 days from the date of
receipt by the department of the facility's timely request for
appeal.
(ii) The department shall issue a decision within 120 days from
the date of receipt by the department of the facility's timely
request for appeal.
(iii) The decision of the department's hearing officer, when
issued, shall be the final decision of the State Department of Public
Health.
(E) The appeals process set forth in this paragraph shall be
exempt from Chapter 4.5 (commencing with Section 11400) and Chapter 5
(commencing with Section 11500), of Part 1 of Division 3 of Title 2
of the Government Code. The provisions of Sections 100171 and 131071
of the Health and Safety Code do not apply to appeals under this
paragraph.
(F) If a hearing decision issued pursuant to subparagraph (D) is
in favor of the State Department of Public Health, the skilled
nursing facility shall pay the penalties to the State Department of
Public Health within 30 days of the facility's receipt of the
decision. The penalties collected shall be deposited into the Skilled
Nursing Facility Minimum Staffing Penalty Account.
(G) The assessment of a penalty under this subdivision does not
supplant the State Department of Public Health's investigation
process or issuance of deficiencies or citations under Chapter 2.4
(commencing with Section 1417) of Division 2 of the Health and Safety
Code.
(g) The State Department of Public Health shall transfer, on a
monthly basis, all penalty payments collected pursuant to subdivision
(f) into the Skilled Nursing Facility Quality and Accountability
Special Fund.
(h) This section does not impact the effectiveness or utilization
of Section 1278.5 or 1432 of the Health and Safety Code relating to
whistleblower protections, or Section 1420 of the Health and Safety
Code relating to complaints.
(i) (1) Beginning in the 2010-11 fiscal year, the department, in
consultation with representatives from the long-term care industry,
organized labor, and consumers, shall establish and publish quality
and accountability measures, benchmarks, and data submission
deadlines by November 30, 2010.
(2) The methodology developed pursuant to this section shall
include, but not be limited to, the following requirements and
performance measures:
(A) Beginning in the 2011-12 fiscal year:
(i) Immunization rates.
(ii) Facility acquired pressure ulcer incidence.
(iii) The use of physical restraints.
(iv) Compliance with the nursing hours per patient per day
requirements pursuant to Section 1276.5 of the Health and Safety
Code.
(v) Resident and family satisfaction.
(vi) Direct care staff retention, if sufficient data is available.
(B) If this act is extended beyond the dates on which it becomes
inoperative and is repealed, in accordance with Section 14126.033,
the department, in consultation with representatives from the
long-term care industry, organized labor, and consumers, beginning in
the 2013-14 rate year, shall incorporate additional measures into
the system, including, but not limited to, quality and accountability
measures required by federal health care reform that are identified
by the federal Centers for Medicare and Medicaid Services.
(C) The department, in consultation with representatives from the
long-term care industry, organized labor, and consumers, may
incorporate additional performance measures, including, but not
limited to, the following:
(i) Compliance with state policy associated with the United States
Supreme Court decision in Olmstead v. L.C. ex rel. Zimring (1999)
527 U.S. 581.
(ii) Direct care staff retention, if not addressed in the 2012-13
rate year.
(iii) The use of chemical restraints.
(D) Beginning with the 2015-16 fiscal year, the department, in
consultation with representatives from the long-term care industry,
organized labor, and consumers, shall incorporate direct care staff
retention as a performance measure in the methodology developed
pursuant to this section.
(j) (1) Beginning with the 2010-11 rate year, and pursuant to
subparagraph (B) of paragraph (5) of subdivision (a) of Section
14126.023, the department shall set aside savings achieved from
setting the professional liability insurance cost category, including
any insurance deductible costs paid by the facility, at the 75th
percentile. From this amount, the department shall transfer the
General Fund portion into the Skilled Nursing Facility Quality and
Accountability Special Fund. A skilled nursing facility shall provide
supplemental data on insurance deductible costs to facilitate this
adjustment, in the format and by the deadlines determined by the
department. If this data is not provided, a facility's insurance
deductible costs will remain in the administrative costs category.
(2) Notwithstanding paragraph (1), for the 2012-13 rate year only,
savings from capping the professional liability insurance cost
category pursuant to paragraph (1) shall remain in the General Fund
and shall not be transferred to the Skilled Nursing Facility Quality
and Accountability Special Fund.
(k) For the 2013-14 rate year, if there is a rate increase in the
weighted average Medi-Cal reimbursement rate, the department shall
set aside the first 1 percent of the weighted average Medi-Cal
reimbursement rate increase for the Skilled Nursing Facility Quality
and Accountability Special Fund.
( l ) If this act is extended beyond the dates on which
it becomes inoperative and is repealed, for the 2014-15 rate year,
in addition to the amount set aside pursuant to subdivision (k), if
there is a rate increase in the weighted average Medi-Cal
reimbursement rate, the department shall set aside at least one-third
of the weighted average Medi-Cal reimbursement rate increase, up to
a maximum of 1 percent, from which the department shall transfer the
General Fund portion of this amount into the Skilled Nursing Facility
Quality and Accountability Special Fund.
(m) Beginning with the 2015-16 rate year, and each subsequent rate
year thereafter for which this article is operative, an amount equal
to the amount deposited in the fund pursuant to subdivisions (k) and
(l) for the 2014-15 rate year shall be deposited into the Skilled
Nursing Facility Quality and Accountability Special Fund, for the
purposes specified in this section.
(n) (1) (A) Beginning with the 2013-14 rate year, the department
shall pay a supplemental payment, by April 30, 2014, to skilled
nursing facilities based on all of the criteria in subdivision (i),
as published by the department, and according to performance measure
benchmarks determined by the department in consultation with
stakeholders.
(B) (i) The department may convene a diverse stakeholder group,
including, but not limited to, representatives from consumer groups
and organizations, labor, nursing home providers, advocacy
organizations involved with the aging community, staff from the
Legislature, and other interested parties, to discuss and analyze
alternative mechanisms to implement the quality and accountability
payments provided to nursing homes for reimbursement.
(ii) The department shall articulate in a report to the fiscal and
appropriate policy committees of the Legislature the implementation
of an alternative mechanism as described in clause (i) at least 90
days prior to any policy or budgetary changes, and seek subsequent
legislation in order to enact the proposed changes.
(2) Skilled nursing facilities that do not submit required
performance data by the department's specified data submission
deadlines pursuant to subdivision (i) are not eligible to receive
supplemental payments.
(3) Notwithstanding paragraph (1), if a facility appeals the
performance measure of compliance with the nursing hours per patient
per day requirements, pursuant to Section 1276.5 of the Health and
Safety Code, to the State Department of Public Health, and it is
unresolved by the department's published due date, the department
shall not use that performance measure when determining the facility'
s supplemental payment.
(4) Notwithstanding paragraph (1), if the department is unable to
pay the supplemental payments by April 30, 2014, then on May 1, 2014,
the department shall use the funds available in the Skilled Nursing
Facility Quality and Accountability Special Fund as a result of
savings identified in subdivisions (k) and (l), less the
administrative costs required to implement subparagraphs (A) and (B)
of paragraph (3) of subdivision (b), in addition to any Medicaid
funds that are available as of December 31, 2013, to increase
provider rates retroactively to August 1, 2013.
(o) The department shall seek necessary approvals from the federal
Centers for Medicare and Medicaid Services to implement this
section. The department shall implement this section only in a manner
that is consistent with federal Medicaid law and regulations, and
only to the extent that approval is obtained from the federal Centers
for Medicare and Medicaid Services and federal financial
participation is available.
(p) In implementing this section, the department and the State
Department of Public Health may contract as necessary, with
California's Medicare Quality Improvement Organization, or other
entities deemed qualified by the department or the State Department
of Public Health, not associated with a skilled nursing facility, to
assist with development, collection, analysis, and reporting of the
performance data pursuant to subdivision (i), and with demonstrated
expertise in long-term care quality, data collection or analysis, and
accountability performance measurement models pursuant to
subdivision (i). This subdivision establishes an accelerated process
for issuing any contract pursuant to this section. Any contract
entered into pursuant to this subdivision is exempt from the
requirements of the Public Contract Code, through December 31, 2020.
(q) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
following apply:
(1) The director shall implement this section, in whole or in
part, by means of provider bulletins, or other similar instructions
without taking regulatory action.
(2) The State Public Health Officer may implement this section by
means of all-facility letters, or other similar instructions without
taking regulatory action.
(r) Notwithstanding paragraph (1) of subdivision (n), if a final
judicial determination is made by any state or federal court that is
not appealed, in any action by any party, or a final determination is
made by the administrator of the federal Centers for Medicare and
Medicaid Services, that any payments pursuant to subdivisions (a) and
(n), are invalid, unlawful, or contrary to any provision of federal
law or regulations, or of state law, these subdivisions shall become
inoperative, and for the 2011-12 rate year, the rate increase
provided under subparagraph (A) of paragraph (4) of subdivision (c)
of Section 14126.033 shall be reduced by the amounts described in
subdivision (j). For the 2013-14 and 2014-15 rate years, any rate
increase shall be reduced by the amounts described in subdivisions
(j) to (l), inclusive.
SEC. 319. Section 14126.027 of the Welfare and Institutions Code
is amended to read:
14126.027. (a) (1) The Director of Health Care Services, or his
or her designee, shall administer this article.
(2) The regulations and other similar instructions adopted
pursuant to this article shall be developed in consultation with
representatives of the long-term care industry, organized labor,
seniors, and consumers.
(b) (1) The director may adopt regulations as are necessary to
implement this article. The adoption, amendment, repeal, or
readoption of a regulation authorized by this section is deemed to be
necessary for the immediate preservation of the public peace, health
and safety, or general welfare for purposes of Sections 11346.1 and
11349.6 of the Government Code, and the department is hereby exempted
from the requirement that it describe specific facts showing the
need for immediate action.
(2) The regulations adopted pursuant to this section may include,
but need not be limited to, any regulations necessary for any of the
following purposes:
(A) The administration of this article, including the specific
analytical process for the proper determination of long-term care
rates.
(B) The development of any forms necessary to obtain required cost
data and other information from facilities subject to the
ratesetting methodology.
(C) To provide details, definitions, formulas, and other
requirements.
(c) As an alternative to the adoption of regulations pursuant to
subdivision (b), and notwithstanding Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code, the director may implement this article, in whole or in part,
by means of a provider bulletin or other similar instructions,
without taking regulatory action, provided that no such bulletin or
other similar instructions shall remain in effect after July 31,
2020. It is the intent of the Legislature that regulations adopted
pursuant to subdivision (b) shall be in place on or before July 31,
2020.
SEC. 320. Section 14132.06 of the Welfare and Institutions Code is
amended to read:
14132.06. (a) Services specified in this section that are
provided by a local educational agency are covered Medi-Cal benefits,
to the extent federal financial participation is available, and
subject to utilization controls and standards adopted by the
department, and consistent with Medi-Cal requirements for physician
prescription, order, and supervision.
(b) Any provider enrolled on or after January 1, 1993, to provide
services pursuant to this section may bill for those services
provided on or after January 1, 1993.
(c) This section shall not be interpreted to expand the current
category of professional health care practitioners permitted to
directly bill the Medi-Cal program.
(d) This section is not intended to increase the scope of practice
of any health professional providing services under this section or
Medi-Cal requirements for physician prescription, order, and
supervision.
(e) (1) For the purposes of this section, the local educational
agency, as a condition of enrollment to provide services under this
section, shall be considered the provider of services. A local
educational agency provider, as a condition of enrollment to provide
services under this section, shall enter into, and maintain, a
contract with the department in accordance with guidelines contained
in regulations adopted by the director and published in Title 22 of
the California Code of Regulations.
(2) Notwithstanding paragraph (1), a local educational agency
providing services pursuant to this section shall utilize current
safety net and traditional health care providers, when those
providers are accessible to specific schoolsites identified by the
local educational agency to participate in this program, rather than
adding duplicate capacity.
(f) For the purposes of this section, covered services may include
all of the following local educational agency services:
(1) Health and mental health evaluations and health and mental
health education.
