BILL NUMBER: AB 2539 INTRODUCED
BILL TEXT
INTRODUCED BY Committee on Judiciary (Kuehl (Chair), Ackerman (Vice
Chair), Aroner, Bates, Bock, Corbett, House, Jackson, Knox,
Longville, Robert Pacheco, Shelley, Steinberg, and Wiggins)
FEBRUARY 24, 2000
An act to amend Sections 651, 680, 4112, 4982, 4998, 4998.2,
4998.5, 4998.6, 6086.65, and 17537.11 of the Business and Professions
Code, to amend Sections 1102.2, 1103, and 2924c of the Civil Code,
to amend Sections 131.4, 703.140, and 704.115 of the Code of Civil
Procedure, amend Sections 1201, 2210, 2502, 9528, and 9706 of the
Commercial Code, to amend Sections 5222, 7236, 14000, 14030, 14030.1,
14035, 14036, and 25207 of the Corporations Code, to amend Sections
1209, 17210, 17284.5, 17620, 23812, 24255, 35012, 35160.5, 37252,
44225.6, 44227, 44259, 44275.3, 44424, 47611.5, 47612.5, 51871.5,
54685.2, 54685.3, 60200.2, 60855, 66293, and 81149 of, to amend and
renumber Section 39006 of, and to amend and renumber the heading of
Chapter 8 (commencing with Section 60850) of Part 33 of Division 4 of
Title 2 of, the Education Code, to amend Section 8040 of the
Elections Code, to amend Sections 243, 2040, 3021, 4065, and 5002 of
the Family Code, to amend Section 18210 of the Financial Code, to
amend Section 55702 of the Food and Agricultural Code, to amend
Sections 3540.1, 7222, 15346.9, 18935, 19827.3, 20395, 20397, 20677,
21070.5, 21071, 21073.7, 21370, 21572, 22825.01, 22875, 31469.5,
51298, 53601, 53635, 54985, 69915, 72114.2, and 91007 of the
Government Code, to amend Sections 1357.50, 1368, 1368.04, 1370.4,
1374.32, 1386, 1507.3, 1596.7927, 25390.4, 32121.7, 33333.6,
33334.17, 44287, 51451, 104550, 104556, 104557, 112040, 115813, and
128375 of, and to amend and renumber Section 13933 of, the Health and
Safety Code, to amend Sections 384, 791.02, 1035, 1765.1, 1874.81,
10123.68, 10145.3, 10169, 10169.2, 10176.61, 11629.92, and 12967 of,
and to amend and renumber Sections 1785.89, 10140, 10141, and 12698
of, the Insurance Code, to amend Sections 1174.5, 1777.5, 1777.7,
3762, 6394.5, 6429, 6434, and 6650 of the Labor Code, to amend
Sections 273.84, 296.1, 487c, 666, 830.32, 1463, 2962, 6129, 11166.3,
11170.6, 12000, and 13510 of the Penal Code, to amend Section 2357
of the Probate Code, to amend Section 12102 of the Public Contract
Code, to amend Sections 2715.5, 31164, and 42923 of the Public
Resources Code, to amend Sections 237, 2512, 2613, 6471, and 6472 of
the Revenue and Taxation Code, to amend Sections 426, 1666, 5204,
9980, 12808, 12815, 13377, 16020.1, 21051, 22511.56, 34505.9, and
35790.1 of the Vehicle Code, to amend Sections 361.5, 727.3, 727.31,
827, 1788, 1789.5, 9564, 14105.26, and 25002 of the Welfare and
Institutions Code, and to amend Section 1 of Chapter 868 of the
Statutes of 1998, and Section 7 of Chapter 84 of the Statutes of
1999, relating to maintenance of the codes.
LEGISLATIVE COUNSEL'S DIGEST
AB 2539, as introduced, 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 restate existing provisions of law to effectuate
the recommendations made by the Legislative Counsel to the
Legislature for consideration during 2000, and would not make any
substantive change in the law.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 651 of the Business and Professions Code is
amended to read:
651. (a) It is unlawful for any person licensed under this
division or under any initiative act referred to in this division to
disseminate or cause to be disseminated , any form
of public communication containing a false, fraudulent, misleading,
or deceptive statement, claim, or image for the purpose of or likely
to induce, directly or indirectly, the rendering of professional
services or furnishing of products in connection with the
professional practice or business for which he or she is licensed. A
"public communication" as used in this section includes, but is not
limited to, communication by means of mail, television, radio, motion
picture, newspaper, book, list or directory of healing arts
practitioners, Internet , or other electronic
communication.
(b) A false, fraudulent, misleading, or deceptive statement,
claim, or image includes a statement or claim that does any of the
following:
(1) Contains a misrepresentation of fact.
(2) Is likely to mislead or deceive because of a failure to
disclose material facts.
(3) (A) Is intended or is likely to create false or unjustified
expectations of favorable results, including the use of any
photograph or other image that does not accurately depict the results
of the procedure being advertised or that has been altered in any
manner from the image of the actual subject depicted in the
photograph or image.
(B) Use of any photograph or other image of a model without
clearly stating in a prominent location in easily readable type the
fact that the photograph or image is of a model is a violation of
subdivision (a). For purposes of this paragraph, a model is anyone
other than an actual patient, who has undergone the procedure being
advertised, of the licensee who is advertising for his or her
services.
(C) Use of any photograph or other image of an actual patient that
depicts or purports to depict the results of any procedure, or
presents "before" and "after" views of a patient, without specifying
in a prominent location in easily readable type size what procedures
were performed on that patient is a violation of subdivision (a).
Any "before" and "after" views (1) (i)
shall be comparable in presentation so that the results are not
distorted by favorable poses, lighting, or other features of
presentation, and (2) (ii) shall
contain a statement that the same "before" and "after" results may
not occur for all patients.
(4) Relates to fees, other than a standard consultation fee or a
range of fees for specific types of services, without fully and
specifically disclosing all variables and other material factors.
(5) Contains other representations or implications that in
reasonable probability will cause an ordinarily prudent person to
misunderstand or be deceived.
(6) Makes a claim either of professional superiority or of
performing services in a superior manner, unless that claim is
relevant to the service being performed and can be substantiated with
objective scientific evidence.
(7) Makes a scientific claim that cannot be substantiated by
reliable, peer reviewed, published scientific studies.
(8) Includes any statement, endorsement, or testimonial that is
likely to mislead or deceive because of a failure to disclose
material facts.
(c) Any price advertisement shall be exact, without the use of
phrases, including, but not limited to, "as low as," "and up,"
"lowest prices" prices," or words or
phrases of similar import. Any advertisement that refers to
services, or costs for services, and that uses words of comparison
shall be based on verifiable data substantiating the comparison. Any
person so advertising shall be prepared to provide information
sufficient to establish the accuracy of that comparison. Price
advertising shall not be fraudulent, deceitful, or misleading,
including statements or advertisements of bait, discount, premiums,
gifts, or any statements of a similar nature. In connection with
price advertising, the price for each product or service shall be
clearly identifiable. The price advertised for products shall
include charges for any related professional services, including
dispensing and fitting services, unless the advertisement
specifically and clearly indicates otherwise.
(d) Any person so licensed shall not compensate or give anything
of value to a representative of the press, radio, television, or
other communication medium in anticipation of, or in return for,
professional publicity unless the fact of compensation is made known
in that publicity.
(e) Any person so licensed may not use any professional card,
professional announcement card, office sign, letterhead, telephone
directory listing, medical list, medical directory listing, or a
similar professional notice or device if it includes a statement or
claim that is false, fraudulent, misleading, or deceptive within the
meaning of subdivision (b).
(f) Any person so licensed who violates this section is guilty of
a misdemeanor. A bona fide mistake of fact shall be a defense to
this subdivision , but only to this subdivision.
(g) Any violation of this section by a person so licensed shall
constitute good cause for revocation or suspension of his or her
license or other disciplinary action.
(h) Advertising by any person so licensed may include the
following:
(1) A statement of the name of the practitioner.
(2) A statement of addresses and telephone numbers of the offices
maintained by the practitioner.
(3) A statement of office hours regularly maintained by the
practitioner.
(4) A statement of languages, other than English, fluently spoken
by the practitioner or a person in the practitioner's office.
(5) (A) A statement that the practitioner is certified by a
private or public board or agency or a statement that the
practitioner limits his or her practice to specific fields. For the
purposes of this section, the statement of a practitioner licensed
under Chapter 4 (commencing with Section 1600) who limits his or her
practice to a specific field or fields , shall
only include a statement that he or she is certified or is eligible
for certification by a private or public board or parent association
recognized by that practitioner's licensing board. A statement of
certification by a practitioner licensed under Chapter 7 (commencing
with Section 3000) shall only include a statement that he or she is
certified or eligible for certification by a private or public board
or parent association recognized by that practitioner's licensing
board.
(B) A physician and surgeon licensed under Chapter 5 (commencing
with Section 2000) by the Medical Board of California may include a
statement that he or she limits his or her practice to specific
fields, but shall not include a statement that he or she is certified
or eligible for certification by a private or public board or parent
association, including, but not limited to, a multidisciplinary
board or association, unless that board or association is (i) an
American Board of Medical Specialties member board, (ii) a board or
association with equivalent requirements approved by that physician
and surgeon's licensing board, or (iii) a board or association with
an Accreditation Council for Graduate Medical Education approved
postgraduate training program that provides complete training in that
specialty or subspecialty. A physician and surgeon licensed under
Chapter 5 (commencing with Section 2000) by the Medical Board of
California who is certified by an organization other than a board or
association referred to in clause (i), (ii), or (iii) shall not use
the term "board certified" in reference to that certification, unless
the physician and surgeon is also licensed under Chapter 4
(commencing with Section 1600) and the use of the term "board
certified" in reference to that certification is in accordance with
subparagraph (A). A physician or and
surgeon licensed under Chapter 5 (commencing with Section 2000) by
the Medical Board of California who is certified by a board or
association referred to in clause (i), (ii), or (iii) shall not use
the term "board certified" unless the full name of the certifying
board is also used and given comparable prominence with the term
"board certified" in the statement.
For purposes of this subparagraph, a "multidisciplinary board or
association" means an educational certifying body that has a
psychometrically valid testing process, as determined by the Medical
Board of California, for certifying medical doctors and other health
care professionals that is based on the applicant's education,
training, and experience.
For purposes of the term "board certified," as used in this
subparagraph, the terms "board" and "association" mean an
organization that is an American Board of Medical Specialties member
board, an organization with equivalent requirements approved by a
physician and surgeon's licensing board, or an organization with an
Accreditation Council for Graduate Medical Education approved
postgraduate training program that provides complete training in a
specialty or subspecialty.
The Medical Board of California shall adopt regulations to
establish and collect a reasonable fee from each board or association
applying for recognition pursuant to this subparagraph. The fee
shall not exceed the cost of administering this subparagraph.
Notwithstanding Section 2 of Chapter 1660 of the Statutes of 1990,
this subparagraph shall become operative July 1, 1993. However, an
administrative agency or accrediting organization may take any action
contemplated by this subparagraph relating to the establishment or
approval of specialist requirements on and after January 1, 1991.
(C) A doctor of podiatric medicine licensed under Chapter 5
(commencing with Section 2000) by the Medical Board of California may
include a statement that he or she is certified or eligible or
qualified for certification by a private or public board or parent
association, including, but not limited to, a multidisciplinary board
or association, if that board or association meets one of the
following requirements: (i) is approved by the Council on Podiatric
Medical Education, (ii) is a board or association with equivalent
requirements approved by the California Board of Podiatric Medicine,
or (iii) is a board or association with the Council on Podiatric
Medical Education approved postgraduate training programs that
provide training in podiatric medicine and podiatric surgery. A
doctor of podiatric medicine licensed under Chapter 5 (commencing
with Section 2000) by the Medical Board of California who is
certified by a board or association referred to in clause (i), (ii),
or (iii) shall not use the term "board certified" unless the full
name of the certifying board is also used and given comparable
prominence with the term "board certified" in the statement. A
doctor of podiatric medicine licensed under Chapter 5 (commencing
with Section 2000) by the Medical Board of California who is
certified by an organization other than a board or association
referred to in clause (i), (ii), or (iii) shall not use the term
"board certified" in reference to that certification.
For purposes of this subparagraph, a "multidisciplinary board or
association" means an educational certifying body that has a
psychometrically valid testing process, as determined by the
California Board of Podiatric Medicine, for certifying doctors of
podiatric medicine that is based on the applicant's education,
training, and experience. For purposes of the term "board certified,"
as used in this subparagraph, the terms "board" and "association"
mean an organization that is a Council on Podiatric Medical Education
approved board, an organization with equivalent requirements
approved by the California Board of Podiatric Medicine, or an
organization with a Council on Podiatric Medical Education approved
postgraduate training program that provides training in podiatric
medicine and podiatric surgery.
The California Board of Podiatric Medicine shall adopt regulations
to establish and collect a reasonable fee from each board or
association applying for recognition pursuant to this subparagraph,
to be deposited in the State Treasury in the Podiatry Fund, pursuant
to Section 2499. The fee shall not exceed the cost of administering
this subparagraph.
(6) A statement that the practitioner provides services under a
specified private or public insurance plan or health care plan.
(7) A statement of names of schools and postgraduate clinical
training programs from which the practitioner has graduated, together
with the degrees received.
(8) A statement of publications authored by the practitioner.
(9) A statement of teaching positions currently or formerly held
by the practitioner, together with pertinent dates.
(10) A statement of his or her affiliations with hospitals or
clinics.
(11) A statement of the charges or fees for services or
commodities offered by the practitioner.
(12) A statement that the practitioner regularly accepts
installment payments of fees.
(13) Otherwise lawful images of a practitioner, his or her
physical facilities, or of a commodity to be advertised.
(14) A statement of the manufacturer, designer, style, make, trade
name, brand name, color, size, or type of commodities advertised.
(15) An advertisement of a registered dispensing optician may
include statements in addition to those specified in paragraphs (1)
to (14), inclusive, provided that any statement shall not violate
subdivision (a), (b), (c), or (e) of this section
or any other section of this code.
(16) A statement, or statements, providing public health
information encouraging preventative or corrective care.
(17) Any other item of factual information that is not false,
fraudulent, misleading, or likely to deceive.
(i) Each of the healing arts boards and examining committees
within Division 2 shall adopt appropriate regulations to enforce this
section in accordance with Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code.
Each of the healing arts boards and committees and examining
committees within Division 2 shall, by regulation, define those
efficacious services to be advertised by business
businesses or professions under their jurisdiction for the
purpose of determining whether advertisements are false or
misleading. Until a definition for that service has been issued, no
advertisement for that service shall be disseminated. However, if a
definition of a service has not been issued by a board or committee
within 120 days of receipt of a request from a licensee, all those
holding the license may advertise the service. Those boards and
committees shall adopt or modify regulations defining what services
may be advertised, the manner in which defined services may be
advertised, and restricting advertising that would promote the
inappropriate or excessive use of health services or commodities. A
board or committee shall not, by regulation, unreasonably prevent
truthful, nondeceptive price or otherwise lawful forms of advertising
of services or commodities, by either outright prohibition or
imposition of onerous disclosure requirements. However, any member of
a board or committee acting in good faith in the adoption or
enforcement of any regulation shall be deemed to be acting as an
agent of the state.
(j) The Attorney General shall commence legal proceedings in the
appropriate forum to enjoin advertisements disseminated or about to
be disseminated in violation of this section and seek other
appropriate relief to enforce this section. Notwithstanding any
other provision of law, the costs of enforcing this section to the
respective licensing boards or committees may be awarded against any
licensee found to be in violation of any provision of this section.
This shall not diminish the power of district attorneys, county
counsels, or city attorneys pursuant to existing law to seek
appropriate relief.
(k) A physician and surgeon or doctor of podiatric medicine
licensed pursuant to Chapter 5 (commencing with Section 2000) by the
Medical Board of California who knowingly and intentionally violates
this section may be cited and assessed an administrative fine not to
exceed ten thousand dollars ($10,000) per event. Section 125.9 shall
govern the issuance of this citation and fine except that the fine
limitations prescribed in paragraph (3) of subdivision (b) of Section
125.9 shall not apply to a fine under this subdivision.
SEC. 2. Section 680 of the Business and Professions Code is
amended to read:
680. (a) Except as otherwise provided in this section, a health
care practitioner shall disclose, while working, his or her name and
practitioner's license status, as granted by this state, on a name
tag in at least 18-point type. A health care practitioner in a
practice or an office, whose license is prominently displayed, may
opt to not wear a name tag. If a health care practitioner or a
licensed clinical social worker is working in a psychiatric setting
or in a setting that is not licensed by the state, the employing
entity or agency shall have the discretion to make an exception from
the name tag requirement for individual safety or therapeutic
concerns. In the interest of public safety and consumer awareness,
it shall be unlawful for any person to use the title "nurse" in
reference to himself or herself and in any capacity, except for an
individual who is a registered nurse , or a
licensed vocational nurse, or as otherwise provided in Section 2800.
Nothing in this section shall prohibit a certified nurse assistant
from using his or her title.
(b) Facilities licensed by the State Department of Social
Services, the State Department of Mental Health, or the State
Department of Health Services , shall develop and
implement policies to ensure that health care practitioners providing
care in those facilities are in compliance with subdivision (a). The
State Department of Social Services, the State Department of Mental
Health, and the State Department of Health Services shall verify
through periodic inspections that the policies required pursuant to
subdivision (a) have been developed and implemented by the respective
licensed facilities.
(c) For purposes of this article, "health care practitioner" means
any person who engages in acts that are the subject of licensure or
regulation under this division or under any initiative act referred
to in this division.
SEC. 3. Section 4112 of the Business and Professions Code is
amended to read:
4112. (a) Any pharmacy located outside this state that ships,
mails, or delivers, in any manner, controlled substances, dangerous
drugs, or dangerous devices into this state shall be considered a
nonresident pharmacy.
(b) All nonresident pharmacies shall register with the board. The
board may register a nonresident pharmacy that is organized as a
limited liability company in the state in which it is licensed.
(c) A nonresident pharmacy shall disclose to the board the
location, names, and titles of (1) its agent for service of process
in this state, (2) all principal corporate officers, if any, (3) all
general partners, if any, and (4) all pharmacists who are dispensing
controlled substances, dangerous drugs, or dangerous devices to
residents of this state. A report containing this information shall
be made on an annual basis and within 30 days after any change of
office, corporate officer, partner, or pharmacist.
(d) All nonresident pharmacies shall comply with all lawful
directions and requests for information from the regulatory or
licensing agency of the state in which it is licensed as well as with
all requests for information made by the board pursuant to this
section. The nonresident pharmacy shall maintain, at all times, a
valid unexpired license, permit, or registration to conduct the
pharmacy in compliance with the laws of the state in which it is a
resident. As a prerequisite to registering with the board, the
nonresident pharmacy shall submit a copy of the most recent
inspection report resulting from an inspection conducted by the
regulatory or licensing agency of the state in which it is located.
(e) All nonresident pharmacies shall maintain records of
controlled substances, dangerous drugs, or dangerous devices
dispensed to patients in this state so that the records are readily
retrievable from the records of other drugs dispensed.
(f) Any pharmacy subject to this section shall, during its regular
hours of operation, but not less than six days per week, and for a
minimum of 40 hours per week, provide a toll-free telephone service
to facilitate communication between patients in this state and a
pharmacist at the pharmacy who has access to the patient's records.
This toll-free telephone number shall be disclosed on a
label affixed to each container of drugs dispensed to patients in
this state.
(g) The board shall adopt regulations that apply the same
requirements or standards for oral consultation to a nonresident
pharmacy that operates pursuant to this section and ships, mails, or
delivers any controlled substances, dangerous drugs, or dangerous
devices to residents of this state, as are applied to an in-state
pharmacy that operates pursuant to Section 4037 when the pharmacy
ships, mails, or delivers any controlled substances, dangerous drugs,
or dangerous devices to residents of this state. The board shall
not adopt any regulations that require face-to-face consultation for
a prescription that is shipped, mailed, or delivered to the patient.
The regulations adopted pursuant to this subdivision shall not
result in any unnecessary delay in patients receiving their
medication.
(h) The registration fee shall be the fee specified in subdivision
(a) of Section 4400.
(i) The registration requirements of this section shall apply only
to a nonresident pharmacy that ships, mails, or delivers controlled
substances, dangerous drugs, and dangerous devices into this state
pursuant to a prescription.
(j) Nothing in this section shall be construed to authorize the
dispensing of contact lens lenses by
nonresident pharmacists except as provided by Section 4124.
SEC. 4. Section 4982 of the Business and Professions Code is
amended to read:
4982. The board may refuse to issue any registration or license,
or may suspend or revoke the license or registration of any
registrant or licensee if the applicant, licensee, or registrant has
been guilty of unprofessional conduct. Unprofessional conduct shall
include, but not be limited to:
(a) The conviction of a crime substantially related to the
qualifications, functions, or duties of a licensee or registrant
under this chapter. The record of conviction shall be conclusive
evidence only of the fact that the conviction occurred. The board
may inquire into the circumstances surrounding the commission of the
crime in order to fix the degree of discipline or to determine if the
conviction is substantially related to the qualifications,
functions, or duties of a licensee or registrant under this chapter.
A plea or verdict of guilty or a conviction following a plea of nolo
contendere made to a charge substantially related to the
qualifications, functions, or duties of a licensee or registrant
under this chapter shall be deemed to be a conviction within the
meaning of this section. The board may order any license or
registration suspended or revoked, or may decline to issue a license
or registration when the time for appeal has elapsed, or the judgment
of conviction has been affirmed on appeal, or, when an order
granting probation is made suspending the imposition of sentence,
irrespective of a subsequent order under Section 1203.4 of the Penal
Code allowing any such person to withdraw a plea of guilty and enter
a plea of not guilty, or setting aside the verdict of guilty, or
dismissing the accusation, information, or indictment.
(b) Securing a license or registration by fraud, deceit, or
misrepresentation on any application for licensure or registration
submitted to the board, whether engaged in by an applicant for a
license or registration, or by a licensee in support of any
application for licensure or registration.
(c) Administering to himself or herself any controlled substance
or using of any of the dangerous drugs specified in Section 4211, or
of any alcoholic beverage to the extent, or in a manner, as to be
dangerous or injurious to the person applying for a registration or
license or holding a registration or license under this chapter, or
to any other person, or to the public, or, to the extent that the use
impairs the ability of the person applying for or holding a
registration or license to conduct with safety to the public the
practice authorized by the registration or license, or the conviction
of more than one misdemeanor or any felony involving the use,
consumption, or self-administration of any of the substances referred
to in this subdivision, or any combination thereof. The board shall
deny an application for a registration or license or revoke the
license or registration of any person, other than one who is licensed
as a physician and surgeon, who uses or offers to use drugs in the
course of performing marriage, family, and child counseling services.
(d) Gross negligence or incompetence in the performance of
marriage, family, and child counseling.
(e) Violating, attempting to violate, or conspiring to violate any
of the provisions of this chapter or any regulation adopted by the
board.
(f) Misrepresentation as to the type or status of a license or
registration held by the person, or otherwise misrepresenting or
permitting misrepresentation of his or her education, professional
qualifications, or professional affiliations to any person or entity.
(g) Impersonation of another by any licensee, registrant, or
applicant for a license or registration, or, in the case of a
licensee, allowing any other person to use his or her license or
registration.
(h) Aiding or abetting, or employing, directly or indirectly, any
unlicensed or unregistered person to engage in conduct for which a
license or registration is required under this chapter.
(i) Intentionally or recklessly causing physical or emotional harm
to any client.
(j) The commission of any dishonest, corrupt, or fraudulent act
substantially related to the qualifications, functions, or duties of
a licensee or registrant.
(k)
Engaging in sexual relations with a client, or a former client within
two years following termination of therapy, soliciting sexual
relations with a client, or committing an act of sexual abuse, or
sexual misconduct with a client, or committing an act punishable as a
sexually related crime, if that act or solicitation is substantially
related to the qualifications, functions, or duties of a marriage,
family, and child counselor.
(l) Performing, or holding one's self
oneself out as being able to perform, or offering to perform,
or permitting any registered trainee or registered intern under
supervision to perform, any professional services beyond the scope of
the license authorized by this chapter.
(m) Failure to maintain confidentiality, except as otherwise
required or permitted by law, of all information that has been
received from a client in confidence during the course of treatment
and all information about the client which is obtained from tests or
other means.
(n) Prior to the commencement of treatment, failing to disclose to
the client or prospective client the fee to be charged for the
professional services, or the basis upon which that fee will be
computed.
(o) Paying, accepting, or soliciting any consideration,
compensation, or remuneration, whether monetary or otherwise, for the
referral of professional clients. All consideration, compensation,
or remuneration shall be in relation to professional counseling
services actually provided by the licensee. Nothing in this
subdivision shall prevent collaboration among two or more licensees
in a case or cases. However, no fee shall be charged for that
collaboration, except when disclosure of the fee has been made in
compliance with subdivision (n).
(p) Advertising in a manner which is false, misleading, or
deceptive.
(q) Reproduction or description in public, or in any publication
subject to general public distribution, of any psychological test or
other assessment device, the value of which depends in whole or in
part on the naivete of the subject, in ways that might invalidate the
test or device.
(r) Any conduct in the supervision of any registered intern or
registered trainee by any licensee that violates this chapter or any
rules or regulations adopted by the board.
(s) Performing or holding one's self
oneself out as being able to perform ,
professional services beyond the scope of one's competence, as
established by one's education, training, or experience. This
subdivision shall not be construed to expand the scope of the license
authorized by this chapter.
(t) Permitting a registered trainee or registered intern under one'
s supervision or control to perform, or permitting the registered
trainee or registered intern to hold one's self
himself or herself out as competent to perform,
professional services beyond the registered trainee's or registered
intern's level of education, training, or experience.
(u) The violation of any statute or regulation governing the
gaining and supervision of experience required by this chapter.
(v) Failure to keep records consistent with sound clinical
judgment, the standards of the profession, and the nature of the
services being rendered.
SEC. 5. Section 4998 of the Business and Professions Code is
amended to read:
4998. A licensed clinical social worker corporation is a
corporation that is authorized to render professional services, as
defined in Section 13401 of the Corporations Code, so long as that
corporation and its shareholders, officers, directors, and employees
rendering professional services who are licensed clinical social
workers, physicians and surgeons, psychologists, marriage, family,
and child counselors, registered nurses, chiropractors, or
acupuncturists are in compliance with the Moscone-Knox Professional
Corporation Act (Part 4 (commencing with Section 13400) of Division 3
of Title 1 of the Corporations Code), this article, and all other
statutes and regulations now or hereafter enacted or adopted
pertaining to that corporation and the conduct of its affairs. With
respect to a licensed clinical social workers
worker corporation, the governmental agency referred to in the
Moscone-Knox Professional Corporation Act is the Board of Behavioral
Sciences.
SEC. 6. Section 4998.2 of the Business and Professions Code is
amended to read:
4998.2. Notwithstanding Section 4996, the name of a licensed
clinical social workers worker
corporation and any name or names under which it may be rendering
professional services shall contain the words "licensed clinical
social worker" and wording or abbreviations denoting corporate
existence.
A licensed clinical social workers worker
corporation that conducts business under a fictitious business
name shall not use any name which is false, misleading, or deceptive,
and shall inform the patient, prior to the commencement of
treatment, that the business is conducted by a licensed clinical
social workers worker corporation.
SEC. 7. Section 4998.5 of the Business and Professions Code is
amended to read:
4998.5. A licensed clinical social workers
worker corporation shall not do or fail to do any act the
doing of which or the failure to do which would constitute
unprofessional conduct under any statute, rule, or regulation now or
hereafter in effect. In the conduct of its practice, it shall
observe and be bound by those statutes, rules, and regulations to the
same extent as a person holding a license as a licensed clinical
social worker.
SEC. 8. Section 4998.6 of the Business and Professions Code is
amended to read:
4998.6. The board may formulate and enforce rules and regulations
to carry out the purposes and objectives of this article, including
rules and regulations requiring (a) that the articles of
incorporation or bylaws of a licensed clinical social
workers worker corporation shall include a
provision whereby the capital stock of that corporation owned by a
disqualified person, as defined in the Moscone-Knox Professional
Corporation Act, or a deceased person , shall be
sold to the corporation or to the remaining shareholders of that
corporation within such the time
as that the rules and regulations may
provide, and (b) that a licensed clinical social worker corporation
shall provide adequate security by insurance or otherwise for claims
against it by its patients arising out of the rendering of
professional services.
SEC. 9. Section 6086.65 of the Business and Professions Code is
amended to read:
6086.65. (a) There is a Review Department of the State Bar Court
, that consists of the Presiding Judge of the
State Bar Court and two Review Department Judges appointed by the
Supreme Court. The judges of the Review Department shall be
nominated, appointed , and subject to
discipline as provided by in
subdivision (a) of Section 6079.1, shall be qualified as provided
by in subdivision (b) of Section
6079.1, and shall be compensated as provided for the Presiding Judge
by in subdivision (d) of Section
6079.1. However, the two Review Department Judges may be appointed
to, and paid as, positions occupying one-half the time and pay of the
Presiding Judge. Candidates shall be rated and screened by the board
as provided in subdivision (c) of Section 6079.1.
(b) The board may fix a date no later than September 1, 1989, on
which all proceedings pending before the Review Department shall be
decided by judges of the Review Department appointed under this
section. The Review Department in existence on June 30, 1989, may
continue on and after July 1, 1989, to exercise the duties and powers
under prior Section 6086.6 as to any matter assigned to it prior to
the date set by the board pursuant to this section.
(c) The Presiding Judge of the State Bar Court shall appoint an
Executive Committee of the State Bar Court of no fewer than seven
persons, including one person who has never been a member of the
State Bar or admitted to practice law before any court in the United
States. The Executive Committee may adopt rules of practice for the
operation of the State Bar Court as provided in Section 6086.5.
(d) Any decision or order reviewable by the Review Department and
issued by a judge of the State Bar Court appointed pursuant to
Section 6079.1 may be reviewed only upon timely request of a party to
the proceeding and not on the Review Department's own motion.
Unless otherwise provided by a rule of practice or procedure approved
by the Supreme Court, the party requesting review shall have the
burden of showing one of the following:
(1) The Hearing Department did not proceed in the manner required
by law.
(2) The findings of the Hearing Department are not supported by
substantial evidence.
(3) The decision or recommendation of the Hearing Department is
clearly erroneous.
(e) This section shall become operative on November 1, 2000.
SEC. 10. Section 17537.11 of the Business and Professions Code is
amended to read:
17537.11. (a) It is unlawful for any person to offer a coupon
that is in any manner untrue or misleading.
(b) It is unlawful for any person to offer a coupon described as
"free" or as a "gift," "prize," or other similar term if (1) the
recipient of the coupon has is required
to pay money or buy any good or service
goods or services to obtain or use the coupon , and
(2) the person offering the coupon or anyone honoring the coupon made
the majority of his or her sales in the preceding year in connection
with one or more "free," "gift," "prize," or similarly described
coupons.
(c) For purposes of this section:
(1) "Coupon" includes any coupon, certificate, document, discount,
or similar matter that purports to entitle the user of the coupon to
obtain goods or services for free or for a special or reduced price.
(2) "Sale" includes lease or rent.
SEC. 11. Section 1102.2 of the Civil Code is amended to read:
1102.2. This article does not apply to the following:
(a) Transfers which are required to be preceded by the furnishing
to a prospective transferee of a copy of a public report pursuant to
Section 11018.1 of the Business and Professions Code and transfers
which can be made without a public report pursuant to Section 11010.4
of the Business and Professions Code.
(b) Transfers pursuant to court order, including, but not limited
to, transfers ordered by a probate court in the administration of an
estate, transfers pursuant to a writ of execution, transfers by any
foreclosure sale, transfers by a trustee in bankruptcy, transfers by
eminent domain, and transfers resulting from a decree for specific
performance.
(c) Transfers to a mortgagee by a mortgagor or successor in
interest who is in default, transfers to a beneficiary of a deed of
trust by a trustor or successor in interest who is in default,
transfers by any foreclosure sale after default, transfers by any
foreclosure sale after default in an obligation secured by a
mortgage, transfers by a sale under a power of sale or any
foreclosure sale under a decree of foreclosure after default in an
obligation secured by a deed of trust or secured by any other
instrument containing a power of sale, transfers by a mortgagee or a
beneficiary under a deed of trust who has acquired the real property
at a sale conducted pursuant to a power of sale under a mortgage or
deed of trust or a sale pursuant to a decree of foreclosure or has
acquired the real property by a deed in lieu of foreclosure,
transfers to the legal owner or lienholder of a manufactured home or
mobilehome by a registered owner of or
successor in interest who is in default, or transfers by reason of
any foreclosure of a security interest in a manufactured home or
mobilehome.
(d) Transfers by a fiduciary in the course of the administration
of a decedent's estate, guardianship, conservatorship, or trust.
This exemption shall not apply to a transfer if the trustee is a
natural person who is sole trustee of a revocable trust and he or she
is a former owner of the property or an occupant in possession of
the property within the preceding year.
(e) Transfers from one coowner to one or more other coowners.
(f) Transfers made to a spouse, or to a person or persons in the
lineal line of consanguinity of one or more of the transferors.
(g) Transfers between spouses resulting from a judgment of
dissolution of marriage or of legal separation or from a property
settlement agreement incidental to that judgment.
(h) Transfers by the Controller in the course of administering
Chapter 7 (commencing with Section 1500) of Title 10 of Part 3 of the
Code of Civil Procedure.
(i) Transfers under Chapter 7 (commencing with Section 3691) or
Chapter 8 (commencing with Section 3771) of Part 6 of Division 1 of
the Revenue and Taxation Code.
(j) Transfers or exchanges to or from any governmental entity.
SEC. 12. Section 1103 of the Civil Code is amended to read:
1103. (a) Except as provided in Section 1103.2
1103.1 , this article applies to any transfer by sale,
exchange, installment land sale contract, as defined in Section 2985,
lease with an option to purchase, any other option to purchase, or
ground lease coupled with improvements, of any real property
described in subdivision (c), or residential stock cooperative,
improved with or consisting of not less than one nor more than four
dwelling units.
(b) Except as provided in Section 1103.2
1103.1 , this article shall apply to a resale transaction
entered into on or after January 1, 2000, for a manufactured home, as
defined in Section 18007 of the Health and Safety Code, that is
classified as personal property intended for use as a residence, or a
mobilehome, as defined in Section 18008 of the Health and Safety
Code, that is classified as personal property intended for use as a
residence, if the real property on which the manufactured home or
mobilehome is located is real property described in subdivision (c).
(c) This article shall apply to the transactions described in
subdivisions (a) and (b) only if the transferor or his or her agent
are required by one or more of the following to disclose the property'
s location within a hazard zone:
(1) A person who is acting as an agent for a transferor of real
property that is located within a special flood hazard area (any type
Zone "A" or "V") designated by the Federal Emergency Management
Agency, or the transferor if he or she is acting without an agent,
shall disclose to any prospective transferee the fact that the
property is located within a special flood hazard area if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within a special flood hazard area.
(B) The local jurisdiction has compiled a list, by parcel, of
properties that are within the special flood hazard area and a notice
has been posted at the offices of the county recorder, county
assessor, and county planning agency that identifies the location of
the parcel list.
(2) A person who is acting as an agent for a transferor of real
property that is located within an area of potential flooding,
designated pursuant to Section 8589.5 of the Government Code, or the
transferor if he or she is acting without an agent, shall disclose to
any prospective transferee the fact that the property is located
within an area of potential flooding if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within an inundation area.
(B) The local jurisdiction has compiled a list, by parcel, of
properties that are within the inundation area and a notice has been
posted at the offices of the county recorder, county assessor, and
county planning agency that identifies the location of the parcel
list.
(3) A transferor of real property that is located within a very
high fire hazard severity zone, designated pursuant to Section 51178
of the Public Resources Code, shall disclose to any prospective
transferee the fact that the property is located within a very high
fire hazard severity zone and is subject to the requirements of
Section 51182 if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within a very high fire hazard
severity zone.
(B) A map that includes the property has been provided to the
local agency pursuant to Section 51178 of the Public Resources Code
and a notice has been posted at the offices of the county recorder,
county assessor, and county planning agency that identifies the
location of the map and any information regarding changes to the map
received by the local agency.
(4) A person who is acting as an agent for a transferor of real
property that is located within an earthquake fault zone, designated
pursuant to Section 2622 of the Public Resources Code, or the
transferor if he or she is acting without an agent, shall disclose to
any prospective transferee the fact that the property is located
within a delineated earthquake fault zone if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within a delineated earthquake fault
zone.
(B) A map that includes the property has been provided to the city
or county pursuant to Section 2622 of the Public Resources Code and
a notice has been posted at the offices of the county recorder,
county assessor, and county planning agency that identifies the
location of the map and any information regarding changes to the map
received by the county.
(5) A person who is acting as an agent for a transferor of real
property that is located within a seismic hazard zone, designated
pursuant to Section 2696 of the Public Resources Code, or the
transferor if he or she is acting without an agent, shall disclose to
any prospective transferee the fact that the property is located
within a seismic hazard zone if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within a seismic hazard zone.
(B) A map that includes the property has been provided to the city
or county pursuant to Section 2696 of the Public Resources Code and
a notice has been posted at the offices of the county recorder,
county assessor, and county planning agency that identifies the
location of the map and any information regarding changes to the map
received by the county.
(6) A transferor of real property that is located within a state
responsibility area determined by the board, pursuant to Section 4125
of the Public Resources Code, shall disclose to any prospective
transferee the fact that the property is located within a wildland
area that may contain substantial forest fire risks and hazards and
is subject to the requirements of Section 4291 if either:
(A) The transferor, or the transferor's agent, has actual
knowledge that the property is within a wildland fire zone.
(B) A map that includes the property has been provided to the city
or county pursuant to Section 4125 of the Public Resources Code and
a notice has been posted at the offices of the county recorder,
county assessor, and county planning agency that identifies the
location of the map and any information regarding changes to the map
received by the county.
(d) Any waiver of the requirements of this article is void as
against public policy.
SEC. 13. Section 2924c of the Civil Code is amended to read:
2924c. (a) (1) Whenever all or a portion of the principal sum of
any obligation secured by deed of trust or mortgage on real property
or an estate for years therein hereafter executed has, prior to the
maturity date fixed in that obligation, become due or been declared
due by reason of default in payment of interest or of any installment
of principal, or by reason of failure of trustor or mortgagor to
pay, in accordance with the terms of that obligation or of the deed
of trust or mortgage, taxes, assessments, premiums for insurance, or
advances made by beneficiary or mortgagee in accordance with the
terms of that obligation or of the deed of trust or mortgage, the
trustor or mortgagor or his or her successor in interest in the
mortgaged or trust property or any part thereof, or any beneficiary
under a subordinate deed of trust or any other person having a
subordinate lien or encumbrance of record thereon, at any time within
the period specified in subdivision (e), if the power of sale
therein is to be exercised, or, otherwise at any time prior to entry
of the decree of foreclosure, may pay to the beneficiary or the
mortgagee or their successors in interest, respectively, the entire
amount due, at the time payment is tendered, with respect to (A) all
amounts of principal, interest, taxes, assessments, insurance
premiums, or advances actually known by the beneficiary to be, and
that are, in default and shown in the notice of default, under the
terms of the deed of trust or mortgage and the obligation secured
thereby, (B) all amounts in default on recurring obligations not
shown in the notice of default, and (C) all reasonable costs and
expenses, subject to subdivision (c), which are actually incurred in
enforcing the terms of the obligation, deed of trust, or mortgage,
and trustee's or attorney's fees, subject to subdivision (d), other
than the portion of principal as would not then be due had no default
occurred, and thereby cure the default theretofore existing, and
thereupon, all proceedings theretofore had or instituted shall be
dismissed or discontinued and the obligation and deed of trust or
mortgage shall be reinstated and shall be and remain in force and
effect, the same as if the acceleration had not occurred. This
section does not apply to bonds or other evidences of indebtedness
authorized or permitted to be issued by the Commissioner of
Corporations or made by a public utility subject to the Public
Utilities Code. For the purposes of this subdivision, the term
"recurring obligation" means all amounts of principal and interest on
the loan, or rents, subject to the deed of trust or mortgage in
default due after the notice of default is recorded; all amounts of
principal and interest or rents advanced on senior liens or
leaseholds which are advanced after the recordation of the notice of
default; and payments of taxes, assessments, and hazard insurance
advanced after recordation of the notice of default. Where the
beneficiary or mortgagee has made no advances on defaults which would
constitute recurring obligations, the beneficiary or mortgagee may
require the trustor or mortgagor to provide reliable written evidence
that the amounts have been paid prior to reinstatement.
(2) If the trustor, mortgagor, or other person authorized to cure
the default pursuant to this subdivision does cure the default, the
beneficiary or mortgagee or the agent for the beneficiary or
mortgagee shall, within 21 days following the reinstatement, execute
and deliver to the trustee a notice of rescission which rescinds the
declaration of default and demand for sale and advises the trustee of
the date of reinstatement. The trustee shall cause the notice of
rescission to be recorded within 30 days of receipt of the notice of
rescission and of all allowable fees and costs.
No charge, except for the recording fee, shall be made against the
trustor or mortgagor for the execution and recordation of the notice
which rescinds the declaration of default and demand for sale.
(b) (1) The notice, of any default described in this section,
recorded pursuant to Section 2924, and mailed to any person pursuant
to Section 2924b, shall begin with the following statement, printed
or typed thereon:
"IMPORTANT NOTICE (14-point boldface type if printed or in
capital letters if typed)
IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR
PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, (14-point boldface
type if printed or in capital letters if typed) and you may have the
legal right to bring your account in good standing by paying all of
your past due payments plus permitted costs and expenses within the
time permitted by law for reinstatement of your account, which is
normally five business days prior to the date set for the sale of
your property. No sale date may be set until three months from the
date this notice of default may be recorded (which date of
recordation appears on this notice).
This amount is ___________________ as of ______________________
(Date)
and will increase until your account becomes current.
While your property is in foreclosure, you still must pay other
obligations (such as insurance and taxes) required by your note and
deed of trust or mortgage. If you fail to make future payments on
the loan, pay taxes on the property, provide insurance on the
property, or pay other obligations as required in the note and deed
of trust or mortgage, the beneficiary or mortgagee may insist that
you do so in order to reinstate your account in good standing. In
addition, the beneficiary or mortgagee may require as a condition to
reinstatement that you provide reliable written evidence that you
paid all senior liens, property taxes, and hazard insurance premiums.
Upon your written request, the beneficiary or mortgagee will give
you a written itemization of the entire amount you must pay. You may
not have to pay the entire unpaid portion of your account, even
though full payment was demanded, but you must pay all amounts in
default at the time payment is made. However, you and your
beneficiary or mortgagee may mutually agree in writing prior to the
time the notice of sale is posted (which may not be earlier than the
end of the three-month period stated above) to, among other things,
1) (1) provide additional time in which
to cure the default by transfer of the property or otherwise; or (2)
establish a schedule of payments in order to cure your default; or
both (1) and (2).
Following the expiration of the time period referred to in the
first paragraph of this notice, unless the obligation being
foreclosed upon or a separate written agreement between you and your
creditor permits a longer period, you have only the legal right to
stop the sale of your property by paying the entire amount demanded
by your creditor.
To find out the amount you must pay, or to arrange for payment to
stop the foreclosure, or if your property is in foreclosure for any
other reason, contact:
______________________________________
(Name of beneficiary or mortgagee)
______________________________________
(Mailing address)
______________________________________
(Telephone)
If you have any questions, you should contact a lawyer or the
governmental agency which may have insured your loan.
Notwithstanding the fact that your property is in foreclosure, you
may offer your property for sale, provided the sale is concluded
prior to the conclusion of the foreclosure.
Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT
ACTION. (14-point boldface type if printed or in capital letters if
typed)"
Unless otherwise specified, the notice, if printed, shall appear
in at least 12-point boldface type.
If the obligation secured by the deed of trust or mortgage is a
contract or agreement described in paragraph (1) or (4) of
subdivision (a) of Section 1632, the notice required herein shall be
in Spanish if the trustor requested a Spanish language translation of
the contract or agreement pursuant to Section 1632. If the
obligation secured by the deed of trust or mortgage is contained in a
home improvement contract, as defined in Sections 7151.2 and 7159 of
the Business and Professions Code, which is subject to Title 2
(commencing with Section 1801), the seller shall specify on the
contract whether or not the contract was principally negotiated in
Spanish and if the contract was principally negotiated in Spanish,
the notice required herein shall be in Spanish. No assignee of the
contract or person authorized to record the notice of default shall
incur any obligation or liability for failing to mail a notice in
Spanish unless Spanish is specified in the contract or the assignee
or person has actual knowledge that the secured obligation was
principally negotiated in Spanish. Unless specified in writing to
the contrary, a copy of the notice required by subdivision (c) of
Section 2924b shall be in English.
(2) Any failure to comply with the provisions of this subdivision
shall not affect the validity of a sale in favor of a bona fide
purchaser or the rights of an encumbrancer for value and without
notice.
(c) Costs and expenses which may be charged pursuant to Sections
2924 to 2924i, inclusive, shall be limited to the costs incurred for
recording, mailing, including certified and express mail charges,
publishing, and posting notices required by Sections 2924 to 2924i,
inclusive, postponement pursuant to Section 2924g not to exceed fifty
dollars ($50) per postponement and a fee for a trustee's sale
guarantee or, in the event of judicial foreclosure, a litigation
guarantee. For purposes of this subdivision, a trustee or
beneficiary may purchase a trustee's sale guarantee at a rate meeting
the standards contained in Sections 12401.1 and 12401.3 of the
Insurance Code.
(d) Trustee's or attorney's fees which may be charged pursuant to
subdivision (a), or until the notice of sale is deposited in the mail
to the trustor as provided in Section 2924b, if the sale is by power
of sale contained in the deed of trust or mortgage, or, otherwise at
any time prior to the decree of foreclosure, are hereby authorized
to be in an amount which does not exceed two hundred forty dollars
($240) with respect to any portion of the unpaid principal sum
secured which is fifty thousand dollars ($50,000) or less, plus
one-half of 1 percent of the unpaid principal sum secured exceeding
fifty thousand dollars ($50,000) up to and including one hundred
fifty thousand dollars ($150,000), plus one-quarter of 1 percent of
any portion of the unpaid principal sum secured exceeding one hundred
fifty thousand dollars ($150,000) up to and including five hundred
thousand dollars ($500,000), plus one-eighth of 1 percent of any
portion of the unpaid principal sum secured exceeding five hundred
thousand dollars ($500,000). Any charge for trustee's or attorney's
fees authorized by this subdivision shall be conclusively presumed to
be lawful and valid where the charge does not exceed the amounts
authorized herein. For purposes of this subdivision, the unpaid
principal sum secured shall be determined as of the date the notice
of default is recorded.
(e) Reinstatement of a monetary default under the terms of an
obligation secured by a deed of trust, or mortgage may be made at any
time within the period commencing with the date of recordation of
the notice of default until five business days prior to the date of
sale set forth in the initial recorded notice of sale.
In the event the sale does not take place on the date set forth in
the initial recorded notice of sale or a subsequent recorded notice
of sale is required to be given, the right of reinstatement shall be
revived as of the date of recordation of the subsequent notice of
sale, and shall continue from that date until five business days
prior to the date of sale set forth in the subsequently recorded
notice of sale.
In the event the date of sale is postponed on the date of sale set
forth in either an initial or any subsequent notice of sale, or is
postponed on the date declared for sale at an immediately preceding
postponement of sale, and, the postponement is for a period which
exceeds five business days from the date set forth in the notice of
sale, or declared at the time of postponement, then the right of
reinstatement is revived as of the date of postponement and shall
continue from that date until five business days prior to the date of
sale declared at the time of the postponement.
Nothing contained herein shall give rise to a right of
reinstatement during the period of five business days prior to the
date of sale, whether the date of sale is noticed in a notice of sale
or declared at a postponement of sale.
Pursuant to the terms of this subdivision, no beneficiary,
trustee, mortgagee, or their agents or successors shall be liable in
any manner to a trustor, mortgagor, their agents or successors or any
beneficiary under a subordinate deed of trust or mortgage or any
other person having a subordinate lien or encumbrance of record
thereon for the failure to allow a reinstatement of the obligation
secured by a deed of trust or mortgage during the period of five
business days prior to the sale of the security property, and no such
right of reinstatement during this period is created by this
section. Any right of reinstatement created by this section is
terminated five business days prior to the date of sale set forth in
the initial date of sale, and is revived only as prescribed herein
and only as of the date set forth herein.
As used in this subdivision, the term "business day" has the same
meaning as specified in Section 9.
SEC. 14. Section 131.4 of the Code of Civil Procedure is amended
to read:
131.4. Any of the duties of the probation officer may be
performed by a deputy probation officer and shall be performed by him
or her whenever detailed to perform the same by the
probation officer; and it shall be the duty of the probation officer
to see that the deputy probation officer performs his or her
duties.
Such probation officer and each deputy probation officer shall
have, as to the person so committed to the care of such probation
officer or deputy probation officer, the powers of a peace officer.
The probation officers and deputy probation officers
appointed under section 131.2 of this code shall serve as
such probation officers in all courts having original jurisdiction of
criminal actions in this State.
SEC. 15. Section 703.140 of the Code of Civil Procedure is amended
to read:
703.140. (a) In a case under Title 11 of the United States Code,
all of the exemptions provided by this chapter , including
the homestead exemption, other than the provisions of subdivision
(b) are applicable regardless of whether there is a money judgment
against the debtor or whether a money judgment is being enforced by
execution sale or any other procedure, but the exemptions provided by
subdivision (b) may be elected in lieu of all other exemptions
provided by this chapter, as follows:
(1) If a husband and wife are joined in the petition, they jointly
may elect to utilize the applicable exemption provisions of this
chapter other than the provisions of subdivision (b), or to utilize
the applicable exemptions set forth in subdivision (b), but not both.
(2) If the petition is filed individually, and not jointly, for a
husband or a wife, the exemptions provided by this chapter other than
the provisions of subdivision (b) are applicable, except that, if
both the husband and the wife effectively waive in writing the right
to claim, during the period the case commenced by filing the petition
is pending, the exemptions provided by the applicable exemption
provisions of this chapter, other than subdivision (b), in any case
commenced by filing a petition for either of them under Title 11 of
the United States Code, then they may elect to instead utilize the
applicable exemptions set forth in subdivision (b).
(3) If the petition is filed for an unmarried person, that person
may elect to utilize the applicable exemption provisions of this
chapter other than subdivision (b), or to utilize the applicable
exemptions set forth in subdivision (b), but not both.
(b) The following exemptions may be elected as provided in
subdivision (a):
(1) The debtor's aggregate interest, not to exceed fifteen
thousand dollars ($15,000) in value, in real property or personal
property that the debtor or a dependent of the debtor uses as a
residence, in a cooperative that owns property that the debtor or a
dependent of the debtor uses as a residence, or in a burial plot for
the debtor or a dependent of the debtor.
(2) The debtor's interest, not to exceed two thousand four hundred
dollars ($2,400) in value, in one motor vehicle.
(3) The debtor's interest, not to exceed four hundred dollars
($400) in value in any particular item, in household furnishings,
household goods, wearing apparel, appliances, books, animals, crops,
or musical instruments, that are held primarily for the personal,
family, or household use of the debtor or a dependent of the debtor.
(4) The debtor's aggregate interest, not to exceed one thousand
dollars ($1,000) in value, in jewelry held primarily for the
personal, family, or household use of the debtor or a dependent of
the debtor.
(5) The debtor's aggregate interest, not to exceed in value eight
hundred dollars ($800) plus any unused amount of the exemption
provided under paragraph (1), in any property.
(6) The debtor's aggregate interest, not to exceed one thousand
five hundred dollars ($1,500) in value, in any implements,
professional books, or tools of the trade of the debtor or the trade
of a dependent of the debtor.
(7) Any unmatured life insurance contract owned by the debtor,
other than a credit life insurance contract.
(8) The debtor's aggregate interest, not to exceed in value eight
thousand dollars ($8,000) , in any accrued dividend or
interest under, or loan value of, any unmatured life insurance
contract owned by the debtor under which the insured is the debtor or
an individual of whom the debtor is a dependent.
(9) Professionally prescribed health aids for the debtor or a
dependent of the debtor.
(10) The debtor's right to receive any of the following:
(A) A social security benefit, unemployment compensation, or a
local public assistance benefit.
(B) A veterans' benefit.
(C) A disability, illness, or unemployment benefit.
(D) Alimony, support, or separate maintenance, to the extent
reasonably necessary for the support of the debtor and any dependent
of the debtor.
(E) A payment under a stock bonus, pension, profit-sharing,
annuity, or similar plan or contract on account of illness,
disability, death, age, or length of service, to the extent
reasonably necessary for the support of the debtor and any dependent
of the debtor, unless all of the following apply:
(i) That plan or contract was established by or under the auspices
of an insider that employed the debtor at the time the debtor's
rights under the plan or contract arose.
(ii) The payment is on account of age or length of service.
(iii) That plan or contract does not qualify under Section 401(a),
403(a), 403(b), 408, or 408A of the Internal Revenue Code of 1986.
(11) The debtor's right to receive, or property that is traceable
to, any of the following:
(A) An award under a crime victim's reparation law.
(B) A payment on account of the wrongful death of an individual of
whom the debtor was a dependent, to the extent reasonably necessary
for the support of the debtor and any dependent of the debtor.
(C) A payment under a life insurance contract that insured the
life of an individual of whom the debtor was a dependent on the date
of that individual's death, to the extent reasonably necessary for
the support of the debtor and any dependent of the debtor.
(D) A payment, not to exceed fifteen thousand dollars ($15,000),
on account of personal bodily injury, not including pain and
suffering or compensation for actual pecuniary loss, of the debtor or
an individual of whom the debtor is a dependent.
(E) A payment in compensation of loss of future earnings of the
debtor or an individual of whom the debtor is or was a dependent, to
the extent reasonably necessary for the support of the debtor and any
dependent of the debtor.
SEC. 16. Section 704.115 of the Code of Civil Procedure is amended
to read:
704.115. (a) As used in this section, "private retirement plan"
means:
(1) Private retirement plans, including, but not limited to, union
retirement plans.
(2) Profit-sharing plans designed and used for retirement
purposes.
(3) Self-employed retirement plans and individual retirement
annuities or accounts provided for in the Internal Revenue Code of
1986, as amended, including individual retirement accounts qualified
under Section 408 or 408A of that code, to the extent the amounts
held in the plans, annuities, or accounts do not exceed the maximum
amounts exempt from federal income taxation under that code.
(b) All amounts held, controlled, or in process of distribution by
a private retirement plan, for the payment of benefits as an
annuity, pension, retirement allowance, disability payment, or death
benefit from a private retirement plan are exempt.
(c) Notwithstanding subdivision (b), where an amount described in
subdivision (b) becomes payable to a person and is sought to be
applied to the satisfaction of a judgment for child, family, or
spousal support against that person:
(1) Except as provided in paragraph (2), the amount is exempt only
to the extent that the court determines under subdivision (c) of
Section 703.070.
(2) If the amount sought to be applied to the satisfaction of the
judgment is payable periodically, the amount payable is subject to an
earnings assignment order for support as defined in Section 706.011
or any other applicable enforcement procedure, but the amount to be
withheld pursuant to the assignment order or other procedure shall
not exceed the amount permitted to be withheld on an earnings
withholding order for support under Section 706.052.
(d) After payment, the amounts described in subdivision (b) and
all contributions and interest thereon returned to any member of a
private retirement plan are exempt.
(e) Notwithstanding subdivisions (b) and (d), except as provided
in subdivision (f), the amounts described in paragraph (3) of
subdivision (a) are exempt only to the extent necessary to provide
for the support of the judgment debtor when the judgment debtor
retires and for the support of the spouse and dependents of the
judgment debtor, taking into account all resources that are likely to
be available for the support of the judgment debtor when the
judgment debtor retires. In determining the amount to be exempt
under this subdivision, the court shall allow the judgment debtor
such additional amount as is necessary to pay any federal and state
income taxes payable as a result of the applying of an amount
described in paragraph (3) of subdivision (a) to the satisfaction of
the money judgment.
(f) Where the amounts described in paragraph (3) of subdivision
(a) are payable periodically, the amount of the periodic payment that
may be applied to the satisfaction of a money judgment is the amount
that may be withheld from a like amount of earnings under Chapter 5
(commencing with Section 706.010) (Wage Garnishment Law). To the
extent a lump sum lump-sum distribution
from an individual retirement account is treated differently from a
periodic distribution under this subdivision, any lump sum
lump-sum distribution from an account qualified
under Section 408A of the Internal Revenue Code shall be treated the
same as a lump sum lump-sum
distribution from an account qualified under Section 408 of the
Internal Revenue Code for purposes of determining whether any of that
payment may be applied to the satisfaction of a money judgment.
SEC. 17. Section 1201 of the Commercial Code is amended to read:
1201. The following definitions apply for purposes of this code,
subject to additional definitions contained in the subsequent
divisions of this code that apply to specific divisions or chapters
thereof, and unless the context otherwise requires:
(1) "Action," in the sense of a judicial proceeding, includes
recoupment, counterclaim, setoff, suit in equity, and any other
proceedings in which rights are determined.
(2) "Aggrieved party" means a party entitled to resort to a
remedy.
(3) "Agreement" means the bargain of the parties in fact as found
in their language or by implication from other circumstances,
including course of dealing, usage of trade, and course of
performance as provided in this code (Sections 1205, 2208, and
10207). Whether an agreement has legal consequences is determined by
the provisions of this code, if applicable, and otherwise by the law
of contracts (Section 1103). (Compare "contract.")
(4) "Bank" means any person engaged in the business of banking.
(5) "Bearer" means the person in possession of an instrument,
document of title, or certificated security payable to bearer or
indorsed in blank.
(6) "Bill of lading" means a document evidencing the receipt of
goods for shipment issued by a person engaged in the business of
transporting or forwarding goods, and that, by its terms, evidences
the intention of the issuer that the person entitled under the
document (Section 7403(4)) , as defined in
Section 7403(4), has the right to receive, hold, and dispose of
the document and the goods it covers. Designation of a document by
the issuer as a "bill of lading" is conclusive evidence of that
intention. "Bill of lading" includes an airbill. "Airbill" means a
document serving for air transportation as a bill of lading does for
marine or rail transportation, and includes an air consignment note
or air waybill.
(7) "Branch" includes a separately incorporated foreign branch of
a bank.
(8) "Burden of establishing" a fact
establishing a fact" means the burden of persuading the triers
of fact that the existence of the fact is more probable than its
nonexistence.
(9) "Buyer in ordinary course of business" means a person that
buys goods in good faith, without knowledge that the sale violates
the rights of another person in the goods, and in the ordinary course
from a person, other than a pawnbroker, in the business of selling
goods of that kind. A person buys goods in the ordinary course if
the sale to the person comports with the usual or customary practices
in the kind of business in which the seller is engaged or with the
seller's own usual or customary practices. A person that sells oil,
gas, or other minerals at the wellhead or minehead is a person in the
business of selling goods of that kind. A buyer in the ordinary
course of business may buy for cash, by exchange of other property,
or on secured or unsecured credit, and may acquire goods or documents
of title under a preexisting contract for sale. Only a buyer that
takes possession of the goods or has a right to recover the goods
from the seller under Article Division
2 (commencing with Section 2101) may be a buyer in ordinary course of
business. A person that acquires goods in a transfer in bulk or as
security for or in total or partial satisfaction of a money debt is
not a buyer in ordinary course of business.
(10) "Conspicuous." A term or clause is conspicuous when it is so
written that a reasonable person against whom it is to operate ought
to have noticed it. A printed heading in capitals (as:
NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the body
of a form is "conspicuous" if it is in larger or other contrasting
type or color, except that in a telegram any stated term is
"conspicuous." Whether a term or clause is "conspicuous" or not is
for decision by the court.
(11) "Contract" means the total legal obligation that results from
the parties' agreement as affected by this code and any other
applicable rules of law. (Compare "agreement.")
(12) "Creditor" includes a general creditor, a secured creditor, a
lien creditor, and any representative of creditors, including an
assignee for the benefit of creditors, a trustee in bankruptcy, a
receiver in equity, and an executor or administrator of an insolvent
debtor's or assignor's estate.
(13) "Defendant" includes a person in the position of defendant in
a cross-action or counterclaim.
(14) "Delivery," with respect to instruments, documents of title,
chattel paper, or certificated securities, means the voluntary
transfer of possession.
(15) "Document of title" includes a bill of lading, dock warrant,
dock receipt, warehouse receipt, gin ticket, or compress receipt, and
any other document that, in the regular course of business or
financing, is treated as adequately evidencing that the person
entitled under the document (Section 7403(4))
, as defined in Section 7403(4), has the right to receive,
hold, and dispose of the document and the goods it covers. To be a
document of title, a document shall purport to be issued by a bailee
and purport to cover goods in the bailee's possession that either are
identified as or are fungible portions of an identified mass.
(16) "Fault" means a wrongful act, omission, or breach.
(17) "Fungible," with respect to goods or securities, means goods
or securities of which any unit is, by nature or usage of trade, the
equivalent of any other like unit. Goods that are not fungible shall
be deemed fungible for the purposes of this code to the extent that,
under a particular agreement or document, unlike units are treated
as equivalents.
(18) "Genuine" means free of forgery or counterfeiting.
(19) "Good faith" means honesty in fact in the conduct or
transaction concerned.
(20) "Holder," with respect to a negotiable instrument, means the
person in possession if the instrument is payable to bearer or, in
the case of an instrument payable to an identified person, if the
identified person is in possession. "Holder," with respect to a
document of title, means the person in possession if the goods are
deliverable to bearer or to the order of the person in possession.
(21) To "honor" is to pay or to accept and pay or, where a credit
so engages, to purchase or discount a draft complying with the terms
of the credit.
(22) "Insolvency proceedings" includes any assignment for the
benefit of creditors or other proceedings intended to liquidate or
rehabilitate the estate of the person involved.
(23) A person is "insolvent" who either has ceased to pay his or
her debts in the ordinary course of business, cannot pay his or her
debts as they become due, or is insolvent within the meaning of the
federal bankruptcy law.
(24) "Money" means a medium of exchange authorized or adopted by a
domestic or foreign government and includes a monetary unit of
account established by an intergovernmental organization or by
agreement between two or more nations.
(25) A person has "notice" of a fact when any of the following
occurs:
(a) He or she has actual knowledge of it.
(b) He or she has received a notice or notification of it.
(c) From all the facts and circumstances known to him or her at
the time in question, he or she has reason to know that it exists. A
person "knows" or has "knowledge" of a fact when he or she has
actual knowledge of it. "Discover" or "learn," or a word or phrase of
similar import, refers to knowledge rather than to reason to know.
The time and circumstances under which a notice or notification may
cease to be effective are not determined by this code.
(26) A person "notifies" or "gives" a notice or notification to
another by taking those steps that may be reasonably required to
inform the other in ordinary course whether or not the other actually
comes to know of it. A person "receives" a notice or notification
when any of the following occurs:
(a) It comes to his or her attention.
(b) It is duly delivered at the place of business through which
the contract was made or at any other place held out by him or her as
the place for receipt of these communications.
(27) Notice, knowledge, or a notice or notification received by an
organization is effective for a particular transaction from the time
it is brought to the attention of the individual conducting that
transaction and, in any event, from the time it would have been
brought to his or her attention if the organization had exercised due
diligence. An organization exercises due diligence if it maintains
reasonable routines for communicating significant information to the
person conducting the transaction and there is reasonable compliance
with the routines. Due diligence does not require an individual
acting for the organization to communicate information unless the
communication is part of his or her regular duties, or unless he or
she has reason to know of the transaction and that the transaction
would be materially affected by the information.
(28) "Organization" includes a corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership or association, two or more persons having a joint or
common interest, or any other legal or commercial entity.
(29) "Party," as distinct from "third party," means a person who
has engaged in a transaction or made an agreement within this
division.
(30) "Person"
includes an individual or an organization. (See Section 1102.)
(31) "Purchase" includes taking by sale, discount, negotiation,
mortgage, pledge, lien, security interest, issue or reissue, gift, or
any other voluntary transaction creating an interest in property.
(32) "Purchaser" means a person who takes by purchase.
(33) "Remedy" means any remedial right to which an aggrieved party
is entitled with or without resort to a tribunal.
(34) "Representative" includes an agent, an officer of a
corporation or association, a trustee, executor, or administrator of
an estate, or any other person empowered to act for another.
(35) "Rights" includes remedies.
(36) (a) "Security interest" means an interest in personal
property or fixtures that secures payment or performance of an
obligation. The term also includes any interest of a cosignor and a
buyer of accounts, chattel paper, a payment intangible, or a
promissory note in a transaction that is subject to Division 9
(commencing with Section 9101). The special property interest of a
buyer of goods on identification of those goods to a contract for
sale under Section 2401 is not a "security interest," but a buyer may
also acquire a "security interest" by complying with Division 9
(commencing with Section 9101). Except as otherwise provided in
Section 2505, the right of a seller or lessor of goods under
Article Division 2 (commencing with Section
2101) or Article Division 10
(commencing with Section 10101) to retain or acquire possession of
the goods is not a "security interest," but a seller or lessor may
also acquire a "security interest" by complying with Article
Division 9 (commencing with Section 9101). The
retention or reservation of title by a seller of goods
notwithstanding shipment or delivery to the buyer (Section 2401) is
limited in effect to a reservation of a "security interest."
(b) Whether a transaction creates a lease or security interest is
determined by the facts of each case. However, a transaction creates
a security interest if the consideration the lessee is to pay the
lessor for the right to possession and use of the goods is an
obligation for the term of the lease not subject to termination by
the lessee, and any of the following conditions applies:
(i) The original term of the lease is equal to or greater than the
remaining economic life of the goods.
(ii) The lessee is bound to renew the lease for the remaining
economic life of the goods or is bound to become the owner of the
goods.
(iii) The lessee has an option to renew the lease for the
remaining economic life of the goods for no additional consideration
or nominal additional consideration upon compliance with the lease
agreement.
(iv) The lessee has an option to become the owner of the goods for
no additional consideration or nominal additional consideration upon
compliance with the lease agreement.
(c) A transaction does not create a security interest merely
because it provides one or more of the following:
(i) That the present value of the consideration the lessee is
obligated to pay the lessor for the right to possession and use of
the goods is substantially equal to or greater than the fair market
value of the goods at the time the lease is entered into.
(ii) That the lessee assumes the risk of loss of the
goods, or agrees to pay the taxes, insurance, filing,
recording, or registration fees, or service or maintenance costs with
respect to the goods.
(iii) That the lessee has an option to renew the lease or to
become the owner of the goods.
(iv) That the lessee has an option to renew the lease for a fixed
rent that is equal to or greater than the reasonably predictable fair
market rent for the use of the goods for the term of the renewal at
the time the option is to be performed.
(v) That the lessee has an option to become the owner of the goods
for a fixed price that is equal to or greater than the reasonably
predictable fair market value of the goods at the time the option is
to be performed.
(vi) In the case of a motor vehicle, as defined in Section 415 of
the Vehicle Code, or a trailer, as defined in Section 630 of that
code, that is not to be used primarily for personal, family, or
household purposes, that the amount of rental payments may be
increased or decreased by reference to the amount realized by the
lessor upon sale or disposition of the vehicle or trailer. Nothing
in this subparagraph affects the application or administration of the
Sales and Use Tax Law (Part 1 (commencing with Section 6001),
Division 2, Revenue and Taxation Code).
(d) For purposes of this subdivision (36), all of the following
apply:
(i) Additional consideration is not nominal if (A) when the option
to renew the lease is granted to the lessee, the rent is stated to
be the fair market rent for the use of the goods for the term of the
renewal determined at the time the option is to be performed, or (B)
when the option to become the owner of the goods is granted to the
lessee, the price is stated to be the fair market value of the goods
determined at the time the option is to be performed. Additional
consideration is nominal if it is less than the lessee's reasonably
predictable cost of performing under the lease agreement if the
option is not exercised.
(ii) "Reasonably predictable" and "remaining economic life of the
goods" are to be determined with reference to the facts and
circumstances at the time the transaction is entered into.
(iii) "Present value" means the amount as of a date certain of one
or more sums payable in the future, discounted to the date certain.
The discount is determined by the interest rate specified by the
parties if the rate is not manifestly unreasonable at the time the
transaction is entered into; otherwise, the discount is determined by
a commercially reasonable rate that takes into account the facts and
circumstances of each case at the time the transaction was entered
into.
(37) "Send," in connection with any writing or notice, means to
deposit in the mail or deliver for transmission by any other usual
means of communication with postage or cost of transmission provided
for and properly addressed and, in the case of an instrument, to an
address specified thereon or otherwise agreed or, if there
be is none, to any address reasonable under the
circumstances. The receipt of any writing or notice within the time
in which it would have arrived if properly sent has the effect of a
proper sending. When a writing or notice is required to be sent by
registered or certified mail, proof of mailing is sufficient, and
proof of receipt by the addressee is not required unless the words
"with return receipt requested" are also used.
(38) "Signed" includes any symbol executed or adopted by a party
with present intention to authenticate a writing.
(39) "Surety" includes guarantor.
(40) "Telegram" includes a message transmitted by radio, teletype,
cable, any mechanical method of transmission, or the like.
(41) "Term" means that portion of an agreement that relates to a
particular matter.
(42) "Unauthorized" signature means one made without actual,
implied, or apparent authority, and includes a forgery.
(43) "Value." Except as otherwise provided with respect to
negotiable instruments and bank collections (Sections 3303, 4210, and
4211), a person gives "value" for rights if he or she acquires them
in any of the following ways:
(a) In return for a binding commitment to extend credit or for the
extension of immediately available credit whether or not drawn upon
and whether or not a chargeback is provided for in the event of
difficulties in collection.
(b) As security for, or in total or partial satisfaction of, a
preexisting claim.
(c) By accepting delivery pursuant to a preexisting contract for
purchase.
(d) Generally, in return for any consideration sufficient to
support a simple contract.
(44) "Warehouse receipt" means a document evidencing the receipt
of goods for storage issued by a warehouseman (Section 7102), and
that, by its terms, evidences the intention of the issuer that the
person entitled under the document (Section 7403(4))
, as defined in Section 7403(4), has the right to
receive, hold, and dispose of the document and the goods it covers.
Designation of a document by the issuer as a "warehouse receipt" is
conclusive evidence of that intention.
(45) "Written" or "writing" includes printing, typewriting, or any
other intentional reduction to tangible form.
SEC. 18. Section 2210 of the Commercial Code is amended to read:
2210. (1) A party may perform his or her duty through a delegate
unless otherwise agreed or unless the other party has a substantial
interest in having his or her original promisor perform or control
the acts required by the contract. No delegation of performance
relieves the party delegating of any duty to perform or any liability
for breach.
(2) Except as otherwise provided in Section 9406, unless otherwise
agreed, all rights of either seller or buyer can be assigned except
where the assignment would materially change the duty of the other
party, or increase materially the burden or risk imposed on him or
her by his or her contract, or impair materially his or her chance of
obtaining return performance. A right to damages for breach of the
whole contract or a right arising out of the assignor's due
performance of his or her entire obligation can be assigned despite
agreement otherwise.
(3) The creation, attachment, perfection, or enforcement of a
security interest in the seller's interest under a contract is not a
transfer that materially changes the duty of , or
increases materially the burden or risk imposed on , the
buyer or impairs materially the buyer's chance of obtaining return
performance within the purview of subdivision (2) unless, and then
only to the extent that, enforcement actually results in a delegation
of material performance of the seller. Even in that event, the
creation, attachment, perfection, and enforcement of the security
interest remain effective, but (A) the seller is liable to the buyer
for damages caused by the delegation to the extent that the damages
could not reasonably be prevented by the buyer, and (B) a court
having jurisdiction may grant other appropriate relief, including
cancellation of the contract for sale or an injunction against
enforcement of the security interest or consummation of the
enforcement.
(4) Unless the circumstances indicate the contrary , a
prohibition of assignment of "the contract" is to be construed as
barring only the delegation to the assignee of the assignor's
performance.
(5) An assignment of "the contract" or of "all my rights under the
contract" or an assignment in similar general terms is an assignment
of rights and , unless the language or the circumstances
(as in an assignment for security) indicate the contrary, it is a
delegation of performance of the duties of the assignor ,
and its acceptance by the assignee constitutes a promise by him or
her to perform those duties. This promise is enforceable by either
the assignor or the other party to the original contract.
(6) The other party may treat any assignment which delegates
performance as creating reasonable grounds for insecurity and may
, without prejudice to his or her rights against the
assignor , demand assurances from the assignee (Section
2609).
SEC. 19. Section 2502 of the Commercial Code is amended to read:
2502. (1) Subject to subdivisions (2) and (3) , and
even though the goods have not been shipped , a buyer who
has paid a part or all of the price of goods in which he or she has a
special property under the provisions of the immediately preceding
section may on making and keeping good a tender of any unpaid portion
of their price recover them from the seller if either:
(a) In the case of goods bought for personal, family, or household
purposes, the seller repudiates or fails to deliver as required by
the contract.
(b) In all cases, the seller becomes insolvent within 10 days
after receipt of the first installment on their price.
(2) The buyer's right to recover the goods under paragraph (a) of
subdivision (1) vests upon acquisition of a special property, even if
the seller had not then repudiated or failed to deliver.
(3) If the identification creating his or her special property has
been made by the buyer , he or she acquires the right to
recover the goods only if they conform to the contract for sale.
SEC. 20. Section 9528 of the Commercial Code is amended to read:
9528. Upon the request of any person, the Secretary of
State shall issue a combined certificate showing the information as
to financing statements as specified in Section 9523, the information
as to state tax liens as specified in Section 7226 of the Government
Code, the information as to attachment liens as specified in
Sections 488.375 and 488.405 of the Code of Civil Procedure, the
information as to judgment liens as specified in Section 697.580 of
the Code of Civil Procedure, and the information as to federal liens
as specified in Section 2103 of the Code of Civil Procedure.
SEC. 21. Section 9706 of the Commercial Code is amended to read:
9706. (a) The filing of an initial financing statement in the
office specified in Section 9501 continues the effectiveness of a
financing statement filed before July 1, 2001, if all of the
following conditions are satisfied:
(1) The filing of an initial financing statement in that office
would be effective to perfect a security interest under this
division.
(2) The pre-effective-date preeffective
date financing statement was filed in an office in another
state or another office in this state.
(3) The initial financing statement satisfies subdivision (c).
(b) The filing of an initial financing statement under subdivision
(a) continues the effectiveness of the pre-effective-date
preeffective date financing statement for the
following periods:
(1) If the initial financing statement is filed before July 1,
2001, for the period provided in former Section 9403 with respect to
a financing statement.
(2) If the initial financing statement is filed after July 1,
2001, for the period provided in Section 9515 with respect to an
initial financing statement.
(c) To be effective for purposes of subdivision (a), an initial
financing statement must do all of the following:
(1) Satisfy the requirements of Chapter 5 (commencing with Section
9501) for an initial financing statement.
(2) Identify the pre-effective-date
preeffective date financing statement by indicating the office
in which the financing statement was filed and providing the dates of
filing and file numbers, if any, of the financing statement and of
the most recent continuation statement filed with respect to the
financing statement.
(3) Indicate that the pre-effective-date
preeffective date financing statement remains effective.
SEC. 22. Section 5222 of the Corporations Code is amended to read:
5222. (a) Subject to subdivisions (b) and (f) of this
section , any or all directors may be removed without cause
if:
(1) In a corporation with fewer than 50 members, the removal is
approved by a majority of all members (Section 5033).
(2) In a corporation with 50 or more members, the removal is
approved by the members (Section 5034).
(3) In a corporation with no members, the removal is approved by a
majority of the directors then in office.
(b) Except for a corporation having no members pursuant to Section
5310:
(1) In a corporation in which the articles or bylaws authorize
members to cumulate their votes pursuant to subdivision (a) of
Section 5616, no director may be removed (unless the entire board is
removed) when if the votes cast against
removal, or not consenting in writing to the removal, would be
sufficient to elect the director if voted cumulatively at an election
at which the same total number of votes were cast (or, if the action
is taken by written ballot, all memberships entitled to vote were
voted) and the entire number of directors authorized at the time of
the director's most recent election were then being elected.
(2) When If by the provisions of the
articles or bylaws the members of any class, voting as a class, are
entitled to elect one or more directors, any director so elected may
be removed only by the applicable vote of the members of that class.
(3) When If by the provisions of the
articles or bylaws the members within a chapter or other
organizational unit, or region or other geographic grouping, voting
as such, are entitled to elect one or more directors, any director so
elected may be removed only by the applicable vote of the members
within the organizational unit or geographic grouping.
(c) Any reduction of the authorized number of directors or any
amendment reducing the number of classes of directors does not remove
any director prior to the expiration of the director's term of
office.
(d) Except as provided in this section and Sections 5221 and 5223,
a director may not be removed prior to the expiration of the
director's term of office.
(e) Where If a director removed
under this section or Section 5221 or 5223 was chosen by designation
pursuant to subdivision (d) of Section 5220, then:
(1) Where If a different person may
be designated pursuant to a governing article or bylaw
provision, the new designation shall be made.
(2) Where If the governing article
or bylaw provision contains no provision under which a different
person may be designated, the governing article or bylaw provision
shall be deemed repealed.
(f) When If by the provisions of the
articles or bylaws a person or persons are entitled to designate one
or more directors, then:
(1) Unless otherwise provided in the articles or bylaws at the
time of designation, any director so designated may be removed
without cause by the designating person or persons.
(2) Any director so designated may only be removed under
subdivision (a) with the written consent of the designating person or
persons.
SEC. 23. Section 7236 of the Corporations Code is amended to read:
7236. (a) Subject to the provisions of Section 7231, directors of
a corporation who approve any of the following corporate actions
shall be jointly and severally liable to the corporation for the
benefit of all of the creditors entitled to institute an action under
paragraph (1) or (2) of subdivision (c) or to the corporation in an
action by the head organization or members under paragraph (1) or (3)
of subdivision (c):
(1) The making of any distribution contrary to Chapter 4
(commencing with Section 7410).
(2) The distribution of assets after institution of dissolution
proceedings of the corporation, without paying or adequately
providing for all known liabilities of the corporation, excluding any
claims not filed by creditors within the time limit set by the court
in a notice given to creditors under Chapter 15 (commencing with
Section 8510), Chapter 16 (commencing with Section 8610),
and Chapter 17 (commencing with Section 8710).
(3) The making of any loan or guaranty contrary to Section 7235.
(b) A director who is present at a meeting of the board, or any
committee thereof, at which an action specified in
subdivision (a) is taken and who abstains from voting shall be
considered to have approved the action.
(c) Suit may be brought in the name of the corporation to enforce
the liability:
(1) Under paragraph (1) of subdivision (a) , against
any or all directors liable by the persons entitled to sue under
subdivision (c) of Section 7420.
(2) Under paragraph (2) or (3) of subdivision (a) ,
against any or all directors liable by any one or more creditors of
the corporation whose debts or claims arose prior to the time of the
corporate action who have not consented to the corporate action,
whether or not they have reduced their claims to judgment.
(3) Under paragraph (3) of subdivision (a) , against
any or all directors liable by any one or more members at the time of
any corporate action specified in paragraph (3) of subdivision (a)
who have not consented to the corporate action, without regard to the
provisions of Section 7710.
(d) The damages recoverable from a director under this section
shall be the amount of the illegal distribution, or if the illegal
distribution consists of property, the fair market value of that
property at the time of the illegal distribution, plus interest
thereon from the date of the distribution at the legal rate on
judgments until paid, together with all reasonably incurred costs of
appraisal or other valuation, if any, of that property, or the loss
suffered by the corporation as a result of the illegal loan or
guaranty, but not exceeding, in the case of an action for the benefit
of creditors, the liabilities of the corporation owed to
nonconsenting creditors at the time of the violation.
(e) Any director sued under this section may implead all other
directors liable and may compel contribution, either in that action
or in an independent action against directors not joined in that
action.
(f) Directors liable under this section shall also be entitled to
be subrogated to the rights of the corporation:
(1) With respect to paragraph (1) of subdivision (a), against the
persons who received the distribution.
(2) With respect to paragraph (2) of subdivision (a), against the
persons who received the distribution.
(3) With respect to paragraph (3) of subdivision (a), against the
person who received the loan or guaranty.
Any director sued under this section may file a cross-complaint
against the person or persons who are liable to the director as a
result of the subrogation provided for in this subdivision or may
proceed against them in an independent action.
SEC. 24. Section 14000 of the Corporations Code is amended to
read:
14000. This chapter shall be known and may be cited as the
"Small "California Small Business
Financial Development Corporation Law."
SEC. 25. Section 14030 of the Corporations Code is amended to
read:
14030. There is hereby created in the State Treasury the
California Small Business Expansion Fund. All or a portion of
the funds in the expansion fund may be paid out, with the approval of
the Department of Finance, to lending institutions or financial
companies. This fund shall be used to pay for defaulted loan
guarantees issued pursuant to Section 14045
Article 9 (commencing with Section 14070) , administrative
costs of corporations, and those costs necessary to protect a real
property interest in a defaulted loan or guarantee. The amount of
guarantee liability outstanding at any one time shall not exceed four
times the amount of funds on deposit in the expansion fund,
including each of the loan accounts and corporate funds within the
expansion fund, unless the office has permitted a higher leverage
ratio for an individual corporation pursuant to subdivision (c) of
Section 14037.
SEC. 26. Section 14030.1 of the Corporations Code is amended to
read:
14030.1. (a) There is hereby created in the State Treasury the
Small Business Disaster Recovery Loan Loss Reserve Account, as part
of the expansion fund. This account shall be used to pay for
unrecovered losses resulting from loan guarantees issued pursuant to
subdivision (a) of Section 14075 and subdivision (b) of this section
and disaster loan guarantees issued prior to the effective date of
this section that are in default. Any lending institution that
issues a low-interest loan that is guaranteed by resources in this
account shall be fully reimbursed for the guaranteed portion of
principal and interest that result from a loan or loans that are in
default. In the event that there are insufficient funds in this
account to fully satisfy all claimants, then the full faith of the
resources in the General Fund are pledged to satisfy the obligations
of this account. This account may only guarantee as much loan dollar
value as is specifically authorized by the Director of Finance with
the concurrence of the Governor. This account shall receive all
moneys transferred pursuant to Section 14037.6, and any unencumbered
balances transferred to the California Small Business
Expansion Fund pursuant to Chapters 11 and 12 of the Statutes of
1989, First Extraordinary Session, and Chapter 1525 of the Statutes
of 1990, as of July 1, 1992.
(b) The Governor should utilize this authority to prevent business
insolvencies and loss of employment in an area affected by a state
of emergency that began in the Los Angeles area on April 29, 1992,
and incidents subsequent thereto, and resulting therefrom, throughout
the state and declared a disaster by the President of the United
States, or by the Administrator of the United States' Small Business
Administration, or by the Governor of California.
SEC. 27. Section 14035 of the Corporations Code is amended to
read:
14035. There is hereby continued in the State Treasury in the
expansion fund, the California Small Business
Financial Development Loan Guarantee Account as part of the
expansion fund.
SEC. 28. Section 14036 of the Corporations Code is amended to
read:
14036. The loan account is created solely for the purpose of
receiving state, federal, or local government money, and other public
or private money, for subsequent allocation by the office, with the
approval of the Department of Finance, to the small business
development corporate loan guarantee
fund.
SEC. 29. Section 25207 of the Corporations Code is amended to
read:
25207. A financial institution which that
undertakes activities with respect to an investment company
pursuant to the provisions of Section 1338, 6702.5
6524 , 14652.5 , or 18022.5 of the Financial
Code shall not be subject to Section 25210 or 25230 in connection
with such activities but shall be subject to Sections 25218, 25234,
25235, and 25237 and to subdivisions (a), (b), and (d) of Section
25216, and such rules thereunder as the commissioner may specify by
rule. Nothing in this section shall affect the status of such a
financial institution as a broker-dealer or investment adviser, or
the employees of such persons, when engaged in the activities
authorized by the provisions of the Fianancial
Financial Code specified above.
SEC. 30. Section 1209 of the Education Code is amended to read:
1209. A county superintendent of schools shall not increase his
or her salary, financial remuneration, benefits, or pension in any
manner or for any reason without bringing the matter to the attention
of the county board of education for its discussion at a
regularly scheduled public meeting of the board and without the
approval of the county board of education.
SEC. 31. Section 17210 of the Education Code is amended to read:
17210. As used in this article, the following terms have the
following meanings:
(a) "Administering agency" means any agency designated pursuant to
Section 25502 of the Health and Safety Code.
(b) "Environmental assessor" means a class II environmental
assessor registered by the Office of Environmental Health Hazard
Assessment pursuant to Chapter 6.98 (commencing with Section 25570)
of Division 20 of the Health and Safety Code or a licensed hazardous
substance contractor certified pursuant to Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code. A
licensed hazardous substance contractor shall hold the equivalent of
a degree from an accredited public or private college or university
or from a private postsecondary educational institution approved by
the Bureau for Private Postsecondary and Vocational Education with at
least 60 units in environmental, biological, chemical, physical, or
soil science; engineering; geology; environmental or public health;
or a directly related science field. In addition, a contractor who
conducts Phase I environmental assessments shall have a least two
years years' experience in the
preparation of those assessments and a contractor who conducts a
preliminary endangerment assessment shall have at least three
years years' experience in conducting
those assessments.
(c) "Handle" has the meaning the term is given in Article 1
(commencing with Section 25500) of Chapter 6.95 of Division 20 of the
Health and Safety Code.
(d) "Hazardous air emissions" means emissions into the ambient air
of air contaminants that have been identified as a toxic air
contaminant by the State Air Resources Board or by the air pollution
control officer for the jurisdiction in which the project is located.
As determined by the air pollution control officer, hazardous air
emissions also means emissions into the ambient air from any
substance identified in subdivisions (a) to (f), inclusive, of
Section 44321 of the Health and Safety Code.
(e) "Hazardous material" has the meaning the term is given in
subdivision (d) of Section 25260 of the Health and Safety Code.
(f) "Operation and maintenance," "removal action work plan,"
"respond," "response," "response action" and "site" have the meanings
those terms are given in Article 2 (commencing with Section 25310)
of the state act.
(g) "Phase I environmental assessment" means a preliminary
assessment of a property to determine whether there has been or may
have been a release of a hazardous material, or whether a naturally
occurring hazardous material is present, based on reasonably
available information about the property and the area in its
vicinity. A Phase I environmental assessment may include, but is not
limited to, a review of public and private records of current and
historical land uses, prior releases of a hazardous material, data
base searches, review of relevant files of federal, state, and local
agencies, visual and other surveys of the property, review of
historical aerial photographs of the property and the area in its
vicinity, interviews with current and previous owners and operators,
and review of regulatory correspondence and environmental reports.
Sampling or testing is not required as part of the Phase I
environmental assessment.
(h) "Preliminary endangerment assessment" means an activity that
is performed to determine whether current or past hazardous material
management practices or waste management practices have resulted in a
release or threatened release of hazardous materials, or whether
naturally occurring hazardous materials are present, which pose a
threat to children's health, children's learning abilities, public
health or the environment. A preliminary endangerment assessment
requires sampling and analysis of a site, a preliminary determination
of the type and extent of hazardous material contamination of the
site, and a preliminary evaluation of the risks that the hazardous
material contamination of a site , may pose to
children's health, public health, or the environment, and shall be
conducted in a manner that complies with the guidelines published by
the Department of Toxic Substances Control entitled "Preliminary
Endangerment Assessment: Guidance Manual," including any amendments
that are determined by the Department of Toxic Substances Control to
be appropriate to address issues that are unique to schoolsites.
(i) "Proposed schoolsite" means real property acquired or to be
acquired or proposed for use as a schoolsite, prior to its occupancy
as a school.
(j) "Regulated substance" means any material defined in
subdivision (g) of Section 25532 of the Health and Safety Code.
(k) "Release" has the same meaning the term is given in Article 2
(commencing with Section 25310) of Chapter 6.8 of Division 20 of the
Health and Safety Code, and includes a release described in
subdivision (d) of Section 25321 of the Health and Safety Code.
(l) "Remedial action plan" means a plan approved by the Department
of Toxic Substances Control pursuant to Section 25356.1 of the
Health and Safety Code.
(m) "State act" means the Carpenter-Presley-Tanner Hazardous
Substance Account Act (Chapter 6.8 (commencing with Section 25300) of
Division 20 of the Health and Safety Code).
SEC. 32. Section 17284.5 of the Education Code is amended to read:
17284.5. (a) Notwithstanding any provision of
law to the contrary, any waiver granted by the State Allocation Board
to a school district for use of a nonconforming existing private
building acquired for conversion for use as a school building, that
had not expired prior to January 1, 2000, is hereby extended until
January 1, 2001, if the work to make the building a conforming
structure commenced prior to January 1, 2000, but had not been
completed by that date.
SEC. 33. Section 17620 of the Education Code is amended to read:
17620. (a) (1) The governing board of any school district is
authorized to levy a fee, charge, dedication, or other requirement
against any construction within the boundaries of the district, for
the purpose of funding the construction or reconstruction of school
facilities, subject to any limitations set forth in Chapter 4.9
(commencing with Section 65995) of Division 1 of Title 7 of the
Government Code. This fee, charge, dedication, or other requirement
may be applied to construction only as follows:
(A) To new commercial and industrial construction. The chargeable
covered and enclosed space of commercial or industrial construction
shall not be deemed to include the square footage of any structure
existing on the site of that construction as of the date the first
building permit is issued for any portion of that construction.
(B) To new residential construction.
(C) (i) Except at as otherwise
provided in clause (ii), to other residential construction, only if
the resulting increase in assessable space exceeds 500 square feet.
The calculation of the "resulting increase in assessable space" for
this purpose shall reflect any decrease in assessable space in the
same residential structure that also results from that construction.
Where authorized under this paragraph, the fee, charge, dedication,
or other requirement is applicable to the total resulting increase in
assessable space.
(ii) This subparagraph does not authorize the imposition of a
levy, charge, dedication, or other requirement against residential
construction, regardless of the resulting increase in assessable
space, if that construction qualifies for the exclusion set forth in
subdivision (a) of Section 74.3 of the Revenue and Taxation Code.
(D) To location, installation, or occupancy of manufactured homes
and mobilehomes, as defined in Section 17625.
(2) For purposes of this section, "construction" and "assessable
space" have the same meaning as defined in Section 65995 of the
Government Code.
(3) For purposes of this section and Section 65995, "construction
or reconstruction of school facilities" does not include any item of
expenditure for any of the following:
(A) The regular maintenance or routine repair of school buildings
and facilities.
(B) The inspection, sampling, analysis, encapsulation, or removal
of asbestos-containing materials, except where incidental to school
facilities construction or reconstruction for which the expenditure
of fees or other consideration collected pursuant to this section is
not prohibited.
(C) The purposes of deferred maintenance described in Section
17582.
(4) The appropriate city or county may be authorized, pursuant to
contractual agreement with the governing board, to collect and
otherwise administer, on behalf of the school district, any fee,
charge, dedication, or other requirement levied under this
subdivision. In the event of any agreement authorizing a city or
county to collect that fee, charge, dedication, or other requirement
in any area within the school district, the certification requirement
set forth in subdivision (b) or (c), as appropriate, is deemed to be
complied with as to any residential construction within that area
upon receipt by that city or county of payment of the fee, charge,
dedication, or other requirement imposed on that residential
construction.
(5) Fees or other consideration collected pursuant to this section
may be expended by a school district for the costs of performing any
study or otherwise making the findings and determinations required
under subdivisions (a), (b), and (d) of Section 66001 of the
Government Code, or in preparing the school facilities needs analysis
described in Section 65995.6 of the Government Code. In addition,
an amount not to exceed, in any fiscal year, 3 percent of the fees
collected in that fiscal year pursuant to this section may be
retained by the school district, city, or county, as appropriate, for
reimbursement of the administrative costs incurred by that entity in
collecting the fees. When any city or county is entitled, under an
agreement as described in paragraph (4), to compensation in excess
of that amount, the payment of that excess compensation shall be made
from other revenue sources available to the school district. For
purposes of this paragraph, "fees collected in that fiscal year
pursuant to this section" does not include any amount in addition to
the amounts specified in paragraphs (1) and (2) of subdivision (b) of
Section 65995 of the Government Code.
(b) A city or county, whether general law or chartered, may not
issue a building permit for any construction absent certification by
the appropriate school district that any fee, charge, dedication, or
other requirement levied by the governing board of that school
district has been complied with, or of the district's determination
that the fee, charge, dedication, or other requirement does not apply
to the construction. The school district shall issue the
certification immediately upon compliance with the fee, charge,
dedication, or other requirement.
(c) If, pursuant to subdivision (c) of Section 17621, the
governing board specifies that the fee, charge, dedication, or other
requirement levied under subdivision (a) is subject to the
restriction set forth in subdivision (a) of Section 66007 of the
Government Code, the restriction set forth in subdivision (b) of this
section does not apply. In that event, however, a city or county,
whether general law or chartered, may not conduct a final inspection
or issue a certificate of occupancy, whichever is later, for any
residential construction absent certification by the appropriate
school district of compliance by that residential construction with
any fee, charge, dedication, or other requirement levied by the
governing board of that school district pursuant to subdivision (a).
(d) Neither subdivision (b) nor (c) shall apply to a city or
county as to any fee, charge, dedication, or other requirement as
described in subdivision (a), or as to any increase in that fee,
charge, dedication, or other requirement, except upon the receipt by
that city or county of notification of the adoption of, or increase
in, the fee or other requirement in accordance with subdivision (c)
of Section 17621.
SEC. 34. Section 23812 of the Education Code is amended to read:
23812. (a) The surviving spouse of a deceased member who
previously lost entitlement to benefits prescribed by this part due
to remarriage shall be entitled to resume payment of the
benefit benefits effective either on January 1,
2000, or the first day of the month following receipt by
the board of a written application for resumption of benefits,
whichever date is later. The amount of the benefit
benefits payable shall be calculated as though
the benefit benefits had been paid
without interruption from the date of remarriage through the
benefit benefits resumption effective date.
(b) The board shall be under no requirement to identify, locate,
or notify a remarried spouse of a deceased member who previously lost
entitlement as a result of remarriage about the resumption of
benefits provided in this section. The board shall be under no
requirement to provide the name or address or any other information
concerning any remarried spouse of a deceased member to any person,
agency, or entity for the purpose of notifying those who may be
eligible for the resumption of benefits under this section.
(c) Nothing in this section shall be construed to imply or
interpreted to mean that the benefits addressed shall be required to
be paid retroactively.
SEC. 35. Section 24255 of the Education Code is amended to read:
24255. (a) There is in the State Treasury a trust fund to be
known as the Teachers' Replacement Benefits Program Fund. There
shall be deposited directly in that fund, and not transferred from
the Teachers' Retirement Fund, that portion of employer contributions
determined by the board as necessary to fund the replacement
benefits program.
(b) Notwithstanding Section 13340 of the Government Code, moneys
in the Teachers' Replacement Benefits Program Fund are continuously
appropriated without regard to fiscal years to pay benefits to
members and beneficiaries of the defined benefit program, and to pay
related administrative expenses.
(c) The board may authorize the transfer and disbursement of funds
from the Teachers' Replacement Benefits Program Fund for the purpose
of carrying into effect this chapter upon the signature of either or
both of its chairperson and vice chairperson or the chief executive
officer or any employee of the system designated by the chief
executive officer.
(d) Disbursements of money from the Teachers' Replacement Benefits
Program Fund of whatever nature shall be made upon claims duly
audited in the manner prescribed for the disbursement of other public
funds except that , notwithstanding the foregoing ,
disbursements may be made to return funds deposited in the fund
in error.
SEC. 36. Section 35012 of the Education Code is amended to read:
35012. (a) Except as otherwise provided, the governing board of a
school district shall consist of five members elected at large by
the qualified voters of the district. The terms of the members
shall, except as otherwise provided, be for four years and staggered
so that as nearly as practicable one-half of the members shall be
elected in each odd-numbered year.
(b) A unified school district formed pursuant to the
provisions of Chapter 2 (commencing with Section 4200) of Part 3
may have a governing board of seven members in the event
the proposal for unification has specified a governing board of seven
members. The members of the board shall be elected at large or by
trustee areas as designated in the proposal for unification and shall
serve four-year terms of office.
(c) Notwithstanding subdivision (a), and except as provided in
this subdivision and Section 5018, the governing board of an
elementary school district other than a union or joint union
elementary school district shall consist of three members selected at
large from the territory comprising the district. Whenever, in any
such elementary school district the average daily attendance during
the preceding fiscal year is 300 or more, the procedures prescribed
by Section 5018 shall be undertaken.
(d) There may be submitted to the governing board of a school
district maintaining one or more high schools a pupil petition
requesting the governing board to appoint one or more nonvoting pupil
members to the board pursuant to this section.
There may also be submitted to the governing board of a school
district maintaining one or more high schools a pupil petition
requesting the governing board to allow preferential voting for the
pupil member or members of the board. This request may be made in
the original petition for pupil representation on the board or in a
separate petition after a pupil member or members have been appointed
to the board.
Whether for pupil representation or for preferential voting for
the pupil member or members, the petition shall contain the
signatures of either (a) not less than 500 pupils regularly enrolled
in high schools of the district, or (b) not less than 10 percent of
the number of pupils regularly enrolled in high schools of the
district, whichever is less.
Upon receipt of a petition for pupil representation, the governing
board shall, commencing July 1, 1976, and each year thereafter,
order the inclusion within the membership of the governing board, in
addition to the number of members otherwise prescribed, at least one
nonvoting pupil member. The board may order the inclusion of more
than one nonvoting pupil member.
Upon receipt of a petition for preferential voting for the pupil
member or members, the governing board shall allow preferential
voting for the pupil member or members of the governing board.
Preferential voting, as used in the section, means a formal
expression of opinion that is recorded in the minutes and cast prior
to the official vote of the governing board. A preferential vote
will not serve in determining the final numerical outcome of a vote.
No preferential vote will be solicited on matters subject to closed
session discussion.
The governing board may adopt a resolution authorizing the
nonvoting or preferential voting pupil member or members to make
motions that may be acted upon by the governing board, except on
matters dealing with employer-employee relations pursuant to Chapter
10.7 (commencing with Section 3540) of Division 4 of Title 1 of the
Government Code.
Each pupil member shall have the right to attend each and all
meetings of the governing board, except executive sessions.
Any pupil selected to serve as a nonvoting or preferential voting
member of the governing board shall be enrolled in a high school of
the district, may be less than 18 years of age, and shall be chosen
by the pupils enrolled in the high school or high schools of the
district in accordance with procedures prescribed by the governing
board. The term of a pupil member shall be one year commencing on
July 1 of each year.
A nonvoting or preferential voting pupil member shall be entitled
to the mileage allowance to the same extent as regular members, but
is not entitled to the compensation prescribed by Section 35120.
A nonvoting or preferential voting pupil member shall be seated
with the members of the governing board and shall be recognized as a
full member of the board at the meetings, including receiving all
materials presented to the board members and participating in the
questioning of witnesses and the discussion of issues.
The nonvoting or preferential voting pupil member shall not be
included in determining the vote required to carry any measure before
the board.
The nonvoting or preferential voting pupil member shall not be
liable for any acts of the governing board.
SEC. 37. Section 35160.5 of the Education Code is amended to read:
35160.5. (a) The governing board of each school district that
maintains one or more schools containing any of grades 7 to 12,
inclusive, shall, as a condition for the receipt of an inflation
adjustment pursuant to Section 42238.1, establish a school district
policy regarding participation in extracurricular and cocurricular
activities by pupils in grades 7 to 12, inclusive. The criteria,
which shall be applied to extracurricular and cocurricular
activities, shall ensure that pupil participation is conditioned upon
satisfactory educational progress in the previous grading period.
Pupils who are eligible for differential standards of proficiency
pursuant to subdivision (d) of Section 51215 are covered by this
section consistent with that subdivision. No person shall classify a
pupil as eligible for differential standards of proficiency pursuant
to subdivision (d) of Section 51215 for the purpose of circumventing
the intent of this subdivision.
(1) For purposes of this subdivision, "extracurricular activity"
means a program that has all of the following characteristics:
(A) The program is supervised or financed by the school district.
(B) Pupils participating in the program represent the school
district.
(C) Pupils exercise some degree of freedom in either the
selection, planning, or control of the program.
(D) The program includes both preparation for performance and
performance before an audience or spectators.
(2) For purposes of this subdivision, an "extracurricular activity"
is not part of the regular school curriculum, is not graded, does
not offer credit, and does not take place during classroom time.
(3) For purposes of this subdivision, a "cocurricular activity" is
defined as a program that may be associated with the curriculum in a
regular classroom.
(4) Any teacher graded or required program or activity for a
course that satisfies the entrance requirements for admission to the
California State University or the University of California is not an
extracurricular or cocurricular activity as defined by this section.
(5) For purposes of this subdivision, "satisfactory educational
progress" shall include, but not be limited to, the following:
(A) Maintenance of minimum passing grades, which is defined as at
least a 2.0 grade point average in all enrolled courses on a 4.0
scale.
(B) Maintenance of minimum progress toward meeting the high school
graduation requirements prescribed by the governing board.
(6) For purposes of this subdivision, "previous grading period"
does not include any grading period in which the pupil was not in
attendance for all, or a majority of, the grading period due to
absences excused by the school for reasons such as serious illness or
injury, approved travel, or work. In that event, "previous grading
period" is deemed to mean the grading period immediately prior to the
grading period or periods excluded pursuant to this paragraph.
(7) A program that has, as its primary goal, the improvement of
academic or educational achievements of pupils is not an
extracurricular or cocurricular activity as defined by this section.
(8) The governing board of each school district may adopt, as part
of its policy established pursuant to this subdivision, provisions
that would allow a pupil who does not achieve satisfactory
educational progress, as defined in paragraph (4), in the previous
grading period to remain eligible to participate in extracurricular
and cocurricular activities during a probationary period. The
probationary period shall not exceed one semester in length, but may
be for a shorter period of time, as determined by the governing board
of the school district. A pupil who does not achieve satisfactory
educational progress, as defined in paragraph (4), during the
probationary period shall not be allowed to participate in
extracurricular and cocurricular activities in the subsequent grading
period.
(9) Nothing in this subdivision shall preclude the governing board
of a school district from imposing a more stringent academic
standard than that imposed by this subdivision. If the governing
board of a school district imposes a more stringent academic
standard, the governing board shall establish the criteria for
participation in extracurricular and cocurricular activities at a
meeting open to the public pursuant to Section 35145.
The governing board of each school district shall annually review
the school district policies adopted pursuant to the requirements of
this section.
(b) (1) On or before July 1, 1994, the governing board of each
school district shall, as a condition for the receipt of school
apportionments from the state school fund, adopt rules and
regulations establishing a policy of open enrollment within the
district for residents of the district. This requirement does not
apply to any school district that has only one school or any school
district with schools that do not serve any of the same grade levels.
(2) The policy shall include all of the following elements:
(A) It shall provide that the parents or guardian of each
schoolage child who is a resident in the district may select the
schools the child shall attend, irrespective of the particular
locations of his or her residence within the district, except that
school districts shall retain the authority to maintain appropriate
racial and ethnic balances among their respective schools at the
school districts' discretion or as specified in applicable
court-ordered or voluntary desegregation plans.
(B) It shall include a selection policy for any school that
receives requests for admission in excess of the capacity of the
school that ensures that selection of pupils to enroll in the school
is made through a random, unbiased process that prohibits an
evaluation of whether any pupil should be enrolled based upon his or
her academic or athletic performance. For purposes of this
subdivision, the governing board of the school district shall
determine the capacity of the schools in its district. However,
school districts may employ existing entrance criteria for
specialized schools or programs if the criteria are uniformly applied
to all applicants. This
subdivision shall not be construed to prohibit school districts from
using academic performance to determine eligibility for, or placement
in, programs for gifted and talented pupils established pursuant to
Chapter 8 (commencing with Section 52200) of Part 28.
(C) It shall provide that no pupil who currently resides in the
attendance area of a school shall be displaced by pupils transferring
from outside the attendance area.
(3) Notwithstanding the requirement of subparagraph (B) of
paragraph (2) that the policy include a selection policy for any
school that receives requests for admission in excess of the capacity
of the school that ensures that the selection is made through a
random, unbiased process, the policy may include any of the following
elements:
(A) It may provide that special circumstances exist that might be
harmful or dangerous to a particular pupil in the current attendance
area of the pupil, including, but not limited to, threats of bodily
harm or threats to the emotional stability of the pupil, that serve
as a basis for granting a priority of attendance outside the current
attendance area of the pupil. A finding of harmful or dangerous
special circumstances shall be based upon either of the following:
(i) A written statement from a representative of the appropriate
state or local agency, including, but not limited to, a law
enforcement official or a social worker, or properly licensed or
registered professionals, including, but not limited to,
psychiatrists, psychologists, or marriage, family and child
counselors.
(ii) A court order, including a temporary restraining order and
injunction, issued by a judge.
A finding of harmful or dangerous special circumstances pursuant
to this subparagraph may be used by a school district to approve
transfers within the district to schools that have been deemed by the
school district to be at capacity and otherwise closed to transfers
that are not based on harmful or dangerous special circumstances.
(B) It may provide that any pupil attending a school prior to July
1, 1994, may be considered a current resident of that school for
purposes of this section until the pupil is promoted or graduates
from that school.
(C) It may provide that no pupil who was on a waiting list for a
school or specialized program, on or before July 1, 1994, pursuant to
a then-existing district policy on transfers within the district,
shall be displaced by pupils transferring after July 1, 1994, from
outside the attendance area, as long as the continued maintenance on
a waiting list remains consistent with the former policy.
(D) It may provide that schools receiving requests for admission
shall give priority for attendance to siblings of children
pupils already in attendance in that school and
to children pupils whose parent or
legal guardian is assigned to that school as his or her primary place
of employment.
(E) It may include a process by which the school district informs
parents or guardians that certain schools or grade levels within a
school are currently, or are likely to be, at capacity and,
therefore, those schools or grade levels are unable to accommodate
any new pupils under the open enrollment policy.
(4) It is the intent of the Legislature that, upon the request of
the pupil's parent or guardian and demonstration of financial need,
each school district provide transportation assistance to the pupil
to the extent that the district otherwise provides transportation
assistance to pupils.
SEC. 38. Section 37252 of the Education Code is amended to read:
37252. (a) The governing board of each district maintaining any
or all of grades 7 to 12, inclusive, shall offer and a charter school
that maintains any or all of grades 7 to 12, inclusive, may offer
summer school instructional programs, using the amount computed
pursuant to Section 42239, for pupils enrolled in grades 7 to 12,
inclusive, who do not demonstrate sufficient progress toward passing
the exit examination required for high school graduation pursuant to
Chapter 8 (commencing with Section 60850) of Part 33. Sufficient
progress shall be determined on the basis of either of the following:
(1) The results of the assessments administered pursuant to
Article 4 (commencing with Section 60640) of Chapter 5 of Part 33 and
the minimum levels of proficiency recommended by the State Board of
Education pursuant to Section 60648.
(2) The pupils' grades and other indicators of academic
achievement designated by the district.
(b) The summer school programs shall also be offered to pupils who
were enrolled in grade 12 during the prior school year after the
completion of grade 12.
(c) (1) For purposes of this section a pupil shall be considered
to be enrolled in a grade immediately upon completion of the
preceding grade.
(2) For the purposes of this section, pupils who do not possess
sufficient English language skills to be assessed as set forth in
Sections 60850 and 60853, shall be considered pupils who do not
demonstrate sufficient progress towards passing the exit examination
required for high school graduation and shall receive supplemental
instruction designed to assist the pupils to
succeed on the high school exit examination.
(d) Instructional programs may be offered pursuant to this section
during the summer, after school, Saturday, or during intersession,
or in any combination of summer, after school, Saturday, or
intersession instruction, but shall be in addition to the regular
schoolday.
(e) This section shall become operative January 1, 2000.
SEC. 39. Section 39006 of the Education Code is amended and
renumbered to read:
39006.
17215.5. (a) Prior to commencing the acquisition of real
property for a new schoolsite in an area designated in a city,
county, or city and county general plan for agricultural use and
zoned for agricultural production, the governing board of a school
district shall make all of the following findings:
(1) The school district has notified and consulted with the city,
county, or city and county within which the prospective schoolsite is
to be located.
(2) The final site selection has been evaluated by the governing
board of the school district based on all factors affecting the
public interest and not limited to selection on the basis of the cost
of the land.
(3) The school district will attempt to minimize any public health
and safety issues resulting from the neighboring agricultural uses
that may affect the pupils and employees at the schoolsite.
(b) Subdivision (a) shall not apply to any schoolsite approved by
the State Department of Education prior to January 1, 1997.
SEC. 40. Section 44225.6 of the Education Code is amended to read:
44225.6. (a) By January 10 of each year, the commission shall
report to the Legislature and the Governor on the number of classroom
teachers who received credentials, internships, and emergency
permits in the previous fiscal year. This report shall include the
following information:
(1) The number of individuals recommended for credentials by
institutions of higher education.
(2) The number of individuals recommended by school districts
operating district internship programs.
(3) The number of individuals receiving an initial credential
based on a program completed outside of California.
(4) The number of individuals serving in the following capacities
by subject matter, county, and school district:
(A) University internship.
(B) District internship.
(C) Pre-Internship.
(D) Emergency permit.
(E) Credential waiver.
(5) The specific subjects and teaching areas in which there are a
sufficient number of new holders of credentials to fill the positions
currently held by individuals with emergency permits.
(b) The commission shall make this report available to school
districts and county offices of education to assist them in the
recruitment of credentialed teachers.
(c) A common measure of whether teacher preparation programs are
meeting the challenge of preparing increasing numbers of new teachers
is the number of teaching credentials awarded. The number of
teaching credentials recommended by these programs and awarded by the
commission are indicators of the productivity of teacher preparation
programs. The commission shall include in the report prepared for
the Legislature and Governor pursuant to subdivision (a) the total
number of teacher teaching credentials
recommended by all accredited teacher preparation programs authorized
by the commission and the number recommended by each of the
following:
(1) The University of California system.
(2) The California State University system.
(3) Independent colleges and universities that offer teacher
preparation programs approved by the commission.
(4) Other institutions that offer teacher preparation programs
approved by the commission.
SEC. 41. Section 44227 of the Education Code is amended to read:
44227. (a) The commission may approve any institution of higher
education whose teacher education program meets the standards
prescribed by the commission, to recommend to the commission the
issuance of credentials to persons who have successfully completed
those programs.
(b) Notwithstanding any provision of law to the contrary, the
commission may approve for credit any coursework completed for
credential purposes or for step increases in programs offered in
California by out-of-state institutions of higher education that meet
the requirements prescribed by Section 94761 only if the program of
courses is offered by a regionally accredited institution and
evidence of satisfactory evaluation by both that accrediting body and
the Western Association of Schools and Colleges is submitted by the
out-of-state institution to the commission for purposes of seeking
approval of the program and any courses within that program for the
purposes of obtaining a credential in California.
(c) Out-of-state applicants shall meet the following requirements
for the preliminary multiple or single subject teaching credential:
(1) A baccalaureate or higher degree from an accredited
institution of postsecondary education.
(2) The completion of a teacher training program approved by the
applicable state agency.
(3) The verification of subject matter competence either through
an examination , or by the completion of an
approved program or the equivalent of an approved program.
(4) The completion of a course or, for multiple subject
credentials, a course or an examination, on the various methods of
teaching reading.
(5) Passage of the state basic skills proficiency test.
(6) The completion of a course or an examination on the United
States Constitution.
(7) Commencing January 1, 2000, successful completion of a
commission-approved program, course, or examination in the use of
computers in the classroom, as set forth in Section 44259.
(d) Out-of-state applicants shall meet the following requirements
for the clear multiple or single subject teaching credential:
(1) A fifth year of study , or an approved
induction program pursuant to Section 44259.
(2) The study of education, including the study of physiological
and sociological effects of the abuse of alcohol, narcotics, drugs,
and tobacco.
(3) The completion of the study and practice of methods of
teaching individuals with exceptional needs.
(e) The commission shall assess the records of out-of-state
teachers who have been granted a five-year preliminary credential for
purposes of determining any additional coursework that may be
required as a condition for the issuance of a clear credential. The
assessment shall determine the equivalency of out-of-state coursework
in comparison to California coursework requirements ,
and, where applicable, shall specify additional coursework
to be taken. In determining the equivalency of out-of-state
coursework to California requirements, the commission shall do all of
the following:
(1) Accept a master's degree or higher degree from an accredited
postsecondary educational institution demonstrating completion of an
educationally related and organized program involving at least 30
semester units of postbaccalaureate coursework from an accredited
postsecondary educational institution for purposes of meeting the
fifth year of study requirement.
(2) Upon direct application, grant a clear credential if the
out-of-state teacher has met the requirements of paragraphs (1) to
(3), inclusive, of subdivision (d).
(3) Notify the out-of-state teacher who has completed the
fifth year fifth-year equivalency requirement,
but who has not met the requirements of paragraph (2) or (3) of
subdivision (d), that upon the submission of verification that he or
she has completed these requirements, he or she may submit an
application to the commission for a clear credential.
(4) Notify out-of-state applicants who have not completed the
fifth year of study requirement that they must obtain an evaluation
of a postsecondary educational institution with an approved
fifth year fifth-year program. If there is a
significant difference of opinion as to the content or units credited
to out-of-state coursework, either the applicant or the
postsecondary educational institution may solicit the opinion of the
commission. Upon the completion of the coursework specified in the
postsecondary educational institution's evaluation, the institution
may recommend the applicant for a clear credential.
(f) If an applicant is unable to secure the recommendation of a
postsecondary educational institution for the issuance of a clear
credential, the applicant may submit a direct application to the
commission documenting that he or she has completed all of the
requirements for a clear credential. If the commission determines
that all of the requirements have been met, the commission shall
grant the clear credential.
SEC. 42. Section 44259 of the Education Code is amended to read:
44259. (a) Except as provided in subparagraphs (A) and (C) of
paragraph (3) of subdivision (b), each program of professional
preparation for multiple or single subject teaching credentials shall
not include more than one year of, or the equivalent of one-fifth of
a five-year program in, professional preparation.
(b) The minimum requirements for the preliminary multiple or
single subject teaching credential , are all of
the following:
(1) A baccalaureate degree or higher degree from a regionally
accredited institution of postsecondary education. Except as
provided in subdivision (c) of Section 44227, the baccalaureate
degree shall not be in professional education. The commission shall
encourage accredited institutions to offer undergraduate minors in
education and special education to students who intend to become
teachers.
(2) Passage of the state basic skills examination that is
developed and administered by the commission pursuant to Section
44252.5.
(3) Satisfactory completion of a program of professional
preparation that has been accredited by the committee on
accreditation on the basis of standards of program quality and
effectiveness that have been adopted by the commission. Subject to
the availability of funds in the annual Budget Act for this purpose,
and in accordance with the commission's assessment and performance
standards, each program shall include a teaching performance
assessment as set forth in Section 44320.2 which is aligned with the
California Standards for the Teaching Profession. The commission
shall ensure that each candidate recommended for a credential or
certificate has demonstrated satisfactory ability to assist
students pupils to meet or exceed state content
and performance standards for pupils adopted pursuant to subdivision
(a) of Section 60605. Programs that meet this requirement for
professional preparation shall include any of the following:
(A) Integrated programs of subject matter preparation and
professional preparation pursuant to subdivision (a) of Section
44259.1.
(B) Postbaccalaureate programs of professional preparation,
pursuant to subdivision (b) of Section 44259.1.
(C) Internship programs of professional preparation, pursuant to
Section 44321, Article 7.5 (commencing with Section 44325), Article
11 (commencing with Section 44380), and Article 3 (commencing with
Section 44450) of Chapter 3.
(4) Study of alternative methods of developing English language
skills, including the study of reading as described in subparagraphs
(A) and (B), among all pupils, including those for whom English is a
second language, in accordance with the commission's standards of
program quality and effectiveness. The study of reading shall meet
the following requirements:
(A) Commencing January 1, 1997, satisfactory completion of
comprehensive reading instruction that is research-based and includes
all of the following:
(i) The study of organized, systematic, explicit skills including
phonemic awareness, direct, systematic, explicit phonics, and
decoding skills.
(ii) A strong literature, language, and comprehension component
with a balance of oral and written language.
(iii) Ongoing diagnostic techniques that inform teaching and
assessment.
(iv) Early intervention techniques.
(v) Guided practice in a clinical setting.
(B) For the purposes of this section, "direct, systematic,
explicit phonics" means phonemic awareness, spelling patterns, the
direct instruction of sound/symbol codes and practice in connected
text and the relationship of direct, systematic, explicit phonics to
the components set forth in clauses (i) to (v), inclusive.
A program for the multiple subjects credential also shall include
the study of integrated methods of teaching language arts.
(5) Completion of a subject matter program that has been approved
by the commission on the basis of standards of program quality and
effectiveness pursuant to Article 6 (commencing with Section 44310)
or passage of a subject matter examination pursuant to Article 5
(commencing with Section 44280). The commission shall ensure that
subject matter standards and examinations are aligned with the state
content and performance standards adopted for
pupils adopted pursuant to subdivision (a) of Section
60605.
(6) Demonstration of a knowledge of the principles and provisions
of the Constitution of the United States pursuant to Section 44335.
(7) Commencing January 1, 2000, demonstration, in accordance with
the commission's standards of program quality and effectiveness, of
basic competency in the use of computers in the classroom as
determined by one of the following:
(A) Successful completion of a commission-approved program or
course.
(B) Successful passage of an assessment that is developed,
approved, and administered by the commission.
(c) The minimum requirements for the professional clear multiple
or single subject teaching credential shall include all of the
following requirements:
(1) Possession of a valid preliminary teaching credential, as
prescribed in subdivision (b), possession of a valid equivalent
credential or certificate, or completion of equivalent requirements
as determined by the commission. A candidate who has satisfied the
requirements of subdivision (b) for a preliminary credential,
including completion of an accredited internship program of
professional preparation, shall be determined by the commission to
have fulfilled the requirements of paragraph (2) for beginning
teacher induction if the accredited internship program has fulfilled
induction standards and been approved as set forth in this
subdivision.
(2) Subject to the availability of funds in the annual Budget Act
to provide statewide access to eligible beginning teachers, as
defined in subdivision (d) of Section 44279.1, completion of a
program of beginning teacher induction, including any of the
following:
(A) A program of beginning teacher support and assessment approved
by the commission and the Superintendent of Public Instruction
pursuant to Section 44279.1, a provision of the Marian Bergeson
Beginning Teacher Support and Assessment System.
(B) An alternative program of beginning teacher induction that is
provided by one or more local education agencies and has been
approved by the commission and the superintendent on the basis of
initial review and periodic evaluations of the program in relation to
appropriate standards of credential program quality and
effectiveness that have been adopted by the commission, the
superintendent, and the State Board of Education pursuant to this
subdivision. The standards for alternative programs shall encourage
innovation and experimentation in the continuous preparation and
induction of beginning teachers. Any alternative program of
beginning teacher induction that has met state standards pursuant to
this subdivision may apply for state funding pursuant to Sections
44279.1 and 44279.2.
(C) An alternative program of beginning teacher induction that is
sponsored by a regionally accredited college or university, in
cooperation with one or more local school districts, that addresses
the individual professional needs of beginning teachers and meets the
commission's standards of induction. The commission shall ensure
that preparation and induction programs that qualify candidates for
professional credentials extend and refine each beginning teacher's
professional skills in relation to the California Standards for the
Teaching Profession and the standards of student
pupil performance adopted pursuant to Section 60605.
(3) Preparation, in accordance with commission standards, that
addresses the following:
(A) Study of health education, including study of nutrition,
cardiopulmonary resuscitation, and the physiological and sociological
effects of abuse of alcohol, narcotics, and drugs and the use of
tobacco. Training in cardiopulmonary resuscitation shall also meet
the standards established by the American Heart Association or the
American Red Cross.
(B) Study and field experience in methods of delivering
appropriate educational services to students
pupils with exceptional needs in regular education programs.
(C) Study, in accordance with the commission's standards of
program quality and effectiveness, of advanced computer-based
technology, including the uses of technology in educational settings.
(4) The commission shall develop and implement standards of
program quality that provide for the areas of study listed in
subparagraphs (A) to (C), inclusive of paragraph (3), starting in
professional preparation and continuing through induction.
(5) Completion of an approved fifth-year program after completion
of a baccalaureate degree at a regionally accredited institution,
except that the commission shall eliminate this requirement for any
candidate who has completed an induction program that has been
approved for the professional clear credential pursuant to paragraph
(2).
(d) A credential that was issued prior to the effective date of
this section shall remain in force as long as it is valid under the
laws and regulations that were in effect on the date it was issued.
The commission may not, by regulation, invalidate an otherwise valid
credential unless it issues to the holder of the credential, in
substitution, a new credential authorized by another provision in
this chapter that is no more restrictive than the credential for
which it was substituted with respect to the kind of service
authorized and the grades, classes, or types of schools in which it
authorizes service.
(e) A credential program that is approved by the commission may
not deny an individual access to that program solely on the grounds
that the individual obtained a teaching credential through completion
of an internship program when that internship program has been
accredited by the commission.
(f) Notwithstanding this section, persons who were performing
teaching services as of January 1, 1999, pursuant to the language of
this section that was in effect prior to that date, may continue to
perform those services without complying with any requirements that
may be added by the amendments adding this subdivision.
(g) Subparagraphs (A) and (B) of paragraph (4) of subdivision (b)
do not apply to any person who, as of January 1, 1997, holds a
multiple or single subject teaching credential, or to any person
enrolled in a program of professional preparation for a multiple or
single subject teaching credential as of January 1, 1997, who
subsequently completes that program. It is the intent of the
Legislature that the requirements of subparagraphs (A) and (B) of
paragraph (4) of subdivision (b) be applied only to persons who enter
a program of professional preparation on or after January 1, 1997.
(h) The commission shall grant teaching credentials based on the
requirements for those credentials that were in effect on December
31, 1998, to candidates who were in the process of meeting those
requirements for teaching credentials before the effective date of
the commission's implementation of this section.
SEC. 43. Section 44275.3 of the Education Code is amended to read:
44275.3. Notwithstanding any other provision of law:
(a) (1) It is the intent of the Legislature that both of the
following occur:
(A) That this section provide flexibility to enable school
districts to recruit credentialed out-of-state elementary, secondary,
and special education teachers to relocate to California.
(B) That any and all teachers hired in California pursuant to this
section fully meet the requirements of the State of California.
(2) It is not the intent of the Legislature either to address the
issue of interstate reciprocity of credentialing requirements or to
dilute current California requirements for credentialed teachers.
(b) Any teacher from a state other than California may be employed
by a school district pursuant to this section to provide
instructional services if each of the following conditions are met:
(1) The teacher holds a valid credential that requires the teacher
to meet requirements equivalent to the multiple or single subject
teaching credential requirements in paragraphs (1) and (2) of
subdivision (c) of Section 44227 or the special education credential
requirements described in Section 44265.
(2) The credential from the state other than California is valid
at the time the teacher commences to provide instructional services
for the school district.
(3) The teacher is hired after
the successful completion of a criminal background check conducted
pursuant to Section 44332.6 , by the governing
board of the school district offering the teacher employment.
(c) The Commission on Teacher Credentialing shall grant a
five-year preliminary multiple or single subject teaching credential
or education specialist credential to a teacher meeting the
requirements of subdivision (b) if the teacher has received an offer
of employment from a California school district, county office of
education, nonpublic, nonsectarian school or agency, or school
operating under the direction of a California state agency.
(d) At or before the completion of one school year of teaching
pursuant to this section, a teacher shall pass the state basic skills
proficiency test, pursuant to Section 44252, administered by the
Commission on Teacher Credentialing in order to be eligible to
continue teaching pursuant to this section.
(e) At or before the completion of four school years of teaching
pursuant to this section, a teacher shall, to the satisfaction of the
Commission on Teacher Credentialing, meet the requirements for
subject matter competence, for completion of a course, or for
multiple subject credentials, a course or an examination, on the
various methods of teaching reading, and for completion of a course
or examination on the Constitution of the United States, within the
meaning of paragraphs (3), (4), and (6), respectively, of subdivision
(c) of Section 44227, in order to be eligible to continue teaching
pursuant to this section. Additionally, to be eligible to continue
teaching on an education specialist credential, the teacher shall
also complete the requirements for nonspecial education pedagogy and
a supervised field experience program in general education.
(f) At or before the completion of five school years of teaching
pursuant to this section, a teacher shall meet the requirements for
completion of the study of health education, for completion of study
and field experience in methods of delivering appropriate educational
services to pupils with exceptional needs in regular education
programs, and for completion of the study of computer-based
technology, within the meaning of paragraphs (1), (2), (3), and (4),
respectively, of subdivision (c) of Section 44259. A teacher holding
a specialist credential pursuant to this section shall complete a
program for the Professional Level II credential accredited by the
Committee on Accreditation, established pursuant to Section 44373,
including the requirements specified in this subdivision and
subdivision (e).
(g) If a teacher fails to meet any of the requirements of
subdivisions (b), (c), (d), (e), and (f), the Commission on Teacher
Credentialing shall inactivate a preliminary credential granted
pursuant to this section until the requirement is met. The time
requirements contained in subdivisions (e) and (f) shall not be
stayed by the inactivation of a preliminary credential under this
subdivision.
(h) The Commission on Teacher Credentialing shall issue a
professional clear credential to a teacher who meets the requirements
of subdivisions (b), (c), (d), (e), and (f) and submits an
application with appropriate fees and documentation of the completion
of all requirements pursuant to this section.
SEC. 44. Section 44424 of the Education Code is amended to read:
44424. (a) Upon the conviction of the holder of any credential
issued by the State Board of Education or the Commission on Teacher
Credentialing of a violation, or attempted violation, of a violent or
serious felony as described in Section 44346.1, or any one or more
of Penal Code Sections 187 to 191, inclusive, 192 insofar
as said this section relates to
voluntary manslaughter, 193, 194 to 217.1, both
inclusive, 220, 222, 244, 245, 261 to 267, both
inclusive, 273a, 273ab, 273d, 273f, 273g, 278, 285 to 288a,
both inclusive, 424, 425, 484 to 488, both
inclusive, insofar as said these
sections relate to felony convictions, 503 and 504, or of any
offense involving lewd and lascivious conduct under Section 272 of
the Penal Code, or any offense committed or attempted in any other
state or against the laws of the United States which, if committed or
attempted in this state, would have been punished as one or more of
the offenses specified in this section, becoming final, the
commission shall forthwith revoke the credential.
(b) Upon a plea of nolo contendre
contendere as a misdemeanor to one or more of the crimes set
forth in subdivision (a), all credentials held by the respondent
shall be suspended until a final disposition regarding those
credentials is made by the commission. Any action that the
commission is permitted to take following a conviction may be taken
after the time for appeal has elapsed, or the judgment of conviction
has been affirmed on appeal, or when an order granting probation is
made suspending the imposition of sentence and the time for appeal
has elapsed or the judgment of conviction has been affirmed on
appeal, irrespective of a subsequent order under the provisions of
Section 1203.4 of the Penal Code.
(c) The commission shall revoke a credential issued to a person
whose employment has been denied or terminated pursuant to Section
44830.1.
(d) Notwithstanding subdivision (a), a credential shall not be
revoked solely on the basis that the applicant or holder has been
convicted of a violent or serious felony if the person has obtained a
certificate of rehabilitation and pardon pursuant to Chapter 3.5
(commencing with Section 4852.01) of Title 6 of Part 3 of the Penal
Code.
SEC. 45. Section 47611.5 of the Education Code is amended to read:
47611.5. (a) Chapter 10.7 (commencing with Section 3540) of
Division 4 of Title 1 of the Government Code shall apply to charter
schools.
(b) A charter school charter shall contain a declaration regarding
whether or not the charter school shall be deemed the exclusive
public school employer of the employees at the charter school for the
purposes of Section 3540.1 of the Government Code. If the charter
school is not so deemed a public school employer, the school district
where the charter is located shall be deemed the public school
employer for the purposes of Chapter 10.7 (commencing with Section
3540) of Division 4 of the Government Code.
(c) If the charter of a charter school does not specify that it
shall comply with those statutes and regulations governing public
school employers that establish and regulate tenure or a merit or
civil service system, the scope of representation for that charter
school shall also include discipline and dismissal of charter school
employees.
(d) The Public Employment Relations Board shall take into account
the Charter Schools Act of 1992 (Part 26.8 (commencing with Section
47600)) when deciding cases brought before it related to charter
schools.
(e) The approval or a denial of a charter petition by a granting
agency pursuant to subdivision (b) of Section 47605 shall
not be controlled by collective bargaining agreements nor subject to
review or regulation by the Public Employment Relations Board.
(f) By March 31, 2000, all existing charter schools must declare
whether or not they shall be deemed a public school employer in
accordance with subdivision (b), and such declaration shall not be
materially inconsistent with the charter.
SEC. 46. Section 47612.5 of the Education Code is amended to read:
47612.5. (a) Notwithstanding any other provision of law, a
charter school shall do all of the following:
(1) Offer, at a minimum, the same number of minutes of instruction
set forth in paragraph (3) of subdivision (a) of Section 46201 for
the appropriate grade levels.
(2) Maintain written contemporaneous records that document all
pupil attendance and shall make these records
available for audit and inspection.
(3) Certify that its pupils have participated in the state testing
programs specified in Chapter 5 (commencing with Section 60600) of
Part 33 in the same manner as other pupils attending public schools
as a condition of apportionment of state funding.
(b) Notwithstanding any other provision of law, a charter school
that provides independent study shall comply with Article 5.5
(commencing with Section 51745) of Chapter 5 of Part 28 and
implementing regulations adopted thereunder. The State Board of
Education shall adopt regulations that apply this article to charter
schools. To the extent that these regulations concern the
qualifications of instructional personnel, the State Board of
Education shall be guided by subdivision (l) of Section 47605.
SEC. 47. Section 51871.5 of the Education Code is amended to read:
51871.5. (a) It is the intent of the Legislature that education
technology planning be accomplished in the most comprehensive manner
possible. To that end, the current practice of developing education
technology plans for each funding program should be replaced with a
comprehensive local planning process that will enable school
districts to apply for grants on an ongoing basis and assist in
utilizing available education technology program
programs .
(b) By October 1, 2000, the commission, in conjunction with the
Curriculum Development and Supplemental Materials Commission, shall
recommend guidelines and criteria to the State Board of Education for
assisting school districts in the preparation of three- to five-year
technology plans for the integration of technology into the school
curriculum. At a minimum, the technology plans shall be integrated,
where allowed by law, with School Improvement Plans and Title I Plans
and include a staff development and technical support component.
(c) On or after January 1, 2002, a school district shall have a
technology plan as a precondition of receiving any technology grant
administered by the State Department of Education. This requirement
may be waived by the State Board of Education if it is determined
that the applicant school district made a good faith effort to
develop a local technology plan, but for reasons beyond its control,
the district cannot develop the plan before receipt of the technology
grant.
(d) The State Department of Education shall maintain a record of
school districts that have three- to five-year education technology
plans and shall make that information available to any interested
public agencies.
SEC. 48. Section 54685.2 of the Education Code is amended to read:
54685.2. The Orange County Superintendent of Schools, having been
selected by the Superintendent of Public Instruction, shall continue
to manage the implementation of the Early Intervention for School
Success Program pursuant to the management plan described in Section
54683.5 54685.3 .
SEC. 49. Section 54685.3 of the Education Code is amended to read:
54685.3. The management plan required by this section shall
include the following activities:
(a) Implementation of the program at 300 public schoolsites within
the state between July 1, 1999, and June 30, 2004.
(b) The dissemination of program information.
(c) The awarding of competitive grants to schools representative
of the ethnic, socioeconomic, and geographic diversity of the public
school system.