(2) Medical transportation.
(A) The following provisions shall not apply to medical
transportation eligible to be billed under this section:
(i) Section 51323(a)(2)(A) of Title 22 of the California Code of
Regulations.
(ii) Section 51323(a)(3)(B) of Title 22 of the California Code of
Regulations.
(iii) For students whose medical or physical condition does not
require the use of a gurney, Section 51231.1(f) of Title 22 of the
California Code of Regulations.
(iv) For students whose medical or physical condition does not
require the use of a wheelchair, Section 51231.2(e) of Title 22 of
the California Code of Regulations.
(B) (i) Subparagraph (A) shall become inoperative on January 1,
2018, or on the date the director executes a declaration stating that
the regulations implementing subparagraph (A) and Section 14115.8
have been updated, whichever is later.
(ii) The department shall post the declaration executed under
clause (i) on its Internet Web site and transmit a copy of the
declaration to the Assembly Committee on Budget and the Senate
Committee on Budget and Fiscal Review and the LEA Ad Hoc Workgroup.
(iii) If subparagraph (A) becomes inoperative on January 1, 2018,
subparagraph (A) and this subparagraph shall be inoperative on
January 1, 2018, unless a later enacted statute enacted before that
date, deletes or extends that date.
(iv) If subparagraph (A) becomes inoperative on the date the
director executes a declaration as described in clause (i),
subparagraph (A) and this subparagraph shall be inoperative on the
January 1 immediately following the date subparagraph (A) becomes
inoperative, unless a later enacted statute enacted before that date,
deletes or extends that date.
(3) Nursing services.
(4) Occupational therapy.
(5) Physical therapy.
(6) Physician services.
(7) Mental health and counseling services.
(8) School health aide services.
(9) Speech pathology services. These services may be provided by
either of the following:
(A) A licensed speech pathologist.
(B) A credentialed speech-language pathologist, to the extent
authorized by Chapter 5.3 (commencing with Section 2530) of Division
2 of the Business and Professions Code.
(10) Audiology services.
(11) Targeted case management services for children regardless of
whether the child has an individualized education plan (IEP) or an
individualized family service plan (IFSP).
(g) Local educational agencies may, but need not, provide any or
all of the services specified in subdivision (f).
(h) For the purposes of this section, "local educational agency"
means the governing body of any school district or community college
district, the county office of education, a charter school, a state
special school, a California State University campus, or a University
of California campus.
(i) Notwithstanding any other law, a community college district, a
California State University campus, or a University of California
campus, consistent with the requirements of this section, may bill
for services provided to any student, regardless of age, who is a
Medi-Cal recipient.
(j) No later than July 1, 2013, and every year thereafter, the
department shall make publicly accessible an annual accounting of all
funds collected by the department from federal Medicaid payments
allocable to local educational agencies, including, but not limited
to, the funds withheld pursuant to subdivision (g) of Section
14115.8. The accounting shall detail amounts withheld from federal
Medicaid payments to each participating local educational agency for
that year. One-time costs for the development of this accounting
shall not exceed two hundred fifty thousand dollars ($250,000).
(k) (1) If the requirements in paragraphs (2) and (4) are
satisfied, the department shall seek federal financial participation
for covered services that are provided by a local educational agency
pursuant to subdivision (a) to a child who is an eligible Medi-Cal
beneficiary, regardless of either of the following:
(A) Whether the child has an IEP or an IFSP.
(B) Whether those same services are provided at no charge to the
beneficiary or to the community at large.
(2) The local educational agency shall take all reasonable
measures to ascertain and pursue claims for payment of covered
services specified in this section against legally liable third
parties pursuant to Section 1902(a)(25) of the federal Social
Security Act (42 U.S.C. Sec. 1396a(a)(25)).
(3) If a legally liable third party receives a claim submitted by
a local educational agency pursuant to paragraph (2), the legally
liable third party shall either reimburse the claim or issue a notice
of denial of noncoverage of services or benefits. If there is no
response to a claim submitted to a legally liable third party by a
local educational agency within 45 days, the local educational agency
may bill the Medi-Cal program pursuant to subdivision (b). The local
educational agency shall retain a copy of the claim submitted to the
legally liable third party for a period of three years.
(4) This subdivision shall not be implemented until the department
obtains any necessary federal approvals.
SEC. 321. Section 14132.275 of the Welfare and Institutions Code,
as amended by Section 1 of Chapter 199 of the Statutes of 2015, is
amended to read:
14132.275. (a) The department shall seek federal approval to
establish the demonstration project described in this section
pursuant to a Medicare or a Medicaid demonstration project or waiver,
or a combination of those. Under a Medicare demonstration, the
department may contract with the federal Centers for Medicare and
Medicaid Services (CMS) and demonstration sites to operate the
Medicare and Medicaid benefits in a demonstration project that is
overseen by the state as a delegated Medicare benefit administrator,
and may enter into financing arrangements with CMS to share in any
Medicare Program savings generated by the demonstration project.
(b) After federal approval is obtained, the department shall
establish the demonstration project that enables dual eligible
beneficiaries to receive a continuum of services that maximizes
access to, and coordination of, benefits between the Medi-Cal and
Medicare programs and access to the continuum of long-term services
and supports and behavioral health services, including mental health
and substance use disorder treatment services. The purpose of the
demonstration project is to integrate services authorized under the
federal Medicaid Program (Title XIX of the federal Social Security
Act (42 U.S.C. Sec. 1396 et seq.)) and the federal Medicare Program
(Title XVIII of the federal Social Security Act (42 U.S.C. Sec. 1395
et seq.)). The demonstration project may also include additional
services as approved through a demonstration project or waiver, or a
combination of those.
(c) For purposes of this section, the following definitions apply:
(1) "Behavioral health" means Medi-Cal services provided pursuant
to Section 51341 of Title 22 of the California Code of Regulations
and Drug Medi-Cal substance abuse services provided pursuant to
Section 51341.1 of Title 22 of the California Code of Regulations,
and any mental health benefits available under the Medicare Program.
(2) "Capitated payment model" means an agreement entered into
between CMS, the state, and a managed care health plan, in which the
managed care health plan receives a capitation payment for the
comprehensive, coordinated provision of Medi-Cal services and
benefits under Medicare Part C (42 U.S.C. Sec. 1395w-21 et seq.) and
Medicare Part D (42 U.S.C. Sec. 1395w-101 et seq.), and CMS shares
the savings with the state from improved provision of Medi-Cal and
Medicare services that reduces the cost of those services. Medi-Cal
services include long-term services and supports as defined in
Section 14186.1, behavioral health services, and any additional
services offered by the demonstration site.
(3) "Demonstration site" means a managed care health plan that is
selected to participate in the demonstration project under the
capitated payment model.
(4) "Dual eligible beneficiary" means an individual 21 years of
age or older who is enrolled for benefits under Medicare Part A (42
U.S.C. Sec. 1395c et seq.) and Medicare Part B (42 U.S.C. Sec. 1395j
et seq.) and is eligible for medical assistance under the Medi-Cal
State Plan.
(d) No sooner than March 1, 2011, the department shall identify
health care models that may be included in the demonstration project,
shall develop a timeline and process for selecting, financing,
monitoring, and evaluating the demonstration sites, and shall provide
this timeline and process to the appropriate fiscal and policy
committees of the Legislature. The department may implement these
demonstration sites in phases.
(e) The department shall provide the fiscal and appropriate policy
committees of the Legislature with a copy of any report submitted to
CMS to meet the requirements under the demonstration project.
(f) Goals for the demonstration project shall include all of the
following:
(1) Coordinate Medi-Cal and Medicare benefits across health care
settings and improve the continuity of care across acute care,
long-term care, behavioral health, including mental health and
substance use disorder services, and home- and community-based
services settings using a person-centered approach.
(2) Coordinate access to acute and long-term care services for
dual eligible beneficiaries.
(3) Maximize the ability of dual eligible beneficiaries to remain
in their homes and communities with appropriate services and supports
in lieu of institutional care.
(4) Increase the availability of and access to home- and
community-based services.
(5) Coordinate access to necessary and appropriate
behavioral health services, including mental health and substance use
disorder services.
(6) Improve the quality of care for dual eligible beneficiaries.
(7) Promote a system that is both sustainable and person and
family centered by providing dual eligible beneficiaries with timely
access to appropriate, coordinated health care services and community
resources that enable them to attain or maintain personal health
goals.
(g) No sooner than March 1, 2013, demonstration sites shall be
established in up to eight counties, and shall include at least one
county that provides Medi-Cal services through a two-plan model
pursuant to Article 2.7 (commencing with Section 14087.3) and at
least one county that provides Medi-Cal services under a county
organized health system pursuant to Article 2.8 (commencing with
Section 14087.5). The director shall consult with the Legislature,
CMS, and stakeholders when determining the implementation date for
this section. In determining the counties in which to establish a
demonstration site, the director shall consider both of the
following:
(1) Local support for integrating medical care, long-term care,
and home- and community-based services networks.
(2) A local stakeholder process that includes health plans,
providers, mental health representatives, community programs,
consumers, designated representatives of in-home supportive services
personnel, and other interested stakeholders in the development,
implementation, and continued operation of the demonstration site.
(h) In developing the process for selecting, financing,
monitoring, and evaluating the health care models for the
demonstration project, the department shall enter into a memorandum
of understanding with CMS. Upon completion, the memorandum of
understanding shall be provided to the fiscal and appropriate policy
committees of the Legislature and posted on the department's Internet
Web site.
(i) The department shall negotiate the terms and conditions of the
memorandum of understanding, which shall address, but are not
limited to, the following:
(1) Reimbursement methods for a capitated payment model. Under the
capitated payment model, the demonstration sites shall meet all of
the following requirements:
(A) Have Medi-Cal managed care health plan and Medicare dual
eligible-special needs plan contract experience, or evidence of the
ability to meet these contracting requirements.
(B) Be in good financial standing and meet licensure requirements
under the Knox-Keene Health Care Service Plan Act of 1975 (Chapter
2.2 (commencing with Section 1340) of Division 2 of the Health and
Safety Code), except for county organized health system plans that
are exempt from licensure pursuant to Section 14087.95.
(C) Meet quality measures, which may include Medi-Cal and Medicare
Healthcare Effectiveness Data and Information Set measures and other
quality measures determined or developed by the department or CMS.
(D) Demonstrate a local stakeholder process that includes dual
eligible beneficiaries, managed care health plans, providers, mental
health representatives, county health and human services agencies,
designated representatives of in-home supportive services personnel,
and other interested stakeholders that advise and consult with the
demonstration site in the development, implementation, and continued
operation of the demonstration project.
(E) Pay providers reimbursement rates sufficient to maintain an
adequate provider network and ensure access to care for
beneficiaries.
(F) Follow final policy guidance determined by CMS and the
department with regard to reimbursement rates for providers pursuant
to paragraphs (4) to (7), inclusive, of subdivision (o).
(G) To the extent permitted under the demonstration, pay
noncontracted hospitals prevailing Medicare fee-for-service rates for
traditionally Medicare covered benefits and prevailing Medi-Cal
fee-for-service rates for traditionally Medi-Cal covered benefits.
(2) Encounter data reporting requirements for both Medi-Cal and
Medicare services provided to beneficiaries enrolling in the
demonstration project.
(3) Quality assurance withholding from the demonstration site
payment, to be paid only if quality measures developed as part of the
memorandum of understanding and plan contracts are met.
(4) Provider network adequacy standards developed by the
department and CMS, in consultation with the Department of Managed
Health Care, the demonstration site, and stakeholders.
(5) Medicare and Medi-Cal appeals and hearing process.
(6) Unified marketing requirements and combined review process by
the department and CMS.
(7) Combined quality management and consolidated reporting process
by the department and CMS.
(8) Procedures related to combined federal and state contract
management to ensure access, quality, program integrity, and
financial solvency of the demonstration site.
(9) To the extent permissible under federal requirements,
implementation of the provisions of Sections 14182.16 and 14182.17
that are applicable to beneficiaries simultaneously eligible for
full-scope benefits under Medi-Cal and the Medicare Program.