(d) Provisions for training, materials, parent education, and
technical assistance.
(e) Adaptation of the Early Intervention for School Success
Program to meet state and local standards, the goals of the
California Reading Initiative, and the expectations of class size
reduction legislation, including identification of existing materials
and development of new materials, if needed.
(f) Development of a statewide support network.
(g) Selection of successful sites as demonstration models for
inclusion in a statewide network.
(h) Certification of one teacher for each funded schoolsite to
serve as a local trainer.
(i) The provision of continued professional development
instruction in prevention and early intervention methods based on
research and exemplary practice.
(j) The training of school personnel in the skills necessary to
determine instructional levels of pupils based on a continuous
assessment of pupils pupil performance
that is validated and supported by the use of multiple assessment
techniques. For purposes of this section, "multiple assessment
techniques" includes, but is not limited to, teacher observation,
anecdotal records, norm referenced tests, and criterion referenced
tests.
(k) Provision for an annual program progress report and program
evaluation by the Orange County Superintendent of Schools to be
submitted to the State Department of Education.
SEC. 50. Section 60200.2 of the Education Code is amended to read:
(a)
60200.2. (a) In addition to the findings authorized under
subparagraphs (A) and (B) of paragraph (5) of subdivision (c) of
Section 60200, if the state board finds that the use of a commercial
brand name, product, or corporate or company logo in an instructional
material is authorized under a contract entered into under paragraph
(3) of subdivision (a) of Section 35182.5 as added by Assembly Bill
117 of the 1999-2000 Regular Session, the state board may allow the
use of that instructional material.
(b) This section shall become operative only if Section 35182.5 as
proposed by Assembly Bill 117 of the 1999-2000 Regular Session is
enacted and takes effect.
SEC. 51. The heading of Chapter 8 (commencing with Section 60850)
of Part 33 of Division 4 of Title 2 of the Education Code is amended
and renumbered to read:
CHAPTER 8. 9. HIGH SCHOOL EXIT
EXAMINATION
SEC. 52. Section 60855 of the Education Code is amended to read:
60855. (a) By January 15, 2000, the Superintendent of Public
Instruction shall contract for a multiyear independent evaluation of
the high school exit examination that is established pursuant to this
chapter. The evaluation shall be based upon information gathered in
field testing and annual administrations of the examination and
shall include all of the following:
(1) Analysis of pupil performance, broken down by grade level,
gender, race or ethnicity, and subject matter of the examination,
including any trends that become apparent over time.
(2) Analysis of the exit examination's effects, if any, on college
attendance, pupil retention, graduation, and dropout rates,
including analysis of these effects on the population subgroups
described in subdivision (b).
(3) Analysis of whether the exit examination is likely to have, or
has, differential effects, whether beneficial or detrimental, on
population subgroups described in subdivision (b).
(b) Evaluations conducted pursuant to this section shall
separately consider test results for each of the following population
subgroups, provided that information concerning individuals shall
not be gathered or disclosed in the process of preparing this
evaluation.
(1) English language learners and non-English language learners.
(2) Individuals with exceptional needs and individuals without
exceptional needs.
(3) Pupils that qualify for free or reduced price meals and are
enrolled in schools that qualify for assistance under Title 1 of the
Improving America's Schools Act of 1994 (P.L. 103-382) and pupils
that do not qualify for free or reduced price meals and are not
enrolled in schools that quality qualify
for assistance under Title 1 of the Improving America's Schools
Act of 1994 (P.L. 103-382) Act .
(4) Any group of pupils that has been determined by the
independent evaluator to be differentially affected by the exit
examination established pursuant to this chapter.
(c) Evaluation reports shall include recommendations to improve
the quality, fairness, validity, and reliability of the examination.
The independent evaluator may also make recommendations for
revisions in design, administration, scoring, processing, or use of
the examination.
(d) The independent evaluator shall report to the Governor, the
Office of the Legislative Analyst, the Superintendent of Public
Instruction, the State Board of Education, the Secretary for
Education, and the chairs of the education policy committees in both
houses of the Legislature, in accordance with the following schedule:
(1) Preliminary report on field testing by July 1, 2000.
(2) First annual report by February 1, 2002.
(3) Regular biennial reports by February 1 of even-numbered years
following 2002.
SEC. 53. Section 66293 of the Education Code is amended to read:
66293. The California Postsecondary Education Commission shall
report to the Legislature and Governor on the representation and
utilization of ethnic minorities and women among academic,
administrative, and other employees at the community colleges, the
California State University, and the University of California,
pursuant to Sections 66903.1 and Section
66903.3.
SEC. 54. Section 81149 of the Education Code is amended to read:
81149. (a) Notwithstanding any provision of law, a community
college district may acquire for use any facility previously used by
the United States military and closed as a result of action by the
federal Defense Base Closure and Realignment Commission, or purchase
any offsite building constructed prior to January 1, 1998 that meets
the structural requirements of the 1976 Uniform Building Code, or
subsequent additions to that code, but that does not meet the
requirements of Section 81130, for use as a school building, as
defined in Section 81130.5, if the governing board of the district
finds that all of the following conditions have been met:
(1) A structural engineer has inspected the building or facility
and submitted a report to the governing board of the community
college district that certifies that the building or facility is in
substantial compliance with the requirements of this article, or
describes in detail any structural modifications necessary to render
the building or facility in substantial compliance with the
this article. For purposes of this section, substantial
compliance with this article means that the building or facility is
likely to resist, without catastrophic collapse, earthquake forces
generated by major earthquakes of the intensity and severity of the
strongest experienced in California, but may experience some
reparable architectural or structural damage. This requirement is
satisfied if the structural engineer affixes his or her seal of
approval to the report and he or she attests in that report that to
the best of his or her knowledge:
(A) He or she has reviewed the design calculations, construction
documents, and the local government construction inspection records
of the building or facility, to the extent those items are available.
(B) He or she has authorized testing and has observed or reviewed
the test results and the inspections of an adequate sample of the
structure's welds, anchor bolts, and other structural elements.
(C) He or she has observed that the nonstructural elements,
including, but not limited to, light fixtures, heating, and
air-conditioning diffusers are adequately braced or anchored.
(2) The governing board of the community college district shall
forward the report submitted pursuant to paragraph (1) to the
Department of General Services for its review. Within 45 working
days, the Department of General Services shall review the report for
compliance with the above requirements, to provide feedback to the
structural engineer regarding any insufficiencies with the report,
and to determine whether or not the building or facility is in
substantial compliance with the requirements of this article, or
whether any proposed structural modifications will render the
structure in substantial compliance with this article. If the
Department of General Services does not respond within 45 working
days of the submission of the final and complete report, the
department will be deemed to have concurred with the structural
engineer's report. If structural modifications are necessary to
achieve substantial compliance with this article, plans shall be
submitted to the department for review and approval. Construction
shall be completed in compliance with the continuous inspection
requirements of this article.
(b) (1) No member of the governing board of a community college
district, and no employee of a community college district, shall be
held personally liable for injury to persons or damage to property
resulting from the fact that the governing board of the community
college district purchased a building or facility pursuant to this
subdivision for a school and the building or facility was not
constructed pursuant to the requirements of Section 81130.
(2) The exemption from personal liability for members of the
governing board and employees of a community college district
described in paragraph (1) does not limit the liability of the
community college district for injury to persons or damage to
property resulting from the fact that the governing board or any
employee of the community college district used a building or
facility pursuant to this subdivision for a school if the building or
facility was not constructed pursuant to the requirements of Section
81130. The exemption from personal liability for members of the
governing board and employees of a community college district
described in paragraph (1) does not limit the liability of the
community college district, the governing board, or the district's
employees pursuant to Section 835 of the Government Code.
(3) Section 81144 is not applicable to a person who, pursuant to
this section, purchases a building or facility that meets the
requirements of this section but does not meet the requirements of
Section 81130. Approval and use of a building or facility pursuant
to this section does not violate this article.
SEC. 55. Section 8040 of the Elections Code is amended to read:
8040. (a) The declaration of candidacy by a candidate shall be
substantially as follows:
DECLARATION OF CANDIDACY
I hereby declare myself a ____ Party candidate for nomination
to
the office of ____ District Number ____ to be voted for at the
primary election to be held ____, 19__, and declare the following
to be true:
My name is
____________________________________________________.
I want my name and occupational designation to appear on the
ballot as follows ________.
ballot as follows:
______________________________________________.
Addresses:
Residence
____________________________________________________
____________________________________________________
Business
_____________________________________________________
_____________________________________________________
Mailing
_____________________________________________________
_____________________________________________________
Telephone numbers: Day _________ Evening ___________
I meet the statutory and constitutional qualifications for
this
office (including, but not limited to, citizenship, residency,
and
party affiliation, if required).
I am at present an incumbent of the following public office
(if any) ____.
If nominated, I will accept the nomination and not withdraw.
________________________________________
Signature of candidate
State of California )
County of _________ ) ss.
)
Subscribed and sworn to before me this ____ day of ____, 19__.
_________________________________________
Notary Public (or other official)
Examined and certified by me this ________ day of _______,
19__.
_________________________________________
Registrar of Voters--County Clerk
WARNING: Every person acting on behalf of a candidate is guilty of
a misdemeanor who deliberately fails to file at the proper time and
in the proper place any declaration of candidacy in his or her
possession which is entitled to be filed under the provisions of the
Elections Code Section 18202.
(b) No candidate for a judicial office shall be required to state
his or her residential address on the declaration of candidacy.
However, in cases where the candidate does not state his or her
residential address on the declaration of candidacy, the elections
official shall verify whether his or her address is within the
appropriate political subdivision and add the notation "verified"
where appropriate.
SEC. 56. Section 243 of the Family Code is amended to read:
243. (a) When the matter first comes up for hearing, the
applicant must be ready to proceed.
(b) If an order described in Section 240 has been issued without
notice pending the hearing, the applicant must have served on the
respondent, at least five days before the hearing, a copy of each of
the following:
(1) The order to show cause.
(2) The application and the affidavits and points and authorities
in support of the application.
(3) Any other supporting papers filed with the court.
(c) If the applicant fails to comply with subdivisions (a) and
(b), the court shall dissolve the order.
(d) If service is made under subdivision (b), the respondent is
entitled, as a matter of course, to one continuance for a
reasonable period , to respond to the application
for the order.
(e) On motion of the applicant or on its own motion, the court may
shorten the time provided in this section for service on the
respondent.
(f) The respondent may, in response to the order to show cause,
present affidavits relating to the granting of the order, and if the
affidavits are served on the applicant at least two days before the
hearing, the applicant is not entitled to a continuance on account of
the affidavits.
SEC. 57. Section 2040 of the Family Code is amended to read:
2040. (a) In addition to the contents required by Section 412.20
of the Code of Civil Procedure, the summons shall contain a temporary
restraining order:
(1) Restraining both parties from removing the minor child or
children of the parties, if any, from the state without the prior
written consent of the other party or an order of the court.
(2) Restraining both
parties from transferring, encumbering, hypothecating, concealing, or
in any way disposing of any property, real or personal, whether
community, quasi-community, or separate, without the written consent
of the other party or an order of the court, except in the usual
course of business or for the necessities of life , and
requiring each party to notify the other party of any proposed
extraordinary expenditures at least five business days before
incurring those expenditures and to account to the court for all
extraordinary expenditures made after service of the summons on that
party.
Notwithstanding the foregoing, nothing in the restraining order
shall preclude a party from using community property, quasi-community
property, or the party's own separate property to pay reasonable
attorney's fees and costs in order to retain legal counsel in the
proceeding. A party who uses community property or quasi-community
property to pay his or her attorney's retainer for fees and costs
under this provision shall account to the community for the use of
the property. A party who uses other property that is subsequently
determined to be the separate property of the other party to pay his
or her attorney's retainer for fees and costs under this provision
shall account to the other party for the use of the property.
(3) Restraining both parties from cashing, borrowing against,
canceling, transferring, disposing of, or changing the beneficiaries
of any insurance or other coverage, including life, health,
automobile, and disability , held for the benefit of the
parties and their child or children for whom support may be ordered.
(b) In all actions filed on and after January 1, 1995, the summons
shall contain the following notice:
"WARNING: California law provides that, for purposes of division
of property upon dissolution of marriage or legal separation,
property acquired by the parties during marriage in joint form is
presumed to be community property. If either party to this action
should die before the jointly held community property is divided, the
language of how title is held in the deed (i.e., joint tenancy,
tenants in common, or community property) will be controlling and not
the community property presumption. You should consult your
attorney if you want the community property presumption to be written
into the recorded title to the property."
SEC. 58. Section 3021 of the Family Code is amended to read:
3021. This part applies in any of the following:
(a) A proceeding for dissolution of marriage.
(b) A proceeding for nullity of marriage.
(c) A proceeding for legal separation of the parties.
(d) An action for exclusive custody pursuant to Section 3120.
(e) A proceeding to determine physical or legal custody or for
visitation in a proceeding pursuant to the Domestic Violence
Prevention Act (Division 10 (commencing with Section 6200)).
In an action under Section 6323, nothing in this subdivision shall
be construed to authorize physical or legal custody, or visitation
rights, to be granted to any party to a Domestic Violence Prevention
Act proceeding who has not established a parent and child
relationship pursuant to paragraph (2) of subdivision (a) of Section
6323.
(f) A proceeding to determine physical or legal custody or
visitation in an action pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12).
(g) A proceeding to determine physical or legal custody or
visitation in an action brought by the district attorney pursuant to
Section 11350.1 of the Welfare and Institutions Code
17404 .
SEC. 59. Section 4065 of the Family Code is amended to read:
4065. (a) Unless prohibited by applicable federal law, the
parties may stipulate to a child support amount subject to approval
of the court. However, the court shall not approve a stipulated
agreement for child support below the guideline formula amount unless
the parties declare all of the following:
(1) They are fully informed of their rights concerning child
support.
(2) The order is being agreed to without coercion or duress.
(3) The agreement is in the best interests of the children
involved.
(4) The needs of the children will be adequately met by the
stipulated amount.
(5) The right to support has not been assigned to the county
pursuant to Section 11477 of the Welfare and Institutions Code and no
public assistance application is pending.
(b) The parties may, by stipulation, require the child support
obligor to designate an account for the purpose of paying the child
support obligation by electronic funds transfer pursuant to Section
4508.
(c) A stipulated agreement of child support is not valid unless
the district attorney has joined in the stipulation by signing it in
any case in which the district attorney is providing services
pursuant to Section 11475.1 of the Welfare and Institutions
Code 17400 . The district attorney shall not
stipulate to a child support order below the guideline amount if the
children are receiving assistance under the CalWORKs program, if an
application for public assistance is pending, or if the parent
receiving support has not consented to the order.
(d) If the parties to a stipulated agreement stipulate to a child
support order below the amount established by the statewide uniform
guideline, no change of circumstances need be demonstrated to obtain
a modification of the child support order to the applicable guideline
level or above.
SEC. 60. Section 5002 of the Family Code is amended to read:
5002. (a) In an action pursuant to this chapter prosecuted by the
district attorney or the Attorney General that is initiated by
service of summons and petition or other comparable pleading, the
respondent may also be served with a proposed judgment consistent
with the relief sought in the petition or other comparable pleading.
If the respondent's income or income history is unknown to the
district attorney, the district attorney may serve a form of proposed
judgment with the petition and other documents on the respondent
that shall inform the respondent that income shall be presumed in an
amount that results in a court order equal to the minimum basic
standard of adequate care provided in Section 11452 of the Welfare
and Institutions Code unless information concerning the respondent's
income is provided to the court. The respondent shall also receive
notice that the proposed judgment will become effective if he or she
fails to file a response with the court within 30 days after service.
(b) In any action pursuant to this chapter in which the judgment
was obtained pursuant to presumed income, as set forth in this
section, the court may relieve the respondent from that part of the
judgment or order concerning the amount of child support to be paid
in the manner set forth in Section 11356 of the Welfare and
Institutions Code 17432 .
SEC. 61. Section 18210 of the Financial Code is amended to read:
18210. (a) Except as provided in Sections 18205.5 and 18209 and
subject to subdivision subdivisions (b)
and (c), an industrial loan company shall not make any loan or
purchase or discount any note secured primarily by real property
unless the loan or other obligation is repayable in substantially
equal weekly, semimonthly, monthly, or quarterly installments during
its term, which shall not exceed 30 years and 30 days from the date
the loan or other obligation is made or acquired by the company.
Equal installment requirements shall not apply to adjustable or
variable rate loans or obligations made or purchased by the
industrial loan company in accordance with Title VIII of the Garn-St.
Germaine Depository Institutions Act of 1982 and any applicable
regulations, guidelines, and policies adopted thereunder. However,
an industrial loan company may make loans secured by first trust
deeds on real property containing single family, or one to four
residential, units provided that the repayment period for each loan
does not exceed 40 years and 30 days from the date the loan is made
by the company. All loans with repayment periods in excess of 30
years and 30 days shall not exceed in the aggregate 5 percent of all
outstanding loans and obligations of the company.
(b) Any consumer loan or any purchase or discount of any consumer
obligation having a term in excess of three years from the date the
loan or other obligation is made or acquired by the company shall be
secured solely by real property or solely by personal property.
However, if the original principal amount of the consumer loan or
obligation is twenty thousand dollars ($20,000) or more, then the
loan or obligation shall be secured solely by real property or solely
by personal property, or by both real property and personal
property. All loans and obligations made and purchased pursuant to
this subdivision shall be repayable in installments and within a term
not to exceed the limitations set forth in subdivision (a), except
that consumer loans or obligations secured solely by personal
property shall have a term not to exceed the term provided for in
Section 18205 and except as otherwise may be provided for in Sections
18207, 18208, and 18209. The equal installment requirements set
forth in subdivision (a) shall not apply to loans or obligations made
or purchased by the industrial loan company in accordance with Title
VIII of the Garn-St. Germaine Depository Institutions Act of 1982
and any applicable regulations, guidelines, and policies adopted
thereunder.
(c) In order to ensure the safety and soundness of industrial loan
companies and to avoid an unreasonable concentration of loans and
obligations that could result in balloon payments, all loans and
obligations with a term in excess of 15 years and 30 days shall be
repaid in substantially equal weekly, semimonthly, monthly, or
quarterly installments during their term.
SEC. 62. Section 55702 of the Food and Agricultural Code is
amended to read:
55702. (a) Except as otherwise provided in this section, any
person who sells or furnishes livestock to a meatpacker, shall have a
lien, not dependent upon possession, on such
the livestock and upon the identifiable proceeds and products
thereof, for the unpaid part of the purchase price, or for the unpaid
value of the livestock at the time of the transfer of possession if
no purchase price has been agreed upon. The lien shall commence on
the date of the transfer of possession of the livestock to the
meatpacker and shall have priority over all other liens upon, and
security interests in, the livestock and the identifiable proceeds
and products thereof, without regard to the time of attachment or
perfection of such other liens or security interests and shall remain
a lien upon the livestock and the identifiable proceeds and products
thereof notwithstanding sale, exchange, or other disposition
thereof.
(b) Notwithstanding the provisions of subdivision (a), a buyer in
the ordinary course of business, as that term is defined in
subdivision (9) of Section 1201 of the Commercial Code, shall take
free of such lien even though such the
buyer knows of the existence of such the
lien.
(c) Notwithstanding the provisions of subdivision (a),
such the lien shall cease to be of any force or
effect after the expiration of 21 days from the date of delivery of
the livestock unless a notice of lien is filed pursuant to
subdivision (e), in which case the lien shall remain effective as
long as such notice shall remain effective.
(d) No person shall have a lien pursuant to subdivision (a) to the
extent that such the person shall have
made the livestock available to the meatpacker on credit terms.
(e) Any person selling or delivering livestock who claims a lien
under this article shall file a statement with the Secretary of State
and a copy thereof with the director , both ,
within 21 days after delivery of the livestock to the
meatpacker. The statement shall be in writing, verified by the oath
of the person filing, and shall contain all of the following:
(1) The name and address of the person filing.
(2) A statement of the amount demanded by the person filing the
statement after deducting all credits and offsets.
(3) The name and address of the meatpacker who received the
livestock.
(4) A description of the livestock delivered to the meatpacker and
the date of delivery.
(5) A statement that the amount claimed is a true and bona fide
existing debt as of the date of the statement.
(6) A statement that the amount claimed is a true and bona fide
existing debt as of the date on which payment was due for the
livestock.
(f) Every statement which that is
filed shall be accompanied by the fees required by Chapter 5
(commencing with Section 9501) of Division 9 of the Commercial Code
in the case of a financing statement not on the standard form and
shall remain effective for a period of five years from the date of
filing.
SEC. 63. Section 3540.1 of the Government Code is amended to read:
3540.1. As used in this chapter:
(a) "Board" means the Public Employment Relations Board created
pursuant to Section 3541.
(b) "Certified organization" or "certified employee organization"
means an organization which that has
been certified by the board as the exclusive representative of the
public school employees in an appropriate unit after a proceeding
under Article 5 (commencing with Section 3544).
(c) "Confidential employee" means any employee who, in the regular
course of his or her duties, has access to, or possesses information
relating to, his or her employer's employer-employee relations.
(d) "Employee organization" means any organization which
that includes employees of a public school
employer and which that has as one of
its primary purposes representing those employees in their relations
with that public school employer. "Employee organization" shall also
include any person such an that
organization authorizes to act on its behalf.
(e) "Exclusive representative" means the employee organization
recognized or certified as the exclusive negotiating representative
of certificated or classified employees in an appropriate unit of a
public school employer.
(f) "Impasse" means that the parties to a dispute over matters
within the scope of representation have reached a point in meeting
and negotiating at which their differences in positions are so
substantial or prolonged that future meetings would be futile.
(g) "Management employee" means any employee in a position having
significant responsibilities for formulating district policies or
administering district programs. Management positions shall be
designated by the public school employer , subject to
review by the Public Employment Relations Board.
(h) "Meeting and negotiating" means meeting, conferring,
negotiating, and discussing by the exclusive representative and the
public school employer in a good faith effort to reach agreement on
matters within the scope of representation and the execution, if
requested by either party, of a written document incorporating any
agreements reached, which document shall, when accepted by the
exclusive representative and the public school employer, become
binding upon both parties and, notwithstanding Section 3543.7, shall
not be subject to subdivision 2 of Section 1667 of the Civil Code.
The agreement may be for a period of not to exceed
three years.
(i) "Organizational security" means either of the following:
(1) An arrangement pursuant to which a public school employee may
decide whether or not to join an employee organization, but
which that requires him or her, as a condition
of continued employment , if he or she does join,
to maintain his or her membership in good standing for the duration
of the written agreement. However, no such arrangement shall deprive
the employee of the right to terminate his or her obligation to the
employee organization within a period of 30 days following the
expiration of a written agreement.
(2) An arrangement that requires an employee, as a condition of
continued employment, either to join the recognized or certified
employee organization , or to pay the organization
a service fee in an amount not to exceed the standard initiation
fee, periodic dues, and general assessments of the organization for
the duration of the agreement , or a period of
three years from the effective date of the agreement, whichever comes
first.
(j) "Public school employee" or "employee" means any person
employed by any public school employer except persons elected by
popular vote, persons appointed by the Governor of this state,
management employees, and confidential employees.
(k) "Public school employer" or "employer" means the governing
board of a school district, a school district, a county board of
education, a county superintendent of schools, or a charter school
that has declared itself a public school employer pursuant to
subdivision (b) of Section 47611.5 of the Education Code.
(l) "Recognized organization" or "recognized employee organization"
means an employee organization which that
has been recognized by an employer as the exclusive
representative pursuant to Article 5 (commencing with Section 3544).
(m) "Supervisory employee" means any employee, regardless of job
description, having authority in the interest of the employer to
hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or the responsibility to
assign work to and direct them, or to adjust their grievances, or
effectively recommend such action, if, in connection with the
foregoing functions, the exercise of that authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
SEC. 64. Section 7222 of the Government Code is amended to read:
7222. The Secretary of State shall cause the notice to be marked,
held and indexed in accordance with the provisions of Section 9519
of the Uniform Commercial Code as if the notice
were a financing statement within the meaning of that code.
SEC. 65. Section 15346.9 of the Government Code is amended to
read:
15346.9. In addition to the duties specified in Section 15346.5,
the council shall do all both of the
following:
(a) At the request of a council member, the council may review
actions or programs by state agencies that may affect military base
retention and reuse and offer comments or suggest changes to better
integrate these actions or programs into the overall state strategic
plan required pursuant to subdivision (a) of Section 15346.5.
(b) (1) The council shall prepare a study considering
strategies for the long-term protection of lands adjacent to military
bases from development that would be incompatible with the
continuing missions of those bases. The study shall include the
effects of local land use encroachment, environmental impact
considerations, and population growth issues. The study shall
recommend basic criteria to assist local governments in identifying
lands where incompatible development may adversely impact the
long-term missions of these bases. The study shall also identify
potential mechanisms, including recommendations for changes in law at
the local or state level, to address these issues. In conducting
this study, the council may use the Naval Air Station at Lemoore and
Edwards Air Force Base as case studies.
The
(2) The council shall hold public hearings on this study,
including at least one in the vicinity of either Lemoore or Edwards.
Notwithstanding Section 7550.5, the council shall prepare and submit
to the Governor and the Legislature by November 30, 2000, a report
on this study with any recommendations.
SEC. 66. Section 18935 of the Government Code is amended to read:
18935. The board may refuse to examine or, after examination, may
refuse to declare as an eligible or may withhold or withdraw from
certification, prior to appointment, anyone who comes under any of
the following categories:
(a) Lacks any of the requirements established by the board for the
examination or position for which he or she applies.
(b) At the time of examination has permanent status in a position
of equal or higher class than the examination or position for which
he or she applies.
(c) Is physically or mentally so disabled as to be rendered unfit
to perform the duties of the position to which he or she seeks
appointment.
(d) Is addicted to the use of intoxicating beverages to excess.
(e) Is addicted to the use of controlled substances.
(f) Has been convicted of a felony, or convicted of a misdemeanor
involving moral turpitude.
(g) Has been guilty of infamous or notoriously disgraceful
conduct.
(h) Has been dismissed from any position for any cause which would
be a cause for dismissal from the state service.
(i) Has resigned from any position not in good standing or in
order to avoid dismissal.
(j) Has intentionally attempted to practice any deception or fraud
in his or her application, in his or her examination , or
in securing his or her eligibility.
(k) Has waived appointment three times after certification from
the same employment list.
(l) Has failed to reply within a reasonable time, as specified by
the board, to communications concerning his or her availability for
employment.
(m) Has made himself or herself unavailable for employment by
requesting that his or her name be withheld from certification.
(n) Is, in accordance with board rule, found to be unsuited or not
qualified for employment.
(o) Has engaged in unlawful reprisal or retaliation in violation
of Article 3 , Chapter 6.5 (commencing with
Section 8547 of the Government Code) 8547) of
Chapter 6.5 of Division 1 , as determined by the
State Personnel Board board or the court.
SEC. 67. Section 19827.3 of the Government Code is amended to
read:
19827.3. In order for the state to recruit skilled firefighters
for the California Department of Forestry and Fire Protection, it is
the policy of the state to consider prevailing salaries and benefits
prior to making salary recommendations. In order to provide
comparability in pay, the Department of Personnel Administration
shall take into consideration the salary and benefits of other
jurisdictions employing 75 or more full-time firefighters
or more who work in California.
SEC. 68. Section 20395 of the Government Code is amended to read:
20395. "State peace officer/firefighter member" means all members
who are full-time permanent employees represented in Corrections
Unit No. 6, Protective Services and Public Safety Unit No. 7, and
Firefighters Unit No. 8 and are employed in class titles that are
designated as peace officer as defined in Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2 of the Penal Code or are
firefighters whose principal duties consist of active
firefighting/fire suppression.
A member who is employed in a position that is reclassified from
state miscellaneous to state peace officer/firefighter pursuant to
this section , may make an irrevocable election in
writing to remain subject to the miscellaneous service retirement
benefit and the normal rate of contribution by filing a notice of the
election with the board within 90 days of notification by the board.
A member who so elects shall be subject to the reduced benefit
factors specified in Section 21353 or 21354.1, as applicable, only
for service also included in the federal system.
Notwithstanding any other provision of law, security officers
employed by the Department of Justice are not state peace
officer/firefighter members, but are, for all purposes, state
miscellaneous members.
SEC. 69. Section 20397 of the Government Code is amended to read:
20397. "State peace officer/firefighter member" also includes:
(1)
(a) The Sergeants-at-Arms of each house of the Legislature
who have been designated as peace officers in subdivision (a) of
Section 830.36 of the Penal Code, excluding the Chief
Sergeant-at-Arms.
(2)
(b) Bailiffs and security coordinators of the judicial
branch who have been designated as peace officers in subdivision (b)
of Section 830.36 of the Penal Code.
A member who is reclassified from state miscellaneous to state
peace officer/firefighter pursuant to this section ,
may make an irrevocable election in writing to remain
subject to the miscellaneous service retirement benefit and the
normal rate of contribution by filing a notice of the election with
the board within 90 days of notification by the board. A member who
so elects shall be subject to the reduced benefit factors specified
in Section 21353 or 21354.1, as applicable, only for service included
in the federal system.
SEC. 70. Section 20677 of the Government Code is amended to read:
20677. (a) (1) The normal rate of contribution for a state
miscellaneous member whose service is not included in the federal
system shall be 6 percent of the compensation in excess of three
hundred seventeen dollars ($317) per month paid that member for
service rendered on and after July 1, 1976. The normal rate of
contribution for a school member , or a local
miscellaneous member shall be 7 percent of the compensation paid that
member for service rendered on and after June 21, 1971.
(2) The normal rate of contribution for a state miscellaneous or
industrial member , who has elected to be subject
to Section 21353.5 and whose service is not included in the federal
system , shall be 6 percent of the member's
compensation.
(3) The normal rate of contribution as established under this
subdivision for a member whose service is included in the federal
system, and whose service retirement allowance is reduced under
Section 21353, 21353.5, 21354, or 21354.1 because of that inclusion,
shall be reduced by one-third as applied to compensation not
exceeding four hundred dollars ($400) per month for service after the
date of execution of the agreement , including service in
the federal system , and prior to termination of the
agreement with respect to the coverage group to which he or she
belongs.
(b) (1) The normal rate of contribution for a state miscellaneous
member whose service has been included in the federal system shall be
5 percent of compensation in excess of five hundred thirteen dollars
($513) per month paid that member for service rendered on and after
July 1, 1976.
(2) The normal rate of contribution for a state miscellaneous or
industrial member , who has elected to be subject
to Section 21353.5 and whose service has been included in the federal
system , shall be 5 percent of compensation,
subject to the reduction specified in paragraph (3) of subdivision
(a).
(c) The normal rate of contribution for a state miscellaneous or
state industrial member who is subject to Section 21076 or Section
21077 shall be 0 percent.
(d) A member who elected to become subject to Section 21353 solely
for service rendered on or after the effective date of the election,
as authorized by subdivision (c) of Section 21070 during the period
between November 1, 1988, and October 31, 1989, is not required to
make the contributions specified in Section 21073.
(e) A member who elects to become subject to Section 21353 or
21354.1, as applicable, shall contribute at the rate specified in
paragraph (1) of subdivision (a) or paragraph (1) of subdivision (b),
as determined by the member's status with the federal system, and
the rate shall be applied from the first of the month following the
date of the election. A member who makes the election shall also
contribute for service prior to the date the contribution rate was
applied, in the manner specified in Section 21073 or 21073.1, as
applicable.
SEC. 71. Section 21070.5 of the Government Code is amended to
read:
21070.5. (a) Notwithstanding any other provision of this article,
a person who, on or after January 1, 2000, becomes a state
miscellaneous or state industrial member of the system because the
person : (1) is first employed by the state, (2)
returns to employment with the state from a break in service of more
than 90 days, or (3) returns to employment with the state after
ceasing to be a member pursuant to Section 20340 or 21075, shall be
subject to the benefits provided by Section 21354.1, unless the
person elects within 180 days of membership as a state miscellaneous
or state industrial member to be subject to the Second Tier benefits
provided for in Section 21076. This section shall only apply to
state miscellaneous and state industrial members who are :
(1) excluded from the definition of state employee in
subdivision (c) of Section 3513 ; , (2)
employed by the executive branch of government who
and are not members of the civil service
; , or (3) included in the definition
of state employee in subdivision (c) of Section 3513.
(b) The effective date of the election shall be the first day
of the month following the date the election is received by
the system and shall be applicable to state service rendered on and
after that date. Any election filed with the board pursuant to this
section shall also be signed by the spouse of the member.
(c) A member who makes an election authorized by this section
shall not be precluded from making a subsequent election pursuant to
Section 21073.7 to be subject to the benefits provided by Section
21354.1.
(d) Operation and application of this section are subject to the
limitations set forth in Section 21251.13.
SEC. 72. Section 21071 of the Government Code is amended to read:
21071. (a) Notwithstanding any other provision of this article,
except as provided in subdivisions (b) and (c), persons who first
become state miscellaneous or state industrial members of the system
on or after July 1, 1991, and who are (1) excluded from the
definition of state employee in subdivision (c) of Section 3513, (2)
employed by the executive branch of government and are not members of
the civil service, or (3) included in the definition of state
employee in subdivision (c) of Section 3513 shall become subject to
Section 21076.
(b) Any person who was a member on or before June 30, 1991,
eligible to elect membership on or before June 30, 1991, or who was
employed in any position on or before June 30, 1991, that would lead
to membership as a state member, as defined in Section 20370, and who
thereafter enters employment subject to Section 21076 shall be
granted the rights provided in subdivision (c) of Section 21070,
unless the person had earlier made an irrevocable election to be
subject to Section 21076 or 21077. The one-year period in which to
make the election provided in subdivision (c) of Section 21070 for
any member who became a state member prior to January 1, 1994, shall
commence with the mailing of a notice by the system to the member
, of his or her election right. The effective
date of the election shall be the date on which the member became a
state miscellaneous or state industrial member. The member shall be
obligated to make the contributions specified in Section 20677.
(c) Effective on or after April 1, 1998 , state
miscellaneous or industrial members may elect to be subject to the
service retirement formula prescribed in Section 21353.5, as an
alternative to Second Tier membership under Section 21076. The
election shall be provided to eligible members by the appointing
authority, and, to be effective, an election must be filed with the
board. Eligible members who must be in the employment of the state
are defined as members in state bargaining units for which a
memorandum of understanding has been agreed to by the state employer
and the recognized employee organization to become subject to Section
21353.5. The effective date of a member's election shall be the
first day of the month following the date the election is filed with
the system.
(d) This section shall not apply to state miscellaneous members
employed by the California State University or employees described in
Section 20324.
(e) This section shall become inoperative on January 1, 2000.
(f) The amendments to this section enacted during the first year
of the 1999-2000 Regular Session are subject to the limitations set
forth in Section 21251.13.
SEC. 73. Section 21073.7 of the Government Code is amended to
read:
21073.7. (a) A member subject to the Second Tier benefits
provided in Section 21076 or 21077 who is employed by the state on or
after January 1, 2000, may make an irrevocable election, to be filed
with the board, to be subject to the First Tier benefits provided in
Section 21354.1 and to make the contributions specified in Section
20677. An election shall be effective the first day of
the month following the date the election is received by the system
and shall be applicable to state service rendered on and after that
date. An election to be subject to Section 21354.1 may be made at
any time prior to retirement and shall also be signed by the spouse
of the member.
(b) A member who is employed by the state on or after January 1,
2000, with past service credited under the Second Tier may make an
irrevocable election, at any time prior to retirement, to have his or
her past Second Tier service credited under Section 21354.1 by
making contributions specified in Section 21073.1. This subdivision
shall not apply to a Second Tier member eligible to make the election
provided in subdivision (a) until after the effective date of that
election.
(c) A member subject to modified First Tier benefits pursuant to
Section 21353.5 shall become subject to Section 21353 or 21354.1, as
applicable, and make contributions as specified in Section 20677.
The member's past service and contributions credited as modified
First Tier under Section 21353.5 shall be converted to First Tier
service and contributions and shall be subject to Section 21353 or
21354.1, as applicable. Contributions previously credited as
modified First Tier and withdrawn by the member may be redeposited
under the conditions specified in Section 20750, with the service
credit and contributions subject to Section 21353 or 21354.1, as
applicable.
(d) Operation and application of this section is subject to the
limitations set forth in Section 21251.13.
SEC. 74. Section 21370 of the Government Code is amended to read:
21370. (a) The combined prior and current service pension for
local safety members with respect to service to a contracting agency
subject to this section, upon retirement after attaining 56 years of
age, is a pension derived from contributions of an employer
sufficient, when added to that portion of the service retirement
annuity that is derived from the accumulated normal contributions of
the member at the date of his or her retirement, to equal
one-fiftieth of his or her final compensation set forth opposite his
or her age at retirement taken to the preceding completed quarter
year in the following table, multiplied by the number of years of
service credited to him or her as a local safety member subject to
this section at retirement.
(b) Upon retirement for service prior to attaining 56 years of
age, the percentage of final compensation payable for each year of
credited service that is subject to this section shall be the product
of 2 percent multiplied by the factor set forth in the following
table for the actual age at retirement:
The percent for
each year of
credited service
If retirement occurs at age: is:
50 ................................ .8565
50 1/4 ............................ .8650
50 1/2 ............................ .8740
50 3/4 ............................ .8830
51 ................................ .8920
51 1/4 ............................ .9020
51 1/2 ............................ .9120
51 3/4 ............................ .9222
52 ................................ .9330
52 1/4 ............................ .9410
52 1/2 ............................ .9490
52 3/4 ............................ .9570
53 ................................ .9650
53 1/4 ............................ .9675
53 1/2 ............................ .9700
53 3/4 ............................ .9725
54 ................................ .9750
54 1/4 ............................ .9810
54 1/2 ............................ .9870
54 3/4 ............................ .9935
55 ................................ 1.0000
55 1/4 ............................ 1.0435
55 1/2 ............................ 1.0870
55 3/4 ............................ 1.1310
56 ................................ 1.1750
(c) This section shall apply only to local police officers and
county peace officers who are local safety members.
(d) This section shall not apply to persons whose effective date
of retirement is prior to January 1, 1985.
(e) The Legislature reserves, with respect to any member subject
to this section, the right to provide for the adjustment of
industrial disability retirement allowances because of earnings of a
retired person and modification of the conditions and qualifications
required for retirement for disability as it may find appropriate
because of the earlier age of service retirement made possible by the
benefits under this section.
(f) The percentage of final compensation provided in this section
shall be reduced by one-third as applied to that part of the member's
final compensation that does not exceed four hundred dollars ($400)
per month for service after the effective date of coverage of a
member under the federal system. This paragraph shall not apply to a
member who retires after the date upon which coverage under the
federal system of persons in his or her employment terminates.
(g) For members who retire prior to January 1, 2000, in no event
shall the total pension for all service under this section exceed an
amount that, when added to the service retirement annuity related to
the service, equals 75 percent of final compensation. For members
who retire on or after January 1, 2000, the allowance shall not
exceed 85 percent of final compensation. If the pension relates to
service for more than one employer and would otherwise exceed the
maximum, the pension payable with respect to each employer shall be
reduced in the same proportion as the allowance based on service to
the employer bears to the total allowance computed as though there
were no limit, so that the total of the pensions shall equal the
maximum.
(h) This section shall only apply as an optional contributory
retirement formula for this system for local safety groups
whose group participated in Federal Old Age and Survivors' Insurance
provisions of the Social Security Act on April 1983.
(i) This section shall not apply to a contracting agency nor its
employees until the agency and the representative employee
organization agree by memorandum of understanding to be subject to it
by amendment to its contract made in the manner prescribed for
approval of contracts. It shall also be required that the
representative employee organizations agree to be subject to this
provision.
(j) The operative date of this section with respect to a local
safety member shall be the effective date of the amendment to the
employer's contract electing to be subject to this section. However,
this section shall not apply to any local safety member in the
employ of an employer not subject to this section on January 1, 2000.
SEC. 75. Section 21572 of the Government Code is amended to read:
21572. (a) In lieu of benefits provided in Section 21571, if the
death benefit provided by Section 21532 is payable on account of a
state member's death that occurs under circumstances other than those
described in subparagraph (F) of paragraph (1) of subdivision (a) of
Section 21530, or if an allowance under Section 21546 is payable,
the payment pursuant to subdivision (b) shall be made ,
in the following order of priority:
(1) The surviving wife or surviving husband of the member, who has
the care of unmarried children, including stepchildren, of the
member who are under 22 years of age, or are incapacitated because of
a disability that began before and has continued without
interruption after attainment of that age.
(2) The guardian of surviving unmarried children, including
stepchildren, of the member who are under 22 years of age or are so
incapacitated.
(3) The surviving wife or surviving husband of the member, who
does not qualify under paragraph (1).
(4) Each surviving parent of the member.
(b) Regardless of the benefit provided by Section 21532 and of the
beneficiary designated by the member under that section, or
regardless of the allowance provided under Section 21546, the
following applicable 1959 survivor allowance, under the conditions
stated and from contributions of the state, shall be paid:
(1) A surviving spouse who was either continuously married to the
member for at least one year prior to death, or was married to the
member prior to the occurrence of the injury or onset of the illness
that resulted in death, and has the care of unmarried children,
including stepchildren, of the deceased member who are under 22 years
of age or are so incapacitated, shall be paid four hundred fifty
dollars ($450) per month if there is one child or five hundred
thirty-eight dollars ($538) per month if there are two or more
children. If there also are children who are not in the care of the
surviving spouse, the portion of the allowance payable under this
paragraph, assuming that these children were in the care of the
surviving spouse, that is in excess of two hundred twenty-five
dollars ($225) per month, shall be divided equally among all those
children and payments made to the spouse and other children, as the
case may be.
(2) If there is no surviving spouse, or if the surviving spouse
dies, and if there are unmarried children, including stepchildren, of
the deceased member who are under 22 years of age or are so
incapacitated, or if there are children not in the care of the
spouse, the children shall be paid an allowance as follows:
(A) If there is only one child, the child shall be paid two
hundred twenty-five dollars ($225) per month.
(B) If there are two children, the children shall be paid four
hundred fifty dollars ($450) per month divided equally between them.
(C) If there are three or more children, the children shall be
paid five hundred thirty-eight dollars ($538) per month divided
equally among them.
(3) A surviving spouse who has attained or attains the age of 62
years and, with respect to that surviving spouse, who was either
continuously married to the member for at least one year prior to
death, or was married to the member prior to the occurrence of the
injury or onset of the illness that resulted in death, shall be paid
two hundred twenty-five dollars ($225) per month. No allowance shall
be paid under this paragraph , while the
surviving spouse is receiving an allowance under paragraph (1)
, or while an allowance is being paid under
subparagraph (C) of paragraph (2). The allowance paid under this
paragraph shall be eighty-eight dollars ($88) per month while an
allowance is being paid under subparagraph (B) of paragraph (2).
(4) If there is no surviving spouse or surviving child who
qualifies for a 1959 survivor allowance, or if the surviving spouse
dies and there is no surviving child, or if the surviving spouse dies
and the children die or marry or, if not incapacitated, reach 22
years of age, each of the member's dependent parents who has attained
or attains the age of 62 years , and who received at
least one-half of his or her support from the member at the time of
the member's death, shall be paid two hundred twenty-five dollars
($225) per month.
(c) "Stepchildren," for purposes of this section, shall include
only stepchildren of the member living with him or her in a regular
parent-child relationship at the time of his or her death.
(d) This section shall apply to beneficiaries receiving 1959
survivor allowances on July 1, 1975, as well as to beneficiaries with
respect to the death of a state member occurring on or after July 1,
1975.
(e) This section shall apply, with respect to benefits payable on
and after July 1, 1981, to all members employed by a school employer,
and school safety members employed with a school district or
community college district as defined in subdivision (i) of Section
20057, except that it shall not apply, without contract amendment,
with respect to safety members who became members after July 1, 1981.
All assets and liabilities of all school employers, and their
employees, on account of benefits provided under this article shall
be pooled into a single account, and a single employer rate shall be
established to provide benefits under this section on account of all
miscellaneous members employed by a school employer and all safety
members who are members on July 1, 1981.
(f) This section shall not apply to any member in the employ of an
employer not subject to this section on January 1, 1994.
(g) A contracting agency may, by amending its contract, elect to
make this section applicable to local members employed by the agency.
(h) On and after January 1, 2000, and until January 1, 2010, all
state members covered by this section shall be covered by the benefit
provided under Section 21574.7. On and after January 1, 2010, all
state members not covered by Section 21573 or 21574.7 shall be
covered by this section.
SEC. 76. Section 22825.01 of the Government Code is amended to
read:
22825.01. (a) As used in this section, the following definitions
shall apply:
(1) A "rural area" means an area in which there is no
board-approved health maintenance organization plan available for
enrollment by state employees or annuitants who live in the area.
(2) "Coinsurance" means the provision of a medical plan design in
which the plan or insurer and state employee or annuitant share the
cost of hospital or medical expenses at a specified ratio.
(3) A "deductible" means the annual amount of out-of-pocket
medical expenses that state employees or annuitants must pay before
the insurer or self-funded plan begins paying for expenses.
(4) "Department" means the Department of Personnel Administration.
(5) "Fund" means the Rural Healthcare
Health Care Equity Trust Fund.
(b) (1) The Rural Health Care Equity Trust Fund is hereby
established in the State Treasury for the purpose of funding the
subsidization and reimbursement of premium costs, deductibles,
coinsurance, , and other out-of-pocket health care
costs, which would otherwise be covered if the state employee or
annuitant was were enrolled in a
board-approved health maintenance organization plan, paid by
employees and annuitants living in rural areas, as authorized by this
section. The fund shall be administered by the department or by a
third-party administrator approved by the department in a manner
consistent with all applicable state and federal laws. Interest
earned from the fund shall be used to offset administrative costs.
The board shall determine the rural area for each subsequent fiscal
year at the same meeting when at which
the board approves premiums for health maintenance organizations.
(2) Separate accounts shall be maintained within the fund for (A)
employees, as defined in subdivision (c) of Section 3513 ;
, (B) excluded employees, as defined in
subdivision (b) of Section 3527 ; , and
(C) annuitants , as defined in subdivision (e) of Section
22754.
(c) Moneys in the Rural Health Care Equity Trust Fund shall be
allocated to the separate accounts as follows:
(1) As the employer's contribution with respect to each employee,
as defined in subdivision (c) of Section 3513, who lives in a rural
area and who is otherwise eligible, an amount to be determined
through the collective bargaining process.
(2) As the employer's contribution with respect to each excluded
employee, as defined in subdivision (b) of Section 3527, who lives in
a rural area and who is otherwise eligible, an amount equal to, but
not to exceed, the amount given to eligible state employees, as
defined in subdivision (c) of Section 3513, who live in a rural area.
(3) As the employer's contribution with respect to each annuitant,
as defined in subdivision (e) of Section 22754, who lives in a rural
area, is not a Medicare participant, and who is otherwise eligible,
an amount not to exceed five hundred dollars ($500) per year.
(4) As to the state's contribution with respect
to each state annuitant, as defined in subdivision (e) of Section
22754 , who lives in a rural area, participates in a
board-approved, Medicare-coordinated health plan, participates in a
board-approved health plan, and is otherwise eligible, an amount
equal to the Medicare Part B premiums incurred by the annuitant, not
to exceed seventy-five dollars ($75) per month. The state shall not
reimburse for penalty amounts.
(5) As to an employee who enters state service or leaves state
service during a fiscal year, contributions for the employee shall be
made on a pro rata basis. A similar computation shall be used for
anyone entering or leaving the bargaining unit, including a person
who enters the bargaining unit by promotion in mid-fiscal year.
(d) Each fund of the State Treasury, other than the General Fund,
shall reimburse the General Fund for any sums allocated pursuant to
subdivision (c) for employees and annuitants whose compensation or
annuities are paid from that fund.
(e) Notwithstanding any other provision of law and subject to the
availability of funds, moneys within the Rural Health Care Equity
Trust Fund shall be disbursed for the benefit of an employee who
lives in a rural area and who is otherwise eligible. The
disbursements shall, where there is no board-approved health
maintenance organization plan available in an area that is open for
enrollment for the employee, (1) subsidize the preferred provider
plan premiums for the employee , by an amount
equal to the difference between the weighted average of
board-approved health maintenance organization premiums and the
lowest board-approved preferred provider plan premium available under
this part and (2) reimburse the employee for a portion or all of his
or her incurred deductibles, coinsurances
coinsurance , and other out-of-pocket health-related expenses
, which that would otherwise be covered
if the employee was were enrolled in a
board-approved health maintenance organization plan.
These subsidies and reimbursements shall be provided according to
a plan determined by the department , which
that may include, but is not limited to, a supplemental
insurance plan, a medical reimbursement account, or a medical
spending account plan.
(f) Notwithstanding any other provision of law and subject to the
availability of funds, moneys within the Rural Health Care Equity
Trust Fund shall be disbursed for the benefit of eligible annuitants,
as defined in subdivision (e) of Section 22754, who live in rural
areas and who are otherwise eligible. The disbursements shall, where
there is not no board-approved health
maintenance organization plan available and open to enrollment by the
annuitant, either (A) (1) reimburse
the annuitant , if he or she is not a Medicare
participant, for some or all of his or her deductibles, not to exceed
five hundred dollars ($500) per fiscal year, or (B)
(2) reimburse Medicare Part B premiums incurred
by the annuitant, not to exceed seventy-five dollars ($75) per month,
exclusive of penalties. These reimbursements shall be provided by
the department.
The state shall not reimburse for penalty amounts.
(g) Any moneys remaining in any account of the fund at the end of
any fiscal year shall remain in the account for use in subsequent
fiscal years until the account is terminated. Moneys remaining in
any account of the fund upon termination, after payment of all
outstanding expenses and claims incurred prior to the date of
termination, shall be deposited in the General Fund.
(h) The Legislature finds and declares that the Rural Health Care
Equity Trust Fund is a trust fund held for the exclusive benefit of
employees, annuitants, and family members.
(h)
(i) This section shall cease to be operative on January 1,
2005, or on such earlier date as the board makes a formal
determination that HMOs are no longer the most cost-effective health
care plans offered by the board.
SEC. 77.
Section 22875 of the Government Code is amended to read:
22875. This article shall apply to any of the following:
(a) Represented state employees who are members of a bargaining
unit or who retired from a bargaining unit only if (1) there is a
signed memorandum of understanding between the state and the
recognized employee organization to adopt the benefits accorded under
this article and (2) the Department of Personnel Administration
makes this article simultaneously applicable to all eligible
annuitants retired from the bargaining unit. This article shall not
apply to active state employees who are members of a state bargaining
unit unless it also applies to eligible annuitants retired from that
bargaining unit.
(b) Members of the Public Employees' Retirement System who are
employed by the Assembly, the Senate, and or
the California State University only if the Assembly Rules
Committee, the Senate Rules Committee, and the Board of Trustees of
the California State University, respectively, make this section
applicable to their employees.
(c) Members of the Public Employees' Retirement System who are
state employees of the judicial branch, and judges and justices who
are members of the Judges' Retirement System or the Judges'
Retirement System II, if the Judicial Council makes this section
applicable to them.
(d) Employees excluded from the Ralph C. Dills Act (Chapter 10.3
(commencing with Section 3512) of Division 4 of Title 1) upon
adoption by the Department of Personnel Administration of regulations
to implement employee benefits under this article for those state
officers and employees excluded from, or not otherwise subject to the
Ralph C. Dills Act. Regulations adopted or amended pursuant to this
section shall not be subject to review and approval of the Office of
Administrative Law pursuant to the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2). These regulations shall become effective immediately
upon filing with the Secretary of State.
SEC. 78. Section 31469.5 of the Government Code is amended to
read:
31469.5. (a) This section shall be applicable in the retirement
system of any county of the 10th class, as defined by Sections 28020
and 28031, as amended by Chapter 1204 of the Statutes of 1971, if the
board of supervisors executes a memorandum of understanding with the
employee representatives and adopts, by majority vote, a resolution
providing for safety status for probation officers, as provided in
Section 31469.4.
(b) The purpose of this section is to provide optional safety
status for probation officers employed on or before March 1, 1991.
Notwithstanding Section 31558.6, that option shall be exercised
within 120 days from the effective date of the implementation of
Section 31469.4, together with the option to receive credit as a
safety member for all or part of the time during which his or her
duties would have made him or her eligible to become a safety member,
if this section had then been in effect.
(c) Except as otherwise provided in this section, the retirement
benefits of existing probation officers who elect to transfer from
general membership in the county retirement system to safety
membership shall be implemented pursuant to Section 31484.5, except
that:
(1) The definition of final compensation in Section 31462.1 shall
no longer apply to probation officers electing safety status;
instead, the definition of final compensation in Section 31462 shall
apply at the date of retirement to all credited safety service
regardless of previous service under Section 31462.1. However, the
board of supervisors may adopt a resolution providing that the
definition of final compensation contained in Section 31462.1 shall
apply to certain probation officers electing safety status
and as who are specifically identified in the
resolution and who are retiring on or after the date specified in the
resolution.
(2) For employees entitled to a cost-of-living adjustment upon
retirement, Article 16.5 (commencing with Section 31870) shall apply,
except that the increase in the allowance shall not exceed a maximum
amount of 3 percent in any given year credited as
safety membership. An employee who elects safety retirement under
Section 31469.4 and who thereby waives his or her entitlement to a
higher cost-of-living allowance shall be deemed to have waived the
higher cost-of-living allowance with regard to all previous service
credited as safety service at the date of retirement, regardless of
previous service under any other provision , and shall be
deemed to have relinquished any right to the higher cost-of-living
allowance without refund of contributions therefor, except as
determined by the board of supervisors.
(3) An employee who elects safety retirement under Section 31469.4
may elect to receive credit as a safety member for all or part of
the time during which his or her duties would have made him or her
eligible to become a safety member if this section had then been in
effect as provided in Section 31639.7, except that an election to
receive part credit may be exercised only in multiples of five years
of service. A member who elects to receive credit for only a part of
that county service shall elect that county service latest in time
and may not receive credit for any portion of county service prior in
time to any county service for which he or she does not elect to
received receive credit.
(4) A member not previously within the safety membership category
who elects to receive credit for all or part of the time during which
the member's duties would have made him or her eligible to become a
safety member if this section had then been in effect shall pay into
the retirement system the amount that would have had to be
contributed by the employer to fund the employer's liability for
safety membership and an amount equal to the difference between the
employee's contributions actually made during the time for which he
or she claims credit and the contributions the member would have made
during that period if he or she had been in safety status during
that period.
(d) All probation officers in Tier III who elect to transfer from
general membership in the county retirement system to safety
membership pursuant to this section shall be placed in Tier II
regardless of their status prior to selecting Tier III benefits.
(e) All persons hired after the effective date of implementation
of Section 31469.4 shall, upon retirement, have his or her
cost-of-living allowance and final compensation computed in
accordance with this section.
SEC. 79. Section 51298 of the Government Code is amended to read:
51298. It is the intent of the Legislature in enacting this
chapter to provide local governments opportunities to attract large
manufacturing facilities to invest in their communities and to
encourage industries such as high technology, aerospace, automotive,
biotechnology, software, environmental sources, and others to locate
and invest in those facilities in California.
(a) Commencing in the 1998-99 fiscal year, the governing body of a
county, city and county, or city, may, by means of an ordinance or
resolution approved by a majority of its entire membership, elect to
establish a capital investment incentive program. In any county,
city and county, or city in which the governing body has so elected,
the county, city and county, or city shall, upon the approval by a
majority of the entire membership of its governing body of a written
request therefor, pay a capital investment incentive amount to the
proponent of a qualified manufacturing facility for up to 15
consecutive fiscal years. A request for the payment of capital
investment incentive amounts shall be filed by a proponent in writing
with the governing body of an electing county, city and county, or
city in the time and manner specified in procedures adopted by that
governing body. In the case in which the governing body of an
electing county, city and county, or city approves a request for the
payment of capital investment incentive amounts, both of the
following conditions shall apply:
(1) The consecutive fiscal years during which a capital investment
incentive amount is to be paid shall commence with the first fiscal
year commencing after the date upon which the qualified manufacturing
facility is certified for occupancy or, if no certification is
issued, the first fiscal year commencing after the date upon which
the qualified manufacturing facility commences operation.
(2) In accordance with paragraph (4) of subdivision (d), the
annual payment to a proponent of each capital investment incentive
amount shall be contingent upon the proponent's payment of a
community services fee.
(b) For purposes of this section:
(1) "Qualified manufacturing facility" means a proposed
manufacturing facility that meets all of the following criteria:
(A) The proponent's initial investment in that facility, in real
and personal property, necessary for the full and normal operation of
that facility, made pursuant to the capital investment incentive
program, that comprises any portion of that facility or has its situs
at that facility, exceeds one hundred fifty million dollars
($150,000,000). Compliance with this subparagraph shall be certified
by the Trade and Commerce Agency upon the agency's approval of a
proponent's application for certification of a qualified
manufacturing facility. An application for certification shall be
submitted by a proponent to the agency in writing in the time and
manner as specified by the agency.
(B) The facility is to be located within the jurisdiction of the
electing county, city and county, or city to which the request is
made for payment of capital investment incentive amounts.
(C) The facility is operated by either of the following:
(i) A business described in Codes 3500 to 3899, inclusive, of the
Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition, except
that "January 1, 1997," shall be substituted for "January 1, 1994,"
in each place in which it appears.
(ii) A business engaged in the recovery of minerals from
geothermal resources, including the proportional amount of a
geothermal electric generating plant that is integral to the recovery
process by providing electricity for it.
(D) The proponent is either currently engaged in commercial
production or engaged in the perfection of the manufacturing process,
or the perfection of a product intended to be manufactured.
(2) "Proponent" means a party or parties that meet all of the
following criteria:
(A) The party is named in the application to the county, city and
county, or city within which the qualified manufacturing facility
would be located for a permit to construct a qualified manufacturing
facility.
(B) The party will be the fee owner of the qualified manufacturing
facility upon the completion of that facility. Notwithstanding the
previous sentence, the party may enter into a sale-leaseback
transaction and nevertheless be considered the proponent.
(C) If a proponent that is receiving capital investment incentive
amounts subsequently leases the subject qualified manufacturing
facility to another party, the lease may provide for the payment to
that lessee of any portion of a capital investment incentive amount.
Any lessee receiving any portion of a capital investment incentive
amount shall also be considered a proponent for the purposes of
subdivision (d).
(3) "Capital investment incentive amount" means, with respect to a
qualified manufacturing facility for a relevant fiscal year, an
amount up to or equal to the amount of ad valorem property tax
revenue derived by the participating local agency from the taxation
of that portion of the total assessed value of that real and personal
property described in subparagraph (A) of paragraph (1) that is in
excess of one hundred fifty million dollars ($150,000,000).
(4) "Manufacturing" means the activity of converting or
conditioning property by changing the form, composition, quality, or
character of the property for ultimate sale at retail or use in the
manufacturing of a product to be ultimately sold at retail.
Manufacturing includes any improvements to tangible personal property
that result in a greater service life or greater functionality than
that of the original property.
(c) A city, special district, or school district may, upon the
approval by a majority of the entire membership of its governing
body, pay to the county, city and county, or city an amount equal to
the amount of ad valorem property tax revenue allocated to that city,
special district, or school district, but not the actual allocation,
derived from the taxation of that portion of the total assessed
value of that real and personal property described in subparagraph
(A) of paragraph (1) of subdivision (b) that is in excess of one
hundred fifty million dollars ($150,000,000).
(d) A proponent , whose request for the payment
of capital investment incentive amounts is approved by an electing
county, city and county, or city shall enter into a community
services agreement with that county, city and county, or city that
includes, but is not limited to, all of the following provisions:
(1) A provision requiring that a community services fee be
remitted by the proponent to the county, city and county, or city
, in each fiscal year subject to the agreement, in an
amount that is equal to 25 percent of the capital investment
incentive amount calculated for that proponent for that fiscal year,
except that in no fiscal year shall the amount of the community
services fee exceed two million dollars ($2,000,000).
(2) A provision specifying the dates in each relevant fiscal year
upon which payment of the community services fee is due and
delinquent, and the rate of interest to be charged to a proponent for
any delinquent portion of the community services fee amount.
(3) A provision specifying the procedures and rules for the
determination of underpayments or overpayments of a community
services fee, for the appeal of determinations of any underpayment,
and for the refunding or crediting of any overpayment.
(4) A provision specifying that a proponent is ineligible to
receive a capital investment incentive amount if that proponent is
currently delinquent in the payment of any portion of a community
services fee amount, if the qualified manufacturing facility is
constructed in a manner materially different from the facility as
described in building permit application materials, or if the
facility is no longer operated as a qualified manufacturing facility
meeting the requirements of paragraph (1) of subdivision (b). If a
proponent becomes ineligible to receive a capital investment
incentive amount as a result of an agreement provision included
pursuant to this subparagraph, the running of the number of
consecutive fiscal years specified in an agreement made pursuant to
subdivision (a) is not tolled during the period in which the
proponent is ineligible.
(5) A provision that sets forth a job creation plan with respect
to the relevant qualified manufacturing facility. The plan shall
specify the number of jobs to be created by that facility, and the
types of jobs and compensation ranges to be created thereby. The
plan shall also specify that for the entire term of the community
services agreement that , both of the
following shall apply:
(A) All of the employees working at the qualified manufacturing
facility shall be covered by an employer-sponsored health benefits
plan.
(B) The average weekly wage, exclusive of overtime, paid to all of
the employees working at the qualified manufacturing facility, who
are not management or supervisory employees, shall be not less than
the state average weekly wage.
For the purpose of this subdivision, "state average weekly wage"
means the average weekly wage paid by employers to employees covered
by unemployment insurance, as reported to the Employment Development
Department for the four calendar quarters ending June 30 of the
preceding calendar year.
(6) (A) In the case in which the proponent fails to operate the
qualified manufacturing facility as required by the community
services agreement, a provision that requires the recapture of any
portion of any capital investment incentive amounts previously paid
to the proponent equal to the lesser of the following:
(i) All of the capital investment incentive amounts paid to the
proponent, less all of the community services fees received from the
proponent, and less any capital investment incentive amounts
previously recaptured.
(ii) The last capital investment incentive amount paid to the
proponent, less the last community services fee received from the
proponent, multiplied by 40 percent of the number of years remaining
in the community services agreement, but not to exceed 10 years, and
less any capital investment incentive amounts previously recaptured.
(B) If the proponent fails to operate the qualified manufacturing
facility as required by the community services agreement, the county,
city and county, or city may, upon a finding that good cause exists,
waive any portion of the recapture of any capital investment
incentive amount due under this subdivision. For the purpose of this
subdivision, good cause includes, but is not limited to, the
following:
(i) The proponent has sold or leased the property to a person who
has entered into an agreement with the county, city and county, or
city to assume all of the responsibilities of the proponent under the
community services agreement.
(ii) The qualified manufacturing facility has been rendered
inoperable and beyond repair as a result of an act of God.
(C) For purposes of this subdivision, failure to operate a
qualified manufacturing facility as required by the community
services agreement includes, but is not limited to, failure to
establish the number of jobs specified in the jobs creation plan
created pursuant to paragraph (5).
(e) (1) Each county, city and county, or city that elects to
establish a capital investment incentive program shall notify the
Trade and Commerce Agency of its election to do so no later than June
30th of the fiscal year in which the election was made.
(2) In addition to the information required to be reported
pursuant to paragraph (1), each county, city and county, or city that
has elected to establish a capital investment incentive program
shall notify the Trade and Commerce Agency each fiscal year no later
than June 30th of the amount of any capital investment incentive
payments made and the proponent of the qualified manufacturing
facility to whom the payments were made during that fiscal year.
(3) The Trade and Commerce Agency shall compile the information
submitted by each county, city and county, and city pursuant to
paragraphs (1) and (2) and submit a report to the Legislature
containing this information no later than October 1, every two years
commencing October 1, 2000.
SEC. 80. Section 53601 of the Government Code is amended to read:
53601. The legislative body of a local agency having money in a
sinking fund of, or surplus money in, its treasury not required for
the immediate needs of the local agency may invest any portion of the
money that it deems wise or expedient in those investments set forth
below. A local agency purchasing or obtaining any securities
prescribed in this section, in a negotiable, bearer, registered, or
nonregistered format, shall require delivery of the securities to the
local agency, including those purchased for the agency by financial
advisers, consultants, or managers using the agency's funds, by book
entry, physical delivery, or by third-party custodial agreement. The
transfer of securities to the counterparty bank's customer book
entry account may be used for book entry delivery. For purposes of
this section "counterparty" means the other party to the transaction.
A counterparty bank's trust department or separate safekeeping
department may be used for the physical delivery of the security if
the security is held in the name of the local agency. Where this
section specifies a percentage limitation for a particular category
of investment, that percentage is applicable only at the date of
purchase. Where this section does not specify a limitation on the
term or remaining maturity at the time of the investment, no
investment shall be made in any security, other than a security
underlying a repurchase or reverse repurchase agreement or securities
lending agreement authorized by this section, that at the time of
the investment has a term remaining to maturity in excess of five
years, unless the legislative body has granted express authority to
make that investment either specifically or as a part of an
investment program approved by the legislative body no less than
three months prior to the investment:
(a) Bonds issued by the local agency, including bonds payable
solely out of the revenues from a revenue-producing property owned,
controlled, or operated by the local agency or by a department,
board, agency, or authority of the local agency.
(b) United States Treasury notes, bonds, bills, or certificates of
indebtedness, or those for which the faith and credit of the United
States are pledged for the payment of principal and interest.
(c) Registered state warrants or treasury notes or bonds of this
state, including bonds payable solely out of the revenues from a
revenue-producing property owned, controlled, or operated by the
state or by a department, board, agency, or authority of the state.
(d) Bonds, notes, warrants, or other evidences of indebtedness of
any local agency within this state, including bonds payable solely
out of the revenues from a revenue-producing property owned,
controlled, or operated by the local agency, or by a department,
board, agency, or authority of the local agency.
(e) Obligations issued by banks for cooperatives, federal land
banks, federal intermediate credit banks, federal home loan banks,
the Federal Home Loan Bank Board, the Tennessee Valley Authority, or
in obligations, participations, or other instruments of, or issued
by, or fully guaranteed as to principal and interest by, the Federal
National Mortgage Association; or in guaranteed portions of Small
Business Administration notes; or in obligations, participations, or
other instruments of, or issued by, a federal agency or a United
States government-sponsored enterprise.
(f) Bills of exchange or time drafts drawn on and accepted by a
commercial bank, otherwise known as bankers acceptances. Purchases
of bankers acceptances may not exceed 270 days maturity or 40 percent
of the agency's surplus money that may be invested pursuant to this
section. However, no more than 30 percent of the agency's surplus
funds may be invested in the bankers acceptances of any one
commercial bank pursuant to this section.
This subdivision does not preclude a municipal utility district
from investing any surplus money in its treasury in any manner
authorized by the Municipal Utility District Act (Division 6
(commencing with Section 11501) of the Public Utilities Code).
(g) Commercial paper of "prime" quality of the highest ranking or
of the highest letter and numerical rating as provided for by Moody's
Investors Service, Inc., or Standard and Poor's Corporation.
Eligible paper is further limited to issuing corporations that are
organized and operating within the United States and having total
assets in excess of five hundred million dollars ($500,000,000) and
having an "A" or higher rating for the issuer's debt, other than
commercial paper, if any, as provided for by Moody's Investors
Service, Inc., or Standard and Poor's Corporation. Purchases of
eligible commercial paper may not exceed 180 days maturity nor
represent more than 10 percent of the outstanding paper of an issuing
corporation. Purchases of commercial paper may not exceed 15
percent of the agency's surplus money that may be invested pursuant
to this section. An additional 15 percent, or a total of 30 percent
of the agency's surplus money, may be invested pursuant to this
subdivision. The additional 15 percent may be so invested only if
the dollar-weighted average maturity of the entire amount does not
exceed 31 days. "Dollar-weighted average maturity" means the sum of
the amount of each outstanding commercial paper investment multiplied
by the number of days to maturity, divided by the total amount of
outstanding commercial paper.
(h) Negotiable certificates of deposits issued by a nationally or
state-chartered bank or a state or federal association (as defined by
Section 5102 of the Financial Code) or by a state-licensed branch of
a foreign bank. Purchases of negotiable certificates of deposit may
not exceed 30 percent of the agency's surplus money which
that may be invested pursuant to this section.
For purposes of this section, negotiable certificates of deposits do
not come within Article 2 (commencing with Section 53630), except
that the amount so invested shall be subject to the limitations of
Section 53638.
(i) (1) Investments in repurchase agreements or reverse repurchase
agreements or securities lending agreements of any securities
authorized by this section, as long as the agreements are subject to
this subdivision, including , the delivery
requirements specified in this section.
(2) Investments in repurchase agreements may be made, on any
investment authorized in this section, when the term of the agreement
does not exceed one year. The market value of securities that
underlay a repurchase agreement shall be valued at 102 percent or
greater of the funds borrowed against those securities and the value
shall be adjusted no less than quarterly. Since the market value of
the underlying securities is subject to daily market fluctuations,
the investments in repurchase agreements shall be in compliance if
the value of the underlying securities is brought back up to 102
percent no later than the next business day.
(3) Reverse repurchase agreements or securities lending agreements
may be utilized only when either of the following conditions are
met:
(A) The security was owned or specifically committed to purchase,
by the local agency, prior to December 31, 1994, and was sold using a
reverse repurchase agreement or securities lending agreement on
December 31, 1994.
(B) The security to be sold on a reverse
repurchase agreement or a securities lending agreement has
been owned and fully paid for by the local agency for a minimum of
30 days prior to sale; the total of all reverse repurchase agreements
and securities lending agreements on investments owned by the local
agency not purchased or committed to purchase, prior to December 31,
1994, does not exceed 20 percent of the base value of the portfolio;
and the agreement does not exceed a term of 92 days, unless the
agreement includes a written codicil guaranteeing a minimum earning
or spread for the entire period between the sale of a security using
a reverse repurchase agreement or securities lending agreement and
the final maturity date of the same security.
(4) After December 31, 1994, a reverse repurchase agreement or
securities lending agreement may not be entered into with securities
not sold on a reverse repurchase agreement or securities lending
agreement and purchased, or committed to purchase, prior to that
date, as a means of financing or paying for the security sold on a
reverse repurchase agreement or securities lending agreement, but may
only be entered into with securities owned and previously paid for a
minimum of 30 days prior to the settlement of the reverse repurchase
agreement or securities lending agreement, in order to supplement
the yield on securities owned and previously paid for or to provide
funds for the immediate payment of a local agency obligation. Funds
obtained or funds within the pool of an equivalent amount to that
obtained from selling a security to a counterparty by way of a
reverse repurchase agreement or securities lending agreement, on
securities originally purchased subsequent to December 31, 1994,
shall not be used to purchase another security with a maturity longer
than 92 days from the initial settlement date of the reverse
repurchase agreement or securities lending agreement, unless the
reverse repurchase agreement or securities lending agreement includes
a written codicil guaranteeing a minimum earning or spread for the
entire period between the sale of a security using a reverse
repurchase agreement or securities lending agreement and the final
maturity date of the same security. Reverse repurchase agreements or
securities lending agreements specified in subparagraph (B) of
paragraph (3) may not be entered into unless the percentage
restrictions specified in that subparagraph are met, including the
total of any reverse repurchase agreements or securities lending
agreements specified in subparagraph (A) of paragraph (3).
(5) Investments in reverse repurchase agreements, securities
lending agreements, or similar investments in which the local agency
sells securities prior to purchase with a simultaneous agreement to
repurchase the security, may only be made upon prior approval of the
governing body of the local agency and shall only be made with
primary dealers of the Federal Reserve Bank of New York.
(6) (A) "Repurchase agreement" means a purchase of securities by
the local agency pursuant to an agreement by which the counterparty
seller will repurchase the securities on or before a specified date
and for a specified amount and the counterparty will deliver the
underlying securities to the local agency by book entry, physical
delivery, or by third-party custodial agreement. The transfer of
underlying securities to the counterparty bank's customer book-entry
account may be used for book-entry delivery.
(B) "Securities," for purpose of repurchase under this
subdivision, means securities of the same issuer, description, issue
date, and maturity.
(C) "Reverse repurchase agreement" means a sale of securities by
the local agency pursuant to an agreement by which the local agency
will repurchase the securities on or before a specified date and
includes other comparable agreements.
(D) "Securities lending agreement" means an agreement under which
a local agency agrees to transfer securities to a borrower who, in
turn, agrees to provide collateral to the local agency. During the
term of the agreement, both the securities and the collateral are
held by a third party. At the conclusion of the agreement, the
securities are transferred back to the local agency in return for the
collateral.
(E) For purposes of this section, the base value of the local
agency's pool portfolio shall be that dollar amount obtained by
totaling all cash balances placed in the pool by all pool
participants, excluding any amounts obtained through selling
securities by way of reverse repurchase agreements, securities
lending agreements, or other similar borrowing methods.
(F) For purposes of this section, the spread is the difference
between the cost of funds obtained using the reverse repurchase
agreement and the earnings obtained on the reinvestment of the funds.
(j) Medium-term notes, defined as all corporate and depository
institution debt securities with a maximum remaining maturity of five
years or less, issued by corporations organized and operating within
the United States or by depository institutions licensed by the
United States or any state and operating within the United States.
Notes eligible for investment under this subdivision shall be rated
"A" or better by a nationally recognized rating service. Purchases
of medium-term notes shall not include other instruments authorized
by this section and may not exceed 30 percent of the agency's surplus
money which that may be invested
pursuant to this section.
(k) (1) Shares of beneficial interest issued by diversified
management companies that invest in the securities and obligations as
authorized by subdivisions (a) to (j), inclusive, or subdivisions
(m) or (n) and that comply with the investment restrictions of this
article and Article 2 (commencing with Section 53630). However,
notwithstanding these restrictions, a counterparty to a reverse
repurchase agreement or securities lending agreement is not required
to be a primary dealer of the Federal Reserve Bank of New York if the
company's board of directors finds that the counterparty presents a
minimal risk of default, and the value of the securities underlying a
repurchase agreement or securities lending agreement may be 100
percent of the sales price if the securities are marked to market
daily.
(2) Shares of beneficial interest issued by diversified management
companies that are money market funds registered with the Securities
and Exchange Commission under the Investment Company Act of 1940 (15
U.S.C. Sec. 80a-1 and following).
(3) If investment is in shares issued pursuant to paragraph (1),
the company shall have met either of the following criteria:
(A) Attained the highest ranking or the highest letter and
numerical rating provided by not less than two nationally recognized
statistical rating organizations.
(B) Retained an investment adviser registered or exempt from
registration with the Securities and Exchange Commission with not
less than five years' experience investing in the securities and
obligations authorized by subdivisions (a) to (j), inclusive, or
subdivisions (m) or (n) and with assets under management in excess of
five hundred million dollars ($500,000,000).
(4) If investment is in shares issued pursuant to paragraph (2),
the company shall have met either of the following criteria:
(A) Attained the highest ranking or the highest letter and
numerical rating provided by not less than two nationally recognized
statistical rating organizations.
(B) Retained an investment adviser registered or exempt from
registration with the Securities and Exchange Commission with not
less than five years' experience managing money market mutual funds
with assets under management in excess of five hundred million
dollars ($500,000,000).
(5) The purchase price of shares of beneficial interest purchased
pursuant to this subdivision shall not include any commission that
the companies may charge and shall not exceed 20 percent of the
agency's surplus money that may be invested pursuant to this section.
However, no more than 10 percent of the agency's surplus funds may
be invested in shares of beneficial interest of any one mutual fund
pursuant to paragraph (1).
(l) Notwithstanding anything to the contrary contained in this
section, Section 53635, or any other provision of law, moneys held by
a trustee or fiscal agent and pledged to the payment or security of
bonds or other indebtedness, or obligations under a lease,
installment sale, or other agreement of a local agency, or
certificates of participation in those bonds, indebtedness, or lease
installment sale, or other agreements, may be invested in accordance
with the statutory provisions governing the issuance of those bonds,
indebtedness, or lease installment sale, or other agreement, or to
the extent not inconsistent therewith or if there are no specific
statutory provisions, in accordance with the ordinance, resolution,
indenture, or agreement of the local agency providing for the
issuance.
(m) Notes, bonds, or other obligations that are at all times
secured by a valid first priority security interest in securities of
the types listed by Section 53651 as eligible securities for the
purpose of securing local agency deposits having a market value at
least equal to that required by Section 53652 for the purpose of
securing local agency deposits. The securities serving as collateral
shall be placed by delivery or book entry into the custody of a
trust company or the trust department of a bank which is not
affiliated with the issuer of the secured obligation, and the
security interest shall be perfected in accordance with the
requirements of the Uniform Commercial Code or federal regulations
applicable to the types of securities in which the security interest
is granted.
(n) Any mortgage passthrough security, collateralized mortgage
obligation, mortgage-backed or other pay-through bond, equipment
lease-backed certificate, consumer receivable passthrough
certificate, or consumer receivable-backed bond of a maximum of five
years maturity. Securities eligible for investment under this
subdivision shall be issued by an issuer having an "A" or higher
rating for the issuer's debt as provided by a nationally recognized
rating service and rated in a rating category of "AA" or its
equivalent or better by a nationally recognized rating service.
Purchase of securities authorized by this subdivision may not exceed
20 percent of the agency's surplus money that may be invested
pursuant to this section.
SEC. 81. Section 53635 of the Government Code is amended to read:
53635. As far as possible, all money belonging to, or in the
custody of, a local agency, including money paid to the treasurer or
other official to pay the principal, interest, or penalties of bonds,
shall be deposited for safekeeping in state or national banks,
savings associations or federal associations, credit unions, or
federally insured industrial loan companies in this state selected by
the treasurer or other official having the legal custody of the
money ; or, unless otherwise directed by the
legislative body pursuant to Section 53601, may be invested in the
investments set forth below. A local agency purchasing or obtaining
any securities described in this section, in a negotiable, bearer,
registered, or nonregistered format, shall require delivery of all
the securities to the local agency, including those purchased for the
agency by financial advisers, consultants, or managers using the
agency's funds, by book-entry, physical delivery, or by third-party
custodial agreement. The transfer of securities to the counterparty
bank's customer book entry account may be used for book-entry
delivery. For purposes of this section, "counterparty" means the
other party to the transaction. A counterparty bank's trust
department or separate safekeeping department may be used for the
physical delivery of the security if the security is held in the name
of the local agency. Where this section specifies a percentage
limitation for a particular category of investment, that percentage
is applicable only at the date of purchase.
(a) Bonds issued by the local agency, including bonds payable
solely out of the revenues from a revenue-producing property owned,
controlled, or operated by the local agency or by a department,
board, agency, or authority of the local agency.
(b) United States Treasury notes, bonds, bills, or certificates of
indebtedness, or those for which the faith and credit of the United
States are pledged for the payment of principal and interest.
(c) Registered state warrants or treasury notes or bonds of this
state, including bonds payable solely out of the revenues from a
revenue-producing property owned, controlled, or operated by the
state or by a department, board, agency, or authority of the state.
(d) Bonds, notes, warrants, or other evidences of indebtedness of
any local agency within this state, including bonds payable solely
out of the revenues from a revenue-producing property owned,
controlled, or operated by the local agency, or by a department,
board, agency, or authority of the local agency.
(e) Obligations issued by banks for cooperatives, federal land
banks, federal intermediate credit banks, federal home loan banks,
the Federal Home Loan Bank, the Tennessee Valley Authority, or in
obligations, participations, or other instruments of, or issued by,
or fully guaranteed as to principal and interest by, the Federal
National Mortgage Association; or in guaranteed portions of Small
Business Administration notes; or in obligations, participations, or
other instruments of, or issued by, a federal agency or a United
States government-sponsored enterprise.
(f) Bills of exchange or time drafts drawn on and accepted by a
commercial bank, otherwise known as bankers acceptances. Purchases
of bankers acceptances may not exceed 270 days maturity or 40 percent
of the agency's surplus funds which may be invested pursuant to this
section. However, no more than 30 percent of the agency's surplus
funds may be invested in the bankers acceptances of any one
commercial bank pursuant to this section.
This subdivision does not preclude a municipal utility district
from investing any surplus money in its treasury in any manner
authorized by the Municipal Utility District Act, Division 6
(commencing with Section 11501) of the Public Utilities Code.
(g) Commercial paper of "prime" quality of the highest ranking or
of the highest letter and numerical rating as provided for by Moody's
Investors Service, Inc., or Standard and Poor's Corporation.
Eligible paper is further limited to issuing corporations that are
organized and operating within the United States and having total
assets in excess of five hundred million dollars ($500,000,000) and
having an "A" or higher rating for the issuer's debt, other than
commercial paper, if any, as provided for by Moody's Investors
Service, Inc., or Standard and Poor's Corporation. Purchases of
eligible commercial paper may not exceed 180 days maturity nor
represent more than 10 percent of the outstanding paper of an issuing
corporation. Purchases of commercial paper may not exceed 15
percent of the agency's surplus money which
that may be invested pursuant to this section. An additional
15 percent, or a total of 30 percent of the agency's money or money
in its custody, may be invested pursuant to this subdivision. The
additional 15 percent may be so invested only if the dollar-weighted
average maturity of the entire amount does not exceed 31 days.
"Dollar-weighted average maturity" means the sum of the amount of
each outstanding commercial paper investment multiplied by the number
of days to maturity, divided by the total amount of outstanding
commercial paper.
(h) Negotiable certificates of deposit issued by a nationally or
state-chartered bank or a savings association or federal association
or a state or federal credit union or by a state-licensed branch of a
foreign bank. Purchases of negotiable certificates of deposit may
not exceed 30 percent of the agency's surplus money which
that may be invested pursuant to this section.
For purposes of this section, negotiable certificates of deposit do
not come within Article 2 (commencing with Section 53630) of Chapter
4 of Part 1 of Division 2 of Title 5, except that the amount so
invested shall be subject to the limitations of Section 53638. For
purposes of this section, the legislative body of a local agency and
the treasurer or other official of the local agency having legal
custody of the money are prohibited from depositing or investing
local agency funds, or funds in the custody of the local agency, in
negotiable certificates of deposit issued by a state or federal
credit union if a member of the legislative body of the local agency,
or an employee of the administrative officer, manager's office,
budget office, auditor-controller's office, or treasurer's office of
the local agency also serves on the board of directors, or any
committee appointed by the board of directors, or the credit
committee or supervisory committee of the state or federal credit
union issuing the negotiable certificates of deposit.
(i) (1) Investments in repurchase agreements or reverse repurchase
agreements, or securities lending agreements of any securities
authorized by this section, so long as the agreements are subject to
this subdivision, including the delivery requirements specified in
this section.
(2) Investments in repurchase agreements or securities lending
agreements may be made, on any investment authorized in this section,
when the term of the agreement does not exceed one year. The market
value of securities that underlay a repurchase agreement shall be
valued at 102 percent or greater of the funds borrowed against those
securities and the value shall be adjusted no less than quarterly.
Since the market value of the underlying securities is subject to
daily market fluctuations, the investments in repurchase agreements
shall be in compliance if the value of the underlying securities is
brought back up to 102 percent no later than the next business day.
(3) Reverse repurchase agreements may be utilized only when either
of the following conditions are met:
(A) The security was owned or specifically committed to purchase,
by the local agency, prior to repurchase agreement on December 31,
1994, and was sold using a reverse repurchase agreement or
securities lending agreement on December 31, 1994.
(B) The security to be sold on a reverse repurchase
agreement or a securities lending agreement has been owned
and fully paid for by the local agency for a minimum of 30 days
prior to sale; the total of all reverse repurchase agreements and
securities lending agreements on investments owned by the local
agency not purchased or committed to purchase, prior to December 31,
1994, does not exceed 20 percent of the base value of the portfolio;
and the agreement does not exceed a term of 92 days, unless the
agreement includes a written codicil guaranteeing a minimum earning
or spread for the entire period between the sale of a security using
a reverse repurchase agreement or securities lending agreement and
the final maturity date of the same security.
(4) After December 31, 1994, a reverse repurchase agreement or
securities lending agreement may not be entered into with securities
not sold on a reverse repurchase agreement or securities lending
agreement and purchased, or committed to purchase, prior to that
date, as a means of financing or paying for the security sold on a
reverse repurchase agreement or securities lending agreement, but may
only be entered into with securities owned and previously paid for a
minimum of 30 days prior to the settlement of the reverse repurchase
agreement or securities lending agreement, in order to supplement
the yield on securities owned and previously paid for or to provide
funds for the immediate payment of a local agency obligation. Funds
obtained or funds within the pool of an equivalent amount to that
obtained from selling a security to a counterparty by way of a
reverse repurchase agreement or securities lending agreement, on
securities originally purchased subsequent to December 31, 1994,
shall not be used to purchase another security with a maturity longer
than 92 days from the initial settlement date of the reverse
repurchase agreement or securities lending agreement, unless the
reverse repurchase agreement or securities lending agreement includes
a written codicil guaranteeing a minimum earning or spread for the
entire period between the sale of a security using a reverse
repurchase agreement or securities lending agreement and the final
maturity date of the same security. Reverse repurchase agreements or
securities lending agreements specified in subparagraph (B) of
paragraph (3) may not be entered into unless the percentage
restrictions specified in that subparagraph are met, including the
total of any reverse repurchase agreements or securities lending
agreements specified in subparagraph (A) of paragraph (3).
(5) Investments in reverse repurchase agreements, securities
lending agreements, or similar investments in which the local agency
sells securities prior to purchase with a simultaneous agreement to
repurchase the security, may only be made upon prior approval of the
governing body of the local agency and shall only be made with
primary dealers of the Federal Reserve Bank of New York.
(6) (A) "Repurchase agreement" means a purchase of securities by
the local agency pursuant to an agreement by which the counterparty
seller will repurchase the securities on or before a specified date
and for a specified amount and the counterparty will deliver the
underlying securities to the local agency by book entry, physical
delivery, or by third-party custodial agreement. The transfer of
underlying securities to the counterparty bank's customer book-entry
account may be used for book-entry delivery.
(B) "Securities," for purpose of repurchase under this
subdivision, means securities of the same issuer, description, issue
date, and maturity.
(C) "Reverse repurchase agreement" means a sale of securities by
the local agency pursuant to an agreement by which the local agency
will repurchase the securities on or before a specified date, and
includes other comparable agreements.
(D) "Securities lending agreement" means an agreement under which
a local agency agrees to transfer securities to a borrower who, in
turn, agrees to provide collateral to the local agency. During the
term of the agreement, both the securities and the collateral are
held by a third party. At the conclusion of the agreement, the
securities are transferred back to the local agency in return for the
collateral.
(E) For purposes of this section, the base value of the local
agency's pool portfolio shall be that dollar amount obtained by
totaling all cash balances placed in the pool by all pool
participants, excluding any amounts obtained through selling
securities by way of reverse repurchase agreements or other similar
borrowing methods.
(F) For purposes of this section, the spread is the difference
between the cost of funds obtained using the reverse repurchase
agreement or securities lending agreement and the earnings obtained
on the reinvestment of the funds.
(j) Medium-term notes, defined as all corporate and depository
institution debt securities with a maximum remaining maturity of five
years or less, issued by corporations organized and operating within
the United States or by depository institutions licensed by the
United States or any state and operating within the United States.
Notes eligible for investment under this subdivision shall be rated
"A" or better by a nationally recognized rating service. Purchases
of medium-term notes shall not include other instruments authorized
by this section and may not exceed 30 percent of the agency's surplus
money which that may be invested
pursuant to this section.
(k) (1) Shares of beneficial interest issued by diversified
management companies that invest in the securities and obligations as
authorized by subdivisions (a) to (j), inclusive, or subdivision (l)
or (m) and that comply with the investment restrictions of this
article and Article 1 (commencing with Section 53600). However,
notwithstanding these restrictions, a counterparty to a reverse
repurchase agreement or securities lending agreement is not required
to be a primary dealer of the Federal Reserve Bank of New York if the
company's board of directors finds that the counterparty presents a
minimal risk of default, and the value of the securities underlying a
repurchase agreement or securities lending agreement may be 100
percent of the sales price if the securities are marked to market
daily.
(2) Shares of beneficial interest issued by diversified management
companies that are money market funds registered with the Securities
and Exchange Commission under the Investment Company Act of 1940 (15
U.S.C. Sec. 80a-1 and following).
(3) If investment is in shares issued pursuant to paragraph (1),
the company shall have met either of the following criteria:
(A) Attained the highest ranking or the highest letter and
numerical rating provided by not less than two nationally recognized
statistical rating organizations.
(B) Retained an investment adviser registered or exempt from
registration with the Securities and Exchange Commission with not
less than five years' experience investing in the securities and
obligations authorized by subdivisions (a) to (j), inclusive, or
subdivision (l) or (m) and with assets under management in excess of
five hundred million dollars ($500,000,000).
(4) If investment is in shares issued pursuant to paragraph (2),
the company shall have met either of the following criteria:
(A) Attained the highest ranking or the highest letter and
numerical rating provided by not less than two nationally recognized
statistical rating organizations.
(B) Retained an investment adviser registered or exempt from
registration with the Securities and Exchange Commission with not
less than five years' experience managing money market mutual funds
with assets under management in excess of five hundred million
dollars ($500,000,000).
(5) The purchase price of shares of beneficial interest purchased
pursuant to this subdivision shall not include any commission that
the companies may charge and shall not exceed 20 percent of the
agency's surplus money that may be invested pursuant to this section.
However, no more than 10 percent of the agency's surplus funds may
be invested in shares
of beneficial interest of any one mutual fund pursuant to paragraph
(1).
(l) Notes, bonds, or other obligations which are at all times
secured by a valid first priority security interest in securities of
the types listed by Section 53651 as eligible securities for the
purpose of securing local agency deposits having a market value at
least equal to that required by Section 53652 for the purpose of
securing local agency deposits. The securities serving as collateral
shall be placed by delivery or book entry into the custody of a
trust company or the trust department of a bank which is not
affiliated with the issuer of the secured obligation, and the
security interest shall be perfected in accordance with the
requirements of the Uniform Commercial Code or federal regulations
applicable to the types of securities in which the security interest
is granted.
(m) Any mortgage passthrough security, collateralized mortgage
obligation, mortgage-backed or other pay-through bond, equipment
lease-backed certificate, consumer receivable passthrough
certificate, or consumer receivable-backed bond of a maximum of five
years maturity. Securities eligible for investment under this
subdivision shall be issued by an issuer having an "A" or higher
rating for the issuer's debt as provided by a nationally recognized
rating service and rated in a rating category of "AA" or its
equivalent or better by a nationally recognized rating service.
Purchase of securities authorized by this subdivision may not exceed
20 percent of the agency's surplus money that may be invested
pursuant to this section.
SEC. 82. Section 54985 of the Government Code is amended to read:
54985. (a) Notwithstanding any other provision of law that
prescribes an amount or otherwise limits the amount of a fee or
charge that may be levied by a county, a county service area, or a
county waterworks district governed by a county board of supervisors,
a county board of supervisors shall have the authority to increase
or decrease the fee or charge, that is otherwise authorized to be
levied by another provision of law, in the amount reasonably
necessary to recover the cost of providing any product or service or
the cost of enforcing any regulation for which the fee or charge is
levied. The fee or charge may reflect the average cost of providing
any product or service or enforcing any regulation. Indirect costs
that may be reflected in the cost of providing any product or service
or the cost of enforcing any regulation shall be limited to those
items that are included in the federal Office of Management and
Budget Circular A-87 on January 1, 1984.
(b) If any person disputes whether a fee or charge levied pursuant
to subdivision (a) is reasonable, the board of supervisors may
request the county auditor to conduct a study and to determine
whether the fee or charge is reasonable.
Nothing in this subdivision shall be construed to mean that the
county shall not continue to be subject to fee review procedures
required by Article XIIIB of the California Constitution.
(c) This chapter shall not apply to any of the following:
(1) Any fee charged or collected by a court clerk pursuant to
Section 26820.4, 26823, 26824, 26826, 26827, 26827.4, 26830, 72054,
72055, 72056, 72059, 72060, or 72061 of the Government Code or
Section 103470 of the Health and Safety Code, and any other fee or
charge that may be assessed, charged, collected, or levied ,
pursuant to law for filing judicial documents or for other
judicial functions.
(2) Any fees charged or collected pursuant to Chapter 2
(commencing with Section 6100) of Division 7 of Title 1.
(3) Any standby or availability assessment or charge.
(4) Any fee charged or collected by a county agricultural
commissioner.
(5) Any fee charged or collected pursuant to Article 2.1
(commencing with Section 12240) of Chapter 2 of Division 5 of the
Business and Professions Code.
(6) Any fee charged or collected by a county recorder or local
registrar for filing, recording, or indexing any document, performing
any service, issuing any certificate, or providing a copy of any
document pursuant to Section 2103 of the Code of Civil Procedure,
Section 27361, 27361.1, 27361.2, 27361.3, 27361.4, 27361.8, 27364,
27365, or 27366 of the Government Code, Section 103625 of the Health
and Safety Code, or Section 9525 of the Uniform
Commercial Code.
(7) Any fee charged or collected pursuant to Article 7 (commencing
with Section 26720) of Chapter 2 of Part 3 of Division 2 of Title 3
of the Government Code.
SEC. 83. Section 69915 of the Government Code is amended to read:
69915. (a) Notwithstanding any other provision of law, and except
as provided in subdivision (j), the Board of Supervisors of each of
the Counties of Merced, Orange, and Shasta may commence public
hearings regarding the abolition of the marshal's office and the
transferring of court-related services provided by the marshal within
the county to the sheriff's department. Within 30 days of the
commencement of public hearings as authorized by this section, the
board shall make a final determination as to the most cost-effective
and most efficient manner of providing court-related services.
(b) Concurrently, an election may be conducted among all of the
judges of the consolidated courts of the county to provide an
advisory recommendation to the board of supervisors on the abolition
of the marshal's office and the transferring of court-related
services provided by the marshal within the county to the sheriff's
department. The outcome shall be determined by a simple majority of
votes cast. The vote of the judges shall then be forwarded to the
board of supervisors prior to the close of the public hearing, and
the board of supervisors shall take into advisement the
recommendation of the judges provided by the election report.
(c) The determination of the abolishment of the marshal's office
or the transferring of the duties of the marshal shall occur pursuant
to the board's determination, and shall be concluded no later than
July 1, 2000.
(d) The courtroom assignment of bailiffs after abolition of the
marshal's office and the consolidation pursuant to this section shall
be determined by a two-member committee comprised of the presiding
judge of the consolidated court and the sheriff, or their designees.
Any new bailiff assignments shall be made only after consultation
with the affected judge or commissioner in whose courtroom a new
assignment is planned.
It is the intent of the Legislature, in enacting this subdivision,
to ensure that courtroom assignments are made in a manner that best
ensures that the interests of the affected judge or commissioner and
bailiff are protected.
(e) Notwithstanding any other provision of law, the marshal and
all personnel of the marshal's office affected by the abolition of
the marshal's office in the county shall become employees of the
sheriff's department at their existing or equivalent classification,
salaries, and benefits, and, except as may be necessary for the
operation of the agency under which court-related services and the
service of civil and criminal process are consolidated, they shall
not be involuntarily transferred out of the consolidated office for a
period of five years following the consolidation.
(f) Personnel of the abolished marshal's office shall be entitled
to request an assignment to another division within the sheriff's
department, and that request shall be reviewed the same as any other
request from within the department. Persons who accept a voluntary
transfer from the court services/civil division shall waive their
rights pursuant to subdivision (e).
(g) Permanent employees of the marshal's office on the effective
date of the abolition of the marshal's office pursuant to this
section shall be deemed to be qualified, and no other qualifications
shall be required for employment or retention. Probationary
employees of the marshal's office on the effective date of a
consolidation pursuant to this section shall retain their
probationary status and rights and shall not be deemed to have
transferred so as to require serving a new probationary period.
(h) All county service or service by employees of the marshal's
office on the effective date of a consolidation pursuant to this
section shall be counted toward seniority in the consolidated office,
and all time spent in the same, equivalent, or higher classification
shall be counted toward classification seniority.
(i) No employee of the marshal's office on the effective date of a
consolidation pursuant to this section shall lose peace officer
status, or otherwise be adversely affected as a result of the
abolition and merger of personnel into the sheriff's department.
(j) Subdivisions (d) to (i), inclusive, shall not apply to the
County of Orange. Prior to a determination by the Orange County
Board of Supervisors to abolish the marshal's office and to transfer
duties of the marshal to the sheriff, the board of supervisors shall
do both of the following:
(1) Meet and confer with affected employee bargaining
representatives with respect to matters within the scope of
representation that would be affected by a determination to abolish
the marshal's office and to transfer duties of the marshal to the
sheriff. These matters shall include, but not be limited to,
seniority within the merged departments, job qualifications,
classification of positions, and intradepartmental transfers. For
purposes of carrying out this paragraph, employees of the superior
court whose job classification confers safety status shall have the
right to representation in accordance with the local
employer-employee resolution and to bargain in accordance with
Sections 3504, 3505, and 3505.1. The board of supervisors
is not authorized to abolish the office of the marshal and to
transfer duties of the marshal to the sheriff unless a mutual
agreement, or mutually agreed to amendment to an existing memorandum
of understanding as authorized by this section, is reached with each
affected recognized employee organization pursuant to Section 3505.1
and adopted by the board of supervisors.
(2) Confer with the presiding judge of the superior court or his
or her designated representative and the sheriff to discuss
courthouse security and to establish a mechanism for the assignment
of courtroom security personnel. Any agreement made in accordance
with this paragraph that commits the superior court to fund services
shall be approved by the presiding judge of the superior court or his
or her designee. Any agreement entered into pursuant to this
paragraph shall become effective only upon a majority vote of the
board of supervisors to abolish the office of the marshal or to
transfer duties of the marshal to the sheriff.
(k) Upon a determination by the Orange County Board of Supervisors
to abolish the office of marshal and to transfer duties of the
marshal to the sheriff, Article 17.1 (commencing with Section 74010)
of Chapter 10 shall become inoperative.
SEC. 84. Section 72114.2 of the Government Code is amended to
read:
72114.2. (a) Notwithstanding any other provision of law, on or
after January 1, 2000, the San Diego County Marshal's Office shall be
abolished, and there shall be a bureau in the San Diego County
Sheriff's Department under which court security services and the
service of civil and criminal process are consolidated.
This bureau's primary function shall be to provide the management
with direction, supervision, and personnel for court-related services
which that include court security, the
service of civil and criminal process, public safety protection,
judicial protection, standards of performance, and other matters
incidental to the performance of those services.
The sheriff shall be appointing authority for all bureau
personnel. The person selected by the sheriff to oversee the
operation of court-related services, as described in this section,
shall report directly to the sheriff.
Notwithstanding Section 77212, the operational service level for
court security services shall be in accordance with agreements
between the court and the County of San Diego, which shall not
provide a lesser operational service level than may be required by
statute.
The operational service level for the service of civil and
criminal process and for administrative services shall be in
accordance with agreements between the court and the County of San
Diego, which shall not provide a lesser operational service level
than may be required by statute.
To ensure that the costs assessed to the court for bureau services
are in full conformance with the rules of court and statutes
concerning trial court funding, the bureau shall be maintained as a
separate organizational unit for budgeting and cost accounting
purposes.
On a semiannual basis or more often as required by law, the
sheriff shall provide the court with an accounting of costs for the
bureau, in sufficient detail to allow for an assessment of budget
performance, separately, for each function of the bureau. The county
auditor and controller shall provide to the court copies of each
audit report conducted on the bureau. The court is authorized to
conduct, and the sheriff shall cooperate in, independent financial
audits of the bureau, either by court staff or by independent
auditors.
(b) Notwithstanding any other provision of law, concomitant with
the abolition of the marshal's office all personnel of the marshal's
office shall become employees of the sheriff's department at their
existing or equivalent classification, salaries, and benefits.
The marshal and the assistant marshal , or their
equivalents, may become employees of the sheriff's department.
(c) Permanent employees of the marshal's office on the effective
date of transfer of services from the marshal to the sheriff pursuant
to this section shall be deemed to be qualified, and no other
qualifications shall be required for employment or retention.
Promotions for all personnel from the marshal's office shall be made
pursuant to standards set by the sheriff. Probationary employees in
the marshal's office on the effective date of the abolition shall not
be required to serve a new probationary period. All probationary
time served as an employee of the marshal shall be credited toward
probationary time required as an employee of the sheriff's
department.
(d) All county service and all service with the marshal's office
by employees of the marshal's office on the effective date of the
abolition of the marshal's office shall be counted toward seniority
in the sheriff's department. All time spent in the same, equivalent,
or higher classification shall be counted toward classification
seniority.
(e) As a result of the abolition of the marshal's office, no
employee of the marshal's office who becomes an employee of the
sheriff's department pursuant to this section shall lose peace
officer status or be reduced in rank or salary.
(f) Prior to the abolition of the marshal's office, the court and
the County of San Diego shall enter into a contractual agreement
regarding the provision of court security services to be provided by
the sheriff. Thereafter, from time to time, the court and the County
of San Diego may enter into agreements regarding the provision of
court security services to be provided by the sheriff.
(g) After abolition of the marshal's office, a two-member
committee comprised of a representative of the presiding judge of the
superior court and a representative of the sheriff shall make
recommendations to the sheriff regarding courtroom assignments of
bailiffs. Bailiff assignments and the release from those assignments
shall be made only after consultation with, and concurrence of, the
affected judge or judicial officer. The presiding judge may provide
the concurrence required by this section. This subdivision shall not
apply to actions instituted by the sheriff for fitness for duty
reasons or discipline that is subject to review by the San Diego
County Civil Service Commission.
(h) For a period of five years following the abolition of the
marshal's office, personnel of the marshal's office who become
employees of the sheriff's department shall not be transferred from
the bureau in the sheriff's department under which court-related
services and the service of civil and criminal process are
consolidated, unless the transfer is voluntary or is the result of
fitness for duty reasons or discipline that is subject to review by
the San Diego County Civil Service Commission.
(i) Personnel of the marshal's office who become employees of the
sheriff's department shall be entitled to request an assignment to
another bureau or division within the sheriff's department, and that
request shall be reviewed the same as any other request from within
the department.
(j) This section shall become operative in the County of San Diego
when the board of supervisors adopts a resolution declaring this
section operative. The implementation of this section shall be
subject to approval and adoption by the board of supervisors of
necessary actions, appropriations, and ordinances consistent with the
Charter charter of the County of San
Diego and other statutory authority.
SEC. 85. Section 91007 of the Government Code is amended to read:
91007. (a) Any person, before filing a civil action pursuant to
Sections 91004 and 91005, must first file with the civil prosecutor a
written request for the civil prosecutor to commence the action.
The request shall include a statement of the grounds for believing a
cause of action exists. The civil prosecutor shall respond to the
person in writing, indicating whether he or she intends to file a
civil action.
(1) If the civil prosecutor responds in the affirmative and files
suit within 120 days from receipt of the written request to commence
the action, no other action may be brought unless the action brought
by the civil prosecutor is dismissed without prejudice as provided
for in Section 91008.
(2) If the civil prosecutor responds in the negative within 120
days from receipt of the written request to commence the action, the
person requesting the action may proceed to file a civil action upon
receipt of the response from the civil prosecutor. If, pursuant to
this subdivision, the civil prosecutor does not respond within 120
days, the civil prosecutor shall be deemed to have provided a
negative written response to the person requesting the action on the
120th day and the person shall be deemed to have received that
response.
(3) The time period within which a civil action shall be
commenced, as set forth in Section 91011, shall be tolled from the
date of receipt by the civil prosecutor of the written request to
either the date that the civil action is dismissed without prejudice
, or the date of receipt by the person of the
negative response from the civil prosecutor, but only for a civil
action brought by the person who requested the civil prosecutor to
commence the action.
(b) Any person filing a complaint, cross-complaint , or
other initial pleading in a civil action pursuant to Section 91003,
91004, 91005, or 91005.5 shall, within 10 days of filing the
complaint, cross-complaint, or initial pleading, serve on the
commission a copy of the complaint, cross-complaint, or initial
pleading or a notice containing all of the following:
(1) The full title and number of the case.
(2) The court in which the case is pending.
(3) The name and address of the attorney for the person filing the
complaint, cross-complaint, or other initial pleading.
(4) A statement that the case raises issues under the Political
Reform Act of 1974 .
(c) No complaint, cross-complaint, or other initial pleading shall
be dismissed for failure to comply with subdivision (b).
SEC. 86. Section 1357.50 of the Health and Safety Code is amended
to read:
1357.50. For purposes of this article:
(a) "Health benefit plan" means any individual or group ,
insurance policy or health care service plan contract
, that provides medical, hospital, and surgical
benefits. The term does not include accident only, credit,
disability income, coverage of Medicare services pursuant to
contracts with the United States government, Medicare supplement,
long-term care insurance, dental, vision, coverage issued as a
supplement to liability insurance, insurance arising out of a workers'
compensation or similar law, automobile medical payment insurance,
or insurance under which benefits are payable with or without regard
to fault and that is statutorily required to be contained in any
liability insurance policy or equivalent self-insurance.
(b) "Late enrollee" means an eligible employee or dependent who
has declined health coverage under a health benefit plan offered
through employment or sponsored by an employer at the time of the
initial enrollment period provided under the terms of the health
benefit plan, and who subsequently requests enrollment in a health
benefit plan of that employer ; ,
provided that the initial enrollment period shall be a period of at
least 30 days. However, an eligible employee or dependent shall not
be considered a late enrollee if any of the following is applicable:
(1) The individual meets all of the following requirements:
(A) The individual was covered under another employer health
benefit plan or no share-of-cost Medi-Cal coverage at the time the
individual was eligible to enroll.
(B) The individual certified, at the time of the initial
enrollment , that coverage under another employer health
benefit plan or no share-of-cost Medi-Cal coverage was the reason for
declining enrollment provided that, if the individual was covered
under another employer health benefit plan, the individual was given
the opportunity to make the certification required by this
subdivision and was notified that failure to do so could result in
later treatment as a late enrollee.
(C) The individual has lost or will lose coverage under another
employer health benefit plan as a result of termination of employment
of the individual or of a person through whom the individual was
covered as a dependent, change in employment status of the individual
or of a person through whom the individual was covered as a
dependent, termination of the other plan's coverage, cessation of an
employer's contribution toward an employee or dependent's coverage,
death of a person through whom the individual was covered as a
dependent, legal separation, divorce, or loss of no share-of-cost
Medi-Cal coverage.
(D) The individual requests enrollment within 30 days after
termination of coverage, or cessation of employer contribution toward
coverage provided under another employer health benefit plan.
(2) The individual is employed by an employer that offers multiple
health benefit plans and the individual elects a different plan
during an open enrollment period.
(3) A court has ordered that coverage be provided for a spouse or
minor child under a covered employee's health benefit plan. The
health benefit plan shall enroll a dependent child within 30 days
after receipt of a court order or request from the district attorney,
either parent or the person having custody of the child as defined
in Section 3751.5 of the Family Code, the employer, or the group
administrator. In the case of children who are eligible for
medicaid, the State Department of Health Services may also make the
request.
(4) The plan cannot produce a written statement from the employer
stating that, prior to declining coverage, the individual or the
person through whom the individual was eligible to be covered as a
dependent was provided with, and signed acknowledgment of, explicit
written notice in bold boldface type
specifying that failure to elect coverage during the initial
enrollment period permits the plan to impose, at the time of the
individual's later decision to elect coverage, an exclusion from
coverage for a period of 12 months as well as a six-month preexisting
condition exclusion, unless the individual meets the criteria
specified in paragraph (1), (2), or (3).
(5) The individual is an employee or dependent who meets the
criteria described in paragraph (1) and was under a COBRA
continuation provision, and the coverage under that provision has
been exhausted. For purposes of this section, the definition of
"COBRA" set forth in subdivision (e) of Section 1373.621 shall apply.
(6) The individual is a dependent of an enrolled eligible employee
who has lost or will lose his or her no share-of-cost Medi-Cal
coverage and requests enrollment within 30 days of notification of
this loss of coverage.
(7) The individual is an eligible employee who previously declined
coverage under an employer health benefit plan and who has
subsequently acquired a dependent who would be eligible for coverage
as a dependent of the employee through marriage, birth, adoption, or
placement for adoption, and who enrolls for coverage under that
employer health benefit plan on his or her behalf, and on behalf of
his or her dependent within 30 days following the date of marriage,
birth, adoption, or placement for adoption, in which case the
effective date of coverage shall be the first day of the month
following the date the completed request for enrollment is received
in the case of marriage, or the date of birth, or the date of
adoption or placement for adoption, whichever applies. Notice of the
special enrollment rights contained in this paragraph shall be
provided by the employer to an employee at or before the time the
employee is offered an opportunity to enroll in plan coverage.
(8) The individual is an eligible employee who has declined
coverage for himself or herself or his or her dependents during a
previous enrollment period because his or her dependents were covered
by another employer health benefit plan at the time of the previous
enrollment period. That individual may enroll himself or herself or
his or her dependents for plan coverage during a special open
enrollment opportunity if his or her dependents have lost or will
lose coverage under that other employer health benefit plan. The
special open enrollment opportunity shall be requested by the
employee not more than 30 days after the date that the other health
coverage is exhausted or terminated. Upon enrollment, coverage shall
be effective not later than the first day of the first calendar
month beginning after the date the request for enrollment is
received. Notice of the special enrollment rights contained in this
paragraph shall be
provided by the employer to an employee at or before the time the
employee is offered an opportunity to enroll in plan coverage.
(c) "Preexisting condition provision" means a contract provision
that excludes coverage for charges or expenses incurred during a
specified period following the enrollee's effective date of coverage,
as to a condition for which medical advice, diagnosis, care, or
treatment was recommended or received during a specified period
immediately preceding the effective date of coverage.
(d) "Creditable coverage" means:
(1) Any individual or group policy, contract , or
program , that is written or administered by a
disability insurance company, nonprofit hospital service plan, health
care service plan, fraternal benefits society, self-insured employer
plan, or any other entity, in this state or elsewhere, and that
arranges or provides medical, hospital and surgical coverage not
designed to supplement other private or governmental plans. The term
includes continuation or conversion coverage but does not include
accident only, credit, coverage for onsite medical clinics,
disability income, Medicare supplement, long-term care insurance,
dental, vision, coverage issued as a supplement to liability
insurance, insurance arising out of a workers' compensation or
similar law, automobile medical payment insurance, or insurance under
which benefits are payable with or without regard to fault and that
is statutorily required to be contained in any liability insurance
policy or equivalent self-insurance.
(2) The federal Medicare program pursuant to Title XVIII of the
Social Security Act.
(3) The medicaid program pursuant to Title XIX of the Social
Security Act.
(4) Any other publicly sponsored program, provided in this state
or elsewhere, of medical, hospital and surgical care.
(5) 10 U.S.C.A. Chapter 55 (commencing with Section 1071)
(Civilian Health and Medical Program of the Uniformed Services
(CHAMPUS)).
(6) A medical care program of the Indian Health Service or of a
tribal organization.
(7) A state health benefits risk pool.
(8) A health plan offered under 5 U.S.C.A. Chapter 89 (commencing
with Section 8901) (Federal Employees Health Benefits Program
(FEHBP)).
(9) A public health plan as defined in federal regulations
authorized by Section 2701(c)(1)(I) of the Public Health Service Act,
as amended by Public Law 104-191, the Health Insurance Portability
and Accountability Act of 1996.
(10) A health benefit plan under Section 5(e) of the Peace Corps
Act (22 U.S.C.A. Sec. 2504(e)).
(11) Any other creditable coverage as defined by subdivision (c)
of Section 2701 of Title XXVII of the federal Public Health Services
Act (42 U.S.C. Sec. 300gg(c)).
(e) "Waivered condition" means a contract provision that excludes
coverage for charges or expenses incurred during a specified period
of time for one or more specific, identified, medical conditions.
(f) "Affiliation period" means a period that, under the terms of
the health benefit plan, must expire before health care services
under the plan become effective.
SEC. 87. Section 1368 of the Health and Safety Code is amended to
read:
1368. (a) Every plan shall do all of the following:
(1) Establish and maintain a grievance system approved by the
department under which enrollees may submit their grievances to the
plan. Each system shall provide reasonable procedures in accordance
with department regulations that shall ensure adequate consideration
of enrollee grievances and rectification when appropriate.
(2) Inform its subscribers and enrollees upon enrollment in the
plan and annually thereafter of the procedure for processing and
resolving grievances. The information shall include the location and
telephone number where grievances may be submitted.
(3) Provide forms for grievances to be given to subscribers and
enrollees who wish to register written grievances. The forms used by
plans licensed pursuant to Section 1353 shall be approved by the
director in advance as to format.
(4) Provide subscribers and enrollees with written responses to
grievances, with a clear and concise explanation of the reasons for
the plan's response. For grievances involving the delay, denial, or
modification of health care services, the plan response shall
describe the criteria used and the clinical reasons for its decision,
including all criteria and clinical reasons related to medical
necessity. If a plan, or one of its contracting providers, issues a
decision delaying, denying, or modifying 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 enrollee, the decision shall clearly specify the provisions in
the contract that exclude that coverage.
(5) Keep in its files all copies of grievances, and the responses
thereto, for a period of five years.
(b) (1) (A) After either completing the grievance process
described in subdivision (a), or participating in the process for at
least 30 days, a subscriber or enrollee may submit the grievance to
the department for review. In any case determined by the department
to be a case involving an imminent and serious threat to the health
of the patient, including, but not limited to, severe pain, the
potential loss of life, limb, or major bodily function, or in any
other case where the department determines that an earlier review is
warranted, a subscriber or enrollee shall not be required to complete
the grievance process or participate in the process for at least 30
days before submitting a grievance to the department for review.
(B) A grievance may be submitted to the department for review and
resolution prior to any arbitration.
(C) Notwithstanding subparagraphs (A) and (B), the department may
refer any grievance that does not pertain to compliance with this
chapter to the State Department of Health Services, the California
Department of Aging, the federal Health Care Financing
Administration, or any other appropriate governmental entity for
investigation and resolution.
(2) If the subscriber or enrollee is a minor, or is incompetent or
incapacitated, the parent, guardian, conservator, relative, or other
designee of the subscriber or enrollee, as appropriate, may submit
the grievance to the department as the agent of the subscriber or
enrollee. Further, a provider may join with, or otherwise assist, a
subscriber or enrollee, or the agent, to submit the grievance to the
department. In addition, following submission of the grievance to
the department, the subscriber or enrollee, or the agent, may
authorize the provider to assist, including advocating on behalf of
the subscriber or enrollee. For purposes of this section, a
"relative" includes the parent, stepparent, spouse, adult son or
daughter, grandparent, brother, sister, uncle, or aunt of the
subscriber or enrollee.
(3) The department shall review the written documents submitted
with the subscriber's or the enrollee's request for review, or
submitted by the agent on behalf of the subscriber or enrollee. The
department may ask for additional information, and may hold an
informal meeting with the involved parties, including providers who
have joined in submitting the grievance or who are otherwise
assisting or advocating on behalf of the subscriber or enrollee. If
, after reviewing the record, the department concludes
that the grievance, in whole or in part, is eligible for review under
the independent medical review system established pursuant to
Article 12 5.55 (commencing with Section
1374.30), the department shall immediately notify the subscriber or
enrollee, or agent, of that option and shall, if requested orally or
in writing, shall assist the subscriber or
enrollee in participating in the independent medical review system.
(4) If , after reviewing the record of a grievance, the
department concludes that a health care service eligible for
coverage and payment under a health care service plan contract has
been delayed, denied, or modified by a plan, or by one of its
contracting providers, in whole or in part due to a determination
that the service is not medically necessary, and that determination
was not communicated to the enrollee in writing along with a notice
of the enrollee's potential right to participate in the independent
medical review system, as required by this chapter, the director
shall, by order, assess administrative penalties. A proceeding for
the issuance of an order assessing administrative penalties shall be
subject to appropriate notice of, and the opportunity for, a hearing
with regard to the person affected in accordance with Section 1397.
The administrative penalties shall not be deemed an exclusive remedy
available to the director. These penalties shall be paid to the
State Managed Care Fund.
(5) The department shall send a written notice of the final
disposition of the grievance, and the reasons therefor, to the
subscriber or enrollee, the agent, to any provider that has joined
with or is otherwise assisting the subscriber or enrollee, and to the
plan, within 30 calendar days of receipt of the request for review
unless the director, in his or her discretion, determines that
additional time is reasonably necessary to fully and fairly evaluate
the relevant grievance. In any case not eligible for the independent
medical review system established pursuant to Article 12
5.55 (commencing with Section 1374.30), the
department's written notice shall include, at a minimum, the
following:
(A) A summary of its findings and the reasons why the department
found the plan to be, or not to be, in compliance with any applicable
laws, regulations, or orders of the director.
(B) A discussion of the department's contact with any medical
provider, or any other independent expert relied on by the
department, along with a summary of the views and qualifications of
that provider or expert.
(C) If the enrollee's grievance is sustained in whole or part,
information about any corrective action taken.
(6) In any department review of a grievance involving a disputed
health care service, as defined in subdivision (b) of Section
1374.30, that is not eligible for the independent medical review
system established pursuant to Article 12
5.55 (commencing with Section 1374.30), in which the department
finds that the plan has delayed, denied, or modified health care
services that are medically necessary, based on the specific medical
circumstances of the enrollee, and those services are a covered
benefit under the terms and conditions of the health care service
plan contract, the department's written notice shall either
: (A) Order order the plan to promptly offer
and provide those health care services to the enrollee, or
(B) Order order the plan to promptly reimburse
the enrollee for any reasonable costs associated with urgent care or
emergency services, or other extraordinary and compelling health care
services, when the department finds that the enrollee's decision to
secure those services outside of the plan network was reasonable
under the circumstances. The department's order shall be binding on
the plan.
(7) Distribution of the written notice shall not be deemed a
waiver of any exemption or privilege under existing law, including,
but not limited to, Section 6254.5 of the Government Code, for any
information in connection with and including the written notice, nor
shall any person employed or in any way retained by the department be
required to testify as to that information or notice.
(8) The director shall establish and maintain a system of aging of
grievances that are pending and unresolved for 30 days or more, that
shall include a brief explanation of the reasons each grievance is
pending and unresolved for 30 days or more.
(9) A subscriber or enrollee, or the agent acting on behalf of a
subscriber or enrollee, may also request voluntary mediation with the
plan prior to exercising the right to submit a grievance to the
department. The use of mediation services shall not preclude the
right to submit a grievance to the department upon completion of
mediation. In order to initiate mediation, the subscriber or
enrollee, or the agent acting on behalf of the subscriber or
enrollee, and the plan shall voluntarily agree to mediation. Expenses
for mediation shall be borne equally by both sides. The department
shall have no administrative or enforcement responsibilities in
connection with the voluntary mediation process authorized by this
paragraph.
(c) The plan's grievance system shall include a system of aging of
grievances that are pending and unresolved for 30 days or more. The
plan shall provide a quarterly report to the director of grievances
pending and unresolved for 30 or more days with separate categories
of grievances for Medicare enrollees and Medi-Cal enrollees. The
plan shall include with the report a brief explanation of the reasons
each grievance is pending and unresolved for 30 days or more. The
plan may include the following statement in the quarterly report that
is made available to the public by the director:
"Under Medicare and Medi-Cal law, Medicare enrollees and Medi-Cal
enrollees each have separate avenues of appeal that are not available
to other enrollees. Therefore, grievances pending and unresolved
may reflect enrollees pursuing their Medicare or Medi-Cal appeal
rights."
If requested by a plan, the director shall include this statement in
a written report made available to the public and prepared by the
director that describes or compares grievances that are pending and
unresolved with the plan for 30 days or more. Additionally, the
director shall, if requested by a plan, append to that written report
a brief explanation, provided in writing by the plan, of the reasons
why grievances described in that written report are pending and
unresolved for 30 days or more. The director shall not be required
to include a statement or append a brief explanation to a written
report that the director is required to prepare under this chapter,
including Sections 1380 and 1397.5.
(d) Subject to subparagraph (C) of paragraph (1) of subdivision
(b), the grievance or resolution procedures authorized by this
section shall be in addition to any other procedures that may be
available to any person, and failure to pursue, exhaust, or engage in
the procedures described in this section shall not preclude the use
of any other remedy provided by law.
(e) Nothing in this section shall be construed to allow the
submission to the department of any provider grievance under this
section. However, as part of a provider's duty to advocate for
medically appropriate health care for his or her patients pursuant to
Sections 510 and 2056 of the Business and Professions Code, nothing
in this subdivision shall be construed to prohibit a provider from
contacting and informing the department about any concerns he or she
has regarding compliance with or enforcement of this chapter.
(f) This section shall become operative on January 1, 2001, and
then only if Assembly Bill 55 of the 1999-2000 Regular Session is
enacted.
SEC. 88. Section 1368.04 of the Health and Safety Code is amended
to read:
1368.04. (a) The director shall investigate and take enforcement
action against plans regarding grievances reviewed and found by the
department to involve noncompliance with the requirements of this
chapter, including grievances that have been reviewed pursuant to the
independent medical review system established pursuant to Article
12 5.55 (commencing with Section
1374.30). Where substantial harm to an enrollee has occurred as a
result of plan noncompliance, the director shall, by order, assess
administrative penalties subject to appropriate notice of, and the
opportunity for, a hearing with regard to the person affected in
accordance with Section 1397. The administrative penalties shall not
be deemed an exclusive remedy available to the director. These
penalties shall be paid to the State Managed Care Fund. The director
shall periodically evaluate grievances to determine if any audit,
investigative, or enforcement actions should be undertaken by the
department.
(b) The director may, after appropriate notice and opportunity for
hearing in accordance with Section 1397, by order, assess
administrative penalties if the director determines that a health
care service plan has knowingly committed, or has performed with a
frequency that indicates a general business practice, either of the
following:
(1) Repeated failure to act promptly and reasonably to investigate
and resolve grievances in accordance with Section 1368.01.
(2) Repeated failure to act promptly and reasonably to resolve
grievances when the obligation of the plan to the enrollee or
subscriber is reasonably clear.
(c) The administrative penalties available to the director
pursuant to this section are not exclusive, and may be sought and
employed in any combination with civil, criminal, and other
administrative remedies deemed warranted by the director to enforce
this chapter.
(d) The administrative penalties authorized pursuant to this
section shall be paid to the State Managed Care Fund.
(e) This section shall become operative on January 1, 2001, and
then only if Assembly Bill 55 of the 1999-2000 Regular Session is
enacted.
SEC. 89. Section 1370.4 of the Health and Safety Code is amended
to read:
1370.4. (a) Every health care service plan shall provide an
external, independent review process to examine the plan's coverage
decisions regarding experimental or investigational therapies for
individual enrollees who meet all of the following criteria:
(1) (A) The enrollee has a life-threatening or seriously
debilitating condition.
(B) For purposes of this section, "life-threatening" means either
or both of the following:
(i) Diseases or conditions where the likelihood of death is high
unless the course of the disease is interrupted.
(ii) Diseases or conditions with potentially fatal outcomes, where
the end point of clinical intervention is survival.
(C) For purposes of this section, "seriously debilitating" means
diseases or conditions that cause major irreversible morbidity.
(2) The enrollee's physician certifies that the enrollee has a
condition, as defined in paragraph (1), for which standard therapies
have not been effective in improving the condition of the enrollee,
for which standard therapies would not be medically appropriate for
the enrollee, or for which there is no more beneficial standard
therapy covered by the plan than the therapy proposed pursuant to
paragraph (3).
(3) Either (A) the enrollee's physician, who is under contract
with or employed by the plan, has recommended a drug, device,
procedure or other therapy that the physician certifies in writing is
likely to be more beneficial to the enrollee than any available
standard therapies, or (B) the enrollee, or the enrollee's physician
who is a licensed, board-certified or board-eligible physician
qualified to practice in the area of practice appropriate to treat
the enrollee's condition, has requested a therapy that, based on two
documents from the medical and scientific evidence, as defined in
subdivision (d), is likely to be more beneficial for the enrollee
than any available standard therapy. The physician certification
pursuant to this subdivision shall include a statement of the
evidence relied upon by the physician in certifying his or her
recommendation. Nothing in this subdivision shall be construed to
require the plan to pay for the services of a nonparticipating
physician provided pursuant to this subdivision, that are not
otherwise covered pursuant to the plan contact.
(4) The enrollee has been denied coverage by the plan for a drug,
device, procedure, or other therapy recommended or requested pursuant
to paragraph (3).
(5) The specific drug, device, procedure, or other therapy
recommended pursuant to paragraph (3) would be a covered service,
except for the plan's determination that the therapy is experimental
or investigational.
(b) The plan's decision to delay, deny, or modify experimental or
investigational therapies shall be subject to the independent medical
review process under Article 12 5.55
(commencing with Section 1374.30) of this chapter except that, in
lieu of the information specified in subdivision (i) of Section
1374.30, an independent medical reviewer shall base his or her
determination on relevant medical and scientific evidence, including,
but not limited to, the medical and scientific evidence defined in
subdivision (d).
(c) The independent medical review process shall also meet the
following criteria:
(1) The plan shall notify eligible enrollees in writing of the
opportunity to request the external independent review within five
business days of the decision to deny coverage.
(2) If the enrollee's physician determines that the proposed
therapy would be significantly less effective if not promptly
initiated, the analyses and recommendations of the experts on the
panel shall be rendered within seven days of the request for
expedited review. At the request of the expert, the deadline shall
be extended by up to three days for a delay in providing the
documents required. The timeframes specified in this paragraph shall
be in addition to any otherwise applicable timeframes contained in
subdivision (c) of Section 1374.33.
(3) Each expert's analysis and recommendation shall be in written
form and state the reasons the requested therapy is or is not likely
to be more beneficial for the enrollee than any available standard
therapy, and the reasons that the expert recommends that the therapy
should or should not be provided by the plan, citing the enrollee's
specific medical condition, the relevant documents provided, and the
relevant medical and scientific evidence, including, but not limited
to, the medical and scientific evidence as defined in subdivision
(d), to support the expert's recommendation.
(4) Coverage for the services required under this section shall be
provided subject to the terms and conditions generally applicable to
other benefits under the plan contract.
(d) For the purposes of subdivision (b), "medical and scientific
evidence" means the following sources:
(1) Peer-reviewed scientific studies published in or accepted for
publication by medical journals that meet nationally recognized
requirements for scientific manuscripts and that submit most of their
published articles for review by experts who are not part of the
editorial staff.
(2) Peer-reviewed literature, biomedical compendia, and other
medical literature that meet the criteria of the National Institutes
of Health's National Library of Medicine for indexing in Index
Medicus, Excerpta Medicus (EMBASE), Medline, and MEDLARS data base
Health Services Technology Assessment Research (HSTAR).
(3) Medical journals recognized by the Secretary of Health and
Human Services, under Section 1861(t)(2) of the Social Security Act.
(4) The following standard reference compendia: The American
Hospital Formulary Service-Drug Information, the American Medical
Association Drug Evaluation, the American Dental Association Accepted
Dental Therapeutics, and the United States Pharmacopoeia-Drug
Information.
(5) Findings, studies, or research conducted by or under the
auspices of federal government agencies and nationally recognized
federal research institutes, including the Federal Agency for Health
Care Policy and Research, National Institutes of Health, National
Cancer Institute, National Academy of Sciences, Health Care Financing
Administration, Congressional Office of Technology Assessment, and
any national board recognized by the National Institutes of Health
for the purpose of evaluating the medical value of health services.
(6) Peer-reviewed abstracts accepted for presentation at major
medical association meetings.
(e) The independent review process established by this section
shall be required on and after January 1, 2001.
(f) This section shall become operative on January 1, 2001, and
then only if Assembly Bill 55 of the 1999-2000 Regular Session is
enacted.
SEC. 90. Section 1374.32 of the Health and Safety Code is amended
to read:
1374.32. (a) By January 1, 2001, the department shall contract
with one or more independent medical review organizations in the
state to conduct reviews for purposes of this article. The
independent medical review organizations shall be independent of any
health care service plan doing business in this state. The director
may establish additional requirements, including conflict-of-interest
standards, consistent with the purposes of this article, that an
organization shall be required to meet in order to qualify for
participation in the Independent Medical Review System and to assist
the department in carrying out its responsibilities.
(b) The independent medical review organizations and the medical
professionals retained to conduct reviews shall be deemed to be
medical consultants for purposes of Section 43.98 of the Civil Code.
(c) The independent medical review organization, any experts it
designates to conduct a review, or any officer, director, or employee
of the independent medical review organization shall not have any
material professional, familial, or financial affiliation, as
determined by the director, with any of the following:
(1) The plan.
(2) Any officer, director, or employee of the plan.
(3) A physician, the physician's medical group, or the independent
practice association involved in the health care service in dispute.
(4) The facility or institution at which either the proposed
health care service, or the alternative service, if any, recommended
by the plan, would be provided.
(5) The development or manufacture of the principal drug, device,
procedure, or other therapy proposed by the enrollee whose treatment
is under review, or the alternative therapy, if any, recommended by
the plan.
(6) The enrollee or the enrollee's immediate family.
(d) In order to contract with the department for purposes of this
article, an independent medical review organization shall meet all of
the following requirements:
(1) The organization shall not be an affiliate or a subsidiary of,
nor in any way be owned or controlled by, a health plan or a trade
association of health plans. A board member, director, officer, or
employee of the independent medical review organization shall
not serve as a board member,
director, or employee of a health care service plan. A board member,
director, or officer of a health plan or a trade association of
health plans shall not serve as a board member, director, officer, or
employee of an independent medical review organization.
(2) The organization shall submit to the department the following
information upon initial application to contract for purposes of this
article and, except as otherwise provided, annually thereafter upon
any change to any of the following information:
(A) The names of all stockholders and owners of more than 5
percent of any stock or options, if a publicly held organization.
(B) The names of all holders of bonds or notes in excess of one
hundred thousand dollars ($100,000), if any.
(C) The names of all corporations and organizations that the
independent medical review organization controls or is affiliated
with, and the nature and extent of any ownership or control,
including the affiliated organization's type of business.
(D) The names and biographical sketches of all directors,
officers, and executives of the independent medical review
organization, as well as a statement regarding any past or present
relationships the directors, officers, and executives may have with
any health care service plan, disability insurer, managed care
organization, provider group, or board or committee of a plan,
managed care organization, or provider group.
(E) (i) The percentage of revenue the independent medical review
organization receives from expert reviews, including, but not limited
to, external medical reviews, quality assurance reviews, and
utilization reviews.
(ii) The names of any health care service plan or provider group
for which the independent medical review organization provides review
services, including, but not limited to, utilization review, quality
assurance review, and external medical review. Any change in this
information shall be reported to the department within five business
days of the change.
(F) A description of the review process including, but not limited
to, the method of selecting expert reviewers and matching the expert
reviewers to specific cases.
(G) A description of the system the independent medical review
organization uses to identify and recruit medical professionals to
review treatment and treatment recommendation decisions, the number
of medical professionals credentialed, and the types of cases and
areas of expertise that the medical professionals are credentialed to
review.
(H) A description of how the independent medical review
organization ensures compliance with the conflict-of-interest
provisions of this section.
(3) The organization shall demonstrate that it has a quality
assurance mechanism in place that does the following:
(A) Ensures that the medical professionals retained are
appropriately credentialed and privileged.
(B) Ensures that the reviews provided by the medical professionals
are timely, clear, and credible, and that reviews are monitored for
quality on an ongoing basis.
(C) Ensures that the method of selecting medical professionals for
individual cases achieves a fair and impartial panel of medical
professionals who are qualified to render recommendations regarding
the clinical conditions and the medical necessity of treatments or
therapies in question.
(D) Ensures the confidentiality of medical records and the review
materials, consistent with the requirements of this section and
applicable state and federal law.
(E) Ensures the independence of the medical professionals retained
to perform the reviews through conflict-of-interest policies and
prohibitions, and ensures adequate screening for
conflicts-of-interest, pursuant to paragraph (5).