(10) (A) In consultation with the hospital industry, CMS approval
to ensure that Medicare supplemental payments for direct graduate
medical education and Medicare add-on payments, including indirect
medical education and disproportionate share hospital adjustments
continue to be made available to hospitals for services provided
under the demonstration.
(B) The department shall seek CMS approval for CMS to continue
these payments either outside the capitation rates or, if contained
within the capitation rates, and to the extent permitted under the
demonstration project, shall require demonstration sites to provide
this reimbursement to hospitals.
(11) To the extent permitted under the demonstration project, the
default rate for noncontracting providers of physician services shall
be the prevailing Medicare fee schedule for services covered by the
Medicare Program and the prevailing Medi-Cal fee schedule for
services covered by the Medi-Cal program.
(j) (1) The department shall comply with and enforce the terms and
conditions of the memorandum of understanding with CMS, as specified
in subdivision (i). To the extent that the terms and conditions do
not address the specific selection, financing, monitoring, and
evaluation criteria listed in subdivision (i), the department:
(A) Shall require the demonstration site to do all of the
following:
(i) Comply with additional site readiness criteria specified by
the department.
(ii) Comply with long-term services and supports requirements in
accordance with Article 5.7 (commencing with Section 14186).
(iii) To the extent permissible under federal requirements, comply
with the provisions of Sections 14182.16 and 14182.17 that are
applicable to beneficiaries simultaneously eligible for full-scope
benefits under both Medi-Cal and the Medicare Program.
(iv) Comply with all transition of care requirements for Medicare
Part D benefits as described in Chapters 6 and 14 of the Medicare
Managed Care Manual, published by CMS, including transition
timeframes, notices, and emergency supplies.
(B) May require the demonstration site to forgo charging premiums,
coinsurance, copayments, and deductibles for Medicare Part C and
Medicare Part D services.
(2) The department shall notify the Legislature within 30 days of
the implementation of each provision in paragraph (1).
(k) The director may enter into exclusive or nonexclusive
contracts on a bid or negotiated basis and may amend existing managed
care contracts to provide or arrange for services provided under
this section. Contracts entered into or amended pursuant to this
section shall be exempt from the provisions of Chapter 2 (commencing
with Section 10290) of Part 2 of Division 2 of the Public Contract
Code and Chapter 6 (commencing with Section 14825) of Part 5.5 of
Division 3 of Title 2 of the Government Code.
( l ) (1) (A) Except for the exemptions provided for in
this section and in Section 14132.277, the department shall enroll
dual eligible beneficiaries into a demonstration site unless the
beneficiary makes an affirmative choice to opt out of enrollment or
is already enrolled on or before June 1, 2013, in a managed care
organization licensed under the Knox-Keene Health Care Service Plan
Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2
of the Health and Safety Code) that has previously contracted with
the department as a primary care case management plan pursuant to
Article 2.9 (commencing with Section 14088) to provide services to
beneficiaries who are HIV positive or who have been diagnosed with
AIDS or in any entity with a contract with the department pursuant to
Chapter 8.75 (commencing with Section 14591).
(B) Dual eligible beneficiaries who opt out of enrollment into a
demonstration site may choose to remain enrolled in fee-for-service
Medicare or a Medicare Advantage plan for their Medicare benefits,
but shall be mandatorily enrolled into a Medi-Cal managed care health
plan pursuant to Section 14182.16, except as exempted under
subdivision (c) of Section 14182.16.
(C) (i) Persons meeting requirements for the Program of
All-Inclusive Care for the Elderly (PACE) pursuant to Chapter 8.75
(commencing with Section 14591) or a managed care organization
licensed under the Knox-Keene Health Care Service Plan Act of 1975
(Chapter 2.2 (commencing with Section 1340) of Division 2 of the
Health and Safety Code) that has previously contracted with the
department as a primary care case management plan pursuant to Article
2.9 (commencing with Section 14088) of Chapter 7 to provide services
to beneficiaries who are HIV positive or who have been diagnosed
with AIDS may select either of these managed care health plans for
their Medicare and Medi-Cal benefits if one is available in that
county.
(ii) In areas where a PACE plan is available, the PACE plan shall
be presented as an enrollment option, included in all enrollment
materials, enrollment assistance programs, and outreach programs
related to the demonstration project, and made available to
beneficiaries whenever enrollment choices and options are presented.
Persons meeting the age qualifications for PACE and who choose PACE
shall remain in the fee-for-service Medi-Cal and Medicare programs,
and shall not be assigned to a managed care health plan for the
lesser of 60 days or until they are assessed for eligibility for PACE
and determined not to be eligible for a PACE plan. Persons enrolled
in a PACE plan shall receive all Medicare and Medi-Cal services from
the PACE program pursuant to the three-way agreement between the PACE
program, the department, and the Centers for Medicare and Medicaid
Services.
(2) To the extent that federal approval is obtained, the
department may require that any beneficiary, upon enrollment in a
demonstration site, remain enrolled in the Medicare portion of the
demonstration project on a mandatory basis for six months from the
date of initial enrollment. After the sixth month, a dual eligible
beneficiary may elect to enroll in a different demonstration site, a
different Medicare Advantage plan, fee-for-service Medicare, PACE, or
a managed care organization licensed under the Knox-Keene Health
Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section
1340) of Division 2 of the Health and Safety Code) that has
previously contracted with the department as a primary care case
management plan pursuant to Article 2.9 (commencing with Section
14088) to provide services to beneficiaries who are HIV positive or
who have been diagnosed with AIDS, for his or her Medicare benefits.
(A) During the six-month mandatory enrollment in a demonstration
site, a beneficiary may continue receiving services from an
out-of-network Medicare provider for primary and specialty care
services only if all of the following criteria are met:
(i) The dual eligible beneficiary demonstrates an existing
relationship with the provider prior to enrollment in a demonstration
site.
(ii) The provider is willing to accept payment from the
demonstration site based on the current Medicare fee schedule.
(iii) The demonstration site would not otherwise exclude the
provider from its provider network due to documented quality of care
concerns.
(B) The department shall develop a process to inform providers and
beneficiaries of the availability of continuity of services from an
existing provider and ensure that the beneficiary continues to
receive services without interruption.
(3) (A) Notwithstanding subparagraph (A) of paragraph (1), a dual
eligible beneficiary shall be excluded from enrollment in the
demonstration project if the beneficiary meets any of the following:
(i) The beneficiary has a prior diagnosis of end-stage renal
disease. This clause does not apply to beneficiaries diagnosed with
end-stage renal disease subsequent to enrollment in the demonstration
project. The director may, with stakeholder input and federal
approval, authorize beneficiaries with a prior diagnosis of end-stage
renal disease in specified counties to voluntarily enroll in the
demonstration project.
(ii) The beneficiary has other health coverage, as defined in
paragraph (5) of subdivision (b) of Section 14182.16.
(iii) The beneficiary is enrolled in a home- and community-based
waiver that is a Medi-Cal benefit under Section 1915(c) of the
federal Social Security Act (42 U.S.C. Sec. 1396n et seq.), except
for persons enrolled in Multipurpose Senior Services Program services
or beneficiaries receiving services through a regional center who
resides in the County of San Mateo.
(iv) The beneficiary is receiving services through a regional
center or state developmental center. However, a beneficiary
receiving services through a regional center who resides in the
County of San Mateo, by making an affirmative choice to opt in, may
voluntarily enroll in the demonstration project, upon receipt of all
legal notifications required pursuant to this section and applicable
federal requirements.
(v) The beneficiary resides in a geographic area or ZIP Code not
included in managed care, as determined by the department and CMS.
(vi) The beneficiary resides in one of the Veterans' Homes of
California, as described in Chapter 1 (commencing with Section 1010)
of Division 5 of the Military and Veterans Code.
(B) (i) Beneficiaries who have been diagnosed with HIV/AIDS may
opt out of the demonstration project at the beginning of any month.
The State Department of Public Health may share relevant data
relating to a beneficiary's enrollment in the AIDS Drug Assistance
Program with the department, and the department may share relevant
data relating to HIV-positive beneficiaries with the State Department
of Public Health.
(ii) The information provided by the State Department of Public
Health pursuant to this subparagraph shall not be further disclosed
by the State Department of Health Care Services, and shall be subject
to the confidentiality protections of subdivisions (d) and (e) of
Section 121025 of the Health and Safety Code, except this information
may be further disclosed as follows:
(I) To the person to whom the information pertains or the
designated representative of that person.
(II) To the Office of AIDS within the State Department of Public
Health.
(C) Beneficiaries who are Indians receiving Medi-Cal services in
accordance with Section 55110 of Title 22 of the California Code of
Regulations may opt out of the demonstration project at the beginning
of any month.
(D) The department, with stakeholder input, may exempt specific
categories of dual eligible beneficiaries from enrollment
requirements in this section based on extraordinary medical needs of
specific patient groups or to meet federal requirements.
(4) For the 2013 calendar year, the department shall offer federal
Medicare Improvements for Patients and Providers Act of 2008 (Public
Law 110-275) compliant contracts to existing Medicare Advantage Dual
Special Needs Plans (D-SNP) to continue to provide Medicare benefits
to their enrollees in their service areas as approved on January 1,
2012. In the 2013 calendar year, beneficiaries in Medicare Advantage
and D-SNP plans shall be exempt from the enrollment provisions of
subparagraph (A) of paragraph (1), but may voluntarily choose to
enroll in the demonstration project. Enrollment into the
demonstration project's managed care health plans shall be reassessed
in 2014 depending on federal reauthorization of the D-SNP model and
the department's assessment of the demonstration plans.
(5) For the 2013 calendar year, demonstration sites shall not
offer to enroll dual eligible beneficiaries eligible for the
demonstration project into the demonstration site's D-SNP.
(6) The department shall not terminate contracts in a
demonstration site with a managed care organization licensed under
the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code) that has previously contracted with the department as a
primary care case management plan pursuant to Article 2.9 (commencing
with Section 14088) to provide services to beneficiaries who are HIV
positive beneficiaries or who have been diagnosed with AIDS and with
any entity with a contract pursuant to Chapter 8.75 (commencing with
Section 14591), except as provided in the contract or pursuant to
state or federal law.
(m) Notwithstanding Section 10231.5 of the Government Code, the
department shall conduct an evaluation, in partnership with CMS, to
assess outcomes and the experience of dual eligibles in these
demonstration sites and shall provide a report to the Legislature
after the first full year of demonstration operation, and annually
thereafter. A report submitted to the Legislature pursuant to this
subdivision shall be submitted in compliance with Section 9795 of the
Government Code. The department shall consult with stakeholders
regarding the scope and structure of the evaluation.
(n) This section shall be implemented only if and to the extent
that federal financial participation or funding is available.
(o) It is the intent of the Legislature that:
(1) In order to maintain adequate provider networks, demonstration
sites shall reimburse providers at rates sufficient to ensure access
to care for beneficiaries.
(2) Savings under the demonstration project are intended to be
achieved through shifts in utilization, and not through reduced
reimbursement rates to providers.
(3) Reimbursement policies shall not prevent demonstration sites
and providers from entering into payment arrangements that allow for
the alignment of financial incentives and provide opportunities for
shared risk and shared savings in order to promote appropriate
utilization shifts, which encourage the use of home- and
community-based services and quality of care for dual eligible
beneficiaries enrolled in the demonstration sites.
(4) To the extent permitted under the demonstration project, and
to the extent that a public entity voluntarily provides an
intergovernmental transfer for this purpose, both of the following
shall apply:
(A) The department shall work with CMS in ensuring that the
capitation rates under the demonstration project are inclusive of
funding currently provided through certified public expenditures
supplemental payment programs that would otherwise be impacted by the
demonstration project.
(B) Demonstration sites shall pay to a public entity voluntarily
providing intergovernmental transfers that previously received
reimbursement under a certified public expenditures supplemental
payment program, rates that include the additional funding under the
capitation rates that are funded by the public entity's
intergovernmental transfer.
(5) The department shall work with CMS in developing other
reimbursement policies and shall inform demonstration sites,
providers, and the Legislature of the final policy guidance.