(4) Medical professionals selected by independent medical review
organizations to review medical treatment decisions shall be
physicians or other appropriate providers who meet the following
minimum requirements:
(A) The medical professional shall be a clinician knowledgeable in
the treatment of the enrollee's medical condition, knowledgeable
about the proposed treatment, and familiar with guidelines and
protocols in the area of treatment under review.
(B) Notwithstanding any other provision of law, the medical
professional shall hold a nonrestricted license in the
any state of the United States, and for physicians, a
current certification by a recognized American medical specialty
board in the area or areas appropriate to the condition or treatment
under review. The independent medical review organization shall give
preference to the use of a physician licensed in California as the
reviewer, except when training and experience with the issue under
review reasonably requires the use of an out-of-state reviewer.
(C) The medical professional shall have no history of disciplinary
action or sanctions, including, but not limited to, loss of staff
privileges or participation restrictions, taken or pending by any
hospital, government, or regulatory body.
(5) Neither the expert reviewer, nor the independent medical
review organization, shall have any material professional, material
familial, or material financial affiliation with any of the
following:
(A) The plan or a provider group of the plan, except that an
academic medical center under contract to the plan to provide
services to enrollees may qualify as an independent medical review
organization provided it will not provide the service and provided
the center is not the developer or manufacturer of the proposed
treatment.
(B) Any officer, director, or management employee of the plan.
(C) The physician, the physician's medical group, or the
independent practice association (IPA) proposing the treatment.
(D) The institution at which the treatment would be provided.
(E) The development or manufacture of the treatment proposed for
the enrollee whose condition is under review.
(F) The enrollee or the enrollee's immediate family.
(6) For purposes of this section, the following terms shall have
the following meanings:
(A) "Material familial affiliation" means any relationship as a
spouse, child, parent, sibling, spouse's parent, or child's spouse.
(B) "Material professional affiliation" means any
physician-patient relationship, any partnership or employment
relationship, a shareholder or similar ownership interest in a
professional corporation, or any independent contractor arrangement
that constitutes a material financial affiliation with any expert or
any officer or director of the independent medical review
organization. "Material professional affiliation" does not include
affiliations that are limited to staff privileges at a health
facility.
(C) "Material financial affiliation" means any financial interest
of more than 5 percent of total annual revenue or total annual income
of an independent medical review organization or individual to which
this subdivision applies. "Material financial affiliation" does not
include payment by the plan to the independent medical review
organization for the services required by this section, nor does
"material financial affiliation" include an expert's participation as
a contracting plan provider where the expert is affiliated with an
academic medical center or a National Cancer Institute-designated
clinical cancer research center.
(e) The department shall provide, upon the request of any
interested person, a copy of all nonproprietary information, as
determined by the director, filed with it by an independent medical
review organization seeking to contract under this article. The
department may charge a nominal fee to the interested person for
photocopying the requested information.
SEC. 91. Section 1386 of the Health and Safety Code is amended to
read:
1386. (a) The director may, after appropriate notice and
opportunity for a hearing , by order, suspend ,
or revoke any license issued under this chapter to a health
care service plan or assess administrative penalties if the director
determines that the licensee has committed any of the acts or
omissions constituting grounds for disciplinary action.
(b) The following acts or omissions constitute grounds for
disciplinary action by the director:
(1) The plan is operating at variance with the basic
organizational documents as filed pursuant to Section 1351 or 1352,
or with its published plan, or in any manner contrary to that
described in, and reasonably inferred from, the plan as contained in
its application for licensure and annual report, or any modification
thereof, unless amendments allowing the variation have been submitted
to, and approved by, the director.
(2) The plan has issued, or permits others to use, evidence of
coverage or uses a schedule of charges for health care services which
do not comply with those published in the latest evidence of
coverage found unobjectionable by the director.
(3) The plan does not provide basic health care services to its
enrollees and subscribers as set forth in the evidence of coverage.
This subdivision shall not apply to specialized health care service
plan contracts.
(4) The plan is no longer able to meet the standards set forth in
Article 5 (commencing with Section 1367).
(5) The continued operation of the plan will constitute a
substantial risk to its subscribers and enrollees.
(6) The plan has violated or attempted to violate, or conspired to
violate, directly or indirectly, or assisted in or abetted a
violation or conspiracy to violate any provision of this chapter, any
rule or regulation adopted by the director pursuant to this chapter,
or any order issued by the director.
(7) The plan has engaged in any conduct that constitutes fraud or
dishonest dealing or unfair competition, as defined by Section 17200
of the Business and Professions Code.
(8) The plan has permitted, or aided or abetted any violation by
an employee or contractor who is a holder of any certificate,
license, permit, registration or exemption issued pursuant to the
Business and Professions Code, or this code which would constitute
grounds for discipline against the certificate, license, permit,
registration, or exemption.
(9) The plan has aided or abetted or permitted the commission of
any illegal act.
(10) The engagement of a person as an officer, director, employee,
associate, or provider of the plan contrary to the provisions of an
order issued by the director pursuant to subdivision (c) of this
section or subdivision (d) of Section 1388.
(11) The engagement of a person as a solicitor or supervisor of
solicitation contrary to the provisions of an order issued by the
director pursuant to Section 1388.
(12) The plan, its management company, or any other affiliate of
the plan, or any controlling person, officer, director, or other
person occupying a principal management or supervisory position in
the plan, management company or affiliate, has been convicted of or
pleaded nolo contendere to a crime, or committed any act involving
dishonesty, fraud, or deceit, which crime or act is substantially
related to the qualifications, functions, or duties of a person
engaged in business in accordance with this chapter. The director
may revoke or deny a license hereunder irrespective of a subsequent
order under the provisions of Section 1203.4 of the Penal Code.
(13) The plan violates Section 510, 2056, or 2056.1 of the
Business and Professions Code.
(14) The plan has been subject to a final disciplinary action
taken by this state, another state, an agency of the federal
government, or another country, for any act or omission that would
constitute a violation of this chapter.
(15) The plan violates the Confidentiality of Medical Information
Act (Part 2.6 (commencing with Section 56) of Division 1 of the Civil
Code).
(c) (1) The director may prohibit any person from serving as an
officer, director, employee, associate, or provider of any plan or
solicitor firm, or of any management company of any plan, or as a
solicitor, if either of the following applies:
(A) The prohibition is in the public interest and the person has
committed, caused, participated in, or had knowledge of a violation
of this chapter by a plan, management company, or solicitor firm.
(B) The person was an officer, director, employee, associate, or
provider of a plan or of a management company or solicitor firm of
any plan whose license has been suspended or revoked pursuant to this
section and the person had knowledge of, or participated in, any of
the prohibited acts for which the license was suspended or revoked.
(2) A proceeding for the issuance of an order under this
subdivision may be included with a proceeding against a plan under
this section or may constitute a separate proceeding, subject in
either case to subdivision (d).
(d) A proceeding under this section shall be subject to
appropriate notice to, and the opportunity for a hearing with regard
to, the person affected in accordance with subdivision (a) of Section
1397.
SEC. 92. Section 1507.3 of the Health and Safety Code is amended
to read:
1507.3. (a) A residential facility that provides care to adults
may obtain a waiver from the department for the purpose of allowing a
resident who has been diagnosed as terminally ill by his or her
physician or surgeon to remain in the facility when all of the
following conditions are met:
(1) The facility agrees to retain the terminally ill resident and
to seek a waiver on behalf of the individual, provided the individual
has requested the waiver and is capable of deciding to obtain
hospice services.
(2) The terminally ill resident has obtained the services of a
hospice certified in accordance with federal medicare conditions of
participation and licensed pursuant to Chapter 8 (commencing with
Section 1725) or Chapter 8.5 (commencing with Section 1745).
(3) The facility, in the judgment of the department, has the
ability to provide care and supervision appropriate to meet the needs
of the terminally ill resident, and is in substantial compliance
with regulations governing the operation of residential facilities
that provide care to adults.
(4) The hospice has agreed to design and provide for care,
services, and necessary medical intervention related to the terminal
illness as necessary to supplement the care and supervision provided
by the facility.
(5) An agreement has been executed between the facility and the
hospice regarding the care plan for the resident. The care plan
shall designate the primary caregiver, identify other caregivers, and
outline the tasks the facility is responsible for performing and the
approximate frequency with which they shall be performed. The care
plan shall specifically limit the facility's role for care and
supervision to those tasks authorized for a residential facility
under this chapter.
(6) The facility has obtained the agreement of those residents who
share the same room with the terminally ill resident to allow the
hospice caregivers into their residence.
(b) At any time that the licensed hospice, the facility, or the
terminally ill resident determines that the resident's condition has
changed so that continued residence in the facility will pose a
threat to the health and safety to of
the terminally ill resident or any other resident, the facility may
initiate procedures for a transfer.
(c) Nothing in this section is intended to expand the scope of
care and supervision for a residential facility, as defined in this
chapter, that provides care to adults nor shall a facility be
required to alter or extend its license in order to retain a
terminally ill resident as authorized by this section.
(d) Nothing in this section shall require any care or supervision
to be provided by the residential facility beyond that which is
permitted in this chapter.
(e) Nothing in this section is intended to expand the scope of
life care contracts or the contractual obligation of continuing care
retirement communities as defined in Section 1771.
(f) The department shall not be responsible for the evaluation of
medical services provided to the resident by the hospice and shall
have no liability for the independent acts of the hospice.
(g) The department, in consultation with the State Fire Marshal,
shall develop and expedite implementation of regulations related to
residents who have been diagnosed as terminally ill who remain in the
facility and who are nonambulatory that ensure resident safety but
also provide flexibility to allow residents to remain in the least
restrictive environment.
(h) Nothing in this section shall be construed to relieve a
licensed residential facility that provides care to adults of its
responsibility, for purposes of allowing a resident who has been
diagnosed as terminally ill to remain in the facility, to do both of
the following:
(1) With regard to any resident who is bedridden, as defined in
subdivision (b) of Section 1569.72, to, within 48 hours of the
resident's retention in the facility, notify the local fire authority
with jurisdiction in the bedridden resident's location of the
estimated length of time the resident will retain his or her
bedridden status in the facility.
(2) Secure a fire clearance approval from the city or county fire
department, fire district, or any other local agency providing fire
protection services, or the State Fire Marshal, whichever has primary
fire protection jurisdiction.
SEC. 93. Section 1596.7927 of the Health and Safety Code is
amended to read:
1596.7927. (a) (1) There is hereby established a two-year pilot
project in San Diego County, upon the adoption of a resolution to
that effect by the City Council of San Diego. The program
established for purposes of the pilot project authorized by this
section shall be known as the "6 to 6" program.
(2) The mission of the "6 to 6" program shall encompass, but not
be limited to, the following extended schoolday activities.
(A) Homework assistance.
(B) Academic enrichment.
(C) Reading.
(D) Tutoring.
(E) Creative and performing arts.
(F) Sports and recreational activities.
(b) The "6 to 6" program shall consist of an extended schoolday
program that is operated by a community-based organization, child
care agency, or other entity that has demonstrated the ability to
provide services to schoolage children pursuant to a contract with a
public school district or city. The "6 to 6" program shall meet all
of the following conditions:
(1) The program shall be operated on a schoolsite that is in
current use by the public school or school district that has
collaborated with the City of San Diego for the purpose of providing
an extended schoolday program. The program shall serve the children
who regularly attend school within the district or districts,
exclusively. The hours of operation shall begin before school no
earlier than 6:00 a.m. and operate after school to 6:00 p.m., except
for evening parent meetings that may be scheduled later than 6:00
p.m.
(2) The city shall ensure all of the following:
(A) That employees of the operator of the "6 to 6" program have
had a criminal background check performed by the Department of
Justice. In this regard, the city shall ensure that the name of and
identifying data about each prospective employee has been submitted
to the Department of Justice to determine if the individual is listed
in the department's child abuse index maintained pursuant to Section
11170 of the Penal Code. The city may deny participation of an
individual in the "6-to-6" "6 to 6"
program if a purported incident of child abuse is determined, after
independent investigation, to be substantiated as provided in Section
1522.1. The results of the criminal background check and child
abuse index review shall be maintained by the city for purposes of
notification of future convictions or suspected child abuse
incidents.
(B) That each operator of the "6 to 6" program is familiar with
and follows health-related services procedures as specified in
Section 101226 of Title 22 of the California Code of Regulations.
(C) That each operator of the "6 to 6" program maintains emergency
information on each child that includes, but is not limited to, the
telephone number of the child's parents or guardians, the telephone
number of the child's physician or the name and telephone number of
the child's health plan or contact person, and an alternative name
and telephone number.
(3) Any individuals employed as site supervisors shall meet the
center director qualifications specified in Section 101515 of Title
22 of the California Code of Regulations.
(4) All individuals employed by the "6 to 6" program shall be over
the age of 18 years and shall meet, at a minimum, the minimum
qualifications for an instructional aide established for purposes of
Section 8483.4 of the Education Code, or the equivalent
qualifications.
(5) All staff shall have training in cardiopulmonary resuscitation
and first aid.
(6) All staff shall have a negative tuberculosis test or chest
X-ray within the last three years.
(7) All staff shall be familiar with and adhere to the emergency
procedures established by the school where the program is located.
(8) The contract with the city or school district shall include,
but not be limited to, all of the following:
(A) A requirement that site directors meet the requirements for
site directors of schoolage day care centers set forth in Section
1597.21.
(B) A requirement that the contractor require a child-to-staff
ratio that is the pupil-to-staff ratio set forth in Section 8483.4 of
the Education Code. The contract shall contain a provision that
requires the contractor to maintain the minimum staffing ratio
pursuant to this paragraph and shall contain protocols for
maintaining required staffing ratios in the event of illness,
accidents, and other emergencies and staffing breaks and other
situations of absences.
(C) A requirement that the contractor comply with sign-in and
sign-out regulations otherwise applicable by regulation to extended
schoolday programs pursuant to Section 101529.1 of Title 22 of the
California Code of Regulations.
(D) A complaint process established by the city with protocols
that shall include a requirement that the contractor comply with all
of the following:
(i) Post, in a visible location at all sites, the names and
telephone numbers of the site director and city program contact to
each participant's parents or guardian.
(ii) Provide to each participant's parents or guardian the names
and telephone numbers specified in clause (i).
(E) A provision guaranteeing the city's timely investigation of
accidents and complaints and providing for the immediate
administrative leave of contracted employees pending the outcome of
the investigation in cases relating to allegations involving a
substantial threat to the health and safety of the children under the
contractor's care. All parents shall be notified of the complaint
process at the time of registration.
(9) All classrooms or portable classrooms utilized by the "6 to 6"
program providing extended day care shall meet all standards
applicable for use during the regular schoolday.
(c) The "6 to 6" program shall be planned through a neighborhood
community collaborative partnership process that includes the city,
school district, school administrators, government agencies,
community organizations, parents, youth, and the private sector.
(d) In addition to the exemptions set forth in Section 1596.792,
this chapter shall not apply to the "6 to 6" program if the
contracting city ensures the program is operated in compliance with
the requirements of this section.
(e) (1) The city shall secure the services of an independent
entity to evaluate the "6 to 6" program. The Community Care
Licensing Division of the department and the city shall agree upon
the independent evaluator. The city shall bear the cost of the
evaluation.
(2) The evaluation shall be conducted upon the completion of the
pilot project and shall evaluate the health and safety of the
participants in the "6 to 6" program, with a particular focus on
children ages five to eight years, inclusive.
(3) The evaluation shall include, but not be limited to, the
health and safety of the children, information on staff to pupil
ratio, site and program monitoring, and extent and progress of
participation, tutoring, literacy, and homework assistance.
(4) The independent evaluator designated pursuant to paragraph (1)
shall have experience in program evaluation, with a preference for
expertise in children's programs. The independent evaluator shall
not have any conflicts of interest with the independent evaluator's
duties pursuant to this section.
(5) The results of the evaluation shall be forwarded to the
Legislature.
(6) The city shall maintain any records necessary in order for the
evaluation to be completed. The city shall compare the results of
the evaluation to local community care licensing data.
(f) No charges or costs associated with the provision of care
shall be imposed upon participants in the "6 to 6" program.
(g) This section shall remain in effect only until January 1,
2002, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2002, deletes or extends
that date.
SEC. 94. Section 13933 of the Health and Safety Code is amended
and renumbered to read:
13933.
1374.34. (a) Upon receiving the decision adopted by the
director pursuant to Section 1374.33 that a disputed health care
service is medically necessary, the plan shall immediately contact
the enrollee and offer to promptly implement the decision.
(b) A plan shall not engage in any conduct that has the effect of
prolonging the independent review process. The engaging in that
conduct or the failure of the plan to promptly implement the decision
is a violation of this chapter and, in addition to any other fines,
penalties, and other remedies available to the director under this
chapter, the plan shall be subject to an administrative penalty of
not less than five thousand dollars ($5,000) for each day that the
decision is not implemented. Administrative penalties shall be
deposited in the State Managed Care Fund.
(c) In any case where an enrollee secured urgent care or emergency
services outside of the plan provider network, which services are
later found by the independent medical review organization to have
been medically necessary pursuant to Section 1374.33, the
director shall require the plan to
promptly reimburse the enrollee for any reasonable costs associated
with those services when the director finds that the enrollee's
decision to secure the services outside of the plan provider network
prior to completing the plan grievance process or seeking an
independent medical review was reasonable under the circumstances and
the disputed health care services were a covered benefit under the
terms and conditions of the health care service plan contract.
(d) In addition to requiring plan compliance regarding
subdivisions (a), (b), and (c) , the director shall review
individual cases submitted for independent medical review to
determine whether any enforcement actions, including penalties, may
be appropriate. In particular, where substantial harm to an enrollee
has already occurred because of the decision of a plan, or one of
its contracting providers, to delay, deny, or modify covered health
care services that an independent medical review determines to be
medically necessary pursuant to Section 1374.33, the director shall
impose penalties.
(e) Pursuant to Section 1368.04, the director shall perform an
annual audit of independent medical review cases for the dual
purposes of education and the opportunity to determine if any
investigative or enforcement actions should be undertaken by the
department, particularly if a plan repeatedly fails to act promptly
and reasonably to resolve grievances associated with a delay, denial,
or modification of medically necessary health care services when the
obligation of the plan to provide those health care services to
enrollees or subscribers is reasonably clear.
(f) This section shall become operative on January 1, 2001, and
then only if Assembly Bill 55 of the 1999-2000 Regular Session is
enacted.
SEC. 95. Section 25390.4 of the Health and Safety Code is amended
to read:
25390.4. (a) A potentially responsible party may file a claim
pursuant to paragraph (1) of subdivision (c) of Section 25390.3 only
if all of the following apply:
(1) The site is listed pursuant to Section 25356.
(2) The department or the regional board has approved a final
remedy for the site under Section 25356.1.
(3) The department and the potentially responsible party have
entered into a written, enforceable cleanup agreement or order
embodied in a consent order issued pursuant to Section 25355.5 or
25358.3, or the regional board and the potentially responsible party
have entered into a written, enforceable cleanup agreement or order
that provides for the completion of all response actions necessary at
the site, conducted pursuant to this chapter and under the oversight
and at the direction of the department or the regional board. The
agreement shall provide for the payment by the potentially
responsible party of the department's or the regional board's
response costs.
(4) The potentially responsible party demonstrates, and the
department or the regional board finds, that the potentially
responsible party has and will have sufficient financial resources to
complete all required response actions.
(5) The potentially responsible party is in compliance with the
agreement provided in paragraph (3), and with any other applicable
order or agreement pertaining to the potentially responsible party's
obligations with respect to the site.
(6) The potentially responsible party has prepared and provided
the information required under subdivision (b) of Section 25390.5.
(7) The claim for reimbursement is for the costs incurred for
response actions that were subject to the oversight and approval of
the department or the regional board.
(b) The administrator of the fund shall prescribe appropriate
application forms and procedures for claims filed pursuant to
paragraph (1) of subdivision (c) of Section 25390.3 that shall
include all of the following:
(1) Requirements that the claimant provide, at a minimum, all of
the following documentation:
(A) A sworn verification of the claim to the best of the
information known to the claimant or within the claimant's possession
or control.
(B) All records and information pertaining to the site and
relevant to the ownership, operation, or control of the site, or to
the ownership, possession, generation, treatment, transportation,
storage or disposal of a hazardous substance, pollutant, or
contaminant at or in connection with the site, within the possession
or control of the claimant, including, but not limited to, the
information specified in subdivision (b) of Section 25358.1.
(C) Certification of all response costs that have been, or will
be, incurred at the site by the potentially responsible party, and an
estimate of the total cost of completion of the approved final
remedy at the site.
(2) Procedures specifying that claims shall be filed only at the
two following specific time periods during the performance of a
response action:
(A) After the final remedy is selected under Section 25356.1.
(B) After the department or the regional board determines that the
response action is complete. The department or the regional board
shall not include operation and maintenance activities in determining
whether the response action is complete under this subparagraph.
(c) The administrator of the fund shall annually, on a fiscal year
basis, pay claims for reimbursement from the fund filed by
potentially responsible parties under paragraph (1) of subdivision
(c) of Section 25390.3, in accordance with the following procedures:
(1) Claims for funds available during each fiscal year shall be
filed with the administrator by July 30 of that fiscal year.
(2) For sites with multiple responsible parties, all potentially
responsible parties that have entered into the cleanup agreement
specified in paragraph (3) of subdivision (a) of Section 25390.4
shall file a single claim.
(3) (A) The administrator shall allocate the money available in
the fund for the fiscal year among the claims filed by the July 30
deadline. The allocation shall be based on the determination of the
orphan share percentage at the facility under the process set forth
in Section 25390.5, the long-term financial stability and short-term
resources available in the fund, and the administrator's fiduciary
duty with respect to the fund. Except as provided in subparagraph
(B), the administrator shall pay claims for funds in the order in
which they are received.
(B) Notwithstanding subparagraph (A), if an appropriation from the
General Fund is made to the fund in any fiscal year, the
administrator may alter the order of payment of claims required by
subparagraph (A) by using funds appropriated from the General Fund to
pay claims based on the threat to public health or the environment
posed by a site or the need to improve economic and environmental
conditions in redeveloping communities.
(4) The total amount allocated to any one site shall not exceed 10
percent of the total amount available each fiscal year in the fund.
If, due to this limit or to the unavailability of funds, a claimant
receives only partial or no reimbursement of the orphan share
paid to be paid by that claimant, the claim shall
be paid in the following fiscal year and shall be given priority over
all claims filed after the claim was initially received, subject to
the discretion of the administrator set forth in paragraph (3).
(5) The administrator's proposed allocation shall be subject to
public review and comment for 30 days.
(d) The state and the fund have no obligation to provide full
reimbursement to a claimant. The fund shall be allocated at the
discretion of the administrator, subject to the requirements of this
article. In enacting this article, the Legislature intends that
claimants be reimbursed only to the extent that money is available in
the fund and is allocated to the claimant by the administrator.
SEC. 96. Section 32121.7 of the Health and Safety Code is amended
to read:
32121.7. Notwithstanding any other provision of law, the transfer
of assets by El Camino Hospital, a California nonprofit public
benefit corporation ("El Camino Hospital-Corporation") that owns and
operates El Camino Hospital, located in the City of Mountain View,
pursuant to a transfer and ground lease from the El Camino Hospital
District pursuant to subdivision (p) of Section 32121, is subject to
this section.
(a) Before El Camino Hospital-Corporation transfers 50 percent or
more of its assets, at fair market value, to one or more
corporations, trusts, associations, partnerships, limited liability
companies, or other entities or persons, in sum or by increment, the
Board of Directors of El Camino Hospital District shall, by
resolution, submit to the voters of the El Camino Hospital District a
measure proposing the transfer. The measure shall be placed on the
ballot of the special election held upon the request of the El Camino
Hospital District or the ballot of the next regularly scheduled
election occurring at least 88 days after the resolution of the Board
of El Camino Hospital District. If a majority of the voters voting
on the measure vote in favor, the transfer shall be approved. The
campaign disclosure requirements applicable to local measures
provided under Chapter 4 (commencing with Section 84100) of Title 9
of the Government Code shall apply to this election.
(b) El Camino Hospital-Corporation may transfer, for the benefit
of the community served by the El Camino Hospital District, in the
absence of adequate consideration, any part of the assets of El
Camino Hospital-Corporation, including without limitation, the El
Camino Hospital, the real property, equipment and other fixed assets,
current assets, and cash, relating to the operation of El Camino
Hospital to one or more nonprofit corporations, trusts, or
associations to operate and maintain the assets.
(1) Any transfer of 50 percent or more of El Camino
Hospital-Corporation's assets in sum or by increment, pursuant to
this subdivision shall be deemed to be for the benefit of the
community served by the El Camino Hospital District only if all of
the following occur:
(A) The transfer agreement and all arrangements necessary thereto
are approved by the Board of Directors of El Camino Hospital
District, and the agreement and arrangements are fully discussed in
advance of the board's decision to transfer the assets of El Camino
Hospital-Corporation, in at least five properly noticed open and
public meetings of the Board of Directors of El Camino Hospital
District in compliance with Section 32106 and the Ralph M. Brown Act
(Chapter 9 (commencing with Section 54950) of Part 1 of Division 2
of Title 5 of the Government Code).
(B) The transfer agreement provides that the El Camino Hospital
District shall approve all initial board members of the nonprofit
corporation, trust, or association, and any subsequent board members
as may be specified in the transfer agreement.
(C) The transfer agreement provides that all assets transferred to
the nonprofit corporation, trust, or association, and all assets
accumulated by the nonprofit corporation, trust, or association
during the term of the transfer agreement arising out of or from the
operation of the transferred assets shall be transferred back to the
El Camino Hospital District upon termination of the transfer
agreement, including any extension of the transfer agreement.
(D) The transfer agreement commits the nonprofit corporation,
trust, or association to operate and maintain the assets of El Camino
Hospital-Corporation for the benefit of the community served by the
El Camino Hospital District.
(E) The transfer agreement requires that any funds received from
the El Camino Hospital-Corporation at the outset of the agreement or
any time thereafter during the term of the agreement be used only to
reduce the El Camino Hospital-Corporation indebtedness, to acquire
needed equipment for the El Camino Hospital-Corporation health care
facilities, to operate, maintain, and make needed capital
improvements to those health care facilities, to provide supplemental
health care services or facilities for the communities served by the
El Camino Hospital District, or to conduct other activities that
would further a valid public purpose if undertaken directly by the El
Camino Hospital District.
(2) A transfer of 33 percent or more but less than 50 percent of
the El Camino Hospital-Corporation's assets, in sum or by increment,
pursuant to this subdivision shall be deemed to be for the benefit of
the communities served by the El Camino Hospital District only if
both of the following occur:
(A) The transfer agreement and all arrangements necessary thereto
are approved by the Board of Directors of El Camino Hospital District
and the agreement and arrangements are fully discussed in advance of
the board's decision to transfer the assets of El Camino
Hospital-Corporation in at least two properly noticed open and public
meetings of the Board of Directors of El Camino Hospital District in
compliance with Section 32106 and the Ralph M. Brown Act (Chapter 9
(commencing with Section 54950) of Part 1 of Division 2 of Title 5
of the Government Code).
(B) The transfer agreement meets all of the requirements of
subparagraphs (B) to (E), inclusive, of paragraph (1).
(3) A transfer of 10 percent or more but less than 33 percent of
the El Camino Hospital-Corporation's assets, in sum or by increment,
pursuant to this subdivision shall be deemed to be for the benefit of
the communities served by the El Camino Hospital District only if
both of the following occur:
(A) The transfer agreement and all arrangements necessary thereto
are approved by the Board of Directors of El Camino Hospital District
and the agreement and arrangements are fully discussed in advance of
the board's decision to transfer the assets of El Camino
Hospital-Corporation in at least two properly noticed open and public
meetings of the Board of Directors of El Camino Hospital District in
compliance with Section 32106 and the Ralph M. Brown Act (Chapter 9
(commencing with Section 54950) of Part 1 of Division 2 of Title 5
of the Government Code).
(B) The transfer agreements agreement
meets all of the requirements of subparagraphs (C) to (E),
inclusive, of paragraph (1).
(4) Before El Camino Hospital-Corporation transfers, pursuant to
this subdivision, 50 percent or more of its assets to one or more
nonprofit corporations, trusts, or associations, in sum or by
increment, the Board of Directors of El Camino Hospital District
shall, by resolution, submit to the voters of the El Camino Hospital
District a measure proposing the transfer. The measure shall be
placed on the ballot of a special election held upon the request of
El Camino Hospital District or the ballot of the next regularly
scheduled election occurring at least 88 days after the resolution of
the El Camino Hospital District. If a majority of the voters voting
on the measure vote in its favor, the transfer shall be approved.
The campaign disclosure requirements applicable to local measures
provided under Chapter 4 (commencing with Section 84100) of Title 9
of the Government Code shall apply to this election.
(5) Notwithstanding any other provision of this subdivision, El
Camino Hospital-Corporation shall not transfer any portion of its
assets to a private nonprofit corporation, trust, or association that
is owned or controlled by a religious creed, church, or sectarian
denomination in the absence of adequate consideration.
(c) If the El Camino Hospital-Corporation board has previously
transferred less than 50 percent of its assets pursuant to this
subdivision, before any additional assets are transferred, the board
shall hold a public hearing and shall make a public determination
that the additional assets to be transferred will not, in combination
with any assets previously transferred, equal 50 percent or more of
the total assets.
(d) For purposes of this section, a "transfer" means the transfer
of ownership of the assets of El Camino Hospital-Corporation. A
lease of the real property or the tangible personal property of El
Camino Hospital District shall not be subject to this section except
as required under Section 32121.4 or Section 32121.8.
(e) If El Camino Hospital District requests a special election
pursuant to subdivision (a) or (b) it shall reimburse counties for
the costs of that special election as prescribed pursuant to Section
10520 of the Elections Code.
(f) The limitations set forth in subdivisions (a) and (b) shall
not apply to any transfers, sales, leases, or other assignments of
assets from El Camino Hospital-Corporation to El Camino Hospital
District or entities controlled by El Camino Hospital District,
provided that in the case of a transfer to an entity controlled by El
Camino Hospital District, that entity shall continue to be governed
by this section, imposing the same requirements on such entity as are
imposed on El Camino Hospital-Corporation.
(g) Nothing in this section shall limit, modify, or otherwise
alter the requirements imposed on El Camino Hospital-Corporation as a
nonprofit corporation under the Corporations Code, including
Attorney General notice and consent requirements if applicable.
SEC. 97. Section 33333.6 of the Health and Safety Code is amended
to read:
33333.6. The limitations of this section shall apply to every
redevelopment plan adopted on or before December 31, 1993.
(a) (1) The time limit on the establishing of loans, advances, and
indebtedness adopted pursuant to paragraph (2) of subdivision (a) of
Section 33333.2 or paragraph (2) of subdivision (a) of Section
33333.4 shall not exceed 20 years from the adoption of the
redevelopment plan or January 1, 2004, whichever is later. This
limit, however, shall not prevent agencies from incurring debt to be
paid from the Low and Moderate Income Housing Fund or establishing
more debt in order to fulfill the agency's housing obligations under
Section 33413. This limit shall not prevent agencies from
refinancing, refunding, or restructuring indebtedness after the time
limit if the indebtedness is not increased and the time during which
the indebtedness is to be repaid does not exceed the date on which
the indebtedness would have been paid.
(2) The time limitation established by this subdivision may be
extended, only by amendment of the redevelopment plan, after the
agency finds, based on substantial evidence , that: (A)
significant blight remains within the project area ;
, and (B) this blight cannot be eliminated
without the establishment of additional debt. However, this amended
time limitation may not exceed 10 years from the time limit
established pursuant to this subdivision or the time limit on the
effectiveness of the plan established pursuant to subdivision (b),
whichever is earlier.
(b) The effectiveness of every redevelopment plan to which this
section applies shall terminate at a date which shall not exceed 40
years from the adoption of the redevelopment plan or January 1, 2009,
whichever is later. After the time limit on the effectiveness of the
redevelopment plan, the agency shall have no authority to act
pursuant to the redevelopment plan except to pay previously incurred
indebtedness and to enforce existing covenants, contracts, or other
obligations.
(c) Except as provided in subdivisions (g) and (h), a
redevelopment agency shall not pay indebtedness or receive property
taxes pursuant to Section 33670 after 10 years from the termination
of the effectiveness of the redevelopment plan pursuant to
subdivision (b).
(d) (1) If plans that had different dates of adoption were merged
on or before December 31, 1993, the time limitations required by this
section shall be counted individually for each merged plan from the
date of the adoption of each plan. If an amendment to a
redevelopment plan added territory to the project area on or before
December 31, 1993, the time limitations required by this section
shall commence, with respect to the redevelopment plan, from the date
of the adoption of the redevelopment plan, and, with respect to the
added territory, from the date of the adoption of the amendment.
(2) If plans that had different dates of adoption are merged on or
after January 1, 1994, the time limitations required by this section
shall be counted individually for each merged plan from the date of
the adoption of each plan.
(e) (1) Unless a redevelopment plan adopted prior to January 1,
1994, contains all of the limitations required by this section and
each of these limitations does not exceed the applicable time limits
established by this section, the legislative body, acting by
ordinance on or before December 31, 1994, shall amend every
redevelopment plan adopted prior to January 1, 1994, either to amend
an existing time limit that exceeds the applicable time limit
established by this section or to establish time limits that do not
exceed the provisions of subdivision (a), (b), or (c).
(2) The limitations established in the ordinance adopted pursuant
to this section shall apply to the redevelopment plan as if the
redevelopment plan had been amended to include those limitations.
However, in adopting the ordinance required by this section, neither
the legislative body nor the agency is required to comply with
Article 12 (commencing with Section 33450) or any other provision of
this part relating to the amendment of redevelopment plans.
(f) (1) If a redevelopment plan adopted prior to January 1, 1994,
contains one or more limitations required by this section, and the
limitation does not exceed the applicable time limit required by this
section, this section shall not be construed to require an amendment
of this limitation.
(2) A redevelopment plan adopted prior to January 1, 1994, that
has a limitation shorter than the terms provided in this section may
be amended by a legislative body by adoption of an ordinance on or
after January 1, 1999, but on or before December 31, 1999, to extend
the limitation, provided that the plan as so amended does not exceed
the terms provided in this section. The ordinance authorized by this
subdivision shall not be used to extend a limitation pursuant to the
authority in paragraph (2) of subdivision (a). In adopting this
ordinance, neither the legislative body nor the agency is required to
comply with Section 33354.6 or Article 12 (commencing with Section
33450) or any other provision of this part relating to the amendment
of redevelopment plans.
(g) The limitations established in the ordinance adopted pursuant
to this section shall not be applied to limit allocation of taxes to
an agency to the extent required to eliminate project deficits
created under subdivision (e) of Section 33320.5, subdivision (g) of
Section 33334.6, or subdivision (d) of Section 33487, in accordance
with the plan adopted pursuant thereto for the purpose of eliminating
the deficits or to implement a replacement housing program pursuant
to Section 33413. In the event of a conflict between these
limitations and the obligations under Section 33334.6 or to implement
a replacement housing program pursuant to Section 33413, the
legislative body shall amend the ordinance adopted pursuant to this
section to modify the limitations to the extent necessary to permit
compliance with the plan adopted pursuant to subdivision (g) of
Section 33334.6 and to allow full expenditure of moneys in the agency'
s Low and Moderate Income Housing Fund in accordance with Section
33334.3 or to permit implementation of the replacement housing
program pursuant to Section 33413. The procedure for amending the
ordinance pursuant to this subdivision shall be the same as for
adopting the ordinance under subdivision (e).
(h) This section shall not be construed to affect the validity of
any bond, indebtedness, or other obligation, including any mitigation
agreement entered into pursuant to Section 33401, authorized by the
legislative body, or the agency pursuant to this part, prior to
January 1, 1994. This section shall not be construed to affect the
right of an agency to receive property taxes, pursuant to Section
33670, to pay the bond, indebtedness, or other obligation.
(i) A redevelopment agency shall not pay indebtedness or receive
property taxes pursuant to Section 33670, with respect to a
redevelopment plan adopted prior to January 1, 1994, after the date
identified in subdivision (c) or the date identified in the
redevelopment plan, whichever is earlier, except as provided in
paragraph (2) of subdivision (f) or in subdivision (h).
(j) The Legislature finds and declares that the amendments made to
this section by the act that adds this subdivision are intended to
add limitations to the law on and after January 1, 1994, and are not
intended to change or express legislative intent with respect to the
law prior to that date. It is not the intent of the Legislature to
affect the merits of any litigation regarding the ability of a
redevelopment agency to sell bonds for a term that exceeds the limit
of a redevelopment plan pursuant to law that existed prior to January
1, 1994.
(k) If a redevelopment plan is amended to add territory, the
amendment shall contain the time limits required by Section 33333.2.
SEC. 98. Section 33334.17 of the Health and Safety Code is amended
to read:
33334.17. (a) The Legislature finds and declares that the cost
and availability of land, construction costs, geophysical and
environmental constraints, household incomes, the market for
affordable housing, commuting patterns, and other related factors
make it difficult for some communities to provide their share of
regional housing needs for persons and households at all income
levels. While the Legislature finds that each community has a moral
and legal obligation to meet these needs, the Legislature recognizes
that there are instances where the use of housing funds in one
community will result in the construction or rehabilitation of more
housing units than in another community. For the sole purpose of
increasing the state's supply of affordable housing, it is,
therefore, necessary and appropriate that agencies in these
communities be permitted, under specified conditions, to use a
portion of the moneys in their Low and Moderate Income Housing Funds
outside these communities.
(b) Notwithstanding subdivision (c) of Section 33334.3 or Section
33670, an agency may, not more than once every five years, use up to
20 percent of the moneys in its Low and Moderate Income Housing Fund
at any one time to develop housing outside the territorial
jurisdiction of the
agency, pursuant to this section. In determining the amount of funds
that can be transferred pursuant to this section, the agency may
transfer up to 20 percent of the balance of its Low and Moderate
Income Housing Fund moneys reflected in the accounts of the agency at
the end of the previous fiscal year, or 20 percent of the average
balance of its Low and Moderate Income Housing Fund moneys reflected
in the accounts of the agency at the end of each of the previous two
years, whichever is greater.
(c) Each of the following conditions shall be met and described in
a mutually acceptable, binding contract between the donor agency,
the legislative body of the donor community, and the legislative body
of the receiving community:
(1) Moneys from the fund shall be used in the receiving community
to pay for the direct costs of constructing, rehabilitating, or
otherwise assisting housing units which are affordable, for at least
40 years, to lower income households and very low income households,
as defined in Sections 50079.5 and 50105. The donor agency or the
receiving community shall not spend money in a Low and Moderate
Income Housing Fund in any way which is inconsistent with the
requirements of Section 33334.3. The receiving community shall be
subject to the same replacement requirements provided in Section
33413 and any relocation requirements applicable pursuant to Section
7260 of the Government Code.
(2) A donor agency's use of this section shall result in the
development of a greater number of dwelling units and the
accumulation of more financial and nonfinancial resources in the
receiving community than if the moneys had been spent in the
jurisdiction of the donor agency.
(3) The receiving community shall construct, rehabilitate, or
assist housing units within three years of the date it first receives
moneys from the donor agency pursuant to this section. This
requirement shall be met by documenting, for
newly-constructed newly constructed units, that
a building permit has been issued and all fees have been paid or, for
rehabilitated or assisted units, that rehabilitation has been
completed or assistance has been provided.
(4) Moneys from the donor agency shall not be spent for
administrative costs or offsite improvements.
(5) The contract shall not place a financial burden on the
receiving community.
(6) The community of the donor agency shall have, in the current
or previous housing element cycle, met 50 percent or more of its
share of the region's affordable housing needs, as defined in Section
65584 of the Government Code, in the very low and lower income
categories of income groups defined in Section 50052.5. The
receiving community shall have, in the current or previous housing
element cycle, met 20 percent or more of its share of the region's
affordable housing needs, as defined in Section 65584 of the
Government Code, in the very low and lower income categories of
income groups defined in Section 50052.5.
(7) The donor agency and the receiving community shall have agreed
upon mutually acceptable terms and conditions which provide for the
receiving community's reimbursement of service and public facilities
costs related to any new dwelling units constructed, rehabilitated,
or otherwise assisted in the receiving community using the donor
agency's funds. The contract shall include a plan and schedule for
timely construction, rehabilitation, or assistance of dwelling units,
including, in addition to site identification, identification of and
timeframes for applying for sufficient subsidy or mortgage financing
if units will need a subsidy or mortgage financing, and a finding
that sufficient services and public facilities will be provided.
(8) The Attorney General of the State of California or any other
interested person shall have authority to enforce the terms of the
contract.
(9) If the agency is the agency of a county, the receiving
community shall be a city within that county. If the agency is the
agency of a city, the receiving community shall be another city in
the same county or the county itself. A donor agency may only
transfer its funds to a receiving community that is contiguously
situated or within five miles of the territory of the community of
the donor agency. The sites for the housing to be constructed,
rehabilitated, or assisted with transferred funds shall be in the
receiving community and within the same housing market area as the
jurisdiction of the donor agency. As used in this section, "housing
market area" means an area determined by a council of governments or
by the department pursuant to Section 65584 of the Government Code
and based upon market demand for housing, employment opportunities,
the availability of suitable sites and public facilities, and
commuting patterns. A city or county shall use the same methodology
as used by the council of governments pursuant to subdivision (a) of,
or by the department pursuant to subdivision (b) of, Section 65584
of the Government Code.
(10) The donor agency shall find that the use of the funds of the
donor agency in the receiving community will be of benefit to the
project.
(11) No moneys shall be transferred from an agency that has,
pursuant to Section 33413, replacement housing requirements that must
be met during the preceding three years, unless sufficient moneys
are identified to meet those needs.
(12) No moneys shall be transferred from a project area that has
an indebtedness to its low- and moderate-income housing fund pursuant
to Section 33334.6.
(13) A receiving city or county shall separately account for all
moneys transferred and expenditures made pursuant to this section.
The receiving city or county shall have the same annual reporting
requirements as a redevelopment agency under the provisions of this
part.
(14) All unencumbered low- and moderate-income housing funds
shall, at the end of three years, be transferred back to the
redevelopment agency from which the moneys were generated. At that
time, the moneys shall be deemed to be excess surplus pursuant to
paragraph (1) of subdivision (d) (g) of
Section 33334.12.
(15) At least 60 days prior to the transfer, the donor agency and
the receiving community shall submit to the department a draft
contract. The department shall review the draft contract, including
its terms, conditions, and determinations, shall solicit and consider
any public comments, and shall report its written findings to the
donor agency and receiving community within 45 days of its receipt.
(16) In the case of a challenge brought to any transfer contract
pursuant to this section, the court shall use its independent
judgment as to the validity of the contract, and as to the terms,
conditions, and determinations of that contract. The court shall
consider any written findings by the department.
(17) A receiving community shall, in addition to any other
provisions of this article, identify in its housing element
sufficient sites to meet its initial low- and moderate-income housing
needs and sufficient sites for all units to be constructed,
rehabilitated, or assisted with transferred housing funds.
(18) A receiving community shall, at least 45 days prior to the
transfer, submit to the department a draft amendment to its housing
element to reflect the dwelling units to be constructed,
rehabilitated, or assisted with transferred funds.
(19) The donor community and the receiving community shall, at
least 45 days prior to the transfer, hold a public hearing, after
providing notice pursuant to Section 6062 of the Government Code, to
solicit public comments on the draft contract, including its terms,
conditions, and determinations.
(20) The receiving community shall certify that it has sufficient
authority under Article XXXIV of the California Constitution to allow
development of units with transferred funds if Article XXXIV is
applicable.
(21) The receiving community shall not use any of the transferred
funds to pay for fees or exactions levied solely for development
projects constructed, rehabilitated, or assisted with transferred
funds.
(22) The receiving community shall not, within three years of the
date it first receives transferred funds from the donor agency
pursuant to this section, or until units developed with transferred
funds are constructed, rehabilitated, or assisted, whichever is
longer, enter into a contract to transfer moneys in its Low and
Moderate Income Housing Fund to develop housing outside the
territorial jurisdiction of the agency pursuant to this section.
(23) Communities in which the donor agency or donor community have
transferred a portion of their Low and Moderate Income Housing Fund
to another jurisdiction pursuant to this section shall comply with
all other state requirements for purposes of meeting its share of the
regional housing need, including the requirements of Section 65589.5
of the Government Code.
(d) Before executing a contract pursuant to this section, both the
community of the donor agency and the receiving community shall have
adopted complete and adequate general plans, including a housing
element that is being implemented and that substantially complies
with the requirements of Article 10.6 (commencing with Section 65580)
of Chapter 3 of Division 1 of Title 7 of the Government Code.
(e) Both the community of the donor agency and the receiving
community shall maintain, until the units are constructed, an adopted
housing element that substantially complies with Article 10.6
(commencing with Section 65580) of Chapter 3 of Division 1 of Title 7
of the Government Code.
(f) If a council of governments serves the donor agency, the
council shall convene a special committee to review the proposed
contract. The committee may revise the contract and shall approve or
deny the contract. If the committee denies the contract, the
contract shall not be implemented. The donor agency and the
receiving community shall pay the council's costs associated with the
committee. Neither the donor agency, the donor community, nor the
receiving community may expend redevelopment low- and moderate-income
housing set-aside funds for costs associated with the committee.
Membership of the committee shall include all of the following:
(1) One representative appointed by the executive director of the
council of governments.
(2) One representative appointed by the donor agency.
(3) One representative appointed by the receiving community.
(4) Two advocates for housing for persons of low and moderate
income appointed by the director of the council of governments.
(g) (1) If no council of governments serves the agency, the
director of the department shall convene a special committee. The
committee may revise the contract and shall approve or deny the
contract. If the committee denies the contract, the contract shall
not be implemented. The donor agency and the receiving community
shall pay the department's costs associated with the committee.
Neither the donor agency, the donor community, nor the receiving
community may expend redevelopment low- and moderate-income housing
set-aside funds for costs associated with the committee.
(2) Membership of the committee appointed pursuant to this
subdivision shall include all of the following:
(A) One representative appointed by the director.
(B) One representative appointed by the donor agency.
(C) One representative appointed by the receiving community.
(D) Two advocates for housing for persons of low and moderate
income appointed by the director.
(h) The expenditure of low- and moderate-income housing funds
outside of the territorial jurisdiction of an agency, as authorized
by this section, shall, upon the adoption of the agreement, be deemed
to be a part of the redevelopment plan of the project area, as if
the redevelopment plan had been amended to include the agreement and
those expenditures. However, in adopting the agreement pursuant to
this section, the agency is not required to comply with Article 12
(commencing with Section 33450).
(i) As used in this section:
(1) "Donor agency" means a redevelopment agency which proposes to
spend moneys from its Low and Moderate Income Housing Fund outside
its jurisdiction.
(2) "Receiving community" means a city or county which proposes to
accept money from a donor agency's Low and Moderate Income Housing
Fund.
(j) On or after January 1, 2000, no donor agency shall enter into
a contract pursuant to this section unless a later enacted statute,
which is enacted before January 1, 2000, deletes or extends that
date.
SEC. 99. Section 44287 of the Health and Safety Code is amended to
read:
44287. (a) The state board shall establish grant criteria and
guidelines consistent with this chapter for covered vehicle projects
as soon as practicable, but not later than January 1, 2000. The
adoption of guidelines is exempt from the rulemaking provisions of
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 state board shall solicit input and comment from the
districts during the development of the criteria and guidelines and
shall make every effort to develop criteria and guidelines that are
compatible with existing district programs that are also consistent
with this chapter. Guidelines shall include protocols to calculate
project cost-effectiveness. The grant criteria and guidelines shall
include safeguards to ensure that the project generates surplus
emissions reductions. Guidelines shall enable and encourage districts
to cofund projects that provide emissions reductions in more than
one district. The state board shall make draft criteria and
guidelines available to the public 45 days before final adoption, and
shall hold at least one public meeting to consider public comments
before final adoption.
(b) The state board, in consultation with the participating
districts, may propose revisions to the criteria and guidelines
established pursuant to subdivision (a) as necessary to improve the
ability of the program to achieve its goals. A proposed revision
shall be made available to the public 45 days before final adoption
of the revision and the state board shall hold at least one public
meeting to consider public comments before final adoption of the
revision.
(c) The state board shall reserve funds for, and disburse funds
to, districts from the fund for administration pursuant to this
section and Section 44299.1.
(d) The state board shall develop guidelines for a district to
follow in applying for the reservation of funds, in accordance with
this chapter. It is the intent of the Legislature that district
administration of any reserved funds be in accordance with the
project selection criteria specified in Sections 44281, 44282, and
44283 and all other provisions of this chapter. The guidelines shall
be established and published by the state board as soon as
practicable, but not later than January 1, 2000.
(e) Funds shall be reserved by the state board for administration
by a district that adopts an eligible program pursuant to this
chapter and offers matching funds at a ratio of one dollar ($1) of
matching funds committed by the district or the Mobile Source Air
Pollution Reduction Review Committee for every two dollars ($2)
committed from the fund. Funds available to the Mobile Source Air
Pollution Reduction Review Committee may be counted as matching funds
for projects in the South Coast Air Basin only if the committee
approves the use of these funds for matching purposes. Matching
funds may be any funds under the district's budget authority that are
committed to be expended in accordance with the program. Funds
committed by a port authority or a local government, in cooperation
with a district, to be expended in accordance with the program may
also be counted as district matching funds. Matching funds provided
by a port authority or a local government may not exceed 30 percent
of the total required matching funds in any district that applies for
more than three hundred thousand dollars ($300,000) of the state
board funds. Only a district, or a port authority or a local
government teamed with a district, may provide matching funds.
(f) Notwithstanding subdivision (e), a district need not provide
matching funds for state board funds allocated to the district for
program outreach activities pursuant to paragraph (4) of subdivision
(a) of Section 44299.1.
(g) A district may include within its matching funds a reasonable
estimate of direct or in-kind costs for assistance in providing
program outreach and application evaluation. In-kind and direct
matching funds shall not exceed 15 percent of the total matching
funds offered by a district. A district may also include within its
matching funds any money spent on or after February 25, 1999, that
would have qualified as matching funds but were not previously
claimed as matching funds.
(h) A district desiring a reservation of funds shall apply to the
state board following the application guidelines established pursuant
to this section. The state board shall approve or disapprove a
district application not later than 60 days after receipt. Upon
approval of any district application, the state board shall
simultaneously approve a reservation of funding for that district to
administer. Reserved funds shall be disbursed to the district so
that funding of a district-approved project is not impeded.
(i) Notwithstanding any other provision of this chapter, districts
and the Mobile Source Air Pollution Reduction Review Committee shall
not use funds collected pursuant to Section 41081 or Chapter 7
(commencing with Section 44220), or pursuant to Section 9250.11 of
the Vehicle Code, as matching funds to fund a project with stationary
or portable engines, locomotives, or marine vessels.
(j) Any funds reserved for a district pursuant to this section are
available to the district for a period of not more than two years
from the time of reservation. Funds not expended by June 30 of the
second calendar year following the date of the reservation shall
revert back to the state board as of that June 30, and shall be
deposited in the Covered Vehicle Account established pursuant to
Section 44299. The funds may then be redirected based on
applications to the fund. Regardless of any reversion of funds back
to the state board, the district may continue to request other
reservations of funds for local administration. Each reservation of
funds shall be accounted for separately, and unused funds from each
application shall revert back to the state board as specified in this
subdivision.
(k) The state board shall specify a date each year when district
applications are due. If the eligible applications received in any
year oversubscribe the available funds, the state board shall reserve
funds on an allocation basis, pursuant to subdivision (b) of Section
44299.1. The state board may accept a district application after
the due date for a period of months specified by the state board.
Funds may be reserved in response to those applications, in
accordance with this chapter, out of funds remaining after the
original reservation of funds for the year.
(1)
(l) Guidelines for a district application shall require
information from an applicant district to the extent necessary to
meet the requirements of this chapter, but shall otherwise minimize
the information required of a district.
(m) A district application shall be reviewed by the state board
immediately upon receipt. If the state board determines that an
application is incomplete, the applicant shall be notified within 10
working days with an explanation of what is missing from the
application. A completed application fulfilling the criteria shall
be approved as soon as practicable, but not later than 60 working
days after receipt.
(n) The commission, in consultation with the districts, shall
establish project approval criteria and guidelines for infrastructure
projects consistent with Section 44284 as soon as practicable, but
not later than February 15, 2000. The commission shall make draft
criteria and guidelines available to the public 45 days before final
adoption, and shall hold at least one public meeting to consider
public comments before final adoption.
(o) The commission, in consultation with the participating
districts, may propose revisions to the criteria and guidelines
established pursuant to subdivision (n) as necessary to improve the
ability of the program to achieve its goals. A revision may be
proposed at any time, or may be proposed in response to a finding
made in the annual report on the program published by the state board
pursuant to Section 44295. A proposed revision shall be made
available to the public 45 days before final adoption of the revision
and the commission shall hold at least one public meeting to
consider public comments before final adoption of the revision.
SEC. 100. Section 51451 of the Health and Safety Code is amended
to read:
51451. The Homebuyer Down Payment Assistance Program and the
Rental Assistance Program are hereby established to provide
assistance in the amount of the applicable school facility fee on
affordable housing developments.
(a) A Homebuyer Down Payment Assistance Program shall provide the
following assistance:
(1) Downpayment assistance to the purchaser of newly constructed
residential structures in a development project in economically
distressed areas in the aggregate amount of school facility fees paid
pursuant to one or both of Sections 65995.5 and 65995.7 of the
Government Code, less the amount that would be required pursuant to
subdivision (b) of Section 65995 of the Government Code
notwithstanding Sections 65995.5 and 65995.7 of the Government Code,
if all of the following conditions are met:
(A) The development project is located in a county with an
unemployment rate that equals or exceeds 125 percent of the state
unemployment rate.
(B) Five hundred or more residential structures have been
constructed in the county during 1997.
(C) A building permit for an eligible residential structure in the
development project is issued by the local agency on or after
January 1, 1999.
(D) The eligible residential structure is to be owner occupied for
at least five years. If a structure is owner occupied for fewer
than five years, the recipient of the assistance shall repay the
School Facilities Fee Assistance Fund the amount of the assistance,
on a prorated basis.
(E) The sales price of the eligible residential structure does not
exceed 175 percent of the median sales price of residential
structures in the county during the average of the previous five
years.
(2) Downpayment assistance to the purchaser of any newly
constructed residential structure in the development project in the
aggregate amount of school facility fees paid pursuant to one, all,
or any combination of Sections 65995, 65995.5, and 65995.7 of the
Government Code, less the amount that would be required pursuant to
subdivision (b) of Section 65995 of the Government Code
notwithstanding Sections 65995.5 and 65995.7 of the Government Code,
if all of the following conditions are met:
(A) The development project is located in the state.
(B) The sales price of the eligible residential structure in the
development project does not exceed one hundred ten thousand dollars
($110,000).
(C) A building permit for an eligible residential structure in the
development project is issued by the local agency on or after
January 1, 1999.
(D) The eligible residential structure is to be owner occupied for
at least five years. If a structure is owner occupied for fewer
than five years, the recipient of the assistance shall repay the
School Facilities Fee Assistance Fund the amount of the assistance,
on a prorated basis.
(3) Downpayment to the purchaser of any newly constructed
residential structure in a development project in the aggregate
amount of school facility fees paid pursuant to one, all, or any
combination of subdivision (b) of Section 65995 and Sections 65995.5
and 65995.7 of the Government Code for the eligible residential
structure if all of the following conditions are met:
(A) The assistance is provided to a qualified first-time homebuyer
pursuant to Section 50068.5.
(B) The qualified first-time homebuyer meets the very low or
low-income requirements set forth in Sections 50105 and 50079.5,
respectively.
(C) A building permit for an eligible residential structure in the
development project is issued by the local agency on or after
January 1, 1999.
(D) The eligible residential structure is to be owner occupied for
at least five years. If a structure is owner occupied for fewer
than five years, the recipient of the assistance shall repay the
School Facilities Fee Assistance Fund the amount of the assistance,
on a prorated basis.
(b) A Rental Assistance Program shall provide assistance to the
housing sponsor of a housing development in the aggregate amount of
the school facility fees paid pursuant to one, all, or any
combination of subdivision (b) of Section 65995 and Sections 65995.5
and Section 65995.7 of the Government Code that
meets all of the following conditions:
(1) The units are deed restricted to very low income households
and are continuously available to or occupied by very low income
households at rents that do not exceed those prescribed by Section
50053, except that for the purposes of this subdivision, very low
income shall be defined as 30 percent times 30 percent of the median
income adjusted for family size appropriate for the unit.
(2) The number of dedicated residential units must equal or exceed
the number of units supported by the reimbursed school impact fees
determined by the average per unit development cost.
(3) The dedicated residential units are regulated by an
appropriate local or state agency for a minimum of 30 years.
(4) A building permit for an eligible residential unit in the
development project is issued by the local agency on or after January
1, 1999.
SEC. 101. Section 104550 of the Health and Safety Code is amended
to read:
104550. (a) Each manufacturer or importer of cigars shall place,
or cause to be placed, labels bearing one of the following warnings
on each retail package of cigars packaged for sale after September 1,
2000, and shipped for distribution in California:
"Warning: Cigars contain many of the same carcinogens found in
cigarettes, and cigars are not a safe substitute for smoking
cigarettes. This product
contains chemicals known to the State of California to cause cancer
and birth defects and other reproductive harm."
"Warning: Smoking cigars regularly poses risks of cancer of the
mouth, throat, larynx, and esophagus similar to smoking cigarettes.
This product contains chemicals known to the State of California to
cause cancer and birth defects and other reproductive harm."
"Warning: Smoking cigars causes lung cancer, heart disease, and
emphysema, and may complicate pregnancy. This product contains
chemicals known to the State of California to cause cancer and birth
defects and other reproductive harm."
(b) Commencing September 1, 2000, retail packages of cigars
bearing the labels required by subdivision (a) shall be introduced in
the distribution chain by the manufacturer or importer so that
approximately equal numbers of retail packages of each brand of
cigars will bear each of the labels required by subdivision (a)
during each 12-month period, subject to any practical limitations of
the printing equipment used by the manufacturer or importer
for or other similar conditions.
(c) For purposes of this article, "cigar" means any roll of
tobacco wrapped in leaf tobacco or in any substance containing
tobacco, but shall not include any roll of tobacco wrapped in any
substance which, because of its appearance, the type of tobacco used
in the filter filler , or its packaging
and labeling, is likely to be offered to, or purchased by, consumers
as a cigarette.
(d) The labels required in subdivision (a) shall appear on the
outside surface of retail packages in which cigars are sold or on the
cellophane overwrap of the packages and shall be displayed in a
clear and reasonable manner so that all letters in the label appear
in conspicuous and legible type in contrast by typography, layout, or
color with all other printed material on the package. Display boxes
or containers used to sell individual cigars are required to bear a
warning label so that the warning can ordinarily be read by retail
customers removing products from that box or container. Labels
required by subdivision (a) may be preprinted, at the discretion of
the manufacturer or importer, if firmly attached to the retail
package or cellophane overwrap in such a way that the surface of the
label is destroyed before the label can be removed from the package
or overwrap.
(e) As used in this section, "retail package" means a pack, box,
carton, pouch, or container of any kind in which cigars are offered
for sale, sold, or otherwise distributed to consumers but does not
include cellophane wrappers, tubes, or similar wrappings in which
individual cigars are sold, and does not include shipping cartons or
other containers not normally purchased by consumers.
(f) The warnings required by this section shall supersede the
required warning language as stipulated by the parties in People of
the State of California, ex rel. John Van DeKamp v. Safeway Stores,
Inc., et al., San Francisco Superior Court No. 897576. It is the
intent of the Legislature that the enactment of this section shall
not affect the litigation in People of the State of California, et
al. v. General Cigar Company, et al., San Francisco Superior Court
No. 996780; People of the State of California and American
Environmental Safety Institute v. Phillip Morris, Inc., et al., Los
Angeles Superior Court No. BC194217; and People of the State of
California, et al. v. Tobacco Exporters International (USA), Ltd.,
et al., San Francisco Superior Court No. 301631.
(g) Any person who violates subdivision (a) shall be liable for a
civil penalty not to exceed two thousand five hundred dollars
($2,500) per day for each violation in addition to any other penalty
established by law. A civil penalty may be assessed and recovered in
a civil action brought in any court of competent jurisdiction.
(h) Actions pursuant to this section may be brought by the
Attorney General in the name of the people of the State of
California, by any district attorney, by any city attorney of a city
having a population in excess of 750,000 people and with the consent
of the district attorney, by a city prosecutor in any city or city
and county having a full-time city prosecutor.
SEC. 102. Section 104556 of the Health and Safety Code is amended
to read:
104556. The definitions contained in this section shall govern
the construction of this article.
(a) "Adjusted for inflation" means increased in accordance with
the formula for inflation adjustment set forth in Exhibit C to the
Master Settlement Agreement.
(b) "Affiliate" means a person who directly or indirectly owns or
controls, is owned or controlled by, or is under common ownership or
control with, another person. Solely for purposes of this
definition, the terms "owns," "is owned," and "ownership" mean
ownership of an equity interest, or the equivalent thereof, of 10
percent or more, and the term "person" means an individual,
partnership, committee, association, corporation, or any other
organization or group of persons.
(c) "Allocable share" means allocable share as that term is
defined in the Master Settlement Agreement.
(d) "Cigarette" means any product that contains nicotine, is
intended to be burned or heated under ordinary conditions of use, and
consists of or contains (1) any roll of tobacco wrapped in paper or
in any substance not containing tobacco; or (2)
tobacco, in any form, that is functional in the product, which
because of its appearance, the type of tobacco used in the filler, or
its packaging and labeling, is likely to be offered to, or purchased
by, consumers as a cigarette; or (3) any roll of tobacco wrapped in
any substance containing tobacco which, because of its appearance,
the type of tobacco used in the filler, or its packaging and
labeling, is likely to be offered to, or purchased by, consumers as a
cigarette described in this section. "Cigarette" also includes
"roll-your-own" tobacco, meaning any tobacco which, because of its
appearance, type, packaging, or labeling is suitable for use and
likely to be offered to, or purchased by, consumers as tobacco for
making cigarettes. For purposes of this definition of "cigarette,"
0.09 ounces of "roll-your-own" tobacco shall constitute one
individual "cigarette."
(e) "Master Settlement Agreement" means the settlement agreement
and related documents entered into on November 23, 1998, by the state
and leading United States tobacco product manufacturers.
(f) "Qualified escrow fund" means an escrow arrangement with a
federally or state chartered financial institution having no
affiliation with any tobacco product manufacturer and having assets
of at least one billion dollars ($1,000,000,000) where the
arrangement requires that the financial institution hold the escrowed
funds' principal for the benefit of releasing parties and prohibits
the tobacco product manufacturer placing the funds into escrow from
using, accessing, or directing the use of the funds' principal except
as consistent with subdivision (b) of Section 104557.
(g) "Released claims" means released claims as that term is
defined in the Master Settlement Agreement.
(h) "Releasing parties" means releasing parties as that term is
defined in the Master Settlement Agreement.
(i) "Tobacco product manufacturer" means an entity that after the
date of enactment of this article directly, and not exclusively
through any affiliate:
(1) Manufactures cigarettes anywhere that the manufacturer intends
to be sold in the United States, including cigarettes intended to be
sold in the United States through an importer (except where the
importer is an original participating manufacturer as that term is
defined in the Master Settlement Agreement, that will be responsible
for the payments under the Master Settlement Agreement with respect
to such cigarettes as a result of the provisions of subsection II(mm)
of the Master Settlement Agreement and that pays the taxes specified
in subsection II(z) of the Master Settlement Agreement, and provided
that the manufacturer of such cigarettes does not market or
advertise such cigarettes in the United States) ; or
(2) Is the first purchaser anywhere for resale in the United
States of cigarettes manufactured anywhere that the manufacturer does
not intend to be sold in the United States; or
(3) Becomes a successor of an entity described in paragraph (1) or
(2).
The term "tobacco product manufacturer" shall not include an
affiliate of a tobacco product manufacturer unless the affiliate
itself falls within any of paragraphs (1) to (3) of this subdivision.
(j) "Units sold" means the number of individual cigarettes sold in
the state by the applicable tobacco product manufacturer, whether
directly or through a distributor, retailer, or similar intermediary
or intermediaries, during the year in question, as measured by excise
taxes collected by the state on packs, or "roll-your-own" tobacco
containers, bearing the excise tax stamp of the state. The State
Board of Equalization shall adopt any regulations as are necessary to
ascertain the amount of state excise tax paid on the cigarettes of
the tobacco product manufacturer for each year.
SEC. 103. Section 104557 of the Health and Safety Code is amended
to read:
104557. (a) Any tobacco product manufacturer selling cigarettes
to consumers within the state, whether directly or through a
distributor, retailer or similar intermediary or intermediaries,
after the date of enactment of this article shall do one of the
following:
(1) Become a participating manufacturer as that term is defined in
Section II(jj) of the Master Settlement Agreement and generally
perform its financial obligations under the Master Settlement
Agreement; or
(2) Place into a qualified escrow fund by April 15 of the year
following the year in question the following amounts, as such amounts
are adjusted for inflation:
(A) For 1999: $0.0094241 per unit sold during that year, after
the date of the enactment of this article.
(B) For 2000: $0.0104712 per unit sold during that year.
(C) For each of 2001 and 2002: $0.0136125 per unit sold during
the year in question.
(D) For each of 2003 through 2006: $0.0167539 per unit sold
during the year in question.
(E) For each of 2007 and each year thereafter: $0.0188482 per
unit sold during the year in question.
(b) Any tobacco product manufacturer that places funds into escrow
pursuant to paragraph (2) of subdivision (a) shall receive the
interest or other appreciation on the funds as earned. The funds,
other than the interest or other appreciation, shall be released from
escrow only under the following circumstances:
(1) To pay a judgment or settlement on any released claim brought
against that tobacco product manufacturer by the state or any
releasing party located or residing in the state. Funds shall be
released from escrow under this subdivision (i) in the order in which
they were placed into escrow and (ii) only to the extent and at the
time necessary to make payments required under that judgment or
settlement.