(6) The department shall seek approval from CMS to permit the
provider payment requirements contained in subparagraph (G) of
paragraph (1) and paragraphs (10) and (11) of subdivision (i), and
Section 14132.276.
(7) Demonstration sites that contract with hospitals for hospital
services on a fee-for-service basis that otherwise would have been
traditionally Medicare services will achieve savings through
utilization changes and not by paying hospitals at rates lower than
prevailing Medicare fee-for-service rates.
(p) The department shall enter into an interagency agreement with
the Department of Managed Health Care to perform some or all of the
department's oversight and readiness review activities specified in
this section. These activities may include providing consumer
assistance to beneficiaries affected by this section and conducting
financial audits, medical surveys, and a review of the adequacy of
provider networks of the managed care health plans participating in
this section. The interagency agreement shall be updated, as
necessary, on an annual basis in order to maintain functional clarity
regarding the roles and responsibilities of the Department of
Managed Health Care and the department. The department shall not
delegate its authority under this section as the single state
Medicaid agency to the Department of Managed Health Care.
(q) (1) Beginning with the May Revision to the 2013-14 Governor's
Budget, and annually thereafter, the department shall report to the
Legislature on the enrollment status, quality measures, and state
costs of the actions taken pursuant to this section.
(2) (A) By January 1, 2013, or as soon thereafter as practicable,
the department shall develop, in consultation with CMS and
stakeholders, quality and fiscal measures for health plans to reflect
the short- and long-term results of the implementation of this
section. The department shall also develop quality thresholds and
milestones for these measures. The department shall update these
measures periodically to reflect changes in this program due to
implementation factors and the structure and design of the benefits
and services being coordinated by managed care health plans.
(B) The department shall require health plans to submit Medicare
and Medi-Cal data to determine the results of these measures. If the
department finds that a health plan is not in compliance with one or
more of the measures set forth in this section, the health plan
shall, within 60 days, submit a corrective action plan to the
department for approval. The corrective action plan shall, at a
minimum, include steps that the health plan shall take to improve its
performance based on the standard or standards with which the health
plan is out of compliance. The plan shall establish interim
benchmarks for improvement that shall be expected to be met by the
health plan in order to avoid a sanction pursuant to Section 14304.
This subparagraph is not intended to limit Section 14304.
(C) The department shall publish the results of these measures,
including by posting on the department's Internet Web site, on a
quarterly basis.
(r) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department may implement, interpret, or make specific this section
and any applicable federal waivers and state plan amendments by means
of all-county letters, plan letters, plan or provider bulletins, or
similar instructions, without taking regulatory action. Prior to
issuing any letter or similar instrument authorized pursuant to this
section, the department shall notify and consult with stakeholders,
including advocates, providers, and beneficiaries. The department
shall notify the appropriate policy and fiscal committees of the
Legislature of its intent to issue instructions under this section at
least five days in advance of the issuance.
(s) This section shall be inoperative if the Coordinated Care
Initiative becomes inoperative pursuant to Section 34 of the act that
added this subdivision.
SEC. 322. Section 14138.21 of the Welfare and Institutions Code is
amended to read:
14138.21. (a) This article shall not be deemed to affect the
amounts paid or the reimbursement methodology applicable to FQHCs for
dental services that are provided outside the scope of a contract
between the department and an applicable principal health plan that
is in effect as of July 1, 2015.
(b) The department shall contract with an independent entity to
perform an evaluation of the APM pilot project authorized pursuant to
this article. To the extent practicable, the evaluation shall be
completed and provided to the appropriate fiscal and policy
committees of the Legislature within six months of the conclusion of
the pilot project in those counties that are included in the initial
pilot project implementation authorized pursuant to paragraph (2) of
subdivision (a) of Section 14138.12. The department shall carry out
the duty imposed pursuant to this subdivision only if there are
sufficient private foundation or nonprofit foundation funds available
for this purpose. A report submitted pursuant to this subdivision
shall be submitted in compliance with Section 9795 of the Government
Code.
(c) The evaluation by the independent entity shall assess and
report on whether the APM pilot project produced improvements in
access to primary care services, care quality, patient experience,
and overall health outcomes for APM enrollees. The evaluation shall
include existing FQHC required quality metrics and an assessment of
how the changes in financing allowed for alternative types of primary
care visits and alternative encounters between the participating
FQHC and the patient and how those changes affected volume of
same-day visits for mental and physical health conditions. The
evaluation shall also assess whether the APM pilot project's efforts
to improve primary care resulted in changes to patient service
utilization patterns, including the reduced utilization of avoidable
high-cost services and services provided outside the FQHC. The
evaluation shall also identify any administrative and financial
implementation issues for FQHCs that may arise if subsequent
legislation makes the pilot program operative statewide.
SEC. 323. Section 15657.03 of the Welfare and Institutions Code,
as added by Section 8.5 of Chapter 411 of the Statutes of 2015, is
amended to read:
15657.03. (a) (1) An elder or dependent adult who has suffered
abuse, as defined in Section 15610.07, may seek protective orders as
provided in this
section.
(2) A petition may be brought on behalf of an abused elder or
dependent adult by a conservator or a trustee of the elder or
dependent adult, an attorney-in-fact of an elder or dependent adult
who acts within the authority of a power of attorney, a person
appointed as a guardian ad litem for the elder or dependent adult, or
other person legally authorized to seek the relief.
(3) (A) A petition under this section may be brought on behalf of
an elder or dependent adult by a county adult protective services
agency in either of the following circumstances:
(i) If the elder or dependent adult has suffered abuse as defined
in subdivision (b) and has an impaired ability to appreciate and
understand the circumstances that place him or her at risk of harm.
(ii) If the elder or dependent adult has provided written
authorization to a county adult protective services agency to act on
his or her behalf.
(B) In the case of a petition filed pursuant to clause (i) of
subparagraph (A) by a county adult protective services agency, a
referral shall be made to the public guardian consistent with Section
2920 of the Probate Code prior to or concurrent with the filing of
the petition, unless a petition for appointment of a conservator has
already been filed with the probate court by the public guardian or
another party.
(C) A county adult protective services agency shall be subject to
any confidentiality restrictions that otherwise apply to its
activities under law and shall disclose only those facts as necessary
to establish reasonable cause for the filing of the petition,
including, in the case of a petition filed pursuant to clause (i) of
subparagraph (A), to establish the agency's belief that the elder or
dependent adult has suffered abuse and has an impaired ability to
appreciate and understand the circumstances that place him or her at
risk, and as may be requested by the court in determining whether to
issue an order under this section.
(b) For purposes of this section:
(1) "Abuse" has the meaning set forth in Section 15610.07.
(2) "Conservator" means the legally appointed conservator of the
person or estate of the petitioner, or both.
(3) "Petitioner" means the elder or dependent adult to be
protected by the protective orders and, if the court grants the
petition, the protected person.
(4) "Protective order" means an order that includes any of the
following restraining orders, whether issued ex parte, after notice
and hearing, or in a judgment:
(A) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of, the petitioner,
and, in the discretion of the court, on a showing of good cause, of
other named family or household members or a conservator, if any, of
the petitioner. On a showing of good cause, in an order issued
pursuant to this subparagraph in connection with an animal owned,
possessed, leased, kept, or held by the petitioner, or residing in
the residence or household of the petitioner, the court may do either
or both of the following:
(i) Grant the petitioner exclusive care, possession, or control of
the animal.
(ii) Order the respondent to stay away from the animal and refrain
from taking, transferring, encumbering, concealing, molesting,
attacking, striking, threatening, harming, or otherwise disposing of
the animal.
(B) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(C) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A) or (B).
(5) "Respondent" means the person against whom the protective
orders are sought and, if the petition is granted, the restrained
person.
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if a declaration shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in paragraph (4) of subdivision (b). However, the court may
issue an ex parte order excluding a party from the petitioner's
residence or dwelling only on a showing of all of the following:
(1) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(2) That the party to be excluded has assaulted or threatens to
assault the petitioner, other named family or household member of the
petitioner, or a conservator of the petitioner.
(3) That physical or emotional harm would otherwise result to the
petitioner, other named family or household member of the petitioner,
or a conservator of the petitioner.
(e) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
(f) Within 21 days, or, if good cause appears to the court, 25
days, from the date that a request for a temporary restraining order
is granted or denied, a hearing shall be held on the petition. If no
request for temporary orders is made, the hearing shall be held
within 21 days, or, if good cause appears to the court, 25 days, from
the date that the petition is filed.
(g) The respondent may file a response that explains or denies the
alleged abuse.
(h) The court may issue, upon notice and a hearing, any of the
orders set forth in paragraph (4) of subdivision (b). The court may
issue, after notice and hearing, an order excluding a person from a
residence or dwelling if the court finds that physical or emotional
harm would otherwise result to the petitioner, other named family or
household member of the petitioner, or conservator of the petitioner.
(i) (1) In the discretion of the court, an order issued after
notice and a hearing under this section may have a duration of not
more than five years, subject to termination or modification by
further order of the court either on written stipulation filed with
the court or on the motion of a party. These orders may be renewed
upon the request of a party, either for five years or permanently,
without a showing of any further abuse since the issuance of the
original order, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. The request for renewal may be brought
at any time within the three months before the expiration of the
order.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005 of the Code of Civil Procedure, of
the proceeding by personal service or, if the protected party has
satisfied the requirements of Chapter 3.1 (commencing with Section
6205) of Division 7 of Title 1 of the Government Code, by service on
the Secretary of State. If the party who is protected by the order
cannot be notified prior to the hearing for modification or
termination of the protective order, the court shall deny the motion
to modify or terminate the order without prejudice or continue the
hearing until the party who is protected can be properly noticed and
may, upon a showing of good cause, specify another method for service
of process that is reasonably designed to afford actual notice to
the protected party. The protected party may waive his or her right
to notice if he or she is physically present in court and does not
challenge the sufficiency of the notice.
(j) In a proceeding under this section, a support person may
accompany a party in court and, if the party is not represented by an
attorney, may sit with the party at the table that is generally
reserved for the party and the party's attorney. The support person
is present to provide moral and emotional support for a person who
alleges he or she is a victim of abuse. The support person is not
present as a legal adviser and may not provide legal advice. The
support person may assist the person who alleges he or she is a
victim of abuse in feeling more confident that he or she will not be
injured or threatened by the other party during the proceedings if
the person who alleges he or she is a victim of abuse and the other
party are required to be present in close proximity. This subdivision
does not preclude the court from exercising its discretion to remove
the support person from the courtroom if the court believes the
support person is prompting, swaying, or influencing the party
assisted by the support person.
(k) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any declarations in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(l) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to five years.
(m) The respondent shall be entitled, as a matter of course, to
one continuance, for a reasonable period, to respond to the petition.
(n) (1) Either party may request a continuance of the hearing,
which the court shall grant on a showing of good cause. The request
may be made in writing before or at the hearing or orally at the
hearing. The court may also grant a continuance on its own motion.
(2) If the court grants a continuance, any temporary restraining
order that has been granted shall remain in effect until the end of
the continued hearing, unless otherwise ordered by the court. In
granting a continuance, the court may modify or terminate a temporary
restraining order.
(o) (1) If a respondent, named in an order issued under this
section after a hearing, has not been served personally with the
order but has received actual notice of the existence and substance
of the order through personal appearance in court to hear the terms
of the order from the court, no additional proof of service is
required for enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the respondent by first-class mail
sent to the respondent at the most current address for the respondent
that is available to the court.
(3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:
"If you have been personally served with a temporary restraining
order and notice of hearing, but you do not appear at the hearing
either in person or by a lawyer, and a restraining order that is the
same as this temporary restraining order except for the expiration
date is issued at the hearing, a copy of the order will be served on
you by mail at the following address:
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(p) (1) Information on a protective order relating to elder or
dependent adult abuse issued by a court pursuant to this section
shall be transmitted to the Department of Justice in accordance with
either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of an order issued under this section,
or a reissuance, extension, modification, or termination of the
order, and any subsequent proof of service, by the close of the
business day on which the order, reissuance, extension, modification,
or termination was made, to each law enforcement agency having
jurisdiction over the residence of the petitioner, and to any
additional law enforcement agencies within the court's discretion as
are requested by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order or proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(5) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's oral notice of
the terms of the order shall constitute service of the order and is
sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(q) This section does not preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(r) There shall not be a filing fee for a petition, response, or
paper seeking the reissuance, modification, or enforcement of a
protective order filed in a proceeding brought pursuant to this
section.
(s) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this section.
(t) The prevailing party in an action brought under this section
may be awarded court costs and attorney's fees, if any.
(u) (1) A person subject to a protective order under this section
shall not own, possess, purchase, receive, or attempt to receive a
firearm or ammunition while the protective order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm or ammunition while subject
to a protective order issued under this section is punishable
pursuant to Section 29825 of the Penal Code.
(4) This subdivision does not apply in a case in which a
protective order issued under this section was made solely on the
basis of financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(v) In a proceeding brought under paragraph (3) of subdivision
(a), all of the following apply:
(1) Upon the filing of a petition for a protective order, the
elder or dependent adult on whose behalf the petition has been filed
shall receive a copy of the petition, a notice of the hearing, and
any declarations submitted in support of the petition. The elder or
dependent adult shall receive this information at least five days
before the hearing. The court may, on motion of the petitioner or on
its own motion, shorten the time for provision of this information to
the elder or dependent adult.
(2) The adult protective services agency shall make reasonable
efforts to assist the elder or dependent adult to attend the hearing
and provide testimony to the court, if he or she wishes to do so. If
the elder or dependent adult does not attend the hearing, the agency
shall provide information to the court at the hearing regarding the
reasons why the elder or dependent adult is not in attendance.
(3) Upon the filing of a petition for a protective order and upon
issuance of an order granting the petition, the county adult
protective services agency shall take all reasonable steps to provide
for the safety of the elder or dependent adult, pursuant to Chapter
13 (commencing with Section 15750), which may include, but are not
limited to, facilitating the location of alternative accommodations
for the elder or dependent adult, if needed.
(w) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(x) This section does not apply to any action or proceeding
governed by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, Chapter 3 (commencing with Section 525)
of Title 7 of Part 2 of the Code of Civil Procedure, or Division 10
(commencing with Section 6200) of the Family Code. This section does
not preclude a petitioner's right to use other existing civil
remedies.
(y) The Judicial Council shall develop forms, instructions, and
rules relating to matters governed by this section. The petition and
response forms shall be simple and concise, and shall be used by
parties in actions brought pursuant to this section.
(z) This section shall become operative on July 1, 2016.
SEC. 324. Section 16501.1 of the Welfare and Institutions Code is
amended to read:
16501.1. (a) (1) The Legislature finds and declares that the
foundation and central unifying tool in child welfare services is the
case plan.
(2) The Legislature further finds and declares that a case plan
ensures that the child receives protection and safe and proper care
and case management, and that services are provided to the child and
parents or other caretakers, as appropriate, in order to improve
conditions in the parent's home, to facilitate the safe return of the
child to a safe home or the permanent placement of the child, and to
address the needs of the child while in foster care.
(3) The agency shall consider the recommendations of the child and
family team, as defined in paragraph (4) of subdivision (a) of
Section 16501, if any are available. The agency shall document the
rationale for any inconsistencies between the case plan and the child
and family team recommendations.
(b) (1) A case plan shall be based upon the principles of this
section and the input from the child and family team.
(2) The case plan shall document that a preplacement assessment of
the service needs of the child and family, and preplacement
preventive services, have been provided, and that reasonable efforts
to prevent out-of-home placement have been made. Preplacement
services may include intensive mental health services in the home or
a community setting and the reasonable efforts made to prevent
out-of-home placement.
(3) In determining the reasonable services to be offered or
provided, the child's health and safety shall be the paramount
concerns.
(4) Upon a determination pursuant to paragraph (1) of subdivision
(e) of Section 361.5 that reasonable services will be offered to a
parent who is incarcerated in a county jail or state prison, detained
by the United States Department of Homeland Security, or deported to
his or her country of origin, the case plan shall include
information, to the extent possible, about a parent's incarceration
in a county jail or the state prison, detention by the United States
Department of Homeland Security, or deportation during the time that
a minor child of that parent is involved in dependency care.
(5) Reasonable services shall be offered or provided to make it
possible for a child to return to a safe home environment, unless,
pursuant to subdivisions (b) and (e) of Section 361.5, the court
determines that reunification services shall not be provided.
(6) If reasonable services are not ordered, or are terminated,
reasonable efforts shall be made to place the child in a timely
manner in accordance with the permanent plan and to complete all
steps necessary to finalize the permanent placement of the child.
(c) If out-of-home placement is used to attain case plan goals,
the case plan shall consider the recommendations of the child and
family team.
(d) (1) The case plan shall include a description of the type of
home or institution in which the child is to be placed, and the
reasons for that placement decision. The decision regarding choice of
placement shall be based upon selection of a safe setting that is
the least restrictive family setting that promotes normal childhood
experiences and the most appropriate setting that meets the child's
individual needs and is available, in proximity to the parent's home,
in proximity to the child's school, and consistent with the
selection of the environment best suited to meet the child's special
needs and best interests. The selection shall consider, in order of
priority, placement with relatives, nonrelated extended family
members, and tribal members; foster family homes, resource families,
and nontreatment certified homes of foster family agencies; followed
by treatment and intensive treatment certified homes of foster family
agencies; or multidimensional treatment foster care homes or
therapeutic foster care homes; group care placements in the order of
short-term residential treatment centers, group homes, community
treatment facilities, and out-of-state residential treatment pursuant
to Part 5 (commencing with Section 7900) of Division 12 of the
Family Code.
(2) If a short-term intensive treatment center placement is
selected for a child, the case plan shall indicate the needs of the
child that necessitate this placement, the plan for transitioning the
child to a less restrictive environment, and the projected timeline
by which the child will be transitioned to a less restrictive
environment. This section of the case plan shall be reviewed and
updated at least semiannually.
(A) The case plan for placements in a group home, or commencing
January 1, 2017, in a short-term residential treatment center, shall
indicate that the county has taken into consideration Section
16010.8.
(B) After January 1, 2017, a child and family team meeting as
described in Section 16501 shall be convened by the county placing
agency for the purpose of identifying the supports and services
needed to achieve permanency and enable the child or youth to be
placed in the least restrictive family setting that promotes normal
childhood experiences.
(3) On or after January 1, 2012, for a nonminor dependent, as
defined in subdivision (v) of Section 11400, who is receiving AFDC-FC
benefits up to 21 years of age pursuant to Section 11403, in
addition to the above requirements, the selection of the placement,
including a supervised independent living placement, as described in
subdivision (w) of Section 11400, shall also be based upon the
developmental needs of young adults by providing opportunities to
have incremental responsibilities that prepare a nonminor dependent
to transition to successful adulthood. If admission to, or
continuation in, a group home or short-term residential treatment
center placement is being considered for a nonminor dependent, the
group home or short-term residential treatment center placement
approval decision shall include a youth-driven, team-based case
planning process, as defined by the department, in consultation with
stakeholders. The case plan shall consider the full range of
placement options, and shall specify why admission to, or
continuation in, a group home placement is the best alternative
available at the time to meet the special needs or well-being of the
nonminor dependent, and how the placement will contribute to the
nonminor dependent's transition to successful adulthood. The case
plan shall specify the treatment strategies that will be used to
prepare the nonminor dependent
for discharge to a less restrictive family setting that promotes
normal childhood experiences, including a target date for discharge
from the group home placement. The placement shall be reviewed and
updated on a regular, periodic basis to ensure that continuation in
the group home placement remains in the best interests of the
nonminor dependent and that progress is being made in achieving case
plan goals leading to successful adulthood. The group home placement
planning process shall begin as soon as it becomes clear to the
county welfare department or probation office that a foster child in
group home placement is likely to remain in group home placement on
his or her 18th birthday, in order to expedite the transition to a
less restrictive family setting that promotes normal childhood
experiences, if he or she becomes a nonminor dependent. The case
planning process shall include informing the youth of all of his or
her options, including, but not limited to, admission to or
continuation in a group home placement. Consideration for
continuation of existing group home placement for a nonminor
dependent under 19 years of age may include the need to stay in the
same placement in order to complete high school. After a nonminor
dependent either completes high school or attains his or her 19th
birthday, whichever is earlier, continuation in or admission to a
group home placement is prohibited unless the nonminor dependent
satisfies the conditions of paragraph (5) of subdivision (b) of
Section 11403, and group home placement functions as a short-term
transition to the appropriate system of care. Treatment services
provided by the group home placement to the nonminor dependent to
alleviate or ameliorate the medical condition, as described in
paragraph (5) of subdivision (b) of Section 11403, shall not
constitute the sole basis to disqualify a nonminor dependent from the
group home placement.
(4) In addition to the requirements of paragraphs (1) to (3),
inclusive, and taking into account other statutory considerations
regarding placement, the selection of the most appropriate home that
will meet the child's special needs and best interests shall also
promote educational stability by taking into consideration proximity
to the child's school of origin, and school attendance area, the
number of school transfers the child has previously experienced, and
the child's school matriculation schedule, in addition to other
indicators of educational stability that the Legislature hereby
encourages the State Department of Social Services and the State
Department of Education to develop.
(e) A written case plan shall be completed within a maximum of 60
days of the initial removal of the child or of the in-person response
required under subdivision (f) of Section 16501 if the child has not
been removed from his or her home, or by the date of the
dispositional hearing pursuant to Section 358, whichever occurs
first. The case plan shall be updated, as the service needs of the
child and family dictate. At a minimum, the case plan shall be
updated in conjunction with each status review hearing conducted
pursuant to Sections 364, 366, 366.3, and 366.31, and the hearing
conducted pursuant to Section 366.26, but no less frequently than
once every six months. Each updated case plan shall include a
description of the services that have been provided to the child
under the plan and an evaluation of the appropriateness and
effectiveness of those services.
(1) It is the intent of the Legislature that extending the maximum
time available for preparing a written case plan from 30 to 60 days
will afford caseworkers time to actively engage families, and to
solicit and integrate into the case plan the input of the child and
the child's family, as well as the input of relatives and other
interested parties.
(2) The extension of the maximum time available for preparing a
written case plan from the 30 to 60 days shall be effective 90 days
after the date that the department gives counties written notice that
necessary changes have been made to the Child Welfare Services/Case
Management System (CWS/CMS) to account for the 60-day timeframe for
preparing a written case plan.
(f) The child welfare services case plan shall be comprehensive
enough to meet the juvenile court dependency proceedings requirements
pursuant to Article 6 (commencing with Section 300) of Chapter 2 of
Part 1 of Division 2.
(g) The case plan shall be developed considering the
recommendations of the child and family team, as follows:
(1) The case plan shall be based upon an assessment of the
circumstances that required child welfare services intervention. The
child shall be involved in developing the case plan as age and
developmentally appropriate.
(2) The case plan shall identify specific goals and the
appropriateness of the planned services in meeting those goals.
(3) The case plan shall identify the original allegations of abuse
or neglect, as defined in Article 2.5 (commencing with Section
11164) of Chapter 2 of Title 1 of Part 4 of the Penal Code, or the
conditions cited as the basis for declaring the child a dependent of
the court pursuant to Section 300, or all of these, and the other
precipitating incidents that led to child welfare services
intervention.
(4) The case plan shall include a description of the schedule of
the placement agency contacts with the child and the family or other
caretakers. The frequency of these contacts shall be in accordance
with regulations adopted by the State Department of Social Services.
If the child has been placed in foster care out of state, the county
social worker or probation officer, or a social worker or probation
officer on the staff of the agency in the state in which the child
has been placed, shall visit the child in a foster family home or the
home of a relative, consistent with federal law and in accordance
with the department's approved state plan. For children in
out-of-state group home facilities, visits shall be conducted at
least monthly, pursuant to Section 16516.5. At least once every six
months, at the time of a regularly scheduled placement agency contact
with the foster child, the child's social worker or probation
officer shall inform the child of his or her rights as a foster
child, as specified in Section 16001.9. The social worker or
probation officer shall provide the information to the child in a
manner appropriate to the age or developmental level of the child.