(2) To the extent that a tobacco product manufacturer establishes
that the amount it was required to place into escrow in a particular
year was greater than the state's allocable share of the total
payments that the manufacturer would have been required to make in
that year under the Master Settlement Agreement, ,
had it been a participating manufacturer, as such payments are
determined pursuant to section IX(i)(2) of the Master Settlement
Agreement and before any of the adjustments or offsets described in
section IX(i)(3) of that agreement other than the inflation
adjustment, the excess shall be released from escrow and revert back
to such tobacco product manufacturer; or
(3) To the extent not released from escrow under paragraph (1) or
(2) of subdivision (b), funds shall be released from escrow and
revert back to the tobacco product manufacturer 25 years after the
date on which they were placed into escrow.
(c) Each tobacco product manufacturer that elects to place funds
into escrow pursuant to paragraph (2) of subdivision (a) shall
annually certify to the Attorney General that it is in compliance
with paragraph (2) of subdivision (a), and subdivision (b). The
Attorney General may bring a civil action on behalf of the state
against any tobacco product manufacturer that fails to place into
escrow the funds required under this section. Any tobacco product
manufacturer that fails in any year to place into escrow the funds
required under this section shall:
(1) Be required within 15 days to place the funds into escrow as
shall bring it into compliance with this section. The court, upon a
finding of a violation of paragraph (2) of subdivision (a), or
subdivision (b), may impose a civil penalty to be paid to the General
Fund of the state in an amount not to exceed 5 percent of the amount
improperly withheld from escrow per day of the violation and in a
total amount not to exceed 100 percent of the original amount
improperly withheld from escrow.
(2) In the case of a knowing violation, be required within 15 days
to place the funds into escrow as shall bring it into compliance
with this section. The court, upon a finding of a knowing violation
of paragraph (2) of subdivision (a), or subdivision (b), may impose a
civil penalty to be paid to the General Fund in an amount not to
exceed 15 percent of the amount improperly withheld from escrow per
day of the violation and in a total amount not to exceed 300 percent
of the original amount improperly withheld from escrow.
(3) In the case of a second knowing violation, be prohibited from
selling cigarettes to consumers within the state, whether directly or
through a distributor, retailer, or similar intermediary, for a
period not to exceed two years.
(d) Each failure to make an annual deposit required under this
section shall constitute a separate violation.
SEC. 104. Section 112040 of the Health and Safety Code is amended
to read:
112040. (a) Prior to January 1, 2001, the department, its
inspectors and agents, and all local health officers and inspectors
may at all times enter any building, room, basement, cellar, or other
place occupied or used, or suspected of being occupied or used, for
the production, preparation, manufacture, storage, sale, or
distribution of food, and inspect the premises and all utensils,
implements, receptacles, fixtures, furniture, and machinery used.
(b) Commencing January 1, 2001, only the department, its
inspectors and agents, and the local health officers and inspectors
of Los Angeles, San Bernardino, and Orange Counties and the City of
Vernon may exercise the authority to enter and inspect granted in
subdivision (a) except as provided in subdivision (c).
(c) Commencing January 1, 2001, the local health officer or
inspector of each city or county, or city and county may exercise the
authority to enter and inspect granted in subdivision (a) for the
sole purpose of inspecting a food processing establishment that only
holds or warehouses processed food, provided that:
(1) The warehouse does not manufacture or pack processed food.
(2) The warehouse does not hold fresh seafood, frozen seafood held
in bulk for further processing, or fresh or frozen raw shellfish.
(3) The warehouse is not operated as an integral part of a food
processing facility required to be registered pursuant to Section
110460.
(4) The warehouse facilities are located entirely within the area
under the jurisdiction of the local health department.
(5) The warehouse does not salvage food as the primary business.
(d) All inspections of food processing establishments conducted by
local health departments shall be reported to the department within
60 days. The department shall consider this information when
scheduling the department's inspection activities.
SEC. 105. Section 115813 of the Health and Safety Code is amended
to read:
115813. (a) The board, in consultation with the State Department
of Education, the State Department of Health Services, the Department
of Conservation, the Department of Parks and Recreations
Recreation , the League of California Cities,
the California State Association of Counties, the California Park and
Recreation Society, and other appropriate entities, including, but
not limited to, beverage container recyclers, waste haulers, special
districts, school districts, county superintendents of schools,
nonprofit organizations, and private companies, shall develop a
program to provide grants to local agencies to upgrade, repair,
refurbish, install, or replace public playground facilities and
promote the use of recycled materials in those playground facilities.
(b) The board shall administer grants for purposes of this
article, which shall be awarded pursuant to a request for application
process.
(c) Grants shall be awarded pursuant to this article to local
agencies, including, but not limited to, schools, school districts,
cities, counties, cities and counties, special districts, and joint
ventures between school districts and other local agencies,
including, but not limited to, park districts, for the purpose of
improving or replacing their public playgrounds.
(d) To be eligible for a grant pursuant to this article, a local
agency shall do both of the following:
(1) Demonstrate its ability to provide a 50 percent match, either
through public or private funds or in-kind contributions. The
matching requirement may be reduced to a 25 percent match, either
through public or private funds or in-kind contributions, upon a
finding by the board that the 50 percent matching requirement would
impose an extreme financial hardship on the local agency applying for
the grant.
(2) Guarantee that 50 percent of the grant funds will be used for
the improvement or replacement of playground equipment or facilities
through the use of recycled materials.
(e) No grant made pursuant to this article shall exceed the sum of
twenty-five thousand dollars ($25,000) for any one playground.
SEC. 106. Section 128375 of the Health and Safety Code is amended
to read:
128375. (a) The Legislature hereby finds and declares that an
adequate supply of professional nurses is critical to assuring the
health and well-being of the citizens of California, particularly
those who live in medically underserved areas.
(b) The Legislature further finds that changes in the health care
system of this state have increased the need for more highly skilled
nurses. These changes include advances in medical technology and
pharmacology, that necessitate the use of more highly skilled nurses
in acute care facilities. Further, the containment of health care
costs has led to increased reliance on home health care and
outpatient services and to a higher proportion of more acutely ill
patients in acute care facilities. Long-term care facilities also
need more highly educated nursing personnel. Both shifts require a
larger number of skilled nursing personnel.
(c) The Legislature further finds and declares that in nursing, as
in other professions, certain populations are underrepresented. The
Legislature also finds and declares that it is especially important
that nursing care be provided in a way that is sensitive to the
sociocultural variables that affect a person's health. The
Legislature recognizes that the financial burden of obtaining a
baccalaureate degree is considerable and that persons from families
lacking adequate financial resources may need financial assistance to
complete a baccalaureate degree.
(d) The Legislature further finds and declares that approximately
54.1 percent of all Californians live in rural and urban areas that
have been designated underserved. The shortage of professional
nurses in these areas makes it more difficult for those citizens to
obtain health care and more difficult to attract and retain other
health care professionals to those areas.
(e) The Legislature further finds and declares that since July 1,
1989, the Registered Nurse Education Fund has collected five million
two hundred eight thousand five hundred seventy-four dollars
($5,208,574) to support the education of professional nurses and
nursing students in California.
(f) The Legislature further finds and declares that since 1990,
the Health Professions Education Foundation has awarded over four
million dollars ($4,000,000) in scholarship and loan repayment to 754
nursing students and nurses in California.
(g) The Legislature further finds and declares that 107 award
recipients are baccalaureate of science degree prepared nurses who
have made a commitment to practice in medically underserved areas of
California for a period of two years in exchange for loan repayment.
(h) The Legislature further finds that 485 of the award recipients
are baccalaureate of science degree nursing students. Since 1990,
199 nurses have completed their contractual obligation with the
Office of Statewide Health Planning and Development.
(i) The Legislature further finds and declares that, since 1994,
112 associate degree nursing scholarship awards have been made to
students who have signed a contract with the office to complete a
baccalaureate of science degree within five years of completing their
associate degree. Six students have completed the articulations
pilot program.
(j) The Legislature further finds that recipients of the
foundation's financial assistance program have come from very diverse
backgrounds. Scholarships have been awarded to African-Americans,
American Indians, Asian-Pacific Islanders, Caucasians,
Hispanic-Americans, and other individuals.
SEC. 107. Section 384 of the Insurance Code is amended to read:
384. (a) A certificate of insurance or verification of insurance
provided as evidence of insurance in lieu of an actual copy of the
insurance policy shall contain the following statements or words to
the effect of:
This certificate or verification of insurance is not an insurance
policy and does not amend, extend or alter the coverage afforded by
the policies listed herein. Notwithstanding any requirement, term,
or condition of any contract or other document with respect to which
this certificate or verification of insurance may be issued or may
pertain, the insurance afforded by the policies described herein is
subject to all the terms, exclusions and conditions of such
the policies.
(b) This section is not applicable to a surplus line broker
certificate as defined in Section 48.
SEC. 108. Section 791.02 of the Insurance Code is amended to read:
791.02. As used in this act:
(a) (1) "Adverse underwriting decision" means any of the following
actions with respect to insurance transactions involving insurance
coverage that is individually underwritten:
(A) A declination of insurance coverage.
(B) A termination of insurance coverage.
(C) Failure of an agent to apply for insurance coverage with a
specific insurance institution that the agent represents and that is
requested by an applicant.
(D) In the case of a property or casualty insurance coverage:
(i) Placement by an insurance institution or agent of a risk with
a residual market mechanism, with an unauthorized insurer, or with an
insurance institution that provides insurance to other than
preferred or standard risks, if in fact the placement is at other
than a preferred or standard rate. An adverse underwriting decision,
in case of placement with an insurance institution which
that provides insurance to other than preferred
or standard risks, shall not include such
placement where if the applicant or
insured did not specify or apply for placement as a preferred or
standard risk or placement with a particular company insuring
preferred or standard risks, or
(ii) The charging of a higher rate on the basis of information
which differs from that which the applicant or policyholder
furnished.
(E) In the case of a life, health, or disability insurance
coverage, an offer to insure at higher than standard rates.
(2) Notwithstanding paragraph (1), any of the following actions
shall not be considered adverse underwriting decisions but the
insurance institution or agent responsible for their occurrence shall
nevertheless provide the applicant or policyholder with the specific
reason or reasons for their occurrence:
(A) The termination of an individual policy form on a class or
statewide basis.
(B) A declination of insurance coverage solely because
such coverage is not available on a class or statewide
basis.
(C) The rescission of a policy.
(b) "Affiliate" or "affiliated" means a person that directly, or
indirectly through one or more intermediaries, controls, is
controlled by or is under common control with another person.
(c) "Agent" means any person licensed pursuant to Chapter 5
(commencing with Section 1621), Chapter 5A (commencing with Section
1759), Chapter 6 (commencing with Section 1760), Chapter 7
(commencing with Section 1800), or Chapter 8 (commencing with Section
1831).
(d) "Applicant" means any person who seeks to contract for
insurance coverage other than a person seeking group insurance that
is not individually underwritten.
(e) "Consumer report" means any written, oral, or other
communication of information bearing on a natural person's
creditworthiness, credit standing, credit capacity, character,
general reputation, personal characteristics, or mode of living that
is used or expected to be used in connection with an insurance
transaction.
(f) "Consumer reporting agency" means any person who:
(1) Regularly engages, in whole or in part, in the practice of
assembling or preparing consumer reports for a monetary fee.
(2) Obtains information primarily from sources other than
insurance institutions.
(3) Furnishes consumer reports to other persons.
(g) "Control," including the terms "controlled by" or "under
common control with," means the possession, direct or indirect, of
the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities, by contract other than a commercial contract for goods or
nonmanagement services, or otherwise, unless the power is the result
of an official position with or corporate office held by the person.
(h) "Declination of insurance coverage" means a denial, in whole
or in part, by an insurance institution or agent of requested
insurance coverage.
(i)
"Individual" means any natural person who is any of the
following :
(1) In the case of property or casualty insurance, is a past,
present , or proposed named insured or certificate holder
; .
(2) In the case of life or disability insurance, is a past,
present , or proposed principal insured or certificate
holder ; .
(3) Is a past, present , or proposed policyowner
; .
(4) Is a past or present applicant ; .
(5) Is a past or present claimant ; or .
(6) Derived, derives, or is proposed to derive insurance coverage
under an insurance policy or certificate subject to this act.
(j) "Institutional source" means any person or governmental entity
that provides information about an individual to an agent, insurance
institution, or insurance-support organization, other than any
of the following :
(1) An agent , .
(2) The individual who is the subject of the information
, or .
(3) A natural person acting in a personal capacity rather than in
a business or professional capacity.
(k) "Insurance institution" means any corporation, association,
partnership, reciprocal exchange, interinsurer, Lloyd's insurer,
fraternal benefit society, or other person engaged in the business of
insurance. "Insurance institution" shall not include agents,
insurance-support organizations, or health care service plans
regulated pursuant to the Knox-Keene Health Care Service Plan Act,
Chapter 2.2 (commencing with Section 1340) of Division 2 of the
Health and Safety Code.
(l) "Insurance-support organization" means:
(1) Any person who regularly engages, in whole or in part, in the
business of assembling or collecting information about natural
persons for the primary purpose of providing the information to an
insurance institution or agent for insurance transactions, including
either of the following :
(A) The furnishing of consumer reports or investigative consumer
reports to an insurance institution or agent for use in connection
with an insurance transaction , or .
(B) The collection of personal information from insurance
institutions, agents, or other insurance-support organizations for
the purpose of detecting or preventing fraud, material
misrepresentation or material nondisclosure in connection with
insurance underwriting or insurance claim activity.
(2) Notwithstanding paragraph (1), the following persons shall not
be considered "insurance-support organizations": agents,
governmental institutions, insurance institutions, medical care
institutions, medical professionals, and peer review committees.
(m) "Insurance transaction" means any transaction involving
insurance primarily for personal, family, or household needs rather
than business or professional needs that entails either of the
following :
(1) The determination of an individual's eligibility for an
insurance coverage, benefit, or payment , or
.
(2) The servicing of an insurance application, policy, contract,
or certificate.
(n) "Investigative consumer report" means a consumer report or
portion thereof in which information about a natural person's
character, general reputation, personal characteristics, or mode of
living is obtained through personal interviews with the person's
neighbors, friends, associates, acquaintances, or others who may have
knowledge concerning those items of information.
(o) "Medical care institution" means any facility or institution
that is licensed to provide health care services to natural persons,
including but not limited to, hospitals, skilled nursing facilities,
home health agencies, medical clinics, rehabilitation agencies, and
public health agencies.
(p) "Medical professional" means any person licensed or certified
to provide health care services to natural persons, including but not
limited to, a physician, dentist, nurse, optometrist, physical or
occupational therapist, psychiatric social worker, clinical
dietitian, clinical psychologist, chiropractor, pharmacist, or speech
therapist.
(q) "Medical record information" means personal information that
is both of the following :
(1) Relates to an individual's physical or mental condition,
medical history or medical treatment , and .
(2) Is obtained from a medical professional or medical care
institution, from the individual, or from the individual's spouse,
parent, or legal guardian.
(r) "Person" means any natural person, corporation, association,
partnership, limited liability company, or other legal entity.
(s) "Personal information" means any individually identifiable
information gathered in connection with an insurance transaction from
which judgments can be made about an individual's character,
habits, avocations, finances, occupation, general reputation, credit,
health, or any other personal characteristics. "Personal
information" includes an individual's name and address and "medical
record information" but does not include "privileged information."
(t) "Policyholder" means any person who is any of the
following :
(1) In the case of individual property or casualty insurance, is a
present named insured ; .
(2) In the case of individual life or disability insurance, is a
present policyowner ; or .
(3) In the case of group insurance, which is individually
underwritten, is a present group certificate holder.
(u) "Pretext interview" means an interview whereby a person, in an
attempt to obtain information about a natural person, performs one
or more of the following acts:
(1) Pretends to be someone he or she is not ,
.
(2) Pretends to represent a person he or she is not in fact
representing , .
(3) Misrepresents the true purpose of the interview , or
.
(4) Refuses to identify himself or herself upon request.
(v) "Privileged information" means any individually identifiable
information that both:
(1) Relates to a claim for insurance benefits or a civil or
criminal proceeding involving an individual.
(2) Is collected in connection with or in reasonable anticipation
of a claim for insurance benefits or civil or criminal proceeding
involving an individual. However, information otherwise meeting the
requirements of this division shall nevertheless be considered
"personal information" under this act if it is disclosed in violation
of Section 791.13.
(w) "Residual market mechanism" means the California FAIR Plan
Association, Chapter 10 (commencing with Section 10101) of Part 1 of
Division 2, and the assigned risk plan, Chapter 1 (commencing with
Section 11550) of Part 3 of Division 2.
(x) "Termination of insurance coverage" or "termination of an
insurance policy" means either a cancellation or nonrenewal of an
insurance policy, in whole or in part, for any reason other than the
failure to pay a premium as required by the policy.
(y) "Unauthorized insurer" means an insurance institution that has
not been granted a certificate of authority by the director to
transact the business of insurance in this state.
(z) "Commissioner" means the Insurance Commissioner.
SEC. 109. Section 1035 of the Insurance Code is amended to read:
1035. (a) In any proceeding under this article, the commissioner
shall have the power to may appoint and
employ under his or her hand and official seal, special deputy
commissioners, as his or her agents, and to employ clerks and
assistants and to give to each of them those powers that he or she
deems necessary. Upon appointing or employing special deputy
commissioners, clerks, or assistants, the commissioner shall notify
the Chair of the Joint Budget Committee of the Legislature, by
letter, of the action. The costs of employing special deputy
commissioners, clerks, and assistants appointed to carry out this
article, and all expenses of taking possession of, conserving,
conducting, liquidating, disposing of, or otherwise dealing with the
business and property of that person under this article, shall be
fixed by the commissioner, subject to the approval of the court, and
shall be paid out of the assets of that person to the department. In
the event the property of that person does not contain cash or
liquid assets sufficient to defray the cost of the services required
to be performed under the terms of this article, the commissioner may
at any time or from time to time pay the cost of those services out
of the appropriation for the maintenance of the department, but not
out of the assets of other estates. Any amounts so paid shall be
deemed expense expenses of
administration and shall be repaid to the fund out of the first
available moneys in the estate.
(b) Any person appointed by the commissioner to serve in the
capacity of chief executive officer of the department's Conservation
and Liquidation Office shall be subject to confirmation by the
Senate.
SEC. 110. Section 1765.1 of the Insurance Code is amended to read:
1765.1. No surplus line broker shall place any coverage with a
nonadmitted insurer unless the insurer is domiciled in the Republic
of Mexico and the placement covers only liability arising out of the
ownership, maintenance, or use of a motor vehicle, aircraft, or boat
in the Republic of Mexico, or, at the time of placement, the
nonadmitted insurer meets the following requirements :
(a) (1) Has established its financial stability, reputation, and
integrity, for the class of insurance the broker proposes to place,
by satisfactory evidence submitted to the commissioner through a
surplus line broker.
(2) (A) Meets one of the following
requirements with respect to its financial stability:
(A) Has capital and surplus that together total at least
fifteen million dollars ($15,000,000). "Capital" shall be as defined
in Section 36. "Surplus" shall be defined as assets exceeding the
sum of liabilities for losses reported, expenses, taxes, and all
other indebtedness and reinsurance of outstanding risks as provided
by law and paid-in capital in the case of an insurer issuing or
having outstanding shares of capital stock. The type of assets to be
used in calculating capital and surplus shall be as follows: at
least fifteen million dollars ($15,000,000) shall be in the form of
cash, or securities of the same character and quality as specified in
Sections 1170 to 1182, inclusive, or in readily marketable
securities listed on regulated United States' national or principal
regional securities exchanges. The remaining assets shall be in the
form just described, or in the form of investments of substantially
the same character and quality as described in Sections 1190 to 1202,
inclusive. In calculating capital and surplus under this section,
the term "same character and quality" shall permit, but not require,
the commissioner to approve assets maintained in accordance with the
laws of another state or country. The commissioner shall be guided
by any limitations, restrictions, or other requirements of this code
or the National Association of Insurance Commissioners' Accounting
Practices and Procedures Manual in determining whether assets
substantially similar to those described in Sections 1190 to 1202,
inclusive, qualify. The commissioner shall retain the discretion to
disapprove or disallow any asset that is not of a sound quality, or
that he or she deems to create an unacceptable risk of loss to the
insurer or to policyholders. Securities specifically valued by the
National Association of Insurance Commissioners Securities Valuation
Office shall be presumed readily marketable absent evidence to the
contrary. Letters of credit will not qualify as assets in the
calculation of surplus. If less than fifteen million dollars
($15,000,000), the commissioner has affirmatively found that the
capital and surplus is adequate to protect California policyholders.
The commissioner shall consider, on determining whether to make this
finding, factors such as quality of management, the capital and
surplus of any parent company, the underwriting profit and investment
income trends, and the record of claims payment and claims handling
practices of the nonadmitted insurer , or .
(B) In the case of an "Insurance Exchange" created and authorized
under the laws of individual states, maintains capital and surplus of
not less than fifty million dollars ($50,000,000) in the aggregate.
"Capital" shall be as defined in Section 36. "Surplus" shall be
defined as assets exceeding the sum of liabilities for losses
reported, expenses, taxes, and all other indebtedness and reinsurance
of outstanding risks as provided by law and paid-in capital in the
case of an insurer issuing or having outstanding shares of capital
stock. The type of assets to be used in calculating capital and
surplus shall be as follows: at least fifteen million dollars
($15,000,000) shall be in the form of cash, or securities of the same
character and quality as specified in Sections 1170 to 1182,
inclusive, or in readily marketable securities listed on regulated
United States' national or principal regional securities exchanges.
The remaining assets shall be in the form just described, or in the
form of investments of substantially the same character and quality
as described in Sections 1190 to 1202, inclusive. In calculating
capital and surplus under this section, the term "same character and
quality" shall permit, but not require, the commissioner to approve
assets maintained in accordance with the laws of another state or
country. The commissioner shall be guided by any limitations,
restrictions, or other requirements of this code or the National
Association of Insurance Commissioners' Accounting Practices and
Procedures Manual in determining whether assets substantially similar
to those described in Sections 1190 to 1202, inclusive, qualify.
The commissioner shall retain the discretion to disapprove or
disallow any asset that is not of a sound quality, or that he or she
deems to create an unacceptable risk of loss to the insurer or to
policyholders. Securities specifically valued by the National
Association of Insurance Commissioners Securities Valuation Office
shall be presumed readily marketable absent evidence to the contrary.
Letters of credit will shall not
qualify as assets in the calculation of surplus. In the case of an
Insurance Exchange which maintains funds for the protection of all
Insurance Exchange policyholders, each individual syndicate seeking
to accept surplus line placements of risks resident, located ,
or to be performed in this state shall maintain minimum capital
and surplus of not less than six million four hundred thousand
dollars ($6,400,000). Each individual syndicate shall increase the
capital and surplus required by this paragraph by one million dollars
($1,000,000) each year until it attains a capital and surplus of
fifteen million dollars ($15,000,000). In the case of Insurance
Exchanges that do not maintain funds for the protection of all
Insurance Exchange policyholders, each individual syndicate seeking
to accept surplus line placement of risks resident, located ,
or to be performed in this state shall meet the capital and
surplus requirements of subparagraph (A) of this paragraph.
(C) In the case of a syndicate that is part of a group consisting
of incorporated individual insurers, or a combination of both
incorporated and unincorporated insurers, that at all times maintains
a trust fund of not less than one hundred million dollars
($100,000,000) in a qualified United States financial institution as
security to the full amount thereof for the United States surplus
line policyholders and beneficiaries of direct policies of the group,
including all policyholders and beneficiaries of direct policies of
the syndicate, and the full balance in the trust fund is available to
satisfy the liabilities of each member of the group of those
syndicates, incorporated individual insurers or other unincorporated
insurers, without regard to their individual contributions to that
trust fund, and the trust complies with the terms of and conditions
specified in paragraph (1) of subdivision (b), the syndicate is
excepted from the capital and surplus requirements of subparagraph
(A) of paragraph (2). The incorporated members of the group shall
not be engaged in any business other than underwriting as a member of
the group and shall be subject to the same level of solvency
regulation and control by the group's domiciliary regulator as are
the unincorporated members.
(b) (1) In addition, to be eligible as a surplus line insurer, an
insurer not domiciled in one of the United States or its territories
shall have in force in the United States an irrevocable trust account
in a qualified United States financial institution, for the
protection of United States policyholders, of not less than five
million four hundred thousand dollars ($5,400,000) and consisting of
cash, securities acceptable to the commissioner which are authorized
pursuant to Sections 1170 to 1182, inclusive, readily marketable
securities acceptable to the commissioner that are listed on a
regulated United States national or principal regional security
exchange, or clean and irrevocable letters of credit acceptable to
the commissioner and issued by a qualified United States financial
institution. The trust agreement shall be in a form acceptable to
the commissioner. The funds in the trust account may be included in
any calculation of capital and surplus, except letters of credit,
which shall not be included in any calculation.
(2) In the case of a syndicate seeking eligibility under
subparagraph (C) of paragraph (2) of subdivision (a), the syndicate
shall, in addition to the requirements of that subparagraph, at a
minimum, maintain in the United States a trust account in an amount
satisfactory to the commissioner that is not less than the amount
required by the domiciliary state of the syndicate's trust. The
trust account shall comply with the terms and conditions specified in
paragraph (1) of subdivision (b) .
(3) In the case of a group of incorporated insurers under common
administration that maintains a trust fund of not less than one
hundred million dollars ($100,000,000) in a qualified United States
financial institution for the payment of claims of its United States
policyholders, their assigns, or successors in interest and that
complies with the terms and conditions of paragraph (1) that has
continuously transacted an insurance business outside the United
States for at least three years, that is in good standing with its
domiciliary regulator, whose individual insurer members maintain
standards and a financial condition reasonably comparable
to admitted insurers, that submits to this state's authority to
examine its books and bears the expense of examination, and that has
an aggregate policyholder surplus of ten billion dollars
($10,000,000,000), the group is excepted from the capital and surplus
requirements of subdivision (a).
(c) Has caused to be provided to the commissioner the following
documents:
(1) The financial documents as specified below, each showing the
insurer's condition as of a date not more than 12 months prior to
submission:
(A) A copy of an annual statement, prepared in the form prescribed
by the NAIC. For an alien insurer, in lieu of an annual statement,
a licensee may submit a form as set forth by regulation and as
prepared by the insurer, and, if listed by the IID, a copy of the
complete information as required in the application for listing by
the IID.
(B) A copy of an audited financial report on the insurer's
condition that meets the standards of subparagraph (D) for foreign
insurers or subparagraph (E) for alien insurers.
(C) If the insurer is an alien:
(i) A certified copy of the trust agreement referenced in
subdivision (b).
(ii) A verified copy of the most recent quarterly statement or
list of the assets in the trust.
(D) Financial reports filed pursuant to this section by foreign
insurers shall conform to the following standards:
(i) Financial documents shall be certified.
(ii) An audited financial report shall constitute a supplement to
the insurer's annual statement, as required by the annual statement
instructions issued by the NAIC.
(iii) An audited financial report shall be prepared by an
independent certified public accountant or accounting firm in good
standing with the American Institute of Certified Public Accountants
and in all states where licensed to practice; and be prepared in
conformity with statutory accounting practices prescribed, or
otherwise permitted, by the insurance regulator of the insurer's
domiciliary jurisdiction.
(iv) An audited financial report shall include information on the
insurer's financial position as of the end of the most recent
calendar year, and the results of its operations, cash-flows, and
changes in capital and surplus for the year then ended.
(v) An audited financial report shall be prepared in a form and
using language and groupings substantially the same as the relevant
sections of the insurer's annual statement filed with its domiciliary
jurisdiction, and presenting comparatively the amounts as of
December 31 of the most recent calendar year and the amounts as of
December 31 of the preceding year.
(E) Financial reports filed pursuant to this section by alien
insurers shall conform to the following standards:
(i) Except as provided in clause (ii) of subparagraph (C),
financial documents should be certified, if certification of a
financial document is not available, the document shall be verified.
(ii) Financial documents should be expressed in United States
dollars, but may be expressed in another currency, if the exchange
rate for the other currency as of the date of the document is also
provided.
(iii) The responses provided pursuant to subparagraph (A) of
paragraph (1) on the form submitted in lieu of an annual statement
should follow the most recent ISI Guide to Alien Reporting Format,
"Standard Definitions of Accounting Items." Responses that do not
agree with a standard definition shall be fully explained in the
form.
(iv) An audited financial report shall be prepared by an
independent licensed auditor in the insurer's domiciliary
jurisdiction or in any state.
(v) An audited financial report shall be prepared in accord with
either (I) Generally Accepted Auditing Standards that prescribe
Generally Accepted Accounting Principles, or (II) International
Accounting Standards as published and revised from time to time by
the International Auditing Guidelines published by the International
Auditing Practice Committee of the International Federation of
Accountants; and shall include financial statement notes and a
summary of significant accounting practices.
(F) The commissioner may accept, in lieu of a document described
above, any certified or verified financial or regulatory document,
statement, or report if the commissioner finds that it possesses
reliability and financial detail substantially equal to or greater
than the document for which it is proposed to be a substitute.
(G) If one of the financial documents required to be submitted
under subparagraphs (A) and (B) is dated within 12 months of
submission, but the other document is not so dated, the licensee may
use the outdated document if it is accompanied by a supplement. The
supplement must meet the same requirements which apply to the
supplemented document, and must update the outdated document to a
date within the prescribed time period, preferably to the same date
as the nonsupplemented document.
(2) A certified copy of the insurer's license issued by its
domiciliary jurisdiction, plus a certification of good standing,
certificate of compliance, or other equivalent certificate, from
either that jurisdiction or, if the jurisdiction does not issue those
certificates, from any state where it is licensed.
(3) Information on the insurer's agent in California for service
of process, including the agent's full name and address. The agent's
address must include a street address where the agent can be reached
during normal business hours.
(4) The complete street address, mailing address, and telephone
number of the insurer's principal place of business.
(5) A certified or verified explanation, report, or other
statement, from the insurance regulatory office or official of the
insurer's domiciliary jurisdiction, concerning the insurer's record
regarding market conduct and consumer complaints; or, if that
information cannot be obtained from that jurisdiction, then any other
information that the licensee can procure to demonstrate a good
reputation for payment of claims and treatment of policyholders.
(6) A verified statement, from the insurer or licensee, on whether
the insurer or any affiliated entity is currently known to be the
subject of any order or proceeding regarding conservation,
liquidation, or other receivership; or regarding revocation or
suspension of a license to transact insurance in any jurisdiction; or
otherwise seeking to stop the insurer from transacting insurance in
any jurisdiction. The statement shall identify the proceeding by
date, jurisdiction, and relief or sanction sought; and shall attach a
copy of the relevant order.
(7) A certified copy of the most recent report of examination or
an explanation if the report is not available.
(8) A list of all California surplus line brokers authorized by
the insurer to issue policies on its behalf, and any additions to or
deletions from that list.
(d) (1) Has provided any additional information or documentation
required by the commissioner that is relevant to the financial
stability, reputation, and integrity of the nonadmitted insurer. In
making a determination concerning financial stability, reputation,
and integrity of the nonadmitted insurer, the commissioner shall
consider any analysis analyses ,
findings, or conclusion conclusions
made by the National Association of Insurance Commissioners (NAIC) in
its review of the insurer for purposes of inclusion on or exclusion
from the list of authorized nonadmitted insurers maintained by the
NAIC. The commissioner may, but shall not be required to, rely on,
adopt, or otherwise accept any analyses, findings, or conclusions of
the NAIC, as the commissioner deems appropriate. In the case of a
syndicate seeking eligibility under subparagraph (C) of paragraph (2)
of subdivision (a), the commissioner may, but shall not be required
to, rely on, adopt, or otherwise accept any analyses, findings, or
conclusions of any state, as the commissioner deems appropriate, as
long as that state, in its method of regulation and review, meets the
requirements of
paragraph (2).
(2) The regulatory body of the state shall regularly receive and
review the following: (A) an audited financial statement of the
syndicate, prepared by a certified or chartered public accountant;
(B) an opinion of a qualified actuary with regard to the syndicate's
aggregate reserves for payment of losses or claims and payment of
expenses of adjustment or settlement of losses or claims; (C) a
certification from the qualified United States financial institution
that acts as the syndicate's trustee, respecting the existence and
value of the syndicate's trust fund; and (D) information concerning
the syndicate's or its manager's operating history, business plan,
ownership and control, experience and ability, together with any
other pertinent factors, and any information indicating that the
syndicate or its manager make reasonably prompt payment of claims in
this state or elsewhere. The regulatory body of the state shall have
the authority, either by law or through the operation of a valid and
enforceable agreement, to review the syndicate's assets and
liabilities and audit the syndicate's trust account, and shall
exercise that authority with a frequency and in a manner satisfactory
to the commissioner.
(e) Has established that:
(1) All documents required by subdivisions (c) and (d) have been
filed. Each of the documents appear after review to be complete,
clear, comprehensible, unambiguous, accurate, and consistent.
(2) The documents affirm that the insurer is not subject in any
jurisdiction to an order or proceeding that:
(A) Seeks to stop it from transacting insurance.
(B) Relates to conservation, liquidation, or other receivership.
(C) Relates to revocation or suspension of its license.
(3) The documents affirm that the insurer has actively transacted
insurance for the three years immediately preceding the filing made
under this section, unless an exemption is granted. As used in this
paragraph, "insurer" does not include a syndicate of underwriting
entities. The commissioner may grant an exemption if the licensee
has applied for exemption and demonstrates either of the following:
(A) The insurer meets the condition for any exception set forth in
subdivision (a), (b), or (c) of Section 716.
(B) If the insurer has been actively transacting insurance for at
least 12 months, and the licensee demonstrates that the exemption is
warranted because the insurer's current financial strength, operating
history, business plan, ownership and control, management
experience, and ability, together with any other pertinent factors,
make three years of active insurance transaction unnecessary to
establish sufficient reputation.
(4) The documents confirm that the insurer holds a license to
issue insurance policies (other than reinsurance) to residents of the
jurisdiction that granted the license unless an exemption is
granted. The commissioner may grant an exemption if the licensee has
applied for an exemption and demonstrates that the exemption is
warranted because the insurer proposes to issue in California only
commercial coverage, and is wholly owned and actually controlled by
substantial and knowledgeable business enterprises that are its
policyholders and that effectively govern the insurer's destiny in
furtherance of their own business objectives.
(5) The information filed pursuant to paragraph (5) of subdivision
(c) or otherwise filed with or available to the commissioner,
including reports received from California policyholders, shall
indicate that the insurer makes reasonably prompt payment of claims
in this state or elsewhere.
(6) The information available to the commissioner shall not
indicate that the insurer offers in California a licensee products or
rates that violate any provision of this code.
(f) Has been placed on the list of eligible surplus line insurers
by the commissioner. The commissioner shall establish a list of all
surplus line insurers that have met the requirements of subdivisions
(a) to (e), inclusive, and shall publish a master list at least
semiannually. Any insurer receiving approval as an eligible surplus
line insurer shall be added by addendum to the list at the time of
approval, and shall be incorporated into the master list at the next
date of publication. If an insurer appears on the most recent list,
it shall be presumed that the insurer is an eligible surplus line
insurer, unless the commissioner or his or her designee has mailed or
causes to be mailed notice to all surplus line brokers that the
commissioner has withdrawn the insurer's eligibility. Upon receipt
of notice, the surplus line broker shall make no further placements
with the insurer. Nothing in this subdivision shall limit the
commissioner's discretion to withdraw an insurer's eligibility.
(g) (1) Except as provided by paragraph (2), whenever the
commissioner has reasonable cause to believe, and determines after a
public hearing, that any insurer on the list established pursuant to
subdivision (f), (A) is in an unsound financial condition, (B) does
not meet the eligibility requirements under subdivisions (a) to (e),
inclusive, (C) has violated the laws of this state, or (D) without
justification, or with a frequency so as to indicate a general
business practice, delays the payment of just claims, the
commissioner may issue an order removing the insurer from the list.
Notice of hearing shall be served upon the insurer or its agent for
service of process stating the time and place of the hearing and the
conduct, condition, or ground upon which the commissioner would make
his or her order. The hearing shall occur not less than 20 days, nor
more than 30 days after notice is served upon the insurer or its
agent for service of process.
(2) If the commissioner determines that an insurer's immediate
removal from the list is necessary to protect the public or an
insured or prospective insured of the insurer, or, in the case of an
application by an insurer to be placed on the list which is being
denied by the commissioner, the commissioner may issue an order
pursuant to paragraph (1) without prior notice and hearing. At the
time an order is served pursuant to this paragraph to an insurer on
the list, the commissioner shall also issue and serve upon the
insurer a statement of the reasons that immediate removal is
necessary. Any order issued pursuant to this paragraph shall include
a notice stating the time and place of a hearing on the order, which
shall be not less than 20 days, nor more than 30 days after the
notice is served.
(3) Notwithstanding paragraphs (1) and (2), in any case where the
commissioner is basing a decision to remove an insurer from the list,
or deny an application to be placed on the list, on the failure of
the insurer or applicant to comply with, meet or maintain any of the
objective criteria established by this section, or by regulation
adopted pursuant to this section, the commissioner may so specify
this fact in the order, and no hearing shall be required to be held
on the order.
(4) Notwithstanding paragraphs (1) and (2), the commissioner may,
without prior notice or hearing, remove from the list established
pursuant to subdivision (f) any insurer that has failed or refused to
timely provide documents required by this section, or any
regulations adopted to implement this section. In the case of
removal pursuant to this paragraph, the commissioner shall notify all
surplus line brokers of the action.
(h) In addition to any other statements or reports required by
this chapter, the commissioner may also address to any licensee a
written request for full and complete information respecting the
financial stability, reputation and integrity of any nonadmitted
insurer with whom the licensee has dealt or proposes to deal in the
transaction of insurance business. The licensee so addressed shall
promptly furnish in written or printed form so much of the
information requested as he or she can produce together with a signed
statement identifying the same and giving reasons for omissions, if
any. After due examination of the information and accompanying
statement, the commissioner may, if he or she believes it to be in
the public interest, order the licensee in writing to place no
further insurance business on property located or operations
conducted within or on the lives of persons who are residents of this
state with the nonadmitted insurer on behalf of any person. Any
placement in the nonadmitted insurer made by a licensee after receipt
of that order is a violation of this chapter. The commissioner may
issue an order when documents submitted pursuant to subdivisions (c)
and (d) do not meet the criteria of subdivisions (a) to (e),
inclusive, or when the commissioner obtains documents on an insurer
and the insurer does not meet the criteria of subdivisions (a) to
(e), inclusive.
(i) The commissioner shall require, at least annually, the
submission of records and statements as are reasonably necessary to
ensure that the requirements of this section are maintained.
(j) The commissioner shall establish by regulation a schedule of
fees to cover costs of administering and enforcing this chapter.
(k) (1) Insurance may be placed on a limited basis with insurers
not on the list established pursuant to this section if all of the
following conditions are met:
(A) The use of multiple insurers is necessary to obtain coverage
for 100 percent of the risk.
(B) At least 80 percent of the risk is placed with admitted
insurers or insurers that appear on the list of eligible nonadmitted
insurers.
(C) The placing surplus line broker submits to the commissioner,
or his or her designee, copies of all documentation relied upon by
the surplus line broker to make the broker's determination that the
financial stability, reputation, and integrity of the unlisted
insurer or insurers, are adequate to safeguard the interest of the
insured under the policy. This documentation, and any other
documentation regarding the unlisted insurer requested by the
commissioner, shall be submitted no more than 30 days after the
insurance is placed with the unlisted insurer for the initial
placement by that broker with the particular unlisted insurer, and
annually thereafter for as long as the broker continues to make
placements with the unlisted insurer pursuant to this paragraph.
(D) The insured has aggregate annual premiums for all risks other
than workers' compensation or health coverage totaling no less than
one hundred thousand dollars ($100,000).
(2) Insurance may not be placed pursuant to paragraph (1) if any
of the following applies:
(A) The unlisted insurer has for any reason been objected to by
the commissioner pursuant to this section, removed from the list, or
denied placement on the list.
(B) The insurance includes coverage for employer-sponsored
medical, surgical, hospital, or other health or medical expense
benefits payable to the employee by the insurer.
(C) The insurance is mandatory under the laws of the federal
government, this state, or any political subdivision thereof, and
includes any portion of limits of coverage mandated by those laws.
(D) The insured is a multiple employer welfare arrangement, as
defined in Section 1002(40)(A) of Title 29 of the United States Code,
or any other arrangement among two or more employers that are not
under common ownership or control, which is established or maintained
for the primary purpose of providing insurance benefits to the
employees of two or more employers.
(E) Unlisted insurers represent a disproportionate portion of the
lower layers of the coverage.
(3) Nothing in this section is intended to alter any duties of a
surplus line broker pursuant to subdivision (b) of Section 1765 or
other laws of this state to safeguard the interests of the insured
under the policy in recommending or placing insurance with a
nonadmitted insurer.
(4) Placements authorized by this subdivision are intended to
provide sophisticated insurance purchasers with a means to obtain
necessary commercial insurance coverage from nonadmitted insurers not
listed by the commissioner in situations where it is not
commercially possible to fully obtain that coverage from either
admitted or listed insurers. This subdivision shall not be deemed to
permit surplus line brokers to place with nonadmitted insurers
common commercial or personal line coverages for insureds that can be
placed with insurers that are admitted or listed pursuant to this
section, whether the insured is an individual insured, or a group
created primarily for the purpose of purchasing insurance.
(l) As used in this section:
(1) "Certified" means an originally signed or sealed statement,
dated not more than 60 days before submission, made by a public
official or other person, attached to a copy of a document, that
attests that the copy is a true copy of the original, and that the
original is in the custody of the person making the statement.
(2) "Domiciliary jurisdiction" means the state, nation, or
subdivision thereof under the laws of which an insurer is
incorporated or otherwise organized.
(3) "Domiciliary state of the syndicate's trust" means the state
in which the syndicate's trust fund is principally maintained and
administered for the benefit of the syndicate's policyholders in the
United States.
(4) "IID" means the International Insurers Department.
(5) "Insurer" means (unless the context indicates otherwise)
"nonadmitted" insurers that are either "foreign" or "alien" insurers,
as those terms are defined in Sections 25, 27, and 1580, and
syndicates whose members consist of individual incorporated insurers
who are not engaged in any business other than underwriting as a
member of the group and individual unincorporated insurers, provided
all the members are subject to the same level of solvency regulation
and control by the group's domiciliary regulator. The term "insurer"
includes all nonadmitted insurers selling insurance to or through
purchasing groups as defined in the Liability Risk Retention Act of
1986 (15 U.S.C. Sec. 3901 et seq.) and the California Risk Retention
Act of 1990 (Chapter 1.5 (commencing with Section 125) of Part 1 of
Division 1), except insurers that are risk retention groups as
defined by those acts.
(6) "ISI" means Insurance Solvency International.
(7) "Licensee" means a surplus line broker as defined in Section
47.
(8) "NAIC" means the National Association of Insurance
Commissioners or its successor organization.
(9) "NAIIO" means the Nonadmitted Alien Insurer Information Office
of the NAIC or its successor office.
(10) "State" means any state of the United States; the District of
Columbia; a commonwealth, or a territory.
(11) "Verified" means a document or copy accompanied by an
originally signed statement, dated not more than 60 days before
submission, from a responsible executive or official who has
authority to provide the statement and knowledge whereof he or she
speaks, attesting either under oath before a notary public, or under
penalty of perjury under California law, that the assertions made in
the document are true.
(m) With respect to a nonadmitted insurer that is listed as an
authorized surplus line insurer as of December 31, 1994, pursuant to
Sections 2174.1 to 2174.14, inclusive, of Title 10 of the California
Code of Regulations, this section shall not be effective until the
subsequent expiration of the listing of that insurer. Nothing in the
bill that amended this section during the 1994 portion of the
1993-94 Regular Session is intended to repeal or imply there is not
authority to adopt, or to have adopted, or to continue in force, any
regulation, or part thereof, with respect to surplus line insurance
which is not clearly inconsistent with it.
SEC. 111. Section 1785.89 of the Insurance Code is amended and
renumbered to read:
1785.89.
1758.89. As used in this article, the following definitions
have the following meanings:
(a) (1) "License period" means all of that two-year period
beginning as described in subparagraph (A) or (B) of paragraph (2),
as applicable, and ending the second succeeding year on the last
calendar day of the month in which the initial license was issued.
(2) A license period shall be determined for each person as
follows:
(A) Upon initial licensing, the license period starts on the date
the license is issued.
(B) Subsequently, the license period starts the first day of the
month following the month in which the initial license was issued.
(3) A license is required to be renewed on or before the
expiration date of the license period.
(b) "Rental vehicle" or "vehicle" means a motor vehicle operated
by a driver who is not required to possess a commercial driver's
license to operate the motor vehicle and the motor vehicle is either
of the following:
(1) A private passenger motor vehicle, including a passenger van,
minivan, or sports utility vehicle.
(2) A cargo vehicle, including a cargo van, pickup truck, or truck
with a gross vehicle weight of less than 26,000 pounds.
(c) "Renter" means any person who obtains the use of a vehicle
from a rental car company under the terms of a rental agreement.
(d) "Rental car company" means any person in the business of
renting vehicles to the public.
(e) "Rental agreement" means any written agreement setting forth
the terms and conditions governing the use of a vehicle provided by
the rental car company.
(f) "Rental car agent" means a person or organization licensed
pursuant to this article to offer insurance in connection with and
incidental to rental car agreements on behalf of an insurer
authorized to write those types of insurance in this state.
(g) "Endorsee" means an unlicensed employee of a rental car agent
who meets the requirements of this article.
SEC. 112. Section 1874.81 of the Insurance Code is amended to
read:
1874.81. (a) The commissioner shall adopt emergency regulations
establishing the criteria that shall be used to award grants to
district attorneys under Section 1874.8. In addition to the
requirements of subdivision (b) of Section 1874.8, the criteria shall
include all of the following:
(1) Suggested ratios of investigators to attorneys that the
commissioner believes would result in an effective use of funds
provided through a grant, taking into consideration the enforcement
plans that the commissioner anticipates will be proposed by grantees.
(2) Administrative expenses that the commissioner deems allowable,
both as a percentage of a grant and by category of expense.
(3) Benchmarks suitable for measuring the attainment of the
objectives of a grant.
(4) Standard data and reporting formats that the commissioner
shall require all grantees to provide when reporting to the
commissioner about grants.
(5) Any other criteria deemed by the commissioner to be necessary
for the efficient and effective administration of this program,
including a commitment for full coordination and cooperation with all
organizations funded by this chapter.
(b) The regulations required by subdivision (a) shall be adopted 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), and the
adoption of those regulations shall be deemed an emergency and
necessary for the immediate preservation of the public peace, health,
and safety or general welfare.
(c) This section shall remain in effect only until January 1,
2007, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2007, deletes or extends
that date.
SEC. 113. Section 10123.68 of the Insurance Code is amended to
read:
10123.68. (a) When requested by an insured or contracting health
professional who is treating an insured, a disability insurer that
covers hospital, medical, or surgical expenses shall authorize a
second opinion by an appropriately qualified health care
professional. Reasons for a second opinion to be provided or
authorized shall include, but are not limited to, the following:
(1) If the insured questions the reasonableness or necessity of
recommended surgical procedures.
(2) If the insured questions a diagnosis or plan of care for a
condition that threatens loss of life, loss of limb, loss of bodily
function, or substantial impairment, including, but not limited to, a
serious chronic condition.
(3) If clinical indications are not clear or are complex and
confusing, a diagnosis is in doubt due to conflicting test results,
or the treating health professional is unable to diagnose the
condition and the insured requests an additional diagnosis.
(4) If the treatment plan in progress is not improving the medical
condition of the insured within an appropriate period of time given
the diagnosis and plan of care, and the insured requests a second
opinion regarding the diagnosis or continuance of the treatment.
(5) If the insured has attempted to follow the plan of care or
consulted with the initial provider concerning serious concerns about
the diagnosis or plan of care.
(b) For purposes of this section, an appropriately qualified
health care professional is a primary care physician or a specialist
who is acting within his or her scope of practice and who possesses a
clinical background, including training and expertise, related to
the particular illness, disease, condition or conditions associated
with the request for a second opinion.
(c) If an insured or participating health professional who is
treating an insured requests a second opinion pursuant to this
section, an authorization or denial shall be provided in an
expeditious manner. When the insured's condition is such that the
insured faces an imminent and serious threat to his or her health,
including, but not limited to, the potential loss of life, limb, or
other major bodily function, or lack of timeliness that would be
detrimental to the insured's life or health or could jeopardize the
insured's ability to regain maximum function, the second opinion
shall be rendered in a timely fashion appropriate to the nature of
the insured's condition, no not to
exceed 72 hours after the insurer's receipt of the request, whenever
possible. Each insurer shall file with the Department of Insurance
timelines for responding to requests for second opinions for cases
involving emergency needs, urgent care, and other requests by July 1,
2000, and within 30 days of any amendment to the timelines. The
timelines shall be made available to the public upon request.
(d) If an insurer approves a request by an insured for a second
opinion, the insured shall be responsible only for the costs of
applicable copayments that the insurer requires for similar
referrals.
(e) If the insured is requesting a second opinion about care from
his or her primary care physician, the second opinion shall be
provided by an appropriately qualified health care professional of
the insured's choice who is contracted with the insurer.
(f) If the insured is requesting a second opinion about care from
a specialist, the second opinion shall be provided by any provider of
the same or equivalent specialty, of the insured's choice, within
the insurer's provider network, if the insurance contract limits
second opinions to within a network.
(g) The insurer may limit second opinions to its network of
providers if the insurance contract limits the benefit to within a
network of providers and there is a participating provider who meets
the standard specified in subdivision (b). If there is no
participating provider who meets this standard, then the insurer
shall authorize a second opinion by an appropriately qualified health
professional outside of the insurer's provider network. In
approving a second opinion either inside or outside of the insurer's
provider network, the insurer shall take into account the ability of
the insured to travel to the provider.
(h) The insurer shall require the second opinion health
professional to provide the insured and the initial health
professional with a consultation report, including any recommended
procedures or tests that the second opinion health professional
believes appropriate. Nothing in this section shall be construed to
prevent the insurer from authorizing, based on its independent
determination, additional medical opinions concerning the medical
condition of an insured.
(i) If the insurer denies a request by an insured for a second
opinion, it shall notify the insured in writing of the reasons for
the denial and shall inform the insured of the right to dispute the
denial, and the procedures for exercising that right.
(j) If the insurance contract limits health care services to
within a network of providers, in order for coverage to be in force,
the insured shall obtain services only from a provider who is
participating in, or under contract with, the insurer pursuant to the
specific insurance contract under which the insured is entitled to
health care service benefits.
(k) This section shall not apply to any policy or contract of
disability insurance that covers hospital, medical, or surgical
expenses and that does not limit second opinions, subject to all
other terms and conditions of the contract.
(l) This section shall not apply to accident-only, specified
disease, or hospital indemnity health insurance policies.
SEC. 114. Section 10140 of the Insurance Code is amended and
renumbered to read:
10140.
10139.1. Nothing in this article applies to blanket loan
agreements in which the lender takes a security interest in the
borrower's assets to secure the loan.
SEC. 115. Section 10141 of the Insurance Code is amended and
renumbered to read:
10141.
10139.2. Any notice required by this article shall be
deemed to have been given if addressed to the recipient's last known
address and deposited, first class postage paid, in the United States
mail not less than five calendar days prior to the date on which
notice is required.
SEC. 116. Section 10145.3 of the Insurance Code is amended to
read:
10145.3. (a) Every disability insurer that covers hospital,
medical, or surgical benefits shall provide an external, independent
review process to examine the insurer's coverage decisions regarding
experimental or investigational therapies for individual insureds who
meet all of the following criteria:
(1) (A) The insured has a life-threatening or seriously
debilitating condition.
(B) For purposes of this section, "life-threatening" means
either or both of the following:
(i) Diseases or conditions where the likelihood of death is high
unless the course of the disease is interrupted.
(ii) Diseases or conditions with potentially fatal outcomes, where
the end point of clinical intervention is survival.
(C) For purposes of this section, "seriously debilitating" means
diseases or conditions that cause major irreversible morbidity.
(2) The insured's physician certifies that the insured has a
condition, as defined in paragraph (1), for which standard therapies
have not been effective in improving the condition of the insured,
for which standard therapies would not be medically appropriate for
the insured, or for which there is no more beneficial standard
therapy covered by the insurer than the therapy proposed pursuant to
paragraph (3).
(3) Either (A) the insured's contracting physician has recommended
a drug, device, procedure, or other therapy that the physician
certifies in writing is likely to be more beneficial to the insured
than any available standard therapies, or (B) the insured, or the
insured's physician who is a licensed, board-certified or
board-eligible physician qualified to practice in the area of
practice appropriate to treat the insured's condition, has requested
a therapy that, based on two documents from the medical and
scientific evidence, as defined in subdivision (d), is likely to be
more beneficial for the insured than any available standard therapy.
The physician certification pursuant to this subdivision shall
include a statement of the evidence relied upon by the physician in
certifying his or her recommendation. Nothing in this subdivision
shall be construed to require the insurer to pay for the services of
a noncontracting physician, provided pursuant to this subdivision,
that are not otherwise covered pursuant to the contract.
(4) The insured has been denied coverage by the insurer for a
drug, device, procedure, or other therapy recommended or requested
pursuant to paragraph (3), unless coverage for the specific therapy
has been excluded by the insurer's contract.
(5) The specific drug, device, procedure, or other therapy
recommended pursuant to paragraph (3) would be a covered service
except for the insurer's determination that the therapy is
experimental or under investigation.
(b) The insurer's decision to deny, delay, or modify experimental
or investigational therapies shall be subject to the independent
medical review process established under Article 12
5.55 (commencing with Section 1374.30) of
Chapter 2 2.2 of Division 2 of the
Health and Safety Code, except that in lieu of the information
specified in subdivision (i) of Section 1374.30, an independent
medical reviewer shall base his or her determination on relevant
medical and scientific evidence, including, but not limited to, the
medical and scientific evidence defined in subdivision (d).
(c) The independent medical review process shall also meet the
following criteria:
(1) The insurer shall notify eligible insureds in writing of the
opportunity to request the external independent review within five
business days of the decision to deny coverage.
(2) If the insured's physician determines that the proposed
therapy would be significantly less effective if not promptly
initiated, the analyses and recommendations of the experts on the
panel shall be rendered within seven days of the request for
expedited review. At the request of the expert, the deadline shall
be extended by up to three days for a delay in providing the
documents required. The timeframes specified in this paragraph shall
be in addition to any otherwise applicable timeframes contained in
subdivision (c) of Section 1374.33 of the Health and Safety Code.
(3) Each expert's analysis and recommendation shall be in written
form and state the reasons the requested therapy is or is not likely
to be more beneficial for the insured than any available standard
therapy, and the reasons that the expert recommends that the therapy
should or should not be covered by the insurer, citing the insured's
specific medical condition, the relevant documents, and the relevant
medical and scientific evidence, including, but not limited to, the
medical and scientific evidence as defined in subdivision (d), to
support the expert's recommendation.
(4) Coverage for the services required under this section shall be
provided subject to the terms and conditions generally applicable to
other benefits under the contract.
(d) For the purposes of subdivision (b), "medical and scientific
evidence" means the following sources:
(1) Peer-reviewed scientific studies published in or accepted for
publication by medical journals that meet nationally recognized
requirements for scientific manuscripts and that submit most of their
published articles for review by experts who are not part of the
editorial staff.
(2) Peer-reviewed literature, biomedical compendia and other
medical literature that meet the criteria of the National Institutes
of Health's National Library of Medicine for indexing in Index
Medicus, Excerpta Medicus (EMBASE), Medline and MEDLARS data base
Health Services Technology Assessment Research (HSTAR).
(3) Medical journals recognized by the Secretary of Health and
Human Services, under Section 1861(t)(2) of the Social Security Act.
(4) The following standard reference compendia: The American
Hospital Formulary Service-Drug Information, the American Medical
Association Drug Evaluation, the American Dental Association Accepted
Dental Therapeutics and The United States Pharmacopoeia-Drug
Information.
(5) Findings, studies, or research conducted by or under the
auspices of federal government agencies and nationally recognized
federal research institutes, including the Federal Agency for Health
Care Policy and Research, National Institutes of Health, National
Cancer Institute, National Academy of Sciences, Health Care Financing
Administration, Congressional Office of Technology Assessment, and
any national board recognized by the National Institutes of Health
for the purpose of evaluating the medical value of health services.
(6) Peer-reviewed abstracts accepted for presentation at major
medical association meetings.
(e) The independent review process established by this section
shall be required on and after January 1, 2001.
(f) This section shall become operative on January 1, 2001, and
then only if Assembly Bill 55 of the 1999-2000 Regular Session is
enacted.
SEC. 117. Section 10169 of the Insurance Code 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 policy of vision-only 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. 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 an 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 plan 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, effective , January 1, 2001, 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) No later than January 1, 2001, every 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 in cases where the insured believes
that health care services have been improperly denied, modified, or
delayed by the plan, or by one of its contracting providers.
(j) An insurer 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 an in-plan
provider for the diagnosis or treatment of the medical condition for
which the insured seeks independent review. The insurer shall
expedite access to an in-plan provider upon request of an insured.
The in-plan 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 an
out-of-plan provider. However, the insurer shall have no liability
for payment of services provided by an out-of-plan provider, except
as provided pursuant to subdivision (b) of Section 10169.4.
(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-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 out-of-plan 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.
(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 review organization
shall maintain the confidentiality of any information found by the
commissioner to be the proprietary information of the insurer.
SEC. 118. Section 10169.2 of the Insurance Code is amended to
read:
10169.2. (a) By January 1, 2001, the department shall contract
with one or more independent medical review organizations in the
state to conduct reviews for purposes of this article. The
independent medical review organizations shall be independent of any
insurer doing business in this state. The commissioner may establish
additional requirements, including conflict-of-interest standards,
consistent with the purposes of this article, that an organization
shall be required to meet in order to qualify for participation in
the Independent Medical Review System and to assist the department in
carrying out its responsibilities.
(b) The independent medical review organizations and the medical
professionals retained to conduct reviews shall be deemed to be
medical consultants for purposes of Section 43.98 of the Civil Code.
(c) The independent medical review organization, any experts it
designates to conduct a review, or any officer, director, or employee
of the independent medical review organization shall not have any
material professional, familial, or financial affiliation, as
determined by the commissioner, with any of the following:
(1) The insurer.
(2) Any officer, director, or employee of the insurer.
(3) A physician, the physician's medical group, or the independent
practice association involved in the health care service in dispute.
(4) The facility or institution at which either the proposed
health care service, or the alternative service, if any, recommended
by the insurer, would be provided.
(5) The development or manufacture of the principal drug, device,
procedure, or other therapy proposed by the insured whose treatment
is under review, or the alternative therapy, if any, recommended by
the insurer.
(6) The insured or the insured's immediate family.
(d) In order to contract with the department for purposes of this
article, an independent medical review organization shall meet all of
the following requirements:
(1) The organization shall not be an affiliate or a subsidiary of,
nor in any way be owned or controlled by, an insurer or a trade
association of insurers. A board member, director, officer, or
employee of the independent medical review organization shall not
serve as a board member, director, or employee of an insurer. A
board member, director, or officer of an insurer or a trade
association of insurers shall not serve as a board member, director,
officer, or employee of an independent medical review organization.
(2) The organization shall submit to the department the following
information upon initial application to contract for purposes of this
article and, except as otherwise provided, annually thereafter upon
any change to any of the following information:
(A) The names of all stockholders and owners of more than 5
percent of any stock or options, if a publicly held organization.
(B) The names of all holders of bonds or notes in excess of one
hundred thousand dollars ($100,000), if any.
(C) The names of all corporations and organizations that the
independent medical review organization controls or is affiliated
with, and the nature and extent of any ownership or control,
including the affiliated organization's type of business.
(D) The names and biographical sketches of all directors,
officers, and executives of the independent medical review
organization, as well as a statement regarding any past or present
relationships the directors, officers, and executives may have with
any health care service plan, disability insurer, managed care
organization, provider group, or board or committee of a plan,
managed care organization, or provider group.
(E) (i) The percentage of revenue the independent medical review
organization receives from expert reviews, including, but not limited
to, external medical reviews, quality assurance reviews, and
utilization reviews.
(ii) The names of any insurer or provider group for which the
independent medical review organization provides review services,
including, but not limited to, utilization review, quality assurance
review, and external medical review. Any change in this information
shall be reported to the department within five business days of the
change.
(F) A description of the review process including, but not limited
to, the method of selecting expert reviewers and matching the expert
reviewers to specific cases.
(G) A description of the system the independent medical review
organization uses to identify and recruit medical professionals to
review treatment and treatment recommendation decisions, the number
of medical professionals credentialed, and the types of cases and
areas of expertise that the medical professionals are credentialed to
review.
(H) A description of how the independent medical review
organization ensures compliance with the conflict-of-interest
provisions of this section.
(3) The organization shall demonstrate that it has a quality
assurance mechanism in place that does the following:
(A) Ensures that the medical professionals retained are
appropriately credentialed and privileged.
(B) Ensures that the reviews provided by the medical professionals
are timely, clear, and credible, and that reviews are monitored for
quality on an ongoing basis.
(C) Ensures that the method of selecting medical professionals for
individual cases achieves a fair and impartial panel of medical
professionals who are qualified to render recommendations regarding
the clinical conditions and the medical necessity of treatments or
therapies in question.
(D) Ensures the confidentiality of medical records and the review
materials, consistent with the requirements of this section and
applicable state and federal law.
(E) Ensures the independence of the medical professionals retained
to perform the reviews through conflict-of-interest policies and
prohibitions, and ensures adequate screening for
conflicts-of-interest, pursuant to paragraph (5).
(4) Medical professionals selected by independent medical review
organizations to review medical treatment decisions shall be
physicians or other appropriate providers who meet the following
minimum requirements:
(A) The medical professional shall be a clinician knowledgeable in
the treatment of the insured's medical condition, knowledgeable
about the proposed treatment, and familiar with guidelines and
protocols in the area of treatment under review.
(B) Notwithstanding any other provision of law, the medical
professional shall hold a nonrestricted license in the
any state of the United States, and for physicians, a
current certification by a recognized American medical specialty
board in the area or areas appropriate to the condition or treatment
under review. The independent medical review organization shall give
preference to the use of a physician licensed in California as the
reviewer, except when training and experience with the issue under
review reasonably requires the use of an out-of-state reviewer.
(C) The medical professional shall have no history of disciplinary
action or sanctions, including, but not limited to, loss of staff
privileges or participation
restrictions, taken or pending by any hospital, government,
or regulatory body.
(5) Neither the expert reviewer, nor the independent medical
review organization, shall have any material professional, material
familial, or material financial affiliation with any of the
following:
(A) The insurer or a provider group of the insurer, except that an
academic medical center under contract to the insurer to provide
services to insureds may qualify as an independent medical review
organization provided it will not provide the service and provided
the center is not the developer or manufacturer of the proposed
treatment.
(B) Any officer, director, or management employee of the insurer.
(C) The physician, the physician's medical group, or the
independent practice association (IPA) proposing the treatment.
(D) The institution at which the treatment would be provided.
(E) The development or manufacture of the treatment proposed for
the insured whose condition is under review.
(F) The insured or the insured's immediate family.
(6) For purposes of this section, the following terms shall have
the following meanings:
(A) "Material familial affiliation" means any relationship as a
spouse, child, parent, sibling, spouse's parent, or child's spouse.
(B) "Material professional affiliation" means any
physician-patient relationship, any partnership or employment
relationship, a shareholder or similar ownership interest in a
professional corporation, or any independent contractor arrangement
that constitutes a material financial affiliation with any expert or
any officer or director of the independent medical review
organization. "Material professional affiliation" does not include
affiliations that are limited to staff privileges at a health
facility.
(C) "Material financial affiliation" means any financial interest
of more than 5 percent of total annual revenue or total annual income
of an independent medical review organization or individual to which
this subdivision applies. "Material financial affiliation" does not
include payment by the insurer to the independent medical review
organization for the services required by this section, nor does
"material financial affiliation" include an expert's participation as
a contracting provider where the expert is affiliated with an
academic medical center or a National Cancer Institute-designated
clinical cancer research center.
(e) The department shall provide, upon the request of any
interested person, a copy of all nonproprietary information, as
determined by the commissioner, filed with it by an independent
medical review organization seeking to contract under this article.
The department may charge a nominal fee to the interested person for
photocopying the requested information.
SEC. 119. Section 10176.61 of the Insurance Code is amended to
read:
10176.61. (a) Every insurer issuing, amending, delivering, or
renewing a disability insurance policy on or after January 1, 2000,
that covers hospital, medical, or surgical expenses shall include
coverage for the following equipment and supplies for the management
and treatment of insulin-using diabetes, non-insulin-using diabetes,
and gestational diabetes as medically necessary , even if
the items are available without a prescription:
(1) Blood glucose monitors and blood glucose testing strips.
(2) Blood glucose monitors designed to assist the visually
impaired.
(3) Insulin pumps and all related necessary supplies.
(4) Ketone urine testing strips.
(5) Lancets and lancet puncture devices.
(6) Pen delivery systems for the administration of insulin.
(7) Podiatric devices to prevent or treat diabetes-related
complications.
(8) Insulin syringes.
(9) Visual aids, excluding eyewear, to assist the visually
impaired with proper dosing of insulin.
(b) Every insurer issuing, amending, delivering, or renewing a
disability insurance policy on or after January 1, 2000, that covers
prescription benefits shall include coverage for the following
prescription items if the items are determined to be medically
necessary:
(1) Insulin.
(2) Prescriptive medications for the treatment of diabetes.
(3) Glucagon.
(c) The coinsurances and deductibles for the benefits specified in
subdivisions (a) and (b) shall not exceed those established for
similar benefits within the given policy.