(5) (A) When out-of-home services are used, the frequency of
contact between the natural parents or legal guardians and the child
shall be specified in the case plan. The frequency of those contacts
shall reflect overall case goals, and consider other principles
outlined in this section.
(B) Information regarding any court-ordered visitation between the
child and the natural parents or legal guardians, and the terms and
conditions needed to facilitate the visits while protecting the
safety of the child, shall be provided to the child's out-of-home
caregiver as soon as possible after the court order is made.
(6) When out-of-home placement is made, the case plan shall
include provisions for the development and maintenance of sibling
relationships as specified in subdivisions (b), (c), and (d) of
Section 16002. If appropriate, when siblings who are dependents of
the juvenile court are not placed together, the social worker for
each child, if different, shall communicate with each of the other
social workers and ensure that the child's siblings are informed of
significant life events that occur within their extended family.
Unless it has been determined that it is inappropriate in a
particular case to keep siblings informed of significant life events
that occur within the extended family, the social worker shall
determine the appropriate means and setting for disclosure of this
information to the child commensurate with the child's age and
emotional well-being. These significant life events shall include,
but shall not be limited to, the following:
(A) The death of an immediate relative.
(B) The birth of a sibling.
(C) Significant changes regarding a dependent child, unless the
child objects to the sharing of the information with his or her
siblings, including changes in placement, major medical or mental
health diagnoses, treatments, or hospitalizations, arrests, and
changes in the permanent plan.
(7) If out-of-home placement is made in a foster family home,
group home, or other child care institution that is either a
substantial distance from the home of the child's parent or out of
state, the case plan shall specify the reasons why that placement is
in the best interest of the child. When an out-of-state group home
placement is recommended or made, the case plan shall, in addition,
specify compliance with Section 7911.1 of the Family Code.
(8) A case plan shall ensure the educational stability of the
child while in foster care and shall include both of the following:
(A) An assurance that the placement takes into account the
appropriateness of the current educational setting and the proximity
to the school in which the child is enrolled at the time of
placement.
(B) An assurance that the placement agency has coordinated with
the person holding the right to make educational decisions for the
child and appropriate local educational agencies to ensure that the
child remains in the school in which the child is enrolled at the
time of placement or, if remaining in that school is not in the best
interests of the child, assurances by the placement agency and the
local educational agency to provide immediate and appropriate
enrollment in a new school and to provide all of the child's
educational records to the new school.
(9) (A) If out-of-home services are used, or if parental rights
have been terminated and the case plan is placement for adoption, the
case plan shall include a recommendation regarding the
appropriateness of unsupervised visitation between the child and any
of the child's siblings. This recommendation shall include a
statement regarding the child's and the siblings' willingness to
participate in unsupervised visitation. If the case plan includes a
recommendation for unsupervised sibling visitation, the plan shall
also note that information necessary to accomplish this visitation
has been provided to the child or to the child's siblings.
(B) Information regarding the schedule and frequency of the visits
between the child and siblings, as well as any court-ordered terms
and conditions needed to facilitate the visits while protecting the
safety of the child, shall be provided to the child's out-of-home
caregiver as soon as possible after the court order is made.
(10) If out-of-home services are used and the goal is
reunification, the case plan shall describe the services to be
provided to assist in reunification and the services to be provided
concurrently to achieve legal permanency if efforts to reunify fail.
The plan shall also consider in-state and out-of-state placements,
the importance of developing and maintaining sibling relationships
pursuant to Section 16002, and the desire and willingness of the
caregiver to provide legal permanency for the child if reunification
is unsuccessful.
(11) If out-of-home services are used, the child has been in care
for at least 12 months, and the goal is not adoptive placement, the
case plan shall include documentation of the compelling reason or
reasons why termination of parental rights is not in the child's best
interest. A determination completed or updated within the past 12
months by the department when it is acting as an adoption agency or
by a licensed adoption agency that it is unlikely that the child will
be adopted, or that one of the conditions described in paragraph (1)
of subdivision (c) of Section 366.26 applies, shall be deemed a
compelling reason.
(12) (A) Parents and legal guardians shall have an opportunity to
review the case plan, and to sign it whenever possible, and then
shall receive a copy of the plan. In a voluntary service or placement
agreement, the parents or legal guardians shall be required to
review and sign the case plan. Whenever possible, parents and legal
guardians shall participate in the development of the case plan.
Commencing January 1, 2012, for nonminor dependents, as defined in
subdivision (v) of Section 11400, who are receiving AFDC-FC or
CalWORKs assistance up to 21 years of age pursuant to Section 11403,
the transitional independent living case plan, as set forth in
subdivision (y) of Section 11400, shall be developed with, and signed
by, the nonminor.
(B) Parents and legal guardians shall be advised that, pursuant to
Section 1228.1 of the Evidence Code, neither their signature on the
child welfare services case plan nor their acceptance of any services
prescribed in the child welfare services case plan shall constitute
an admission of guilt or be used as evidence against the parent or
legal guardian in a court of law. However, they shall also be advised
that the parent's or guardian's failure to cooperate, except for
good cause, in the provision of services specified in the child
welfare services case plan may be used in any hearing held pursuant
to Section 366.21, 366.22, or 366.25 of this code as evidence.
(13) A child shall be given a meaningful opportunity to
participate in the development of the case plan and state his or her
preference for foster care placement. A child who is 12 years of age
or older and in a permanent placement shall also be given the
opportunity to review the case plan, sign the case plan, and receive
a copy of the case plan.
(14) The case plan shall be included in the court report and shall
be considered by the court at the initial hearing and each review
hearing. Modifications to the case plan made during the period
between review hearings need not be approved by the court if the
casework supervisor for that case determines that the modifications
further the goals of the plan. If out-of-home services are used with
the goal of family reunification, the case plan shall consider and
describe the application of subdivision (b) of Section 11203.
(15) (A) If the case plan has as its goal for the child a
permanent plan of adoption or legal guardianship, it shall include a
statement of the child's wishes regarding their permanent placement
plan and an assessment of those stated wishes. The agency shall also
include documentation of the steps the agency is taking to find an
adoptive family or other permanent living arrangements for the child;
to place the child with an adoptive family, an appropriate and
willing relative, or a legal guardian, and to finalize the adoption
or legal guardianship. At a minimum, the documentation shall include
child-specific recruitment efforts, such as the use of state,
regional, and national adoption exchanges, including electronic
exchange systems, when the child has been freed for adoption.
Regardless of whether the child has been freed for adoption,
documentation shall include a description of any barriers to
achieving legal permanence and the steps the agency will take to
address those barriers. If the plan is for kinship guardianship, the
case plan shall document how the child meets the kinship guardianship
eligibility requirements.
(B) When the child is 16 years of age or older and is in another
planned permanent living arrangement, the case plan shall identify
the intensive and ongoing efforts to return the child to the home of
the parent, place the child for adoption, place the child for tribal
customary adoption in the case of an Indian child, establish a legal
guardianship, or place the child nonminor dependent with a fit and
willing relative, as appropriate. Efforts shall include the use of
technology, including social media, to find biological family members
of the child.
(16) (A) (i) For a child who is 14 or 15 years of age, the case
plan shall include a written description of the programs and services
that will help the child, consistent with the child's best
interests, to prepare for the transition from foster care to
successful adulthood. The description may be included in the document
described in subparagraph (A) of paragraph (18).
(ii) When appropriate, for a child who is 16 years of age or older
and, commencing January 1, 2012, for a nonminor dependent, the case
plan shall include the transitional independent living plan (TILP), a
written description of the programs and services that will help the
child, consistent with the child's best interests, to prepare for the
transition from foster care to successful adulthood, and, in
addition, whether the youth has an in-progress application pending
for Title XVI Supplemental Security Income benefits or for Special
Immigrant Juvenile Status or other applicable application for legal
residency and an active dependency case is required for that
application. When appropriate, for a nonminor dependent, the
transitional independent living case plan, as described in
subdivision (v) of Section 11400, shall include the TILP, a written
description of the programs and services that will help the nonminor
dependent, consistent with his or her best interests, to prepare for
transition from foster care and assist the youth in meeting the
eligibility criteria set forth in paragraphs (1) to (5), inclusive,
of subdivision (b) of Section 11403. If applicable, the case plan
shall describe the individualized supervision provided in the
supervised independent living placement as defined in subdivision (w)
of Section 11400. The case plan shall be developed with the child or
nonminor dependent and individuals identified as important to the
child or nonminor dependent, and shall include steps the agency is
taking to ensure that the child or nonminor dependent achieves
permanence, including maintaining or obtaining permanent connections
to caring and committed adults.
(B) During the 90-day period prior to the participant attaining 18
years of age or older as the state may elect under Section 475(8)(B)
(iii) of the federal Social Security Act (42 U.S.C. Sec. 675(8)(B)
(iii)), whether during that period foster care maintenance payments
are being made on the child's behalf or the child is receiving
benefits or services under Section 477 of the federal Social Security
Act (42 U.S.C. Sec. 677), a caseworker or other appropriate agency
staff or probation officer and other representatives of the
participant, as appropriate, shall provide the youth or nonminor
dependent with assistance and support in developing the written
90-day transition plan, that is personalized at the direction of the
child, information as detailed as the participant elects that shall
include, but not be limited to, options regarding housing, health
insurance, education, local opportunities for mentors and continuing
support services, and workforce supports and employment services, a
power of attorney for health care, and information regarding the
advance health care directive form.
(C) For youth 14 years of age or older, the case plan shall
include documentation that a consumer credit report was requested
annually from each of the three major credit reporting agencies at no
charge to the youth and that any results were provided to the youth.
For nonminor dependents, the case plan shall include documentation
that the county assisted the nonminor dependent in obtaining his or
her reports. The case plan shall include documentation of barriers,
if any, to obtaining the credit reports. If the consumer credit
report reveals any accounts, the case plan shall detail how the
county ensured the youth received assistance with interpreting the
credit report and resolving any inaccuracies, including any referrals
made for the assistance.
(17) For youth 14 years of age or older and nonminor dependents,
the case plan shall be developed in consultation with the youth. At
the youth's option, the consultation may include up to two members of
the case planning team who are chosen by the youth and who are not
foster parents of, or caseworkers for, the youth. The agency, at any
time, may reject an individual selected by the youth to be a member
of the case planning team if the agency has good cause to believe
that the individual would not act in the youth's best interest. One
individual selected by the youth to be a member of the case planning
team may be designated to be the youth's adviser and advocate with
respect to the application of the reasonable and prudent parent
standard to the youth, as necessary.
(18) For youth in foster care 14 years of age and older and
nonminor dependents, the case plan shall include both of the
following:
(A) A document that describes the youth's rights with respect to
education, health, visitation, and court participation, the right to
be annually provided with copies of his or her credit reports at no
cost while in foster care pursuant to Section 10618.6, and the right
to stay safe and avoid exploitation.
(B) A signed acknowledgment by the youth that he or she has been
provided a copy of the document and that the rights described in the
document have been explained to the youth in an age-appropriate
manner.
(19) The case plan for a child or nonminor dependent who is, or
who is at risk of becoming, the victim of commercial sexual
exploitation, shall document the services provided to address that
issue.
(h) If the court finds, after considering the case plan, that
unsupervised sibling visitation is appropriate and has been consented
to, the court shall order that the child or the child's siblings,
the child's current caregiver, and the child's prospective adoptive
parents, if applicable, be provided with information necessary to
accomplish this visitation. This section does not require or prohibit
the social worker's facilitation, transportation, or supervision of
visits between the child and his or her siblings.
(i) The case plan documentation on sibling placements required
under this section shall not require modification of existing case
plan forms until the Child Welfare Services/Case Management System
(CWS/CMS) is implemented on a statewide basis.