(d) Every insurer shall provide coverage for diabetes outpatient
self-management training, education, and medical nutrition therapy
necessary to enable an insured to properly use the equipment,
supplies, and medications set forth in subdivisions (a) and (b) and
additional diabetes outpatient self-management training, education,
and medical nutrition therapy upon the direction or prescription of
those services by the insured's participating physician. If an
insurer delegates outpatient self-management training to contracting
providers, the insurer shall require contracting providers to ensure
that diabetes outpatient self-management training, education, and
medical nutrition therapy are provided by appropriately licensed or
registered health care professionals.
(e) The diabetes outpatient self-management training, education,
and medical nutrition therapy services identified in subdivision (d)
shall be provided by appropriately licensed or registered health care
professionals as prescribed by a health care professional legally
authorized to prescribe the services.
(f) The coinsurances and deductibles for the benefits specified in
subdivision (d) shall not exceed those established for physician
office visits by the insurer.
(g) Every disability insurer governed by this section shall
disclose the benefits covered pursuant to this section in the insurer'
s evidence of coverage and disclosure forms.
(h) An insurer may not reduce or eliminate coverage as a result of
the requirements of this section.
(i) This section does not apply to vision-only, dental-only,
accident-only, specified disease, hospital indemnity, Medicare
supplement, long-term care, or disability income insurance, except
that for accident-only, specified disease, and hospital indemnity
insurance coverage, benefits under this section only apply to the
extent that the benefits are covered under the general terms and
conditions that apply to all other benefits under the policy.
Nothing in this section may be construed as imposing a new benefit
mandate on accident-only, specified disease, or hospital indemnity
insurance.
SEC. 120. Section 11629.92 of the Insurance Code is amended to
read:
11629.92. (a) The annual rate offered initially under the pilot
program for the low-cost automobile insurance policy, until the time
that the rate is adjusted, shall be four hundred ten dollars ($410).
A surcharge of 25 percent of the base rate shall be added if the
named insured is an unmarried male between the ages of 19 and 24,
inclusive, or if an unmarried male between the ages 19 and 24,
inclusive, resides in the household of the named insured and will be
a driver of the automobile covered under the low-cost policy.
(b) In addition to existing premium installment options offered by
The the California Automobile Assigned
Risk Plan under Article 4 (commencing with Section 11620), the plan
shall also make available to insureds under the pilot program, a
premium installment option pursuant to which an insured is required
to pay one hundred dollars ($100) upon issuance of the low-cost
policy, followed thereafter by six other payments. No other premium
financing arrangement shall be permitted.
(c) Rates for policies issued under the pilot program shall be
reviewed and revised as follows:
(1) Rates shall be sufficient to cover (A) losses incurred under
policies issued under the pilot program, and (B) expenses, including,
but not limited to, all reasonable and necessary expenses such as
the costs of administration, underwriting, taxes, commissions, and
claims adjusting, that are incurred due to participation in this
pilot program. For purposes of this paragraph, "losses incurred"
means claims paid, claims incurred and reported, and claims incurred
but not yet reported. In assessing loss reserves, the commissioner
shall only allow loss reserves that are estimated from actual losses
in the pilot program or comparable data by a licensed statistical
agent, as adjusted to reflect coverage provided in this pilot
program.
(2) Rates shall be set so as to result in no projected subsidy of
the pilot program by those policyholders of insurers issuing policies
under the pilot program who are not participants in the pilot
program.
(3) Rates shall be set with respect to this pilot program, and the
pilot program established in Article 5.5 (commencing with Section
11629.7) of the 1999-2000 Regular Session , so as
to result in no projected subsidy by policyholders in one pilot
program of policyholders in the other pilot program.
(4) Commencing on January 1, 2001, and annually thereafter, the
California Automobile Assigned Risk Plan shall submit the loss and
expense data, together with a proposed rate for the low-cost
automobile policy for the pilot program, to the commissioner for
approval in accordance with this chapter. The commissioner shall act
on the recommendation within 90 days.
SEC. 121. Section 12698 of the Insurance Code is amended and
renumbered to read:
12698.
12968. Every pleading issued by the commissioner to
initiate a formal enforcement action against a licensee under this
code, and every order issued by the commissioner or a court of
competent jurisdiction or other document that resolves a formal
enforcement action, shall be displayed on the department's internet
web site, if the document is a public record that is not exempt from
disclosure to the public pursuant to the California Public Records
Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1 of the Government Code).
SEC. 122. Section 12967 of the Insurance Code is amended to read:
12967. (a) (1) The department shall develop and implement a
coordinated approach to gather, review, and analyze the archives of
insurers and other archives and records, using onsite teams and the
oversight committee, to provide for research and investigation into
insurance policies, unpaid insurance claims, and related matters of
victims of the Holocaust or of the Nazi-controlled German government
or its allies, and the beneficiaries and heirs of those victims, and
for losses arising from the activities of the Nazi-controlled German
government or its allies for insurance policies issued before and
during World War II by insurers who have affiliates or subsidiaries
authorized to do business in California. Information compiled shall
be placed in a centralized data base for the retention of policy and
claimant data, and the data shall be used to implement this section
and Section 790.15.
(2) The department has an affirmative duty to play an independent
role in representing the interests of Holocaust survivors where
necessary, including the duty to carry out research, investigations,
and advocacy. The department shall cooperate with, participate in,
promote coordination with, and to the extent feasible and consistent
with the purposes of this section, work jointly with the National
Association of Insurance Commissioners and the international
commission on Holocaust survivor claims or any other entity involved
in the documentation, resolution, settlement, or distribution of
insurance claims, including the documentation of unpaid claims and
the distribution of proceeds, and the establishment and maintenance
of a data base to contain information relevant to claimants and
documents and historical information. The department shall work to
recover information and records that will strengthen the claims of
California residents.
(3) The department shall employ insurance archaeologists,
economists, attorneys, accountants, and other specialists, in this
country and in Europe, to implement this section. The department
shall work jointly with the National Association of Insurance
Commissioners and other organizations for this purpose. The
department's cooperation with other states shall be for the purpose
of advancing survivors' claims while avoiding duplication of efforts,
and shall be dependent upon contributions by other states.
(4) In order to assure that Holocaust survivors receive the most
aggressive and independent representation possible in pursuit of
their historic claims, in contracting with accounting firms, law
firms, economists, or others to implement this section, the
department shall, to the maximum extent possible, avoid any potential
or actual conflict of interest by doing the following:
(A) Seek and give preference to firms that are entirely free of
any associations with firms representing insurers and nations from
which Holocaust survivors are seeking just treatment of their claims.
(B) If the department finds that it is necessary to
contract with a firm or firms that have conflicts or potential
conflicts of interest, those conflicts or potential conflicts of
interest shall be disclosed to the commissioner, and the following
requirements shall apply:
(i) The contract shall contain a provision that expresses a formal
commitment on the part of the firm to aggressively pursue a maximum
just settlement for Holocaust survivors and their families without
regard to any adverse impacts on insurers, affiliates of insurers,
nations, or others that may have employed the firm or affiliates of
the firm that is contracting with the commissioner to assist in
carrying out the commissioner's responsibilities under this section.
(ii) If any conflict or potential conflict exists between the
firm, or an affiliate of the firm, and an insurer, an affiliate of an
insurer, a nation or others directly or indirectly involving
Holocaust claims, the firm shall disclose both the fact of the
conflict or potential conflict, and all relevant information
describing the nature of the conflict or potential conflict.
(iii) If a conflict or potential conflict exists between the firm,
or an affiliate of the firm, and an insurer, an affiliate of an
insurer, a nation, or others that does not directly or indirectly
involve Holocaust claims, the firm shall disclose the fact of the
conflict or potential conflict and identify the source of the
conflict or potential conflict, but need not describe the particular
circumstances or facts that create the conflict or potential
conflict.
(C) The department may take whatever special measures it deems
necessary to avoid either the appearance or the reality of conflicts
that may undermine public confidence in the integrity of the effort
to secure justice for Holocaust survivors.
(b) The funding of the activities provided for by this section for
the 1998-99 fiscal year shall be from funds transferred pursuant to
subdivision (b) of Section 1523 of the Code of Civil Procedure, which
funds are hereby appropriated to the commissioner for that purpose.
The commissioner shall seek reimbursement of those funds as provided
in subdivision (c).
Funding for subsequent fiscal years shall be subject to the Budget
Act and based on a plan submitted by the commissioner to the
Legislature outlining the plan for reimbursement of expenses of the
department by affected insurers.
Funds made available to implement this section shall be used to
develop and implement a coordinated approach to gather, review, and
analyze the archives of affected insurance groups, and other archives
and records, using onsite teams and the oversight committee. These
funds shall also be used to fund the necessary expenses of the
Holocaust Era Insurance Claims Oversight Committee established in
subdivision (d). The information compiled shall be placed in a
centralized data base for the retention of policy and claimant data,
and that data shall be used by the department to implement this
section.
(c) (1) Any funds recovered by the department for the purpose of
reimbursing the state for costs associated with investigation and
enforcement actions under this section shall not be deposited in the
Insurance Fund, but instead shall be delivered to the Controller for
deposit into the General Fund.
(2) To the maximum extent possible, the department shall seek
reimbursement for its costs incurred in implementing this section,
including funds transferred pursuant to subdivision (b) of Section
1523 of the Code of Civil Procedure, from any settlements reached
with affected insurers.
(d) (1) There is established a seven-member Holocaust Era
Insurance Claims Oversight Committee, that shall be known as the
oversight committee, and whose members shall be appointed as follows:
(A) Four members shall be appointed by the Governor.
(B) One member shall be appointed by the President pro Tempore of
the Senate.
(C) One member shall be appointed by the Speaker of the Assembly.
(D) One member shall be appointed by the Commissioner of
Insurance.
(2) The Governor shall designate one of his or her appointees as
the chairperson of the committee.
(3) Each member of the committee shall serve at the pleasure of
the authority that appointed him or her to serve on the committee.
(4) The oversight committee shall be composed of qualified
individuals with experience in Holocaust claims cases, similar
investigations, archival research, and international law. The
oversight committee shall also include Holocaust survivors. No
member of the oversight committee shall have a potential or actual
conflict of interest, or shall be employed by a person who has a
potential or actual conflict of interest.
(5) The appointments shall be expedited because of the urgency due
to survivors' needs.
(6) The oversight committee shall have the following authority and
shall do all of the following:
(A) Review and make recommendations concerning any insurance
settlement negotiation or offer relating to a Holocaust era insurance
claim in which the department is involved.
(B) Review and make recommendations to the commissioner on the
priorities for expenditure of funds and use of resources by the
department for Holocaust era insurance claims related activities.
(C) Recommend whether a proposed settlement of a Holocaust era
insurance claim submitted to the committee pursuant to paragraph (7)
is equitable before the department finalizes the settlement
agreement.
(7) The commissioner, in the event of a proposed settlement of any
policy or group of policies relating to Holocaust era insurance
claims, shall confer with the committee prior to the department
finalizing the settlement agreement. The department may not finalize
a proposed settlement of a Holocaust era insurance claim unless the
committee, pursuant to subparagraph (C) of paragraph (6), recommends
that the proposed settlement is equitable.
(e) The department shall report its progress in implementing this
section and its participation in the identification and resolution of
insurance claims of Holocaust survivors and their beneficiaries and
heirs. The report shall also include an overview of current and
anticipated expenditures in implementing this section. The
department shall make this report biannually to the insurance and
budget committees of the Legislature.
SEC. 123. Section 1174.5 of the Labor Code is amended to read:
1174.5. (a) Any person employing labor who
willfully fails to maintain the records required by subdivision (c)
of Section 1174 or accurate and complete records required by
subdivision (d) of Section 1174 , or to allow any member of the
commission or employees of the division to inspect records pursuant
to subdivision (b) of Section 1174, shall be subject to a civil
penalty of five hundred dollars ($500).
SEC. 124. Section 1777.5 of the Labor Code is amended to read:
1777.5. (a) Nothing in this chapter shall prevent the employment
of properly registered apprentices upon public works.
(b) Every apprentice employed upon public works shall be paid the
prevailing rate of per diem wages for apprentices in the trade to
which he or she is registered and shall be employed only at the work
of the craft or trade to which he or she is registered.
(c) Only apprentices, as defined in Section 3077, who are in
training under apprenticeship standards that have been approved by
the Chief of the Division of Apprenticeship Standards and who are
parties to written apprentice agreements under Chapter 4 (commencing
with Section 3070) of Division 3 are eligible to be employed at the
apprentice wage rate on public works. The employment and training of
each apprentice shall be in accordance with either (1) the
apprenticeship standards and apprentice agreements under which he or
she is training or (2) the rules and regulations of the California
Apprenticeship Council.
(d) When the contractor to whom the contract is awarded by the
state or any political subdivision, in performing any of the work
under the contract, employs workers in any apprenticeable craft or
trade, the contractor shall employ apprentices in at least the ratio
set forth in this section and may apply to any apprenticeship program
in the craft or trade that can provide apprentices to the site of
the public work for a certificate approving the contractor under the
apprenticeship standards for the employment and training of
apprentices in the area or industry affected. However, approval or
denial of the apprenticeship program shall be subject to review by
the Administrator of Apprenticeship. The apprenticeship program or
programs, upon approving the contractor, shall arrange for the
dispatch of apprentices to the contractor. A contractor covered by
an apprenticeship program's standards shall not be required to submit
any additional application in order to include additional public
works contracts under that the program.
"Apprenticeable craft or trade," as used in this section, means a
craft or trade determined as an apprenticeable occupation in
accordance with rules and regulations prescribed by the California
Apprenticeship Council. As used in this section, "contractor"
includes any subcontractor under a contractor who performs any public
works not excluded by subdivision (o).
(e) Prior to commencing work on a contract for public works, every
contractor shall submit contract award information to an applicable
apprenticeship program that can supply apprentices to the site of the
public work. The information submitted shall include an estimate of
journeyman hours to be performed under the contract, the number of
apprentices proposed to be employed, and the approximate dates the
apprentices would be employed. A copy of this information shall also
be submitted to the awarding body if requested by the awarding body.
Within 60 days after concluding work on the contract, each
contractor and subcontractor shall submit to the awarding body, if
requested, and to the apprenticeship program a verified statement of
the journeyman and apprentice hours performed on the contract. The
information under this subdivision shall be public. The
apprenticeship programs shall retain this information for 12 months.
(f) The apprenticeship program that can supply apprentices to the
area of the site of the public work shall ensure equal employment and
affirmative action in apprenticeship for women and minorities.
(g) The ratio of work performed by apprentices to journeymen
employed in a particular craft or trade on the public work may be no
higher than the ratio stipulated in the apprenticeship standards
under which the apprenticeship program operates where the contractor
agrees to be bound by those standards, but, except as otherwise
provided in this section, in no case shall the ratio be less than one
hour of apprentice work for every five hours of journeyman work.
(h) This ratio of apprentice work to journeyman work shall apply
during any day or portion of a day when any journeyman is employed at
the jobsite and shall be computed on the basis of the hours worked
during the day by journeymen so employed. Any work performed by a
journeyman in excess of eight hours per day or 40 hours per week
shall not be used to calculate the ratio. The contractor shall
employ apprentices for the number of hours computed as above before
the end of the contract or, in the case of a subcontractor, before
the end of the subcontract. However, the contractor shall endeavor,
to the greatest extent possible, to employ apprentices during the
same time period that the journeymen in the same craft or trade are
employed at the jobsite. Where an hourly apprenticeship ratio is not
feasible for a particular craft or trade, the Division of
Apprenticeship Standards, upon application of an apprenticeship
program, may order a minimum ratio of not less than one apprentice
for each five journeymen in a craft or trade classification.
(i) A contractor covered by this section that has agreed to be
covered by an apprenticeship program's standards upon the issuance of
the approval certificate, or that has been previously approved for
an apprenticeship program in the craft or trade, shall employ the
number of apprentices or the ratio of apprentices to journeymen
stipulated in the applicable apprenticeship standards, but in no
event less than the 1-to-5 ratio required by subdivision (g).
(j) Upon proper showing by a contractor that he or she employs
apprentices in a particular craft or trade in the state on all of his
or her contracts on an annual average of not less than one hour of
apprentice work for every five hours of labor performed by
journeymen, the Division of Apprenticeship Standards may grant a
certificate exempting the contractor from the 1-to-5 hourly ratio, as
set forth in this section for that craft or trade.
(k) An apprenticeship program has the discretion to grant to a
participating contractor or contractor association a certificate,
which shall be subject to the approval of the Administrator of
Apprenticeship, exempting the contractor from the 1-to-5 ratio set
forth in this section when it finds that any one of the following
conditions is met:
(1) Unemployment for the previous three-month period in the area
exceeds an average of 15 percent.
(2) The number of apprentices in training in the area exceeds a
ratio of 1 to 5.
(3) There is a showing that the apprenticeable craft or trade is
replacing at least one-thirtieth of its journeymen annually through
apprenticeship training, either on a statewide basis or on a local
basis.
(4) Assignment of an apprentice to any work performed
under a public works contract would create a condition that would
jeopardize his or her life or the life, safety, or property of fellow
employees or the public at large, or the specific task to which the
apprentice is to be assigned is of a nature that training cannot be
provided by a journeyman.
(l) When an exemption is granted pursuant to subdivision (k) to an
organization that represents contractors in a specific trade from
the 1-to-5 ratio on a local or statewide basis, the member
contractors will not be required to submit individual applications
for approval to local joint apprenticeship committees, if they are
already covered by the local apprenticeship standards.
(m) A contractor to whom a contract is awarded, who, in performing
any of the work under the contract, employs journeymen or
apprentices in any apprenticeable craft or trade shall contribute to
the California Apprenticeship Council the same amount that the
director determines is the prevailing amount of apprenticeship
training contributions in the area of the public works site. A
contractor may take as a credit for payments to the council any
amounts paid by the contractor to an approved apprenticeship program
that can supply apprentices to the site of the public works project.
The contractor may add the amount of the contributions in computing
his or her bid for the contract. At the end of each fiscal year the
California Apprenticeship Council shall make grants to each
apprenticeship program in proportion to the number of hours of
training provided by the program for which the program did not
receive contributions, weighted by the regular rate of contribution
for the program. These grants shall be made from funds collected by
the California Apprenticeship Council during the fiscal year pursuant
to this subdivision from contractors that employed registered
apprentices but did not contribute to an approved apprenticeship
program. All these funds received during the fiscal year shall be
distributed as grants.
(n) The body awarding the contract shall cause to be inserted in
the contract stipulations to effectuate this section. The
stipulations shall fix the responsibility of compliance with this
section for all apprenticeable occupations with the prime contractor.
(o) This section does not apply to contracts of general
contractors or to contracts of specialty contractors not bidding for
work through a general or prime contractor when the contracts of
general contractors or those specialty contractors involve less than
thirty thousand dollars ($30,000) or 20 working days.
(p) All decisions of an apprenticeship program under this section
are subject to Section 3081.
SEC. 125. Section 1777.7 of the Labor Code is amended to read:
1777.7. (a) A contractor or subcontractor that knowingly violates
Section 1777.5 shall forfeit as a civil penalty an amount not
exceeding one hundred dollars ($100) for each full calendar day of
noncompliance. The amount of this penalty shall be based on
consideration whether the violation was a good faith mistake due to
inadvertence. A contractor or subcontractor that knowingly commits a
second or subsequent violation of Section 1777.5 within a three-year
period, where the noncompliance results in apprenticeship training
not being provided as required by this chapter, shall forfeit as a
civil penalty the sum of not more than three hundred dollars ($300)
for each full calendar day of noncompliance. Notwithstanding Section
1727, upon receipt of a determination that a civil penalty has been
imposed, the awarding body shall withhold the amount of the civil
penalty from contract progress payments then due or to become due.
(b) (1) In the event a contractor or subcontractor is determined
by the Administrator of Apprenticeship to have knowingly violated any
provision of Section 1777.5, the Administrator shall deny to the
contractor or subcontractor, both individually and in the name of the
business entity under which the contractor or subcontractor is doing
business, the right to bid on or receive any public works contract
for a period of up to one year for the first violation and for a
period of up to three years for a second or subsequent violation.
Each period of debarment shall run from the date the determination of
noncompliance by the Administrator of Apprenticeship.
(2) An affected contractor or subcontractor may obtain a review of
the debarment or civil penalty by transmitting a written request to
the office of the Administrator within 30 days after service of the
order of debarment or civil penalty. If the Administrator receives
no request for review within 30 days after service, the order of
debarment or civil penalty shall become final for the period
authorized.
(3) Within 20 days of the timely receipt of a request for hearing,
the Administrator shall provide the contractor or subcontractor the
opportunity to review any evidence the Administrator may offer at the
hearing. The Administrator shall also promptly disclose to the
contractor or subcontractor any nonprivileged documents obtained
after the 20-day time limit.
(4) Within 90 days of the timely receipt of the a
request for hearing, a hearing shall be commenced before an
impartial hearing officer designated by the Administrator and
possessing the qualifications of an administrative law judge pursuant
to Section 11502 of the Government Code. The contractor or
subcontractor shall have the burden of showing compliance with
Section 1777.5. The decision to debar shall be reviewed by a hearing
officer or court only for abuse of discretion.
(5) Within 45 days of the conclusion of the hearing, the hearing
officer shall issue a written decision affirming, modifying, or
dismissing the debarment or civil penalty. The decision shall
contain a notice of findings, findings, and an order. This decision
shall be deemed the final decision of the Administrator and shall be
served on all parties and the awarding body pursuant to Section 1013
of the Code of Civil Procedure by first-class mail at the last known
address of the party on file with the Administrator. Within 15 days
of issuance of the decision, the hearing officer may reconsider or
modify the decision to correct an error, except that a clerical error
may be corrected at any time.
(6) An affected contractor or subcontractor may obtain review of
the final decision of the Administrator by filing a petition for a
writ of mandate to the appropriate superior court pursuant to Section
1094.5 of the Code of Civil Procedure within 45 days after service
of the final decision to debar or to assess a civil penalty. If no
petition for a writ of mandate is filed within 45 days after service
of the final decision, the order shall become final. If the
petitioner claims that the findings are not supported by the
evidence, abuse of discretion is established if the court determines
that the findings are not supported by substantial evidence in light
of the entire record.
(7) The Administrator may file a certified copy of a final order
with the clerk of the superior court in any county in which the
affected contractor or subcontractor has property or has or had a
place of business.
(c) If a subcontractor is found to have violated Section 1777.5,
the prime contractor of the project is not liable for any penalties
under subdivision (a), unless the prime contractor had knowledge of
the subcontractor's failure to comply with the provisions of Section
1777.5 or unless the prime contractor fails to comply with any of the
following requirements:
(1) The contract executed between the contractor and the
subcontractor or the performance of work on the public works project
shall include a copy of the provisions of Sections 1771, 1775, 1776,
1777.5, 1813, and 1815.
(2) The contractor shall continually monitor a subcontractor's use
of apprentices required to be employed on the public works project
pursuant to subdivision (d) of Section 1777.5, including, but not
limited to, periodic review of the certified payroll of the
subcontractor.
(3) Upon becoming aware of a failure of the subcontractor to
employ the required number of apprentices, the contractor shall take
corrective action, including, but not limited to, retaining funds due
the subcontractor for work performed on the public works project
until the failure is corrected.
(4) Prior to making the final payment to the subcontractor for
work performed on the public works project, the contractor shall
obtain an affidavit signed under penalty of perjury from the
subcontractor that the subcontractor has employed the required number
of apprentices on the public works project.
(d) In lieu of the penalty provided for in subdivision (a) or (b),
the director may for a first-time violation and with the concurrence
of the apprenticeship program, order the contractor or subcontractor
to provide apprentice employment equivalent to the work hours that
would have been provided for apprentices during the period of
noncompliance.
(e) Any funds withheld by the awarding body pursuant to this
section shall be deposited in the General Fund if the awarding body
is a state entity, or in the equivalent fund of an awarding body if
the awarding body is an entity other than the state.
(f) The interpretation and enforcement of Section 1777.5 and this
section shall be in accordance with the rules and procedures of the
California Apprenticeship Council.
SEC. 126. Section 3762 of the Labor Code is amended to read:
3762. (a) Except as provided in subdivisions (b) and (c), the
insurer shall discuss all elements of the claim file that affect the
employer's premium with the employer, and shall supply copies of the
documents that affect the premium at the employer's expense during
reasonable business hours.
(b) The right provided by this section shall not extend to any
document that the insurer is prohibited from disclosing to the
employer under the attorney-client privilege, any other applicable
privilege, or statutory prohibition upon disclosure, or under Section
1877.4 of the Insurance Code.
(c) An insurer, third-party administrator retained by a
self-insured employer pursuant to Section 3702.1 to administer the
employer's workers' compensation claims, and those employees and
agents specified by a self-insured employer to administer the
employer's workers' compensation claims, are prohibited from
disclosing or causing to be disclosed to an employer, any medical
information, as defined in subdivision (b) of
Section 56.05 of the Civil Code, about an employee who has filed a
workers' compensation claim, except as follows:
(1) If the diagnosis of the injury for which workers' compensation
is claimed would affect the employer's premium, then an insurer may
disclose that diagnosis pursuant to subdivision (a).
(2) Medical information regarding the injury for which workers'
compensation is claimed that is necessary for the employer to have in
order for the employer to modify the employee's work duties.
SEC. 127. Section 6394.5 of the Labor Code is amended to read:
6394.5. (a) The department shall adopt an electronic format for
the electronic filing of an MSDS with the department and shall
implement a system, by January 1, 2002, enabling electronic MSDS
filings for purposes of complying with this section using the form.
The department shall evaluate the use and effectiveness of the
electronic format on relevant parties, including, but not limited to,
the preparer of an MSDS, affected employers, and affected employees.
The system shall employ electronic MSDS format, transmission,
protocol, and authentication techniques that are, in the estimation
of the department, compatible with those techniques developed and
demonstrated by the Secretary for Environmental Protection pursuant
to Part 2 (commencing with Section 71050) of Division 34 of the
Public Resources Code.
(b) This section may not be implemented, and no information
technology-related preparatory work may be undertaken in connection
with this act , before July 1, 2001, unless otherwise
authorized by the Department of Information Technology pursuant to
Executive Order D-3-99.
(c) This section shall remain in effect only until January 1,
2003, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2003, deletes or extends
that date.
SEC. 128. Section 6429 of the Labor Code is amended to read:
6429. (a) Any employer who willfully or repeatedly
violates any occupational safety or health standard, order, or
special order, or Section 25910 of the Health and Safety Code, may be
assessed a civil penalty of not more than seventy thousand dollars
($70,000) for each violation, but in no case less than five thousand
dollars ($5,000) for each willful violation.
(b) Any employer who repeatedly violates any occupational safety
or health standard, order, or special order, or of
Section 25910 of the Health and Safety Code, shall not receive any
adjustment of a penalty assessed pursuant to this section on the
basis of the regulations promulgated pursuant to subdivision (c) of
Section 6319 pertaining to the good faith of the employer or the
history of previous violations of the employer.
(c) The division shall preserve and maintain records of its
investigations and inspections and citations for a period of not less
than seven years.
SEC. 129. Section 6434 of the Labor Code is amended to read:
6434. (a) Any civil or administrative penalty assessed pursuant
to this chapter against a school district, county board of education,
county superintendent of schools, charter school, community college
district, California State University, University of California, or
joint powers agency performing education functions shall be deposited
with the Workplace Health and Safety Revolving Fund established
pursuant to Section 78.
(b) Any school district, county board of education, county
superintendent of schools or , charter
school , community college district, California State
University, University of California, or joint powers agency
performing education functions may apply for a refund of their civil
penalty, with interest, if all conditions previously cited have been
abated, they have abated any other outstanding citation, and if they
have not been cited by the division for a serious violation at the
same school within two years of the date of the original violation.
Funds not applied for within two years and six months of the time of
the original violation shall be expended as provided for in Section
78 to assist schools in establishing effective occupational injury
and illness prevention programs.
SEC. 130. Section 6650 of the Labor Code is amended to read:
6650. (a) After the expiration of the period during which a
penalty may be appealed, no appeal having been filed, the department
may file with the clerk of the superior court in any county a
certified copy of the citation and notice of civil penalty, the
certification by the department that the penalty remains unpaid, and
the division's proof of service on the employer of the items filed
with the clerk of the court.
(b) After the exhaustion of the review procedures provided for in
Chapter 7 (commencing with Section 6600), an appeal having been
filed, the department may file with the clerk of the superior court
in any county a certified copy of the citation and notice of civil
penalty, a certified copy of the order, findings or decision of the
appeals board, the certification of the department that the penalty
remains unpaid, and proof of service on the employer at the employer'
s address as shown on the official address record by the appeals
board.
(c) The clerk, immediately upon the filing of a notice of civil
penalty by the department pursuant to subdivision (a) or (b), shall
enter judgment for the state against the person assessed the civil
penalty in the amount of the penalty, plus interest due for each day
from the date of issuance of the notice of civil penalty that the
penalty remains unpaid.
(d) The department shall serve the notice of entry of judgment
provided by Section 554.6 664.5 of the
Code of Civil Procedure on the employer.
(e) A judgment entered pursuant to this section shall
bear the same rate of interest, have the same effect as other
judgments, and be given the same preference allowed by law on other
judgments rendered for claims for taxes pursuant to Section 7170 of
the Government Code. No
(f) No fees shall be charged by the clerk of any court for
the performance of any official service required by this chapter.
SEC. 131. Section 273.84 of the Penal Code is amended to read:
273.84. Subject to the provisions of Chapter 2.6
(commencing with Section 1000.6) of Title 6 of Part 2, each
Each district attorney's or city attorney's office
establishing a spousal abuser prosecution unit and receiving state
support under this chapter shall adopt and pursue the following
policies for spousal abuser cases:
(a) All reasonable prosecutorial efforts shall be made to resist
the pretrial release of a charged defendant meeting spousal abuser
selection criteria.
(b) All reasonable prosecutorial efforts shall be made to persuade
the court to impose the most severe authorized sentence upon a
person convicted after prosecution as a spousal abuser. In the
prosecution of an intrafamily sexual abuse case, discretion may be
exercised as to the type and nature of sentence recommended to the
court.
(c) All reasonable prosecutorial efforts shall be made to reduce
the time between arrest and disposition of charge against an
individual meeting spousal abuser criteria.
SEC. 132. Section 296.1 of the Penal Code is amended to read:
296.1. (a) Any person, including any juvenile, who comes within
the provisions of this chapter for an offense set forth in
subdivision (a) of Section 296, and who is granted probation, or
serves his or her entire term of confinement in a county jail, or is
not sentenced to a term of confinement in a state prison facility, or
otherwise bypasses a prison inmate reception center maintained by
the Department of Corrections, shall, as soon as administratively
practicable, but in any case, prior to physical release from custody,
be required to provide two specimens of blood, a saliva sample, and
thumb and palm print impressions as set forth in subdivision (a) of
Section 296, at a county jail facility or other state, local, or
private facility designated for the collection of these specimens,
samples, and print impressions, in accordance with subdivision (f) of
Section 295.
If the person subject to this chapter is not incarcerated at the
time of sentencing, the court shall order the person to report within
five calendar days to a county jail facility or other state, local,
or private facility designated for the collection of specimens,
samples, and print impressions to provide these specimens, samples,
and print impressions in accordance with subdivision (f) of Section
295.
(b) If a person who comes within the provisions of this chapter
for an offense set forth in subdivision (a) of Section 296 is
sentenced to serve a term of imprisonment in a state correctional
institution, the Director of Corrections shall collect the blood
specimens, saliva samples, and thumb and palm print impressions
required by this chapter from the person during the intake process at
the reception center designated by the director, or as soon as
administratively practicable thereafter at a receiving penal
institution.
(c) Any person, including, but not limited to, any juvenile and
any person convicted and sentenced to death, life without the
possibility of parole, or any life or indeterminate term, who is
imprisoned or confined in a state correctional institution, a county
jail, a facility within the jurisdiction of the Department of the
Youth Authority, or any other state, local, or private facility after
a conviction of any crime, or disposition rendered in the case of a
juvenile, whether or not that crime or offense is one set forth in
subdivision (a) of Section 296, shall provide two specimens of blood,
a saliva sample, and thumb and palm print impressions pursuant to
this chapter, as soon as administratively practicable once it has
been determined that both of the following apply:
(1) The person has been convicted in California of a qualifying
offense described in subdivision (a) of Section 296 or of a similar
crime under the laws of the United States or any other state that
would constitute an offense described in subdivision (a) of Section
296.
(2) The person's blood specimens, saliva samples, and thumb and
palm print impressions authorized by this chapter are not in the
possession of the Department of Justice DNA Laboratory as part of the
DNA data bank program.
This subdivision applies regardless of when the person was
convicted of the qualifying offense described in subdivision (a) of
Section 296 or a similar crime under the laws of the United States or
any other state, or when disposition was rendered in the case of a
juvenile who is adjudged a ward of the court for commission of a
qualifying offense described in subdivision (a) of Section 296 or a
similar crime under the laws of the United States or any other state.
(d) Any person, including any juvenile, who comes within the
provisions of this chapter for an offense set forth in subdivision
(a) of Section 296, and who is on probation or parole, shall be
required to provide two specimens of blood, a saliva sample, and
thumb and palm print impressions as required pursuant to this
chapter, if it is determined that the person has not previously
provided these specimens, samples, and print impressions to law
enforcement, or if it is determined that these specimens, samples,
and print impressions are not in the possession of the Department of
Justice. The person shall have the specimens, samples, and print
impressions collected within five calendar days of being notified by
a law enforcement agency or other agency authorized by the Department
of Justice. The specimens, samples, and print impressions shall be
collected in accordance with subdivision (f) of Section 295 at a
county jail facility or other state, local, or private facility
designated for this collection.
This subdivision shall apply regardless of when the crime
committed became a qualifying offense pursuant to this chapter.
(e) When an offender from another state is accepted into this
state under any of the interstate compacts described in Article 3
(commencing with Section 11175) or Article 4 (commencing with Section
1189 11189 ) of Chapter 2 of Title 1
of Part 4 of this code, or Chapter 4 (commencing with Section 1300)
of Part 1 of Division 2 of the Welfare and Institutions Code, or
under any other reciprocal agreement with any county, state, or
federal agency, or any other provision of law, whether or not the
offender is confined or released, the acceptance is conditional on
the offender providing blood specimens, saliva samples, and palm and
thumb print impressions pursuant to this chapter, if the offender was
convicted of an offense which that
would qualify as a crime described in subdivision (a) of Section 296,
or if the person was convicted of a similar crime under the laws of
the United States or any other state.
If the person is not confined, the specimens, samples, and print
impressions required by this chapter must be provided within five
calendar days after the offender reports to the supervising agent or
within five calendar days of notice to the offender, whichever occurs
first. The person shall report to a county jail facility in the
county where he or she resides or temporarily is located to have the
specimens, samples, and print impressions collected pursuant to this
chapter. The specimens, samples, and print impressions shall be
collected in accordance with subdivision (f) of Section 295.
If the person is confined, he or she shall provide the blood
specimens, saliva samples, and thumb and palm print impressions
required by this chapter as soon as practicable after his or her
receipt in a state, county, local, private, or other facility.
(f) Subject to the approval of the Director of the Federal Bureau
of Investigation, persons confined or incarcerated in a federal
prison or federal institution located in California who are convicted
of a qualifying offense described in subdivision (a) of Section 296
or of a similar crime under the laws of the United States or any
other state that would constitute an offense described in subdivision
(a) of Section 296, are subject to this chapter and shall provide
blood specimens, saliva samples, and thumb and palm print impressions
pursuant to this chapter if any of the following apply:
(1) The person committed a qualifying offense in California.
(2) The person was a resident of California at the time of the
qualifying offense.
(3) The person has any record of a California conviction for a sex
or violent offense described in subdivision (a) of Section 296,
regardless of when the crime was committed.
(4) The person will be released in California.
Once a federal data bank is established and accessible to the
Department of Justice, the Department of Justice DNA Laboratory
shall, upon the request of the United States Department of Justice,
forward the samples taken pursuant to this chapter to the United
States Department of Justice DNA data bank laboratory. The samples
and impressions required by this chapter shall be taken in accordance
with the procedures set forth in subdivision (f) of Section 295.
(g) If a person who is released on parole, furlough, or other
release, is returned to a state correctional institution for a
violation of a condition of his or her parole, furlough, or other
release, and is serving or at any time has served a term of
imprisonment for committing an offense described in subdivision (a)
of Section 296, and he or she did not provide specimens, samples, and
print impressions pursuant to the state's DNA data bank program, the
person shall submit to collection of blood specimens, saliva
samples, and thumb and palm print impressions at a state correctional
institution.
This subdivision applies regardless of the crime or Penal Code
violation for which a person is returned to a state correctional
institution and regardless of the date the qualifying offense was
committed.
SEC. 133. Section 487c of the Penal Code is amended to read:
487c. Every person who converts
real estate of the value of less than one hundred dollars ($100) into
personal property by severance from the realty of another, and with
felonious intent to do so steals, takes, and carries away such
property is guilty of petit petty theft
and is punishable by imprisonment in the county jail for not more
than one year, or by a fine not exceeding one thousand dollars
($1,000), or by both such fine and imprisonment.
SEC. 134. Section 666 of the Penal Code is amended to read:
666. Every person who, having been convicted of petit
petty theft, grand theft, auto theft under
Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or
a felony violation of Section 496 and having served a term therefor
in any penal institution or having been imprisoned therein as a
condition of probation for that offense, is subsequently convicted of
petit petty theft, then the person
convicted of that subsequent offense is punishable by imprisonment in
the county jail not exceeding one year, or in the state prison.
SEC. 135. Section 830.32 of the Penal Code is amended to read:
830.32. The following persons are peace officers whose authority
extends to any place in the state for the purpose of performing their
primary duty or when making an arrest pursuant to Section 836 as to
any public offense with respect to which there is immediate danger to
person or property, or of the escape of the perpetrator of that
offense, or pursuant to Section 8597 or 8598 of the Government Code.
Those peace officers may carry firearms only if authorized and under
terms and conditions specified by their employing agency.
(a) Members of a California Community College police department
appointed pursuant to Section 72330 of the Education Code, if the
primary duty of the police officer is the enforcement of the law as
prescribed in Section 72330 of the Education Code.
(b) Persons employed as members of a police department of a school
district pursuant to Section 39670 38000
of the Education Code, if the primary duty of the police
officer is the enforcement of the law as prescribed in Section
39670 38000 of the Education Code.
(c) Any peace officer employed by a K-12 public school district or
California Community College district who has completed training as
prescribed by subdivision (f) of Section 832.3 shall be designated a
school police officer.
SEC. 136. Section 1463 of the Penal Code is amended to read:
1463. All fines and forfeitures imposed and collected for crimes
shall be distributed in accordance with Section 1463.001.
The following definitions shall apply to terms used in this
chapter:
(a) "Arrest" means any law enforcement action, including issuance
of a notice to appear or notice of violation, which results in a
criminal charge.
(b) "City" includes any city, city and county, district, including
any enterprise special district, community service district, or
community service area engaged in police protection activities as
reported to the Controller for inclusion in the 1989-90 edition of
the Financial Transactions Report Concerning Special Districts under
the heading of Police Protection and Public Safety, authority, or
other local agency (other than a county) which employs persons
authorized to make arrests or to issue notices to appear or notices
of violation which may be filed in court.
(c) "City arrest" means an arrest by an employee of a city, or by
a California Highway Patrol officer within the limits of a city.
(d) "County" means the county in which the arrest took place.
(e) "County arrest" means an arrest by a California Highway Patrol
officer outside the limits of a city, or any arrest by a county
officer or by any other state officer.
(f) "Court" means the superior or municipal court or a juvenile
forum established under Section 257 of the Welfare and Institutions
Code, in which the case arising from the arrest is filed.
(g) "Division of moneys" means an allocation of base fine proceeds
between agencies as required by statute including, but not limited
to, Sections 1463.003, 1463.9, 1463.23, 1463.26, and Sections 13001,
13002, and 13003 of the Fish and Game Code, and Section 11502 of the
Health and Safety Code.
(h) "Offense" means any infraction, misdemeanor, or felony, and
any act by a juvenile leading to an order to pay a financial sanction
by reason of the act being defined as an infraction, misdemeanor, or
felony, whether defined in this or any other code, except any
parking offense as defined in subdivision (i).
(i) "Parking offense" means any offense charged pursuant to
Article 3 (commencing with Section 40200) of Chapter 1 of Division 17
of the Vehicle Code, including registration and equipment offenses
included on a notice of parking violation.
(j) "Penalty allocation" means the deposit of a specified part of
moneys to offset designated processing costs, as provided by Section
1463.16 and by Section 68090.8 of the Government Code.
(k) "Total parking penalty" means the total sum to be collected
for a parking offense, whether as fine, forfeiture of bail, or
payment of penalty to the Department of Motor Vehicles. It may
include the following components:
(1) The base parking penalty as established pursuant to Section
40203.5 of the Vehicle Code.
(2) The Department of Motor Vehicles (DMV) fees added upon the
placement of a hold pursuant to Section 40220 of the Vehicle Code.
(3) The surcharges required by Section 76000 of the Government
Code.
(4) The notice penalty added to the base parking penalty when a
notice of delinquent parking violations is given.
(l) "Total fine or forfeiture" means the total sum to be collected
upon a conviction, or the total amount of bail forfeited or
deposited as cash bail subject to forfeiture. It may include, but is
not limited to, the following components as specified for the
particular offense:
(1) The "base fine" upon which the state penalty and additional
county penalty is calculated.
(2) The "county penalty" required by Section 76000 of the
Government Code.
(3) The "service charge" permitted by Section 853.7 of the Penal
Code and Sections 40508.5 and 41103.5 Section
40508.5 of the Vehicle Code.
(4) The "special penalty" dedicated for blood alcohol analysis,
alcohol program services, traumatic brain injury research, and
similar purposes.
(5) The "state penalty" required by Section 1464.
SEC. 137. Section 2962 of the Penal Code is amended to read:
2962. As a condition of parole, a prisoner who meets the
following criteria shall be required to be treated by the State
Department of Mental Health, and the State Department of Mental
Health shall provide the necessary treatment:
(a) The prisoner has a severe mental disorder that is not in
remission or cannot be kept in remission without treatment.
The term "severe mental disorder" means an illness or disease or
condition that substantially impairs the person's thought, perception
of reality, emotional process, or judgment; or which grossly impairs
behavior; or that demonstrates evidence of an acute brain syndrome
for which prompt remission, in the absence of treatment, is unlikely.
The term "severe mental disorder" as used in this section does not
include a personality or adjustment disorder, epilepsy, mental
retardation or other developmental disabilities, or addiction to or
abuse of intoxicating substances.
The term "remission" means a finding that the overt signs and
symptoms of the severe mental disorder are controlled either by
psychotropic medication or psychosocial support. A person "cannot be
kept in remission without treatment" if during the year prior to the
question being before the Board of Prison Terms or a trial court, he
or she has been in remission and he or she has been physically
violent, except in self-defense, or he or she has made a serious
threat of substantial physical harm upon the person of another so as
to cause the target of the threat to reasonably fear for his or her
safety or the safety of his or her immediate family, or he or she has
intentionally caused property damage, or he or she has not
voluntarily followed the treatment plan. In determining if a person
has voluntarily followed the treatment plan, the standard shall be
whether the person has acted as a reasonable person would in
following the treatment plan.
(b) The severe mental disorder was one of the causes of or was an
aggravating factor in the commission of a crime for which the
prisoner was sentenced to prison.
(c) The prisoner has been in treatment for the severe mental
disorder for 90 days or more within the year prior to the prisoner's
parole or release.
(d) (1) Prior to release on parole, the person in charge of
treating the prisoner and a practicing psychiatrist or psychologist
from the State Department of Mental Health have evaluated the
prisoner at a facility of the Department of Corrections, and a chief
psychiatrist of the Department of Corrections has certified to the
Board of Prison Terms that the prisoner has a severe mental disorder,
that the disorder is not in remission, or cannot be kept in
remission without treatment, that the severe mental disorder was one
of the causes or was an aggravating factor in the prisoner's criminal
behavior, that the prisoner has been in treatment for the severe
mental disorder for 90 days or more within the year prior to his or
her parole release day, and that by reason of his or her severe
mental disorder the prisoner represents a substantial danger of
physical harm to others. For prisoners being treated by the State
Department of Mental Health pursuant to Section 2684, the
certification shall be by a chief psychiatrist of the Department of
Corrections, and the evaluation shall be done at a state hospital by
the person at the state hospital in charge of treating the prisoner
and a practicing psychiatrist or psychologist from the Department of
Corrections.
(2) If the professionals doing the evaluation pursuant to
paragraph (1) do not concur that (A) the prisoner has a severe mental
disorder, (B) that the disorder is not in remission or cannot be
kept in remission without treatment, or (C) that the severe mental
disorder was a cause of, or aggravated, the prisoner's criminal
behavior, and a chief psychiatrist has certified the prisoner to the
Board of Prison Terms pursuant to this paragraph, then the Board of
Prison Terms shall order a further examination by two independent
professionals, as provided for in Section 2978.
(3) Only if both independent professionals who evaluate the
prisoner pursuant to paragraph (2) concur with the chief psychiatrist'
s certification of the issues described in paragraph (2), shall this
subdivision be applicable to the prisoner. The professionals
appointed pursuant to Section 2978 shall inform the prisoner that the
purpose of their examination is not treatment but to determine if
the prisoner meets certain criteria to be involuntarily treated as a
mentally disordered offender. It is not required that the prisoner
appreciate or understand that information.
(e) The crime referred to in subdivision (b) meets both of the
following criteria:
(1) The defendant received a determinate sentence pursuant to
Section 1170 for the crime.
(2) The crime is one of the following:
(A) Voluntary manslaughter.
(B) Mayhem.
(C) Kidnapping in violation of Section 207.
(D) Any robbery wherein it was charged and proved that the
defendant personally used a deadly or dangerous weapon, as provided
in subdivision (b) of Section 12022, in the commission of that
robbery.
(E) Carjacking, as defined in subdivision (a) of Section 215, if
it is charged and proved that the defendant personally used a deadly
or dangerous weapon, as provided in subdivision (b) of Section 12022,
in the commission of the carjacking.
(F) Rape, as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(G) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.
(H) Oral copulation by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.
(I) Lewd acts on a child under the age of 14 years in violation of
Section 288.
(J) Continuous sexual abuse in violation of Section 288.5.
(K) The offense described in subdivision (a) of Section 289 where
the act was accomplished against the victim's will by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.
(L) Arson in violation of subdivision (a) of Section 451, or arson
in violation of any other provision of Section 451 or in violation
of Section 455 where the act posed a substantial danger of physical
harm to others.
(M) Any felony in which the defendant used a firearm which use was
charged and proved as provided in Section 12022.5, 12022.53, or
12022.55.
(N) A violation of Section 12308.
(O) Attempted murder.
(P) A crime not enumerated in subparagraph
subparagraphs (A) to (O), inclusive, in which the prisoner
used force or violence, or caused serious bodily injury as defined in
paragraph (4) of subdivision (f) of Section 243.
(Q) A crime in which the perpetrator expressly or impliedly
threatened another with the use of force or violence likely to
produce substantial physical harm in such a manner that a reasonable
person would believe and expect that the force or violence would be
used. For purposes of this subparagraph, substantial physical harm
shall not require proof that the threatened act was likely to cause
great or serious bodily injury.
(f) As used in this chapter, "substantial danger of physical harm"
does not require proof of a recent overt act.
SEC. 138. Section 6129 of the Penal Code is amended to read:
6129. (a) (1) For purposes of this section, "employee" means any
person employed by the Youth and Adult Correctional Agency, the
Department of Corrections, the Department of the Youth Authority, the
Board of Corrections, the Board of Prison Terms, the Youthful
Offender Parole Board, or the Inspector General.
(2) For purposes of this section, "retaliation" means
intentionally engaging in acts of reprisal, retaliation, threats,
coercion, or similar acts against another employee who has done
either of the following:
(A) Has disclosed or is disclosing to any employee at a
supervisory or managerial level, what the employee, in good faith,
believes to be improper governmental activities.
(2)
(B) Has cooperated or is cooperating with any investigation
of improper governmental activities.
(b) (1) Upon receiving a complaint of retaliation from an
employee, the Inspector General shall commence an investigation
within 30 days of receiving the complaint. All investigations
conducted pursuant to this section shall be performed, where
applicable, in accordance with the requirements of Chapter 9.7
(commencing with Section 3300) of Title 1 of Division 4 of the
Government Code.
(2) When investigating a complaint, in determining whether
retaliation has occurred, the Inspector General shall consider, among
other things, whether any of the following either actually occurred
or were threatened:
(A) Unwarranted or unjustified staff changes.
(B) Unwarranted or unjustified letters of reprimand or other
disciplinary actions, or unsatisfactory evaluations.
(C) Unwarranted or unjustified formal or informal investigations.
(D) Engaging in acts, or encouraging or permitting other employees
to engage in acts, that are unprofessional, , or
foster a hostile work environment.
(E) Engaging in acts, or encouraging or permitting other employees
to engage in acts, that are contrary to the rules, regulations, or
policies of the workplace.
(3) Upon authorization of the complainant employee, the Inspector
General may release the findings of the investigation of alleged
retaliation to the State Personnel Board for appropriate action.
(c) Any employee at any rank and file, supervisory, or managerial
level, who intentionally engages in acts of reprisal, retaliation,
threats, coercion, or similar acts against another employee, pursuant
to paragraph (2) of subdivision (a), shall be disciplined by adverse
action as provided in Section 19572 of the Government Code. If no
adverse action is taken, the State Personnel Board shall invoke
adverse action proceedings as provided in Section 19583.5 of the
Government Code.
(d) (1) In addition to all other penalties provided by law,
including Section 8547.8 of the Government Code or any other
penalties that the sanctioning authority may determine to be
appropriate, any state employee at any rank and file, supervisory, or
managerial level found by the State Personnel Board to have
intentionally engaged in acts of reprisal, retaliation, threats, or
coercion shall be suspended for not less than 30 days without pay,
and shall be liable in an action for damages brought against him or
her by the injured party. If the State Personnel Board determines
that a lesser period of suspension is warranted, the reasons for that
determination must be justified in writing in the decision.
(2) Punitive damages may be awarded by the court if the acts of
the offending party are proven to be malicious. If liability has
been established, the injured party also shall be entitled to
reasonable attorney's fees as provided by law.
(e) Nothing in this section shall prohibit the employing entity
from exercising its authority to terminate, suspend, or discipline an
employee who engages in conduct prohibited by this section.
(f) The Inspector General, the Youth and Adult Correctional
Agency, the Department of the Youth Authority, the Department of
Corrections, the Board of Corrections, the Youthful Offender Parole
Board, and the Board of Prison Terms shall refer matters involving
criminal conduct to the proper law enforcement authorities in the
appropriate jurisdiction for further action. The entity making a
referral to the local district attorney shall also notify the
Attorney General of the action. If the local district attorney
refuses to accept the case, he or she shall notify the referring
entity who shall subsequently refer the matter to the Attorney
General. If the local district attorney has not acted on the matter,
the referring entity shall notify the Attorney General. It is the
intent of the Legislature that the Department of Justice avoid any
conflict of interest in representing the State of California in any
civil litigation that may arise in a case in which an investigation
has been or is currently being conducted by the Bureau of
Investigation by contracting when necessary for private counsel.
SEC. 139. Section 11166.3 of the Penal Code is amended to read:
11166.3. (a) The Legislature intends that in each county the law
enforcement agencies and the county welfare or social services
department shall develop and implement cooperative arrangements in
order to coordinate existing duties in connection with the
investigation of suspected child abuse cases. The local law
enforcement agency having jurisdiction over a case reported under
Section 11166 shall report to the county welfare department that it
is investigating the case within 36 hours after starting its
investigation. The county welfare department or social services
department shall, in cases where a minor is a victim of actions
specified in Section 288 of this code and a petition has been filed
pursuant to Section 300 of the Welfare and Institutions Code with
regard to the minor, in accordance with the requirements of
subdivision (c) of Section 288, evaluate what action or actions would
be in the best interest of the child victim. Notwithstanding any
other provision of law, the county welfare department or social
services department shall submit in writing its findings and the
reasons therefor to the district attorney on or before the completion
of the investigation. The written findings and the reasons therefor
shall be delivered or made accessible to the defendant or his or her
counsel in the manner specified in Sections
Section 859 and 1430 . The child protective
agency shall send a copy of its investigative report and any other
pertinent materials to the licensing agency upon the request of the
licensing agency.
(b) The local law enforcement agency having jurisdiction over a
case reported under Section 11166 shall report to the district office
of the State Department of Social Services any case reported under
this section if the case involves a facility specified in paragraph
(5) or (6) of Section 1502 or in Section 1596.750 or 1596.76 of the
Health and Safety Code and the licensing of the facility has not been
delegated to a county agency. The law enforcement agency shall send
a copy of its investigation report and any other pertinent materials
to the licensing agency upon the request of the licensing agency.
SEC. 140. Section 11170.6 of the Penal Code is amended to read:
11170.6. (a) Notwithstanding paragraph (3) of subdivision (b) of
Section 11170, the Department of Justice shall make available to the
City of San Diego for purposes of evaluating employees for the
"6-to-6" "6 to 6" program information
regarding a known or suspected child abuser maintained in the child
abuse index pursuant to subdivision (a) of Section 11170 concerning
any person who has submitted an application for employment in the
"6-to-6" "6 to 6" program.
(b) The City of San Diego, to whom disclosure of any information
pursuant to subdivision (a) is authorized, is responsible for
obtaining the original investigative report from the reporting agency
and for drawing independent conclusions regarding the quality of the
evidence disclosed and the sufficiency of the evidence for making
decisions when evaluating employees for the "6-to-6"
"6 to 6" program.
(c) The disclosure pursuant to this section of the presence of an
applicant's name on the index is provided solely for purposes of
investigating the individual's background by identifying the original
investigative report from the reporting agency. The presence of an
individual's name on the index may not itself be used as evidence
adverse to an applicant for employment in the "6-to-6"
"6 to 6" program. An investigation shall
include, but not be limited to, the review of the investigation
report and file prepared by the child protective agency that
investigated the child abuse report. Employment may not be denied
based on a report from the Child Abuse Central Index, unless the
child abuse is substantiated.
(d) (1) Whenever information contained in the Department of
Justice files is furnished as the result of a request for information
pursuant to subdivision (a), the Department of Justice may charge
the requestor a fee. The fee may not exceed the reasonable costs to
the department of providing the information. The only increase shall
be at a rate not to exceed the legislatively approved cost-of-living
adjustment for the department. The fee may not exceed fifteen
dollars ($15).
(2) All moneys received by the department pursuant to this
subdivision shall be deposited in the Department of Justice Child
Abuse Fund. Moneys in the fund shall be available, upon
appropriation by the Legislature, for expenditures by the department
to offset costs incurred for processing child abuse central index
requests.
SEC. 141. Section 12000 of the Penal Code is amended to read:
12000. This chapter shall be known and may be cited as "The
Dangerous Weapons' Weapons Control Law."
SEC. 142. Section 13510 of the Penal Code is amended to read:
13510. (a) For the purpose of raising the level of competence of
local law enforcement officers, the commission shall adopt, and may
from time to time amend, rules establishing minimum standards
relating to physical, mental, and moral fitness that shall govern the
recruitment of any city police officers, peace officer members of a
county sheriff's office, marshals or deputy marshals of a municipal
court, peace officer members of a county coroner's office
notwithstanding Section 13526, reserve officers, as defined in
subdivision (a) of Section 830.6, police officers of a district
authorized by statute to maintain a police department, peace officer
members of a police department operated by a joint powers agency
established by Article 1 (commencing with Section 6500) of Chapter 5
of Division 7 of Title 1 of the Government Code, regularly employed
and paid inspectors and investigators of a district attorney's
office, as defined in Section 830.1, who conduct criminal
investigations, peace officer members of a district, safety police
officers and park rangers of the County of Los Angeles, as defined in
subdivisions (a) and (b) of Section 830.31, or housing authority
police departments.
The commission also shall adopt, and may from time to time amend,
rules establishing minimum standards for training of city police
officers, peace officer members of county sheriff's offices, marshals
or deputy marshals of a municipal court, peace officer members of a
county coroner's office notwithstanding Section 13526, reserve
officers, as defined in subdivision (a) of Section 830.6, police
officers of a district authorized by statute to maintain a police
department, peace officer members of a police department operated by
a joint powers agency established by Article 1 (commencing with
Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government
Code, regularly employed and paid inspectors and investigators of a
district attorney's office, as defined in Section 830.1, who conduct
criminal investigations, peace officer members of a district, safety
police officers and park rangers of the County of Los Angeles, as
defined in subdivisions (a) and (b) of Section 830.1
830.31 , and housing authority police
departments.
These rules shall apply to those cities, counties, cities and
counties, and districts receiving state aid pursuant to this chapter
and shall be adopted and amended pursuant to Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code.
(b) The commission shall conduct research concerning job-related
educational standards and job-related selection standards to include
vision, hearing, physical ability, and emotional stability.
Job-related standards which that are
supported by this research shall be adopted by the commission prior
to January 1, 1985, and
shall apply to those peace officer classes identified in subdivision
(a). The commission shall consult with local entities during the
conducting of related research into job-related selection standards.
(c) For the purpose of raising the level of competence of local
public safety dispatchers, the commission shall adopt, and may from
time to time amend, rules establishing minimum standards relating to
the recruitment and training of local public safety dispatchers
having a primary responsibility for providing dispatching services
for local law enforcement agencies described in subdivision (a),
which standards shall apply to those cities, counties, cities and
counties, and districts receiving state aid pursuant to this chapter.
These standards also shall apply to consolidated dispatch centers
operated by an independent public joint powers agency established
pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of
Division 7 of Title 1 of the Government Code when providing dispatch
services to the law enforcement personnel listed in subdivision (a).
Those rules shall be adopted and amended pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code. As used in this section, "primary
responsibility" refers to the performance of law enforcement
dispatching duties for a minimum of 50 percent of the time worked
within a pay period.
(d) Nothing in this section shall prohibit a local agency from
establishing selection and training standards which
that exceed the minimum standards established by
the commission.
SEC. 143. Section 2357 of the Probate Code is amended to read:
2357. (a) As used in this section:
(1) "Guardian or conservator" includes a temporary guardian of the
person or a temporary conservator of the person.
(2) "Ward or conservatee" includes a person for whom a temporary
guardian of the person or temporary conservator of the person has
been appointed.
(b) If the ward or conservatee requires medical treatment for an
existing or continuing medical condition which is not authorized to
be performed upon the ward or conservatee under Section 2252, 2353,
2354, or 2355, and the ward or conservatee is unable to give an
informed consent to such medical treatment, the guardian or
conservator may petition the court under this section for an order
authorizing such medical treatment and authorizing the guardian or
conservator to consent on behalf of the ward or conservatee to such
medical treatment.
(c) The petition shall state, or set forth by medical affidavit
attached thereto, all of the following so far as is known to the
petitioner at the time the petition is filed:
(1) The nature of the medical condition of the ward or conservatee
which requires treatment.
(2) The recommended course of medical treatment which is
considered to be medically appropriate.
(3) The threat to the health of the ward or conservatee if
authorization to consent to the recommended course of treatment is
delayed or denied by the court.
(4) The predictable or probable outcome of the recommended course
of treatment.
(5) The medically available alternatives, if any, to the course of
treatment recommended.
(6) The efforts made to obtain an informed consent from the ward
or conservatee.
(7) The name and addresses, so far as they are known to the
petitioner, of the persons specified in subdivision (c) of Section
1510 in a guardianship proceeding or subdivision (b) of Section 1821
in a conservatorship proceeding.
(d) Upon the filing of the petition, unless an attorney is already
appointed the court shall appoint the public defender or private
counsel under Section 1471, to consult with and represent the ward or
conservatee at the hearing on the petition and, if that appointment
is made, Section 1472 applies.
(e) Notice of the Petition shall be given as follows:
(1) Not less than 15 days before the hearing, notice of the time
and place of the hearing, and a copy of the petition shall be
personally served on the ward, if 12 years of age or older, or the
conservatee, and on the attorney for the ward or conservatee.
(2) Not less than 15 days before the hearing, notice of the time
and place of the hearing, and a copy of the petition shall be mailed
to the following persons:
(A) The spouse, if any, of the proposed conservatee at the address
stated in the petition.
(B) The relatives named in the petition at their addresses stated
in the petition.
(f) For good cause, the court may shorten or waive notice of the
hearing as provided by this section. In determining the period of
notice to be required, the court shall take to
into account both of the following:
(1) The existing medical facts and circumstances set forth in the
petition or in a medical affidavit attached to the petition or in a
medical affidavit presented to the court.
(2) The desirability, where the condition of the ward or
conservatee permits, of giving adequate notice to all interested
persons.
(g) Notwithstanding subdivisions (e) and (f), the matter may be
submitted for the determination of the court upon proper and
sufficient medical affidavits or declarations if the attorney for the
petitioner and the attorney for the ward or conservatee so stipulate
and further stipulate that there remains no issue of fact to be
determined.
(h) The court may make an order authorizing the recommended course
of medical treatment of the ward or conservatee and authorizing the
guardian or conservator to consent on behalf of the ward or
conservatee to the recommended course of medical treatment for the
ward or conservatee if the court determines from the evidence all of
the following:
(1) The existing or continuing medical condition of the ward or
conservatee requires the recommended course of medical treatment.
(2) If untreated, there is a probability that the condition will
become life-endangering or result in a serious threat to the physical
or mental health of the ward or conservatee.
(3) The ward or conservatee is unable to give an informed consent
to the recommended course of treatment.
(i) Upon petition of the ward or conservatee or other interested
person, the court may order that the guardian or conservator obtain
or consent to, or obtain and consent to, specified medical treatment
to be performed upon the ward or conservatee. Notice of the hearing
on the petition under this subdivision shall be given for the period
and in the manner provided in Chapter 3 (commencing with Section
1460) of Part 1.
SEC. 144. Section 12102 of the Public Contract Code is amended to
read:
12102. The Department of Information Technology and the
Department of General Services shall maintain, in the State
Administrative Manual, policies and procedures governing the
acquisition and disposal of electronic data processing and
telecommunications goods and services.
(a) Acquisition of electronic data processing and
telecommunications goods and services shall be conducted through
competitive means, except when the Director of General Services
determines that (1) the goods and services proposed for acquisition
are the only goods and services which can meet the state's need, or
(2) the goods and services are needed in cases of emergency where
immediate acquisition is necessary for the protection of the public
health, welfare, or safety. The acquisition mode to be used and the
procedure to be followed shall be approved by the Director of General
Services. The Department of General Services shall maintain, in the
State Administrative Manual, appropriate criteria and procedures to
ensure compliance with the intent of this chapter. These criteria
and procedures shall include acquisition and contracting guidelines
to be followed by state agencies with respect to the acquisition of
electronic data processing and telecommunications goods and services.
These guidelines may be in the form of standard formats or model
formats.
(b) Contract awards for all large-scale systems integration
projects shall be based on the proposal that provides the most
value-effective solution to the state's requirements, as determined
by the evaluation criteria contained in the solicitation document.
Evaluation criteria for procurement of electronic data processing and
telecommunications services, including systems integration, shall
provide for the selection of a vendor on an objective basis not
limited to cost alone.
(1) The Department of General Services shall invite active
participation, review, advice, comment, and assistance from the
private sector and state agencies in developing procedures to
streamline and to make the acquisition process more efficient,
including but not limited to consideration of comprehensive
statements in the request for proposals of the business needs and
governmental functions, access to studies, planning documents,
feasibility study reports and draft requests for proposals applicable
to procurements, minimizing the time and cost of the proposal
submittal and selection process, and development of a procedure for
submission and evaluation of a single proposal rather than
multiple proposals.
(2) Solicitations for acquisitions based on evaluation criteria
other than cost alone shall provide that sealed cost proposals shall
be submitted and that they shall be opened at a time and place
designated in the solicitation for bids and proposals. Evaluation of
all criteria, other than cost, shall be completed prior to the time
designated for public opening of cost proposals, and the results of
the completed evaluation shall be published immediately before the
opening of cost proposals. The state's contact person for
administration of the procurement shall be identified in the
solicitation for bids and proposals, and that person shall execute a
certificate under penalty of perjury, which shall be made a permanent
part of the official procurement file, that all cost proposals
received by the state have been maintained sealed and under lock and
key until the time cost proposals are opened.
(c) The acquisition of hardware purchased independently of a
system integration project may be made on the basis of lowest cost
meeting all other specifications.
(d) The 5 percent small business preference provided for in
Chapter 6.5 (commencing with Section 14835) of Part 5.5 of Division 3
of Title 2 of the Government Code and the regulations implementing
that chapter shall be accorded to all qualifying small businesses.
(e) For all transactions formally advertised, evaluation of
bidders' proposals for the purpose of determining contract award for
electronic data processing and telecommunications goods shall provide
for consideration of a bidder's best financing alternatives,
including lease or purchase alternatives, if any bidder so requests,
not less than 30 days prior to the date of final bid submission,
unless the acquiring agency can prove to the satisfaction of the
Department of General Services that a particular financing
alternative should not be so considered.
(f) Acquisition authority may be delegated by the Director of
General Services to any state agency which has been determined by the
Department of General Services to be capable of effective use of
that authority. This authority may be limited by the Department of
General Services. Acquisitions conducted under delegated authority
shall be reviewed by the Department of General Services on a
selective basis.
(g) To the extent practical, the solicitation documents shall
provide for a contract to be written to enable acquisition of
additional items to avoid essentially redundant acquisition processes
when it can be determined that it is economical to do so.
Further, it is the intent of the Legislature that, if a state
electronic data processing advisory committee or a state
telecommunications advisory committee is established by the Governor,
the Director of Information Technology, or the Director of General
Services, the policies and procedures developed by the Director of
Information Technology and the Director of General Services in
accordance with this chapter shall be submitted to that committee,
including vendor representatives, for review and comment, and that
the comment be considered by both departments prior to the adoption
of any policy or procedure. It is also the intent of the Legislature
that this section shall apply to the Department of General Services
Information Technology Customer Council.