(j) When a child is 10 years of age or older and has been in
out-of-home placement for six months or longer, the case plan shall
include an identification of individuals, other than the child's
siblings, who are important to the child and actions necessary to
maintain the child's relationship with those individuals, provided
that those relationships are in the best interest of the child. The
social worker or probation officer shall ask every child who is 10
years of age or older and who has been in out-of-home placement for
six months or longer to identify individuals other than the child's
siblings who are important to the child, and may ask any other child
to provide that information, or may seek that information from the
child and family team, as appropriate. The social worker or probation
officer shall make efforts to identify other individuals who are
important to the child, consistent with the child's best interests.
(k) The child's caregiver shall be provided a copy of a plan
outlining the child's needs and services. The nonminor dependent's
caregiver shall be provided with a copy of the nonminor's TILP.
(l) Each county shall ensure that the total number of visits made
by caseworkers on a monthly basis to children in foster care during a
federal fiscal year is not less than 95 percent of the total number
of those visits that would occur if each child were visited once
every month while in care and that the majority of the visits occur
in the residence of the child. The county child welfare and probation
departments shall comply with data reporting requirements that the
department deems necessary to comply with the federal Child and
Family Services Improvement Act of 2006 (Public Law 109-288) and the
federal Child and Family Services Improvement and Innovation Act of
2011 (Public Law 112-34).
(m) The implementation and operation of the amendments to
subdivision (i) enacted at the 2005-06 Regular Session shall be
subject to appropriation through the budget process and by phase, as
provided in Section 366.35.
SEC. 325. Section 17603 of the Welfare and Institutions Code is
amended to read:
17603. (a) This subdivision only applies until the end of the
2012-13 fiscal year. On or before the 27th day of each month, the
Controller shall allocate to the local health and welfare trust fund
health accounts the amounts deposited and remaining unexpended and
unreserved on the 15th day of the month in the Health Subaccount of
the Sales Tax Account of the Local Revenue Fund, in accordance with
paragraphs (1) and (2):
(1) For the 1991-92 fiscal year, allocations shall be made in
accordance with the following schedule:
Allocation
Jurisdiction Percentage
Alameda .................... 4.5046
Alpine ..................... 0.0137
Amador ..................... 0.1512
Butte ...................... 0.8131
Calaveras .................. 0.1367
Colusa...................... 0.1195
Contra Costa ............... 2.2386
Del Norte .................. 0.1340
El Dorado .................. 0.5228
Fresno ..................... 2.3531
Glenn ...................... 0.1391
Humboldt ................... 0.8929
Imperial ................... 0.8237
Inyo ....................... 0.1869
Kern ....................... 1.6362
Kings ...................... 0.4084
Lake ....................... 0.1752
Lassen ..................... 0.1525
Los Angeles ................ 37.2606
Madera ..................... 0.3656
Marin....................... 1.0785
Mariposa ................... 0.0815
Mendocino .................. 0.2586
Merced ..................... 0.4094
Modoc ...................... 0.0923
Mono ....................... 0.1342
Monterey ................... 0.8975
Napa ....................... 0.4466
Nevada ..................... 0.2734
Orange ..................... 5.4304
Placer ..................... 0.2806
Plumas ..................... 0.1145
Riverside .................. 2.7867
Sacramento ................. 2.7497
San Benito ................. 0.1701
San Bernardino.............. 2.4709
San Diego .................. 4.7771
San Francisco .............. 7.1450
San Joaquin ................ 1.0810
San Luis Obispo ............ 0.4811
San Mateo .................. 1.5937
Santa Barbara .............. 0.9418
Santa Clara ................ 3.6238
Santa Cruz ................. 0.6714
Shasta ..................... 0.6732
Sierra ..................... 0.0340
Siskiyou.................... 0.2246
Solano ..................... 0.9377
Sonoma ..................... 1.6687
Stanislaus ................. 1.0509
Sutter ..................... 0.4460
Tehama ..................... 0.2986
Trinity .................... 0.1388
Tulare ..................... 0.7485
Tuolumne ................... 0.2357
Ventura .................... 1.3658
Yolo ....................... 0.3522
Yuba ....................... 0.3076
Berkeley ................... 0.0692
Long Beach ................. 0.2918
Pasadena ................... 0.1385
(2) For the 1992-93 fiscal year and fiscal years thereafter until
the commencement of the 2013-14 fiscal year, the allocations to each
county and city and county shall equal the amounts received in the
prior fiscal year by each county, city, and city and county from the
Sales Tax Account and the Sales Tax Growth Account of the Local
Revenue Fund into the health and welfare trust fund.
(b) (1) For the 2013-14 fiscal year, on the 27th day of each
month, the Controller shall allocate, in the same proportion as funds
in paragraph (2) of subdivision (a) were allocated, to each county's
and city and county's local health and welfare trust fund health
accounts, the amounts deposited and remaining unexpended and
unreserved on the 15th day of the month in the Health Subaccount of
the Sales Tax Account of the Local Revenue Fund.
(2) (A) Beginning January 2014 and for the remainder of the
2013-14 fiscal year, on or before the 27th day of each month, the
Controller shall transfer to the Family Support Subaccount from the
Health Subaccount amounts determined pursuant to a schedule prepared
by the Department of Finance in consultation with the California
State Association of Counties. Cumulatively, no more than three
hundred million dollars ($300,000,000) shall be transferred.
(B) Every month, after the transfers in subparagraph (A) have
occurred, the remainder shall be allocated to the counties and cities
and counties in the same proportions as funds in paragraph (2) of
subdivision (a) were allocated.
(C) For counties participating in the County Medical Services
Program, transfers from each county shall not be greater than the
monthly amount the county would otherwise pay pursuant to paragraph
(2) of subdivision (j) of Section 16809 for participation in the
County Medical Services Program. Any difference between the amount
paid by these counties and the proportional share of the three
hundred million dollars ($300,000,000) calculated as payable by these
counties and the County Medical Services Program shall be paid from
the funds available for allocation to the County Medical Services
Program in accordance with this code.
(3) For the 2013-14 fiscal year, the Controller, using the same
timing and criteria used in paragraph (1), shall allocate to each
city, not to include a city and county, funds that shall equal the
amounts received in the prior fiscal year by each city from the Sales
Tax Account and the Sales Tax Growth Account of the Local Revenue
Fund into the health and welfare trust fund.
(c) (1) For the 2014-15 fiscal year and for every fiscal year
thereafter, the Department of Finance, in consultation with the
California State Association of Counties, shall calculate the amount
each county or city and county shall contribute to the Family Support
Subaccount in accordance with Section 17600.50.
(2) On or before the 27th day of each month, the Controller shall
transfer, based on a schedule prepared by the Department of Finance
in consultation with the California State Association of Counties,
from the funds deposited and remaining unexpended and unreserved on
the 15th day of the month in the Health Subaccount of the Sales Tax
Account of the Local Revenue Fund to the Family Support Subaccount,
funds that equal, over the course of the year, the amount determined
in paragraph (1) pursuant to a schedule provided by the Department of
Finance.
(3) After the transfer in paragraph (2) has occurred, the
Controller shall allocate on or before the 27th day of each month to
the Health Account in the local health and welfare trust fund of
every county and city and county from a schedule prepared by the
Department of Finance, in consultation with the California State
Association of Counties, any funds remaining in the Health Account
from the funds deposited and remaining unexpended and unreserved on
the 15th day of the month in the Health Subaccount of the Sales Tax
Account of the Local Revenue Fund. The schedule shall be prepared as
the allocations would have been distributed pursuant to paragraph (2)
of subdivision (a).
(4) For the 2014-15 fiscal year and for every fiscal year
thereafter, the Controller, using the same timing and criteria as had
been used in paragraph (2) of subdivision (a), shall allocate to
each city, not to include a city and county, funds that equal the
amounts received in the prior fiscal year by each city from the Sales
Tax Account and the Sales Tax Growth Account of the Local Revenue
Fund into the health and welfare trust fund.
SEC. 326. Section 24005 of the Welfare and Institutions Code is
amended to read:
24005. (a) This section applies to the Family Planning, Access,
Care, and Treatment Program identified in subdivision (aa) of Section
14132 and this program.
(b) Only licensed medical personnel with family planning skills,
knowledge, and competency may provide the full range of family
planning medical services covered in this program.
(c) Medi-Cal enrolled providers, as determined by the department,
shall be eligible to provide family planning services under the
program when these services are within their scope of practice and
licensure. Those clinical providers electing to participate in the
program and approved by the department shall provide the full scope
of family planning education, counseling, and medical services
specified for the program, either directly or by referral, consistent
with standards of care issued by the department.
(d) The department shall require providers to enter into clinical
agreements with the department to ensure compliance with standards
and requirements to maintain the fiscal integrity of the program.
Provider applicants, providers, and persons with an ownership or
control interest, as defined in federal Medicaid regulations, shall
be required to submit to the department their social security numbers
to the full extent allowed under federal law. All state and federal
statutes and regulations pertaining to the audit or examination of
Medi-Cal providers apply to this program.
(e) Clinical provider agreements shall be signed by the provider
under penalty of perjury. The department may screen applicants at the
initial application and at any reapplication pursuant to
requirements developed by the department to determine provider
suitability for the program.
(f) The department may complete a background check on clinical
provider applicants for the purpose of verifying the accuracy of
information provided to the department for purposes of enrolling in
the program and in order to prevent fraud and abuse. The background
check may include, but not be limited to, unannounced onsite
inspection prior to enrollment, review of business records, and data
searches. If discrepancies are found to exist during the
preenrollment period, the department may conduct additional
inspections prior to enrollment. Failure to remediate significant
discrepancies as prescribed by the director may result in denial of
the application for enrollment. Providers that do not provide
services consistent with the standards of care or that do not comply
with the department's rules related to the fiscal integrity of the
program may be disenrolled as a provider from the program at the sole
discretion of the department.
(g) The department shall not enroll any applicant who, within the
previous 10 years:
(1) Has been convicted of any felony or misdemeanor that involves
fraud or abuse in any government program, that relates to neglect or
abuse of a patient in connection with the delivery of a health care
item or service, or that is in connection with the interference with,
or obstruction of, any investigation into health care related fraud
or abuse.
(2) Has been found liable for fraud or abuse in any civil
proceeding, or that has entered into a settlement in lieu of
conviction for fraud or abuse in any government program.
(h) In addition, the department may deny enrollment to any
applicant that, at the time of application, is under investigation by
the department or any local, state, or federal government law
enforcement agency for fraud or abuse. The department shall not deny
enrollment to an otherwise qualified applicant whose felony or
misdemeanor charges did not result in a conviction solely on the
basis of the prior charges. If it is discovered that a provider is
under investigation by the department or any local, state, or federal
government law enforcement agency for fraud or abuse, that provider
shall be subject to immediate disenrollment from the program.
(i) (1) The program shall disenroll as a program provider any
individual who, or any entity that, has a license, certificate, or
other approval to provide health care that is revoked or suspended by
a federal, California, or other state's licensing, certification, or
other approval authority, has otherwise lost that license,
certificate, or approval, or has surrendered that license,
certificate, or approval while a disciplinary hearing on the license,
certificate, or approval was pending. The disenrollment shall be
effective on the date the license, certificate, or approval is
revoked, lost, or surrendered.
(2) A provider shall be subject to disenrollment if the provider
submits claims for payment for the services, goods, supplies, or
merchandise provided, directly or indirectly, to a program
beneficiary, by an individual or entity that has been previously
suspended, excluded, or otherwise made ineligible to receive,
directly or indirectly, reimbursement from the program or from the
Medi-Cal program and the individual has previously been listed on
either the Suspended and Ineligible Provider List, which is published
by the department, to identify suspended and otherwise ineligible
providers or any list published by the federal Office of the
Inspector General regarding the suspension or exclusion of
individuals or entities from the federal Medicare and Medicaid
programs, to identify suspended, excluded, or otherwise ineligible
providers.
(3) The department shall deactivate, immediately and without prior
notice, the provider numbers used by a provider to obtain
reimbursement from the program when warrants or documents mailed to a
provider's mailing address, its pay to address, or its service
address, if any, are returned by the United States Postal Service as
not deliverable or when a provider has not submitted a claim for
reimbursement from the program for one year. Prior to taking this
action, the department shall use due diligence in attempting to
contact the provider at its last known telephone number and to
ascertain if the return by the United States Postal Service is by
mistake and shall use due diligence in attempting to contact the
provider by telephone or in writing to ascertain whether the provider
wishes to continue to participate in the Medi-Cal program. If
deactivation pursuant to this section occurs, the provider shall meet
the requirements for reapplication as specified in regulation.
(4) For purposes of this subdivision:
(A) "Mailing address" means the address that the provider has
identified to the department in its application for enrollment as the
address at which it wishes to receive general program
correspondence.
(B) "Pay to address" means the address that the provider has
identified to the department in its application for enrollment as the
address at which it wishes to receive warrants.
(C) "Service address" means the address that the provider has
identified to the department in its application for enrollment as the
address at which the provider will provide services to program
beneficiaries.
(j) Subject to Article 4 (commencing with Section 19130) of
Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code,
the department may enter into contracts to secure consultant services
or information technology including, but not limited to, software,
data, or analytical techniques or methodologies for the purpose of
fraud or abuse detection and prevention. Contracts under this section
shall be exempt from the Public Contract Code.
(k) Enrolled providers shall attend specific orientation approved
by the department in comprehensive family planning services. Enrolled
providers who insert IUDs or contraceptive implants shall have
received prior clinical training specific to these procedures.
( l ) Upon receipt of reliable evidence that would be
admissible under the administrative adjudication provisions of
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code, of fraud or willful misrepresentation
by a provider under the program or commencement of a suspension
under Section 14123, the department may do any of the following:
(1) Collect any State-Only Family Planning program or Family
Planning, Access, Care, and Treatment Program overpayment identified
through an audit or examination, or any portion thereof from any
provider. Notwithstanding Section 100171 of the Health and Safety
Code, a provider may appeal the collection of overpayments under this
section pursuant to procedures established in Article 5.3
(commencing with Section 14170) of Chapter 7 of Part 3 of Division 9.
Overpayments collected under this section shall not be returned to
the provider during the pendency of any appeal and may be offset to
satisfy audit or appeal findings, if the findings are against the
provider. Overpayments shall be returned to a provider with interest
if findings are in favor of the provider.
(2) Withhold payment for any goods or services, or any portion
thereof, from any State-Only Family Planning program or Family
Planning, Access, Care, and Treatment Program provider. The
department shall notify the provider within five days of any
withholding of payment under this section. The notice shall do all of
the following:
(A) State that payments are being withheld in accordance with this
paragraph and that the withholding is for a temporary period and
will not continue after it is determined that the evidence of fraud
or willful misrepresentation is insufficient or when legal
proceedings relating to the alleged fraud or willful
misrepresentation are completed.
(B) Cite the circumstances under which the withholding of the
payments will be terminated.
(C) Specify, when appropriate, the type or types of claimed
payments being withheld.
(D) Inform the provider of the right to submit written evidence
that is evidence that would be admissible under the administrative
adjudication provisions of Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code, for
consideration by the department.
(3) Notwithstanding Section 100171 of the Health and Safety Code,
a provider may appeal a withholding of payment under this section
pursuant to Section 14043.65. Payments withheld under this section
shall not be returned to the provider during the pendency of any
appeal and may be offset to satisfy audit or appeal findings.
(m) As used in this section:
(1) "Abuse" means either of the following:
(A) Practices that are inconsistent with sound fiscal or business
practices and result in unnecessary cost to the Medicaid program, the
Medicare program, the Medi-Cal program, including the Family
Planning, Access, Care, and Treatment Program, identified in
subdivision (aa) of Section 14132, another state's Medicaid program,
or the State-Only Family Planning program, or other health care
programs operated, or financed in whole or in part, by the federal
government or any state or local agency in this state or any other
state.
(B) Practices that are inconsistent with sound medical practices
and result in reimbursement, by any of the programs referred to in
subparagraph (A) or other health care programs operated, or financed
in whole or in part, by the federal government or any state or local
agency in this state or any other state, for services that are
unnecessary or for substandard items or services that fail to meet
professionally recognized standards for health care.
(2) "Fraud" means an intentional deception or misrepresentation
made by a person with the knowledge that the deception could result
in some unauthorized benefit to himself or herself or some other
person. It includes any act that constitutes fraud under applicable
federal or state law.
(3) "Provider" means any individual, partnership, group,
association, corporation, institution, or other entity, and the
officers, directors, owners, managing employees, or agents of any
partnership, group, association, corporation, institution, or other
entity, that provides services, goods, supplies, or merchandise,
directly or indirectly, to a beneficiary and has been enrolled in the
program.
(4) "Convicted" means any of the following:
(A) A judgment of conviction has been entered against an
individual or entity by a federal, state, or local court, regardless
of whether there is a post-trial motion or an appeal pending or the
judgment of conviction or other record relating to the criminal
conduct has been expunged or otherwise removed.
(B) A federal, state, or local court has made a finding of guilt
against an individual or entity.
(C) A federal, state, or local court has accepted a plea of guilty
or nolo contendere by an individual or entity.
(D) An individual or entity has entered into participation in a
first offender, deferred adjudication, or other program or
arrangement in which judgment of conviction has been withheld.
(5) "Professionally recognized standards of health care" means
statewide or national standards of care, whether in writing or not,
that professional peers of the individual or entity whose provision
of care is an issue, recognize as applying to those peers practicing
or providing care within a state. When the United States Department
of Health and Human Services has declared a treatment modality not to
be safe and effective, practitioners that employ that treatment
modality shall be deemed not to meet professionally recognized
standards of health care. This definition shall not be construed to
mean that all other treatments meet professionally recognized
standards of care.
(6) "Unnecessary or substandard items or services" means those
that are either of the following:
(A) Substantially in excess of the provider's usual charges or
costs for the items or services.
(B) Furnished, or caused to be furnished, to patients, whether or
not covered by Medicare, Medicaid, or any of the state health care
programs to which the definitions of applicant and provider apply,
and which are substantially in excess of the patient's needs, or of a
quality that fails to meet professionally recognized standards of
health care. The department's determination that the items or
services furnished were excessive or of unacceptable quality shall be
made on the basis of information, including sanction reports, from
the following sources:
(i) The professional review organization for the area served by
the individual or entity.
(ii) State or local licensing or certification authorities.
(iii) Fiscal agents or contractors, or private insurance
companies.
(iv) State or local professional societies.
(v) Any other sources deemed appropriate by the department.
(7) "Enrolled or enrollment in the program" means authorized under
any and all processes by the department or its agents or contractors
to receive, directly or indirectly, reimbursement for the provision
of services, goods, supplies, or merchandise to a program
beneficiary.
(n) In lieu of, or in addition to, the imposition of any other
sanctions available, including the imposition of a civil penalty
under Section 14123.2 or 14171.6, the program may impose on providers
any or all of the penalties pursuant to Section 14123.25, in
accordance with the provisions of that section. In addition, program
providers shall be subject to the penalties contained in Section
14107.
(o) (1) Notwithstanding any other law, every primary supplier of
pharmaceuticals, medical equipment, or supplies shall maintain
accounting records to demonstrate the manufacture, assembly,
purchase, or acquisition and subsequent sale, of any pharmaceuticals,
medical equipment, or supplies, to providers. Accounting records
shall include, but not be limited to, inventory records, general
ledgers, financial statements, purchase and sales journals, and
invoices, prescription records, bills of lading, and delivery
records.
(2) For purposes of this subdivision, the term "primary supplier"
means any manufacturer, principal labeler, assembler, wholesaler, or
retailer.
(3) Accounting records maintained pursuant to paragraph (1) are
subject to audit or examination by the department or its agents. The
audit or examination may include, but is not limited to, verification
of what was claimed by the provider. These accounting records shall
be maintained for three years from the date of sale or the date of
service.
(p) Each provider of health care services rendered to any program
beneficiary shall keep and maintain records of each service rendered,
the beneficiary to whom rendered, the date, and any additional
information that the department may by regulation require. Records
required to be kept and maintained pursuant to this subdivision shall
be retained by the provider for a period of three years from the
date the service was rendered.
(q) A program provider applicant or a program provider shall
furnish information or copies of records and documentation requested
by the department. Failure to comply with the department's request
shall be grounds for denial of the application or automatic
disenrollment of the provider.
(r) A program provider may assign signature authority for
transmission of claims to a billing agent subject to Sections 14040,
14040.1, and 14040.5.
(s) Moneys payable or rights existing under this division shall be
subject to any claim, lien, or offset of the State of California,
and any claim of the United States of America made pursuant to
federal statute, but shall not otherwise be subject to enforcement of
a money judgment or other legal process, and no transfer or
assignment, at law or in equity, of any right of a provider of health
care to any payment shall be enforceable against the state, a fiscal
intermediary, or carrier.
(t) (1) Notwithstanding any other law, within 30 calendar days of
receiving a complete application for enrollment into the Family PACT
Program from an affiliate primary care clinic licensed under Section
1218.1 of the Health and Safety Code, the department shall do one of
the following:
(A) Approve the provider's Family PACT Program application,
provided the applicant meets the Family PACT Program provider
enrollment requirements set forth in this section.
(B) If the provider is an enrolled Medi-Cal provider in good
standing, notify the applicant in writing of any discrepancies in the
Family PACT Program enrollment application. The applicant shall have
30 days from the date of written notice to correct any identified
discrepancies. Upon receipt of all requested corrections, the
department shall approve the application within 30 calendar days.
(C) If the provider is not an enrolled Medi-Cal provider in good
standing, the department shall not proceed with the actions described
in this subdivision until the department receives confirmation of
good standing and enrollment as a Medi-Cal provider.
(2) The effective date of enrollment into the Family PACT Program
shall be the later of the date the department receives confirmation
of enrollment as a Medi-Cal provider, or the date the applicant meets
all Family PACT Program provider enrollment requirements set forth
in this section.
(u) Providers, or the enrolling entity, shall make available to
all applicants and beneficiaries prior to, or concurrent with,
enrollment, information on the manner in which to apply for insurance
affordability programs, in a manner determined by the State
Department of Health Care Services. The information provided shall
include the manner in which applications can be submitted for
insurance affordability programs, information about the open
enrollment periods for the California Health Benefit Exchange, and
the continuous enrollment aspect of the Medi-Cal program.
SEC. 327. Section 325 of Chapter 303 of the Statutes of 2015 is
amended to read:
Sec. 325. Section 44525.7 of the Health and Safety Code, as added
by Section 7 of Chapter 915 of the Statutes of 2000, is repealed.
SEC. 328. Section 330 of Chapter 303 of the Statutes of 2015 is
amended to read:
Sec. 330. The heading of Chapter 4 (commencing with former Section
101500) of Part 3 of Division 101 of the Health and Safety Code, as
added by Section 3 of Chapter 415 of the Statutes of 1995, second
text, is repealed.
SEC. 329. Section 8 of Chapter 590 of the Statutes of 2015 is
amended to read:
Sec. 8. Section 913.8 is added to the Public Utilities Code, to
read:
913.8. In the report prepared pursuant to Section 913.7, the
commission shall include an assessment of each electrical corporation'
s and each gas corporation's implementation of the program developed
pursuant to Section 25943 of the Public Resources Code.
SEC. 330. Any section of any act enacted by the Legislature during
the 2016 calendar year that takes effect on or before January 1,
2017, and that amends, amends and renumbers, adds, repeals and adds,
or repeals a section that is amended, amended and renumbered, added,
repealed and added, or repealed by this act, shall prevail over this
act, whether that act is enacted prior to, or subsequent to, the
enactment of this act. The repeal, or repeal and addition, of any
article, chapter, part, title, or division of any code by this act
shall not become operative if any section of any other act that is
enacted by the Legislature during the 2016 calendar year and takes
effect on or before January 1, 2017, amends, amends and renumbers,
adds, repeals and adds, or
repeals any section contained in that article, chapter, part, title,
or division.