(h) Protest procedures shall be developed to provide bidders an
opportunity to protest any formal, competitive acquisition conducted
in accordance with this chapter. The procedures shall provide that
protests must be filed no later than five working days after the
issuance of an intent to award. Authority to protest may be limited
to participating bidders. The Director of General Services, or a
person designated by the director, may consider and decide on initial
protests. A decision regarding an initial protest shall be final.
If prior to the last day to protest, any vendor who has submitted an
offer files a protest with the department against the awarding of the
contract or purchase order on the ground that his or her bid or
proposal should have been selected in accordance with the selection
criteria in the solicitation document, the contract or purchase order
shall not be awarded until either the protest has been withdrawn or
the State Board of Control has made a final decision as to the action
to be taken relating to the protest. Within 10 calendar days after
filing a protest, the protesting vendor shall file with the State
Board of Control a full and complete written statement specifying in
detail the grounds of the protest and the facts in support thereof.
(i) Electronic data processing and telecommunications goods which
have been determined to be surplus to state needs shall be disposed
of in a manner which will best serve the interests of the state.
Procedures governing the disposal of surplus goods may include
auction or transfer to local governmental entities.
(j) A vendor may be excluded from bid processes if the vendor's
performance with respect to a previously awarded contract has been
unsatisfactory, as determined by the state in accordance with
established procedures which shall be maintained in the State
Administrative Manual. This exclusion may not exceed 360 calendar
days for any one determination of unsatisfactory performance. Any
vendor excluded in accordance with this section shall be reinstated
as a qualified vendor at any time during this 360-day period, upon
demonstrating to the department's satisfaction that the problems
which resulted in the vendor's exclusion have been corrected.
SEC. 145. Section 2715.5 of the Public Resources Code is amended
to read:
2715.5. (a) The Cache Creek Resource Management Plan, in
conjunction with a site specific plan deemed consistent by the lead
agency with the Cache Creek Resource Management Plan, until December
31, 2003, shall be considered to be a functional equivalent of a
reclamation plan for the purposes of this chapter. No other
reclamation plan shall be required to be reviewed and approved for
any excavation project subject to the Cache Creek Resource Management
Plan that is conducted in conformance with an approved site specific
plan that is consistent with the Cache Creek Resource Management
Plan, and the standards specified in that plan governing erosion
control, channel stabilization, habitat restoration, flood control,
or infrastructure maintenance, if that plan is reviewed and approved
by a lead agency pursuant to this chapter.
(b) For purposes of this section, the board of supervisors of the
county in which the Cache Creek Resource Management Plan is to be
implemented shall prepare and file the annual report required to be
prepared pursuant to Section 2207.
(c) Nothing in this section precludes an enforcement action by the
board or the department brought pursuant to this chapter or Section
2207 if the lead agency or the director determines that a surface
mining operator, acting under the authority of the Cache Creek
Resource Management Plan, is not in compliance with the requirements
of this chapter or Section 2207.
(d) "Site specific plan," for the purposes of this section, means
an individual project plan approved by the lead agency that is
consistent with the Cache Creek Resource Management Plan. Site
specific plans prepared in conformance with the Cache Creek Resource
Management Plan shall, at a minimum, include the information required
pursuant to subdivision (c) of Section 2772, shall comply with the
requirements of Article 9 (commencing with Section 3700) of
Subchapter 1 of Chapter 8 of Title 14 of the California Code of
Regulations and shall be provided along with a financial assurance
estimate to the department for review and comment pursuant to Section
2774. Notwithstanding the number of days authorized by paragraph
(1) of subdivision (d) of Section 2774, the department shall review
the site specific plan and the financial assurance estimate and
prepare any written comments within 15 days from the date of receipt
of the plan and the estimate.
(e) Prior to engaging in an excavation activity in conformance
with the Cache Creek Resource Management Plan, a surface mining
operation shall be required to obtain financial assurances that meet
the requirements of Section 2773.1.
(f) This section shall remain in effect only until December 31,
2003, and as of that date is repealed, unless a later enacted statute
, that is enacted before December 31, 2003,
deletes or extends that date.
SEC. 146. Section 31164 of the Public Resources Code is amended to
read:
31164. (a) The San Francisco Bay Area Conservancy Program Account
is hereby created in the State Coastal Conservancy Fund, for the
purpose of depositing and disbursing funds for the administration and
implementation of the San Francisco Bay Area Conservancy Program.
(b) (1) The money in the account created pursuant to subdivision
(a) shall be segregated into two subaccounts, as follows:
(A) The first subaccount shall contain funds that are appropriated
by the Legislature for the purposes of this chapter. Any interest
that accrues on the funds in this subaccount shall be transferred to,
and deposited into, the General Fund. The conservancy shall account
for all deposits or reimbursements of funds in this subaccount that
are derived from funds that were appropriated by the Legislature for
the purposes of this chapter.
(B) The second subaccount shall contain funds that are derived
from all other sources, exclusive of federal funds, for the purposes
of this chapter, including, but not limited to, private donations,
fees and penalties, and local government contributions. Any interest
that accrues on the funds in this subaccount shall be retained in
the subaccount and shall be available for expenditure by the
conservancy for the purposes of this chapter. Not more than 3
percent of the funds that are deposited in this subaccount shall be
utilized by the conservancy for general administration and planning
purposes. No funds shall be expended from this subaccount for any
activity that would legally require a commitment of state funds in
the future. Notwithstanding Section 1334
13340 of the Government Code, the funds in this subaccount are
continuously appropriated, without regard to fiscal year, to the
conservancy for expenditures for the purposes of this chapter.
(2) All reimbursements, proceeds of sale, or other money received
by the conservancy for the purposes of this chapter that are not
expended on projects under the San Francisco Bay Area Conservancy
Program shall be redeposited in the appropriate subaccount of the
account.
(c) The conservancy shall not be required to undertake any
activities pursuant to this chapter until such time that funds from
new sources of funding that are not currently available to the
conservancy for those purposes are appropriated by the Legislature or
otherwise deposited in the account, and until such time that any
administrative or general planning funds expended by the conservancy
for the purposes of this chapter prior to any such appropriations or
deposits being available for expenditure by the conservancy are
reimbursed to the State Coastal Conservancy Fund.
SEC. 147. Section 42923 of the Public Resources Code is amended to
read:
42923. (a) The board may grant one or more single or multiyear
time extensions from the requirements of subdivision (a) of Section
42921 to any state agency or large state facility if all of the
following conditions are met:
(1) Any multiyear extension that is granted does not exceed three
years, and a state agency or a large state facility is not granted
extensions that exceed a total of five years.
(2) No extension is granted for any period after January 1, 2006,
and no extension is effective after January 1, 2006.
(3) The board considers the extent to which a state agency or a
large state facility complied with its plan of correction before
considering another extension.
(4) The board adopts written findings, based upon substantial
evidence in the record, as follows:
(A) The state agency or the large state facility is making a good
faith effort to implement the source reduction, recycling, and
composting programs identified in its integrated waste management
plan.
(B) The state agency or the large state facility submits a plan of
correction that demonstrates that the state agency or the large
state facility will meet the requirements of Section 42921 before the
time extension expires, includes including
the source reduction, recycling, or composting steps the state
agency or the large state facility will implement, a date prior to
the expiration of the time extension when the requirements of Section
42921 will be met, existing programs that it will modify, any new
programs that will be implemented to meet those requirements, and the
means by which these programs will be funded.
(b) (1) When considering a request for an extension, the board may
make specific recommendations for the implementation of the
alternative plans.
(2) Nothing in this section shall preclude the board from
disapproving any request for an extension.
(3) If the board disapproves a request for an extension, the board
shall specify its reasons for the disapproval.
(c) (1) In determining whether to grant the request by a state
agency or a large state facility for the time extension authorized by
subdivision (a), the board shall consider information provided by
the state agency or the large state facility that describes relevant
circumstances that contributed to the request for extension, such as
a lack of markets for recycled materials, local efforts to implement
source reduction, recycling, and composting programs, facilities
built or planned, waste disposal patterns, and the type of waste
disposed by agency.
(2) The state agency or the large state facility may provide the
board with any additional information that the state agency or the
large state facility determines to be necessary to demonstrate to the
board the need for the extension.
(d) If the board grants a time extension pursuant to subdivision
(a), the state agency may request technical assistance from the board
to assist it in meeting the diversion requirements of subdivision
(a) of Section 42921 during the extension period. If requested by
the state agency or the large state facility, the board shall assist
the state agency or the large state facility with identifying model
policies and plans implemented by other agencies.
(e) This section shall remain in effect only until January 1,
2006, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2006, deletes or extends
that date.
SEC. 148. Section 237 of the Revenue and Taxation Code is amended
to read:
237. (a) Property owned and operated by a federally designated
Indian tribe or its tribally designated housing entity is not subject
to taxation under this part if the property and entity meet the
following requirements:
(1) The property is used exclusively and solely for the charitable
purpose of providing rental housing and related facilities for
tenants who are persons of low income (as defined in Section 50093 of
the Health and Safety Code).
(2) The housing entity is nonprofit.
(3) No part of the net earnings of the housing entity inure to the
benefit of any private shareholder or individual.
(b) In lieu of the tax imposed by this part, a tribe or tribally
designated housing entity may agree to make payments to a county,
city, city and county, or political subdivision of the state for
providing services, improvements, or facilities
provided by that entity for the benefit of a low-income
housing project owned and operated by the tribe or tribally
designated housing entity. Any payments in lieu of tax may not
exceed the estimated cost to the city, county, city and county, or
political subdivision of the state of the services, improvements, or
facilities to be provided.
(c) A tribe or tribally designated housing entity applying for an
exemption under this section shall provide the following documents to
the assessor:
(1) Documents establishing that the designating tribe is federally
recognized.
(2) Documents establishing that the housing entity has been
designed designated by the tribe.
(3) Documents establishing that there is a deed restriction,
agreement, or other legally binding document restricting the property'
s use to low-income housing and that provides that the property's
housing units are continuously available to or occupied by persons
who are low income, as defined by Section 50093 of the Health and
Safety Code, at rents that do not exceed those prescribed by Section
50053 of the Health and Safety Code, or, to the extent that the terms
of federal, state, or local financing or financial assistance
conflict with that section, rents that do not exceed those prescribed
by the terms of the financing agreements or financial assistance
agreements.
SEC. 149. Section 2512 of the Revenue and Taxation Code is amended
to read:
2512. If a remittance to cover a payment required by law to be
made to a taxing agency prior to a specified date and hour is (a)
deposited in the United States mail in a sealed envelope, properly
addressed with the required postage prepaid, or (b) deposited for
shipment with an independent delivery service that is an Internal
Revenue Service designated
delivery service or has been approved by the tax collector ,
in a sealed envelope or package, properly addressed with the
required fee prepaid, delivery of which shall not be later than 5
p.m. on the next business day after the effective delinquent date,
the remittance shall be deemed received on the date shown by the post
office cancellation mark stamped upon the envelope containing the
remittance, or the independent delivery service shipment date shown
on the packing slip or air bill attached to the outside of the
envelope or package containing the remittance, or on the date it was
mailed if proof satisfactory to the tax collector establishes that
the mailing occurred on an earlier date. The taxing agency is not
required to accept such a payment actually
received in the mail if it is received more than 30 days after the
date and time set by law for the payment. This section shall not,
for purposes of applying subdivision (a) of Section 3707, apply to a
remittance sent by mail or by independent delivery service for the
redemption of tax-defaulted property.
SEC. 150. Section 2613 of the Revenue and Taxation Code is amended
to read:
2613. All taxes on the secured roll shall be paid at the tax
collector's office unless the board of supervisors, upon
recommendation of the tax collector and on or before the day when
payments may be made, orders that taxes be collected in any other or
additional location with within the
county.
SEC. 151. Section 6471 of the Revenue and Taxation Code is amended
to read:
6471. (a) Upon written notification by the board, any person
whose estimated measure of tax liability under this part averages
seventeen thousand dollars ($17,000) or more per month, as determined
by the board, shall, without regard to the measure of tax in any one
month , make prepayments as prescribed in this section.
(1) In the first, third, and fourth calendar quarters, the person
shall prepay not less than 90 percent of the amount of state and
local tax liability for each of the first two monthly periods of each
quarterly period.
(2) In the second calendar quarter, the person shall
prepay make a first prepayment of 90 percent of
the amount of state and local tax liability for the first monthly
period of each the quarterly period and
a second prepayment of either of the following:
(A) Ninety percent of the amount of state and local tax liability
for the second monthly period of the quarterly period, plus 90
percent of the amount of state and local tax liability for the first
15 days of the third monthly period of the quarterly period.
(B) Ninety percent of the amount of state and local tax liability
for the second monthly period of the quarterly period, plus 50
percent of 90 percent of the amount of the
state and local tax liability for the second monthly period of
the quarterly period.
(b) Persons engaged in their present business during all of the
corresponding quarterly period of the preceding year, or persons who
are successors to a business that was in operation during all of that
quarterly period, may satisfy the above monthly prepayment
requirements for the first, third, and fourth calendar quarters by
payment of an amount equal to one-third of the measure of tax
liability reported on the return or returns filed for that quarterly
period of the preceding year multiplied by the state and local tax
rate in effect during the month for which the prepayment is made.
The
These persons may satisfy their prepayment requirements for
the second calendar quarter by making a first prepayment of an amount
equal to one-third of the measure of tax liability reported, and a
second prepayment of an amount equal to one-half of the measure of
tax liability reported, on the return or returns filed for that
quarterly period of the preceding year multiplied by the state and
local tax rate in effect during the month for which the prepayment is
made.
Prepayments shall be made during the quarterly periods designated
by the board and during each succeeding quarterly period until
further notified in writing by the board.
SEC. 152. Section 6472 of the Revenue and Taxation Code is amended
to read:
6472. Except in the case of persons required to remit amounts due
in accordance with Article 1.2 (commencing with Section 6479.3), for
purposes of Section 6471, a prepayment shall be
accompanied by a report of the amount of the prepayment in a form
prescribed by the board and shall be made to the board as follows:
(a) In the first, third, and fourth calendar quarters, on or
before the 24th day next following the end of each of the first two
monthly periods of each quarterly period.
(b) In the second calendar quarter , as follows:
(1) The first prepayment on or before the 24th day next following
the end of the first monthly period of each
the quarterly period.
(2) The second prepayment on or before the 24th day of the third
monthly period of each the quarterly
period for the second monthly period and the first 15 days of the
third monthly period of each the
quarterly period.
SEC. 153. Section 426 of the Vehicle Code is amended to read:
426. "New motor vehicle dealer" is a dealer, as defined in
Section 285, who, in addition to the requirements of that section,
either acquires for resale new and unregistered motor vehicles from
manufacturers or distributors of those motor vehicles or acquires for
resale new and unregistered off-highway motorcycles from
manufacturers or distributors of the vehicles. No distinction shall
be made, nor any different construction be given to the definition of
"new motor vehicle dealer" and "dealer" except for the application
of the provisions of Chapter 6 (commencing with Section 3000) of
Division 2 and Section 11704.5 or 11704.6 . The
provisions of Sections 3001 and 3003 shall not, however, apply to a
dealer who deals exclusively in motorcycles.
SEC. 154. Section 1666 of the Vehicle Code is amended to read:
1666. The department shall do all of the following:
(a) Include at least one question in each test of an applicant's
knowledge and understanding of the provisions of this code, as
administered pursuant to Section 12804
12804.9 or 12814, to verify that the applicant has read and
understands the table of blood alcohol concentration published in the
Driver's Handbook made available pursuant to subdivision (b) of
Section 1656. In order to minimize costs, the question or questions
shall be initially included at the earliest opportunity when the test
is otherwise revised or reprinted.
(b) Include with each driver's license or certificate of renewal
and each vehicle registration renewal mailed by the department,
information which shows with reasonable certainty the amount of
alcohol consumption necessary for a person to reach a 0.08 percent
blood alcohol concentration by weight.
SEC. 155. Section 5204 of the Vehicle Code is amended to read:
5204. (a) Except as provided by subdivisions (b) and (c), a tab
shall indicate the year of expiration and a tab shall indicate the
month of expiration. Current month and year tabs shall be attached
to the rear license plate assigned to the vehicle for the last
preceding registration year in which license plates were issued, and,
when so attached, the license plate with the tabs shall, for the
purposes of this code, be deemed to be the license plate, except that
truck tractors, and commercial motor vehicles having an unladen
weight of 10,000 pounds or more, shall display the current month and
year tabs upon the front license plate assigned to the truck tractor
or commercial motor vehicle. Vehicles that fail to display current
month and year tabs or display expired tabs are in violation of this
section.
(b) The requirement of subdivision (a) that the tabs indicate the
year and the month of expiration does not apply to fleet vehicles
subject to Article 9.5 (commencing with Section 5300)
5301) .
(c) Subdivision (a) does not apply when proper application for
registration has been made pursuant to Section 4602 and the new
indicia of current registration have not been received from the
department.
(d) This section is enforceable against any motor vehicle that is
driven, moved, or left standing upon a highway, or in an offstreet
public parking facility, in the same manner as provided in
subdivision (a) of Section 4000.
SEC. 156. Section 9980 of the Vehicle Code is amended to read:
9980. If the manufacturer of the engine of a new motor vehicle
specified in Section 9983 is different from the
manufacturer of the vehicle, the vehicle shall be labeled as required
by Section 9981.
For purposes of this chapter, the manufacturer of a motor vehicle
engine is different from the vehicle manufacturer if a majority of
parts, or most of the work of assembly, of the engine is provided by
a person other than the vehicle manufacturer or a subsidiary or
affiliate of the vehicle manufacturer. For purposes of this chapter,
an "affiliate" is an entity that directly, or indirectly through one
or more intermediaries, controls or is controlled by, or is under
common control with, the manufacturer of the vehicle.
SEC. 157. Section 12808 of the Vehicle Code is amended to read:
12808. (a) The department shall, before issuing or renewing any
license, check the record of the applicant for conviction of traffic
violations and traffic accidents.
(b) The department shall, before issuing or renewing any license,
check the record of the applicant for notices of failure to appear in
court filed with it and shall withhold or shall not issue a license
to any applicant who has violated his or her written
promise to appear in court unless the department has received a
certificate issued by the magistrate or clerk of the court hearing
the case in which the promise was given showing that the case has
been adjudicated or unless the applicant's record is cleared as
provided in Chapter 6 (commencing with Section 41500) of Division 17.
In lieu of the certificate of adjudication, a notice from the court
stating that the original records have been lost or destroyed shall
permit the department to issue a license.
(c) (1) Any notice received by the department pursuant to Section
40509, 40509.1, or 40509.5, except subdivision (c) of Section
40509.5, that has been on file five years or more may be
removed from the department records and destroyed at the discretion
of the department.
(2) Any notice received by the department under subdivision (c) of
Section 40509.5 that has been on file 10 years or more
may be removed from the department records and destroyed at the
discretion of the department.
SEC. 158. Section 12815 of the Vehicle Code is amended to read:
12815. (a) If a driver's license issued under this code is lost,
destroyed or mutilated, or a new true, full name is acquired, the
person to whom it was issued shall obtain a duplicate upon furnishing
to the department (a) (1) satisfactory
proof of that loss, destruction, or mutilation and (b)
(2) if the licensee is a minor, evidence of
permission to obtain a duplicate secured from the parents, guardian
, or person having custody of the minor. Any person who
loses a driver's license and who, after obtaining a duplicate, finds
the original license shall immediately destroy the original license.
(b) A person in possession of a valid driver's license who has
been informed either by the department or by a law enforcement agency
that the document is mutilated shall surrender the license to the
department not later than 10 days after that notification.
(c) For purposes of this section, a mutilated license is one that
has been damaged sufficiently to render any or all of the elements of
identity set forth in Sections 12800.5 and 12811 unreadable or
unidentifiable through visual, mechanical, or electronic means.
SEC. 159. Section 13377 of the Vehicle Code is amended to read:
13377. (a) The department shall not issue or renew, or shall
revoke, the tow truck driver certificate of an applicant or holder
for any of the following causes:
(1) The tow truck driver certificate applicant or holder has been
convicted of a violation of Section 220 of the Penal Code.
(2) The tow truck driver certificate applicant or holder has been
convicted of a violation of paragraph (1), (2), (3), or (4) of
subdivision (a) of Section 261 of the Penal Code.
(3) The tow truck driver certificate applicant or holder has been
convicted of a violation of Section 264.1, 267, 288, or 289 of the
Penal Code.
(4) The tow truck driver certificate applicant or holder has been
convicted of any felony or three misdemeanors which are crimes of
violence, as defined in subdivision (i) of Section 11105.3 of the
Penal Code.
(5) The tow truck driver certificate applicant's or holder's
driving privilege has been suspended or revoked in accordance with
any provisions of this code.
(b) For purposes of this section, a conviction means a plea or
verdict of guilty or a conviction following a plea of nolo
contendere. For purposes of this section, the record of a
conviction, or a copy thereof certified by the clerk of the court or
by a judge of the court in which the conviction occurred, is
conclusive evidence of the conviction.
(c) Whenever the department receives information from the
Department of Justice, or the Federal Bureau of Investigation, that a
tow truck driver has been convicted of an offense specified in
paragraph (1), (2), (3), or (4) of subdivision (a), the department
shall immediately notify the employer and the Department of the
California Highway Patrol.
(d) An applicant or holder of a tow truck driver certificate,
whose certificate was denied or revoked, may reapply for a
certificate whenever the applicable felony or misdemeanor conviction
is reversed or dismissed. If the cause for the denial or revocation
was based on the suspension or revocation of the applicant's or
holder's driving privilege, he or she may reapply for a certificate
upon restoration of his or her driving privilege. A termination of
probation and dismissal of charges pursuant to Section 1203.4 of the
Penal Code or a dismissal of charges pursuant to 1203.4(a)
1203.4a of the Penal Code is not a dismissal for
purposes of this section.
SEC. 160. Section 16020.1 of the Vehicle Code is amended to read:
16020.1. (a) On and after January 1, 2004, Section 4000.37 does
not apply in the County of Los Angeles.
(b) On and after January 1, 2004, subdivision
subdivisions (a) and (b) of Section 16028 do not apply to
a person who drives a motor vehicle upon a highway in the County of
Los Angeles.
SEC. 161. Section 21051 of the Vehicle Code is amended to read:
21051. The following sections apply to trolley coaches:
(a) Sections 1800, 4000, 4001, 4002, 4003, 4006, 4009, 4150, 4151,
4152, 4153, 4155, 4156, 4158, 4166, 4300 to 4309, inclusive, 4450 to
4454, inclusive, 4457, 4458, 4459, 4460, 4600 to 4610, inclusive,
4750, 4751, 4850, 4851, 4852, 4853, 5000, 5200 to 5205, inclusive,
5904, 6052, 8801, 9254, and 40001 with respect to 4000, relating to
original and renewal of registration.
(b) Sections 9250, 9265, 9400, 9406, 9407, 9408, 9550, 9552, 9553,
9554, 9800 to 9809 9808 , inclusive,
14901, 42230 to 42234 42233 ,
inclusive, relating to registration and other fees.
(c) Sections 2800, 10851, 10852, 10853, 20001 to 20009, inclusive,
21052, 21053, 21054, 21450 to 21457, inclusive, 21461, 21650, 21651,
21658, 21659, 21700, 21701, 21702, 21703, 21709, 21712, 21750,
21753, 21754, 21755, 21800, 21801, 21802, 21806, 21950, 21951, 22106,
22107, 22108, 22109, 22350, 22351, 22352, 22400, 22450 to 22453,
inclusive, 23103, 23104, 23110, 23152, 23153, 40831, 42002 with
respect to 10852 and 10853, and 42004, relating to traffic laws.
(d) Sections 26706, 26707, and 26708, relating to equipment.
(e) Sections 17301, 17302, 17303, 21461, 35000, 35100, 35101,
35105, 35106, 35111, 35550, 35551, 35750, 35751, 35753, 40000.1 to
40000.25, inclusive, 40001, 40003, and 42031, relating to the size,
weight, and loading of vehicles.
SEC. 162. Section 22511.56 of the Vehicle Code is amended to read:
22511.56. (a) Any person using a distinguishing
placard issued pursuant to Section 22511.55 or 22511.59 for parking
as permitted by Section 22511.5 shall, upon request of any peace
officer or person authorized to enforce parking laws, ordinances, or
regulations, present identification and evidence of the issuance of
that placard to that person.
(b) Failure to present the requested identification and evidence
of the issuance of that placard shall be a rebuttable presumption
that the placard is being misused and that the associated vehicle has
been parked in violation of the provisions of Section 22507.8.
(c) In addition to any other applicable penalty for the misuse of
a placard, the officer or parking enforcement person may confiscate a
placard being used for parking purposes that benefit any person
other than the person to whom the placard was issued by the
Department of Motor Vehicles. A placard lawfully used by a person
transporting a disabled person pursuant to subdivision (b) of Section
4461 shall not be confiscated.
SEC. 163. Section 34505.9 of the Vehicle Code is amended to read:
34505.9. (a) An ocean marine terminal that receives and
dispatches intermodal chassis may conduct the intermodal roadability
inspection program, as described in this section, in lieu of the
inspection required by Section 34505.5, if the terminal meets all of
the following conditions:
(1) More than 1,000 chassis are based at the ocean marine
terminal.
(2) The ocean marine terminal, following the two most recent
consecutive inspections required by Section 34501.12, has received
satisfactory compliance ratings, and the terminal has received no
unsatisfactory compliance ratings as a result of any inspection
conducted in the interim between the consecutive inspections
conducted under Section 34501.12.
(3) Each intermodal chassis exiting the ocean marine terminal
shall have a current decal and supporting documentation in accordance
with Section 396.17 of Title 49 of the Code of Federal Regulations.
(4) The ocean marine terminal's intermodal roadability inspection
program consists of all of the following:
(A) Each time an intermodal chassis is released from the ocean
marine terminal, the chassis shall be inspected. The inspection
shall include, but not be limited to, brake adjustment, brake system
components and leaks, suspension systems, tires and wheels, vehicle
connecting devices, and lights and electrical system.
(B) Each inspection shall be recorded on a daily roadability
inspection report, which shall include, but not be limited to, all of
the following:
(i) Positive identification of the intermodal chassis, including
company identification number.
(ii) Date and nature of each inspection.
(iii) Signature of the ocean marine terminal operator or an
authorized representative.
(C) Records of each inspection conducted pursuant to subparagraph
(A) shall be retained for 90 days at the ocean marine terminal at
which each chassis is based and shall be made available upon request
by any authorized employee of the department.
(D) Defects noted on any intermodal chassis shall be repaired, and
the repairs shall be recorded on the intermodal chassis maintenance
file, before the intermodal chassis is released from the control of
the ocean marine terminal. No vehicle subject to this section shall
be operated on the highway other than to a place of repair until all
defects listed during the inspection conducted pursuant to
subparagraph (A) have been corrected and attested to by the signature
of the operator's authorized representative.
(E) Records of maintenance or repairs performed pursuant to the
inspection in subparagraph (A) shall be maintained at the ocean
marine terminal for two years and shall be made available upon
request of the department. Repair records may be retained in a
computer system if printouts of those records are provided to the
department upon request.
(F) Individuals performing ocean marine terminal roadability
inspections pursuant to this section shall be qualified, at a
minimum, as set forth in Section 396.19 of Title 49 of the Code of
Federal Regulations. Evidence of each inspector's qualification
shall be retained by the ocean marine terminal operator for the
period during which the inspector is performing intermodal
roadability inspections.
(b) Following a terminal inspection in which the department
determines that an operator of an ocean marine terminal utilizing the
intermodal roadability inspection program has failed to comply with
the requirements of this section, the department shall conduct a
reinspection within 120 days as specified in subdivision (h) of
Section 34501.12. If the terminal fails the reinspection, the
department shall direct the operator to comply with the requirements
of Section 34505.5 until eligibility to utilize the inspection
program described in this section is reestablished pursuant to
subdivision (a). If any inspection results in an unsatisfactory
rating due to conditions presenting an imminent danger to the public
safety, as described in Section 34505.6 or 34506.7
34505.7 , the department immediately shall direct the
operator to comply with the requirements of Section 34505.5 until
eligibility to utilize the inspection program described in this
section is reestablished pursuant to subdivision (a).
(c) For the purposes of this section, the following definitions
shall apply:
(1) "Intermodal chassis" means a trailer designed to carry
intermodal freight containers.
(2) "Ocean marine terminal" means a terminal, as defined in
Section 34515, located at a port facility that engages in the loading
and unloading of the cargo of ocean-going vessels.
SEC. 164. Section 35790.1 of the Vehicle Code is amended to read:
35790.1. In addition to the requirements and conditions contained
in Section 35790 and notwithstanding any other provision of law, all
of the following conditions and specifications shall be complied
with to move any manufactured home, as defined in Section 18007 of
the Health and Safety Code, that is in excess of 14 feet in total
width, but not exceeding 16 feet in total width, exclusive of lights
and devices provided for in Sections 35109 , 35110, and
35112 and 35110 , upon any highway under the
jurisdiction of the entity granting the permit:
(a) For the purposes of width requirements under this code, the
overall width of manufactured housing specified in this section shall
be the overall width, including roof overhang, eaves, window shades,
porch roofs, or any other part of the manufactured house that cannot
be removed for the purposes of transporting upon any highway.
(b) Unless otherwise exempted under this code, all combinations of
motor vehicles and manufactured housing shall be equipped with
service brakes on all wheels. Service brakes required under this
subdivision shall be adequate, supplemental to the brakes on the
towing vehicle, to enable the combination of vehicles to comply with
the stopping distance requirements of Section 26454.
(c) In addition to the requirements contained in Section 26304,
the breakaway brake device on any manufactured housing unit equipped
with electric brakes shall be powered by a wet cell rechargeable
battery that is of the same voltage rating as the brakes and has
sufficient charge to hold the brakes applied for not less than 15
minutes.
(d) Notwithstanding any other provision of this code, the weight
imposed upon any tire, wheel, axle, drawbar, hitch, or other
suspension component on a manufactured housing unit shall not exceed
the manufacturer's maximum weight rating for the item or component.
(e) In addition to the requirements in subdivision (d), the
maximum allowable weight upon one manufactured housing unit axle
shall not exceed 6,000 pounds, and the maximum allowable weight upon
one manufactured housing unit wheel shall not exceed 3,000 pounds.
(f) Manufactured housing unit tires shall be free from defects,
have at least 2/32 of an inch tread depth, as determined by tire
tread wear indicators, and shall comply with specifications and
requirements contained in Section 3280.904(b)(8) of Title 24 of the
Code of Federal Regulations.
(g) Manufactured housing unit manufacturers shall provide
transporters with a certification of compliance document, certifying
the manufactured housing unit complies with the specifications and
requirements contained in subdivisions (d), (e), and (f). Each
certification of compliance document shall identify, by serial or
identification number, the specific manufactured housing unit being
transported and shall be signed by a representative of the
manufacturer. Each transporter of manufactured housing units shall
have in his or her immediate possession a copy of the certification
of compliance document and shall make the document available upon
request by any member of the Department of the California Highway
Patrol, any authorized employee of the Department of Transportation,
or any regularly employed and salaried municipal police officer or
deputy sheriff.
(h) Manufactured housing unit dealers shall provide transporters
with a certification of compliance document, specifying that all
modifications, equipment additions, or loading changes by the dealer
have not exceeded the gross vehicle weight rating of the manufactured
housing unit or the axle and wheel requirements contained in
subdivisions (d), (e), and (f). Each certification of compliance
document shall identify, by serial or identification number, the
specific manufactured housing unit being transported and shall be
signed by a representative of the dealer. Each transporter of
manufactured housing units shall have in his or her immediate
possession a copy of the certification of compliance document and
shall make the document available upon request by any member of the
Department of the California Highway Patrol, any authorized employee
of the Department of Transportation, or any regularly employed and
salaried municipal police officer or deputy sheriff.
(i) Transporters of manufactured housing units shall not transport
any additional load in, or upon, the manufactured housing unit that
has not been certified by the manufactured housing unit's
manufacturer or dealer.
(j) Every hitch, coupling device, drawbar, or other
connections between the towing unit and the towed manufactured
housing unit shall be securely attached and shall comply with Subpart
J of Part 3280 of Title 24 of the Code of Federal Regulations.
(k) Manufactured housing units shall be equipped with an
identification plate, specifying the manufacturer's name, the
manufactured housing unit's serial number, the gross vehicle weight
rating of the manufactured housing unit, and the gross weight of the
cargo that may be transported in or upon the manufactured housing
unit without exceeding the gross vehicle weight rating. The
identification plate shall be permanently attached to the
manufactured housing unit and shall be positioned adjacent to, and
meet the same specifications and requirements applicable to, the
certification label required by Subpart A of Part 3280 of Title 24 of
the Code of Federal Regulations.
(l) Manufactured housing units shall be subject to all lighting
requirements contained in Sections 24603, 24607, 24608, and 24951.
When transported during darkness, manufactured housing units shall
additionally be subject to Sections 24600 and 25100.
(m) Manufactured housing units shall have all open sides covered
by plywood, hard board, or other rigid material, or by other suitable
plastics or flexible material. Plastic or flexible side coverings
shall not billow or flap in excess of six inches in any one place.
Units that are opened on both sides may be transported empty with no
side coverings.
(n) Transporters of manufactured housing units shall make
available all permits, licenses, certificates, forms, and any other
relative document required for the transportation of manufactured
housing upon request by any member of the Department of the
California Highway Patrol, any authorized employee of the Department
of Transportation, or any regularly employed and salaried municipal
police officer or deputy sheriff.
(o) The Department of Transportation, in cooperation with the
Department of the California Highway Patrol, or the local authority,
shall require pilot car or special escort services for the movement
of any manufactured housing unit pursuant to this section, and may
establish additional reasonable permit regulations, including special
routing requirements, as necessary in the interest of public safety
and consistent with this section.
(p) The Department of Transportation shall not issue a permit to
move a manufactured home that is in excess of 14 feet in total width
unless that department determines that all of the conditions and
specifications set forth in this section have been met.
SEC. 165. Section 361.5 of the Welfare and Institutions Code is
amended to read:
361.5. (a) Except as provided in subdivision (b) of this section
or when the parent has voluntarily relinquished the child and the
relinquishment has been filed with the State Department of Social
Services, or upon the establishment of an order of guardianship
pursuant to Section 360, whenever a child is removed from a parent's
or guardian's custody, the juvenile court shall order the social
worker to provide child welfare services to the child and the child's
mother and statutorily presumed father or guardians. Upon a finding
and declaration of paternity by the juvenile court or proof of a
prior declaration of paternity by any court of competent
jurisdiction, the juvenile court may order services for the child and
the biological father, if the court determines that the services
will benefit the child. Child welfare services, when provided, shall
be provided as follows:
(1) For a child who, on the date of initial removal from the
physical custody of his or her parent or guardian, was three years of
age or older, court-ordered services shall not exceed a period of 12
months from the date the child entered foster care, except as
otherwise provided in paragraph (3).
(2) For a child who, on the date of initial removal from the
physical custody of his or her parent or guardian, was under the age
of three years, court-ordered services shall not exceed a period of
six months from the date the child entered foster care.
(3) For the purpose of placing and maintaining a sibling group
together in a permanent home should reunification efforts fail, for a
child in a sibling group whose members were removed from parental
custody at the same time, and in which one member of the sibling
group was under the age of three years on the date of initial removal
from the physical custody of his or her parent or guardian,
court-ordered services to some or all of the sibling group may be
limited to a period of six months from the date the child entered
foster care. For the purposes of this paragraph, "a sibling group"
shall mean two or more children who are related to each other as full
or half-siblings.
Regardless of the age of the child, a child shall be deemed to
have entered foster care on the earlier of the date of the
jurisdictional hearing held pursuant to Section 356 or the date that
is 60 days after the date on which the child was initially removed
from the physical custody of his or her parent or guardian.
Notwithstanding paragraphs (1), (2), and (3), court-ordered
services may be extended up to a maximum time period not to exceed 18
months after the date the child was originally removed from physical
custody of his or her parent or guardian if it can be shown, at the
hearing held pursuant to subdivision (f) of Section 366.21, that the
permanent plan for the child is that he or she will be returned and
safely maintained in the home within the extended time period. The
court shall extend the time period 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 guardian within the extended
time period or that reasonable services have not been provided to
the parent or guardian. If the court extends the time period, the
court shall specify the factual basis for its conclusion that there
is a substantial probability that the child will be returned to the
physical custody of his or her parent or guardian within the extended
time period. The court also shall make findings pursuant to
subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
When counseling or other treatment services are ordered, the
parent or guardian shall be ordered to participate in those services,
unless the parent's or guardian's participation is deemed by the
court to be inappropriate or potentially detrimental to the child.
Physical custody of the child by the parents or guardians during the
applicable time period under paragraph (1), (2), or (3) shall not
serve to interrupt the running of the period. If at the end of the
applicable time period, a child cannot be safely returned to the care
and custody of a parent or guardian without court supervision, but
the child clearly desires contact with the parent or guardian, the
court shall take the child's desire into account in devising a
permanency plan.
In cases where the child was under the age of three years on the
date of the initial removal from the physical custody of his or her
parent or guardian or is a member of a sibling group as described in
paragraph (3), the court shall inform the parent or guardian that the
failure of the parent or guardian to participate regularly in any
court-ordered treatment programs or to cooperate or avail himself or
herself of services provided as part of the child welfare services
case plan may result in a termination of efforts to reunify the
family after six months. The court shall inform the parent or
guardian of the factors used in subdivision (e) of Section 366.21 to
determine whether to limit services to six months for some or all
members of a sibling group as described in paragraph (3).
Except in cases where, pursuant to subdivision (b), the court does
not order reunification services, the court shall inform the parent
or parents of Section 366.26 and shall specify that the parent's or
parents' parental rights may be terminated.
(b) Reunification services need not be provided to a parent or
guardian described in this subdivision when the court finds, by clear
and convincing evidence, any of the following:
(1) That the whereabouts of the parent or guardian is unknown. A
finding pursuant to this paragraph shall be supported by an affidavit
or by proof that a reasonably diligent search has failed to locate
the parent or guardian. The posting or publication of notices is not
required in that search.
(2) That the parent or guardian is suffering from a mental
disability that is described in Chapter 2 (commencing with Section
7820) of Part 4 of Division 12 of the Family Code and that renders
him or her incapable of utilizing those services.
(3) That the child or a sibling of the child has been previously
adjudicated a dependent pursuant to any subdivision of Section 300 as
a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of his or
her parent or guardian pursuant to Section 361, that the child has
been returned to the custody of the parent or guardian from whom the
child had been taken originally, and that the child is being removed
pursuant to Section 361, due to additional physical or sexual abuse.
(4) That the parent or guardian of the child has caused the death
of another child through abuse or neglect.
(5) That the child was brought within the jurisdiction of the
court under subdivision (e) of Section 300 because of the conduct of
that parent or guardian.
(6) That the child has been adjudicated a dependent pursuant to
any subdivision of Section 300 as a result of severe sexual abuse or
the infliction of severe physical harm to the child, a sibling, or a
half-sibling by a parent or guardian, as defined in this subdivision,
and the court makes a factual finding that it would not benefit the
child to pursue reunification services with the offending parent or
guardian.
A finding of severe sexual abuse, for the purposes of this
subdivision, may be based on, but is not limited to, sexual
intercourse, or stimulation involving genital-genital, oral-genital,
anal-genital, or oral-anal contact, whether between the parent or
guardian and the child or a sibling or half-sibling of the child, or
between the child or a sibling or half-sibling of the child and
another person or animal with the actual or implied consent of the
parent or guardian; or the penetration or manipulation of the child'
s, sibling's, or half-sibling's genital organs or rectum by any
animate or inanimate object for the sexual gratification of the
parent or guardian, or for the sexual gratification of another person
with the actual or implied consent of the parent or guardian.
A finding of the infliction of severe physical harm, for the
purposes of this subdivision, may be based on, but is not limited to,
deliberate and serious injury inflicted to or on a child's body or
the body of a sibling or half-sibling of the child by an act or
omission of the parent or guardian, or of another individual or
animal with the consent of the parent or guardian; deliberate and
torturous confinement of the child, sibling, or half-sibling in a
closed space; or any other torturous act or omission that would be
reasonably understood to cause serious emotional damage.
(7) That the parent is not receiving reunification services for a
sibling or a half-sibling of the child pursuant to paragraph (3),
(5), or (6).
(8) That the child was conceived by means of the commission of an
offense listed in Section 288 or 288.5 of the Penal Code, or by an
act committed outside of this state that, if committed in this state,
would constitute one of those offenses. This paragraph only applies
to the parent who committed the offense or act.
(9) That the child has been found to be a child described in
subdivision (g) of Section 300, that the parent or guardian of the
child willfully abandoned the child, and the court finds that the
abandonment itself constituted a serious danger to the child. For
the purposes of this paragraph, "serious danger" means that without
the intervention of another person or agency, the child would have
sustained severe or permanent disability, injury, illness, or death.
For purposes of this paragraph, "willful abandonment" shall not be
construed as actions taken in good faith by the parent without the
intent of placing the child in serious danger.
(10) That (A) the court ordered
court-ordered termination of reunification services for any
siblings or half-siblings of the child because the parent or guardian
failed to reunify with the sibling or half-sibling after the sibling
or half-sibling had been removed from that parent or guardian
pursuant to Section 361 and that parent or guardian is the same
parent or guardian described in subdivision (a), or (B) the parental
rights of a parent or guardian over any sibling or half-sibling of
the child had been permanently severed, and that, according to the
findings of the court, this parent or guardian has not subsequently
made a reasonable effort to treat the problems that led to removal of
the sibling or half-sibling of that child from that parent or
guardian.
(11) That the parent or guardian of the child has been convicted
of a violent felony, as defined in subdivision (c) of Section 667.5
of the Penal Code.
(12) That the parent or guardian of the child has a history of
extensive, abusive, and chronic use of drugs or alcohol and has
resisted prior treatment for this problem during a three-year period
immediately prior to the filing of the petition that brought that
child to the court's attention, or has failed or refused to comply
with a program of drug or alcohol treatment described in the case
plan required by Section 358.1 on at least two prior occasions, even
though the programs identified were available and accessible.
(13) That the parent or guardian of the child has advised the
court that he or she is not interested in receiving family
maintenance or family reunification services or having the child
returned to or placed in his or her custody and does not wish to
receive family maintenance or reunification services.
The parent or guardian shall be represented by counsel and shall
execute a waiver of services form to be adopted by the Judicial
Council. The court shall advise the parent or guardian of any right
to services and of the possible consequences of a waiver of services,
including the termination of parental rights and placement of the
child for adoption. The court shall not accept the waiver of
services unless it states on the record its finding that the parent
or guardian has knowingly and intelligently waived the right to
services.
(14) That the parent or guardian has on one or more occasions
willfully abducted the child or child's sibling or half-sibling from
his or her placement and refused to disclose the child's or child's
sibling or half-sibling's whereabouts, refused to return physical
custody of the child or child's sibling or half-sibling to his or her
placement, or refused to return physical custody of the child or
child's sibling or half-sibling to the social worker.
(c) In deciding whether to order reunification in any case in
which this section applies, the court shall hold a dispositional
hearing. The social worker shall prepare a report that discusses
whether reunification services shall be provided. When it is
alleged, pursuant to paragraph (2) of subdivision (b), that the
parent is incapable of utilizing services due to mental disability,
the court shall order reunification services unless competent
evidence from mental health professionals establishes that, even with
the provision of services, the parent is unlikely to be capable of
adequately caring for the child within the time limits specified in
subdivision (a).
The court shall not order reunification for a parent or guardian
described in paragraph (3), (4), (6), (7), (8), (9), (10), (11),
(12), (13), or (14) of subdivision (b) unless the court finds, by
clear and convincing evidence, that reunification is in the best
interest of the child.
In addition, the court shall not order reunification in any
situation described in paragraph (5) of subdivision (b) unless it
finds that, based on competent testimony, those services are likely
to prevent reabuse or continued neglect of the child or that failure
to try reunification will be detrimental to the child because the
child is closely and positively attached to that parent. The social
worker shall investigate the circumstances leading to the removal of
the child and advise the court whether there are circumstances that
indicate that reunification is likely to be successful or
unsuccessful and whether failure to order reunification is likely to
be detrimental to the child.
The failure of the parent to respond to previous services, the
fact that the child was abused while the parent was under the
influence of drugs or alcohol, a past history of violent behavior, or
testimony by a competent professional that the parent's behavior is
unlikely to be changed by services are among the factors indicating
that reunification services are unlikely to be successful. The fact
that a parent or guardian is no longer living with an individual who
severely abused the child may be considered in deciding that
reunification services are likely to be successful, provided that the
court shall consider any pattern of behavior on the part of the
parent that has exposed the child to repeated abuse.
(d) If reunification services are not ordered pursuant to
paragraph (1) of subdivision (b) and the whereabouts of a parent
become known within six months of the out-of-home placement of the
child, the court shall order the social worker to provide family
reunification services in accordance with this subdivision.
(e) (1) If the parent or guardian is incarcerated or
institutionalized, the court shall order reasonable services unless
the court determines, by clear and convincing evidence, those
services would be detrimental to the child. In determining
detriment, the court shall consider the age of the child, the degree
of parent-child bonding, the length of the sentence, the nature of
the treatment, the nature of the crime or illness, the degree of
detriment to the child if services are not offered and, for children
10 years of age or older, the child's attitude toward the
implementation of family reunification services, and any other
appropriate factors. Reunification services are subject to the
applicable time limitations imposed in subdivision (a). Services may
include, but shall not be limited to, all of the following:
(A) Maintaining contact between the parent and child through
collect telephone calls.
(B) Transportation services, where appropriate.
(C) Visitation services, where appropriate.
(D) Reasonable services to extended family members or foster
parents providing care for the child if the services are not
detrimental to the child.
An incarcerated parent may be required to attend counseling,
parenting classes, or vocational training programs as part of the
service plan if these programs are available.
(2) The presiding judge of the juvenile court of each county may
convene representatives of the county welfare department, the sheriff'
s department, and other appropriate entities for the purpose of
developing and entering into protocols for ensuring the notification,
transportation, and presence of an incarcerated or institutionalized
parent at all court hearings involving proceedings affecting the
child pursuant to Section 2625 of the Penal Code.
(3) Notwithstanding any other provision of law, if the
incarcerated parent is a woman seeking to participate in the
community treatment program operated by the Department of Corrections
pursuant to Chapter 4.8 (commencing with Section 1174) of Title 7 of
Part 2 of, or Chapter 4 (commencing with Section 3410) of
Title 2 of Part 3 of, the Penal Code, the court shall determine
whether the parent's participation in a program is in the child's
best interest and whether it is suitable to meet the needs of the
parent and child.
(f) If the court, pursuant to paragraph (2), (3), (4), (5), (6),
(7), (8), (9), (10), (11), (12), (13), or (14) of subdivision (b) or
paragraph (1) of subdivision (e), does not order reunification
services, it shall, at the dispositional hearing, that shall include
a permanency hearing, determine if a hearing under Section 366.26
shall be set in order to determine whether adoption, guardianship, or
long-term foster care is the most appropriate plan for the child.
If the court so determines, it shall conduct the hearing pursuant to
Section 366.26 within 120 days after the dispositional hearing.
However, the court shall not schedule a hearing so long as the other
parent is being provided reunification services pursuant to
subdivision (a). The court may continue to permit the parent to
visit the child unless it finds that visitation would be detrimental
to the child.
(g) Whenever a court orders that a hearing shall be held pursuant
to Section 366.26, it shall direct the agency supervising the child
and the licensed county adoption agency, or the State Department of
Social Services when it is acting as an adoption agency in counties
that are not served by a county adoption agency, to prepare an
assessment that shall include:
(1) Current search efforts for an absent parent or parents.
(2) A review of the amount of and nature of any contact between
the child and his or her parents 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 paragraph shall include,
but not be limited to, the child's siblings, grandparents, aunts, and
uncles.
(3) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(4) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or guardian, 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, and
the relative was assessed for foster care placement of the minor
prior to January 1, 1998, the assessment shall also consider, but
need not be limited to, all of the factors specified in subdivision
(a) of Section 361.3. As used in this paragraph, "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.
(5) The relationship of the child to any identified prospective
adoptive parent or guardian, the duration and character of the
relationship, the motivation for seeking adoption or guardianship,
and a statement from the child concerning placement and the adoption
or guardianship, 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.
(6) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(h) In determining whether reunification services will benefit the
child pursuant to paragraph (6) or (7) of subdivision (b), the court
shall consider any information it deems relevant, including the
following factors:
(1) The specific act or omission comprising the severe sexual
abuse or the severe physical harm inflicted on the child or the child'
s sibling or half-sibling.
(2) The circumstances under which the abuse or harm was inflicted
on the child or the child's sibling or half-sibling.
(3) The severity of the emotional trauma suffered by the child or
the child's sibling or half-sibling.
(4) Any history of abuse of other children by the offending parent
or guardian.
(5) The likelihood that the child may be safely returned to the
care of the offending parent or guardian within 12 months with no
continuing supervision.
(6) Whether or not the child desires to be reunified with the
offending parent or guardian.
(i) The court shall read into the record the basis for a finding
of severe sexual abuse or the infliction of severe physical harm
under paragraph (6) of subdivision (b), and shall also specify the
factual findings used to determine that the provision of
reunification services to the offending parent or guardian would not
benefit the child.
SEC. 166. Section 727.3 of the Welfare and Institutions Code is
amended to read:
727.3. The purpose of this section is to provide a means to
monitor the care of every child in foster care who has been declared
a ward of the juvenile court pursuant to Section 601 or 602 to ensure
that everything reasonably possible is done to facilitate the safe
early return of the child to his or her own home or to establish a
permanent plan for the child.
(a) Whenever the court orders the care, custody, and control of
the minor to be under the supervision of the probation officer for
placement pursuant to subdivision (a) of Section 727, the juvenile
court shall order the probation department to ensure the provision of
services 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.
(b) A child shall be deemed to have entered foster care, for
purposes of this section, on the date that is 60 days after the date
on which the minor was removed from his or her home.
(c) The status of every child declared a ward and placed in foster
care shall be reviewed at the time of the initial placement order
and then as determined by the court but no less frequently than once
every six months, as calculated from the date the minor entered
foster care. If the court so elects, the court may declare the
hearing at which the court orders the care, custody, and control of
the minor to be under the supervision of the probation officer for
foster care placement pursuant to subdivision (a) of Section 727 as
the first status review hearing. At each status review hearing, the
court shall consider the safety of the child
and make findings and orders which determine
the following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) The extent of the probation department's compliance with the
case plan in making reasonable efforts to safely return the child to
the child's home or to complete whatever steps are necessary to
finalize the permanent placement of the child.
(3) The extent of progress that has been made toward alleviating
or mitigating the causes necessitating placement in foster care.
(4) The likely date by which the child may be returned to and
safely maintained in the home or placed for legal guardianship or
adoption.
(d) The status review hearings required by subdivision (c) may be
heard by an administrative review panel, provided:
(1) The administrative review shall be open to participation by
the child and parents or legal guardians and all those persons
entitled to notice under Section 727.4.
(2) The child and his or her parents or legal guardians receive
proper notice as required in Section 727.4.
(3) The administrative review panel is composed of persons
appointed by the presiding judge of the juvenile court, the
membership of which shall include at least one person who is not
responsible for the case management of, or delivery of services to,
the child or the parents who are the subject of the review.
(4) The findings of the administrative review panel shall be
submitted to the juvenile court for the court's approval and shall
become part of the official court record.
(e) At the status review hearing the court shall order 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
probation department shall have the burden of establishing that
detriment. The failure of the child to participate in court-ordered
treatment programs shall be prima facie evidence that the return of
the child would be detrimental. In making its determination, the
court shall review and consider the social study report and
recommendations pursuant to Section 706.5 and the report and
recommendations of any child advocate appointed for the child in the
case, and shall consider the efforts or progress, or both,
demonstrated by the child and family and the extent to which the
child availed himself or herself of the services provided.
(f) There shall be a permanency planning hearing within 12 months
of the date the child entered foster care and periodically
thereafter, but no less frequently than every 12 months during the
period of placement. It shall be the duty of the probation officer
to prepare a written social study report pursuant to Section 706.5
containing a statement of the responsibilities of the parents or
legal guardians, the probation department, the caseworker of the
probation department, the foster parents, and the child. The written
social study shall also describe the goals for the child's placement
and care with the department, including the services provided to
achieve the goal that the child shall exhibit lawful and productive
behavior, and the appropriate plan for permanence for the child. The
report shall be submitted to the court at the permanency planning
hearing.
(1) At all permanency planning hearings, the court shall determine
the permanent plan for the child that includes a determination of
whether the child will be returned to the physical custody of the
parent or legal guardian. Upon findings that there is substantial
probability that additional services will aid the safe return of the
child to the physical custody of his or her parents or legal guardian
within six months, the court may order further reunification
services to be provided to the child and parent or legal guardian for
a period not to exceed six months. For purposes of this section, in
order to find a substantial probability, the court shall be required
to find the child and his or her parents or guardians to have
demonstrated the capacity and ability to complete the objectives of
his or her case plan. If the child is not returned to a parent or
legal guardian at the permanency hearing, the court shall determine
whether or not the child should be referred for adoption proceedings,
referred for legal guardianship pursuant to subdivision (c) of
Section 728, or referred to an alternative planned permanent living
arrangement, including whether, because of the child's special needs
or circumstances, the child should be continued in foster care on a
permanent basis. The court shall also determine the extent of
progress in achieving the treatment goals of the plan. In the case
of a child who has reached 16 years of age, the hearing shall, in
addition, determine the services needed to assist the child to make
the transition from foster care to independent living.
(2) An "alternative planned permanent living arrangement" means a
permanent foster care placement with a specific identified foster
family on a permanent basis, a facility described in Section 11402,
or an independent living arrangement, such as emancipation by
marriage, court order, or reaching the age of majority.
(3) When a minor is placed in long-term foster care with a
relative, the court may authorize the relative to provide the same
legal consent for the minor's medical, surgical, and dental care, and
education as the custodial parent of the minor.
(4) If the child has a continuing involvement with his or her
parents or legal guardians, the parents or legal guardians shall be
involved in the planning for a permanent placement. The court order
placing the child in a permanent placement shall include a
specification of the nature and frequency of visiting arrangements
with the parents or legal guardians.
(5) Any change in the placement of a child in permanent foster
care or the responsibilities of the foster parents for that child
shall be made only by order of the court that ordered the placement
pursuant to a petition filed pursuant to Section 778.
(g) Prior to any status or permanency hearing involving a child in
the physical custody of a community care facility or foster family
agency, the facility or agency shall file with the court a report
containing its recommendations. Prior to any status or permanency
hearing involving the physical custody of a foster parent, relative
caregiver, preadoptive parent, or legal guardian, that person may
present to the court a report containing his or her recommendations.
The court shall consider all reports and recommendations, filed
pursuant to this subdivision.
(h) If the minor is not returned to the custody of a parent or
legal guardian at the permanency hearing, the court shall do one of
the following:
(1) Continue the case for up to six months for a permanency
reviewing hearing, provided that the hearing shall occur within 18
months of the date the minor 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 minor 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 guardian.
The court shall inform the parent or legal guardian that if the
minor cannot be returned home by the next permanency review hearing,
a proceeding pursuant to Section 727.31 may be instituted. The court
shall not order that a hearing pursuant to Section 727.31 be held
unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(2) Order that the minor remain in long-term 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 in counties that are not served by a county adoption agency or
by a licensed county adoption agency, that there is a compelling
reason for determining that a hearing held pursuant to Section 727.31
is not in the best interest of the minor because the minor is not a
proper subject for adoption and has no one willing to accept legal
guardianship. For purposes of this section, a recommendation by the
State Department Social Services when it is acting as an adoption
agency in counties that are not served by a county adoption agency or
by a licensed county adoption agency that adoption is not in the
best interest of the minor shall constitute a compelling reason for
the court's determination. That recommendation shall be based on the
present circumstances of the minor and shall not preclude a
different recommendation at a later date if the minor's circumstances
change.
(3) Order that the hearing be held within 120 days, pursuant to
Section 727.31, if there is clear and convincing evidence that
reasonable services have been provided or offered to the parents.
(i) Notwithstanding subdivision (h), the court shall not order a
hearing pursuant to Section 727.31 if the probation department has
documented a compelling reason for determining that the termination
of parental rights would not be in the minor's best interests. A
compelling reason is either of the following:
(1) A determination made by the probation officer that any of the
following applies:
(A) The parent or legal guardians have maintained regular
visitation and contact with the minor and the minor would benefit
from continuing the relationship.
(B) The permanent plan is for the minor to return to his or her
own home.
(C) A child 12 years of age or older objects to termination of
parental rights.
(D) The minor is placed in a residential treatment
facility, adoption is unlikely or undesirable, and continuation of
parental rights will not prevent finding the minor a permanent family
placement if the parents cannot resume custody when residential care
is no longer needed.
(2) A determination by the licensed county adoption agency or the
State Department of Social Services when it is acting as an adoption
agency in counties that are not served by a county adoption agency
that the minor is unlikely to be adopted and the child is living with
a relative who is unable or unwilling to adopt the child because
exceptional circumstances that do not include an unwillingness to
accept legal or financial responsibility for the minor but who is
willing and capable of providing the minor with a stable and
permanent home environment, and the removal of the minor from the
physical custody of his or her relative or foster parent would be
detrimental to the minor's emotional well-being.
(j) Whenever the court orders that a hearing pursuant to Section
727.31 shall be held, it shall direct the agency supervising the
minor and the licensed county adoption agency, or the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county adoption agency, to
prepare an assessment that shall include all of the following:
(1) Current search efforts for an absent parent or parents.
(2) A review of the amount and nature of any contact between the
minor and his or her parents and other members of his or her extended
family since the time of placement. Although the extended family of
each minor shall be reviewed on a case-by-case basis,
"extended family" for the purpose of the paragraph shall include, but
not be limited to, the minor's siblings, grandparents, aunts, and
uncles.
(3) An evaluation of the minor's medical, developmental,
scholastic, mental, and emotional status.
(4) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or guardian, 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 minor'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, and
the relative was assessed for foster care placement of the minor
prior to January 1, 1998, the assessment shall also consider, but
need not be limited to, all of the factors specified in subdivision
(a) of Section 361.3.
(5) The relationship of the minor to any identified prospective
adoptive parent or guardian, the duration and character of the
relationship, the motivation of seeking adoption or guardianship, and
a statement from the minor concerning placement and the adoption or
guardianship, unless the minor's age or physical, emotional, or other
condition precludes his or her meaningful response, and if so, a
description of the condition.
(6) An analysis of the likelihood that the minor will be adopted
if parental rights are terminated.
(7) Whenever a court orders a hearing pursuant to Section 727.31,
it shall order that the State Department of Social Services when it
is acting as an adoption agency in counties that are not served by a
county adoption agency or the licensed county adoption agency has
exclusive responsibility for determining the adoptive placement and
making all adoption-related decisions.
(k) Nothing in this section shall be construed to limit the
ability of a parent to voluntarily relinquish his or her child to the
State Department of Social Services when it is acting as an adoption
agency in counties that are not served by a county adoption agency
or to a licensed county adoption agency at any time while the minor
is a ward of the juvenile court if the department agency is willing
to accept the relinquishment.
SEC. 167. Section 727.31 of the Welfare and Institutions Code is
amended to read:
727.31. (a) This section applies to all minors placed in
out-of-home care pursuant to Section 727.3 and for whom the juvenile
court orders a hearing to consider permanently terminating parental
rights to free the minor for adoption.
Except for subdivision (i) of Section 366.26, the procedures for
permanently terminating parental rights for minors described by this
section shall proceed exclusively pursuant to Section 366.26.
At the beginning of any proceeding pursuant to this section, if
the minor is not being represented by previously retained or
appointed counsel, the court shall appoint counsel to represent the
minor, and the minor shall be present in court unless the minor or
the minor's counsel so requests and the court so orders. If a parent
appears without counsel and is unable to afford counsel, the court
shall appoint counsel for the parent, unless this representation is
knowingly and intelligently waived. The same counsel shall not be
appointed to represent both the minor and the parent. Private
counsel appointed under this section shall receive a reasonable sum
for compensation and expenses as specified in subdivision (f) of
paragraph (3) in of Section 366.26.
(b) If the court, by order of judgment declares the minor free
from the custody and control of both parents, or one parent if the
other does not have custody and control, the court shall at the same
time order the minor referred to the State Department of Social
Services when it is acting as an adoption agency in counties that are
not served by a county adoption agency or a licensed county adoption
agency for adoptive placement by the agency. The order shall state
that responsibility for custody of the minor shall be held jointly by
the probation department and the State Department of Social Services
when it is acting as an adoption agency in counties that are not
served by a county adoption agency or the licensed county adoption
agency. The order shall also state that the State Department of
Social Services when it is acting as an adoption agency in counties
that are not served by a county adoption agency or the licensed
county adoption agency has exclusive responsibility for determining
the adoptive placement and for making all adoption-related decisions.
However, no petition for adoption may be granted until the
appellate rights of the natural parents have been exhausted.
(c) The notice procedures for terminating parental rights for
minors described by this section shall proceed exclusively pursuant
to Section 366.23.
SEC. 168. Section 827 of the Welfare and Institutions Code is
amended to read:
827. (a) (1) Except as provided in Section 828, a case file may
be inspected only by the following:
(A) Court personnel.
(B) The district attorney, a city attorney, or city prosecutor
authorized to prosecute criminal or juvenile cases under state law.
(C) The minor who is the subject of the proceeding.
(D) His or her parents or guardian.
(E) The attorneys for the parties, and judges, referees, other
hearing officers, probation officers and law enforcement officers who
are actively participating in criminal or juvenile proceedings
involving the minor.
(F) The superintendent or designee of the school district where
the minor is enrolled or attending school.
(G) Members of the child protective agencies as defined in Section
11165.9 of the Penal Code.
(H) The State Department of Social Services to carry out its
duties pursuant to Division 9 (commencing with Section 10000), and
Part 5 (commencing with Section 7900) of Division 12 of the Family
Code to oversee and monitor county child welfare agencies, children
in foster care or receiving foster care assistance, and out-of-state
placements.
(I) To authorized legal staff or special investigators who are
peace officers who are employed by, or who are authorized
representatives of, the State Department of Social Services, as
necessary to the performance of their duties to inspect, license, and
investigate community care facilities, and to ensure that the
standards of care and services provided in those facilities are
adequate and appropriate and to ascertain compliance with the rules
and regulations to which the facilities are subject. The
confidential information shall remain confidential except for
purposes of inspection, licensing, or investigation pursuant to
Chapter 3 (commencing with Section 1500) and Chapter 3.4 (commencing
with Section 1596.70) of Division 2 of the Health and Safety Code, or
a criminal, civil, or administrative proceeding in relation thereto.
The confidential information may be used by the State Department of
Social Services in a criminal, civil, or administrative proceeding.
The confidential information shall be available only to the judge or
hearing officer and to the parties to the case. Names that are
confidential shall be listed in attachments separate to the general
pleadings. The confidential information shall be sealed after the
conclusion of the criminal, civil, or administrative hearings, and
shall not subsequently be released except in accordance with this
subdivision. If the confidential information does not result in a
criminal, civil, or administrative proceeding, it shall be sealed
after the State Department of Social Services decides that no further
action will be taken in the matter of suspected licensing
violations. Except as otherwise provided in this subdivision,
confidential information in the possession of the State Department of
Social Services shall not contain the name of the minor.
(J) Members of children's multidisciplinary teams, persons or
agencies providing treatment or supervision of the minor.
(K) Any other person who may be designated by court order of the
judge of the juvenile court upon filing a petition.
(2) Notwithstanding any other law and subject to subparagraph (A)
of paragraph (3), juvenile case files, except those relating to
matters within the jurisdiction of the court pursuant to Section 601
or 602, which pertain to a deceased child who was within the
jurisdiction of the juvenile court pursuant to Section 300, shall be
released to the public pursuant to an order by the juvenile court
after a petition has been filed and interested parties have been
afforded an opportunity to file an objection. Any information
relating to another child or which could identify another child,
except for information about the deceased, shall be redacted from the
juvenile case file prior to release, unless a specific order is made
by the juvenile court to the contrary. Except as provided in this
paragraph, the presiding judge of the juvenile court may issue an
order prohibiting or limiting access to the juvenile case file, or
any portion thereof, of a deceased child only upon a showing that
release of the juvenile case file or any portion thereof is
detrimental to the safety, protection, or physical ,
or emotional well-being of another child who is directly or
indirectly connected to the juvenile case that is the subject of the
petition.
(3) Access to juvenile case files pertaining to matters within the
jurisdiction of the juvenile court pursuant to Section 300 shall be
limited as follows:
(A) If a juvenile case file, or any portion thereof, is privileged
or confidential pursuant to any other state law or federal law or
regulation, the requirements of that state law or federal law or
regulation prohibiting or limiting release of the juvenile case file
or any portions thereof shall prevail. Unless a person is listed in
subparagraphs (A) to (J), inclusive, of paragraph (1) and is entitled
to access under the other state law or federal law or regulation
without a court order, all those seeking access, pursuant to other
authorization, to portions of, or information relating to the
contents of, juvenile case files protected under another state law or
federal law or regulation, shall petition the juvenile court. The
juvenile court may only release the portion of, or information
relating to the contents of, juvenile case files protected by another
state law or federal law or regulation if disclosure is not
detrimental to the safety, protection, or physical or emotional
well-being of a child who is directly or indirectly connected to the
juvenile case that is the subject of the petition. This paragraph
shall not be construed to limit the ability of the juvenile court to
carry out its duties in conducting juvenile court proceedings.
(B) Prior to the release of the juvenile case file or any portion
thereof, the court shall afford due process, including a notice of
and an opportunity to file an objection to the release of the record
or report to all interested parties.
(4) A juvenile case file, any portion thereof, and information
relating to the content of the juvenile case file, shall not be
disseminated by the receiving agencies to any persons or agencies,
other than those persons or agencies authorized to receive documents
pursuant to this section. Further, a juvenile case file, any portion
thereof, and information relating to the content of the juvenile
case file, shall not be made as an attachment to any other documents
without the prior approval of the presiding judge of the juvenile
court, unless it is used in connection with and in the course of a
criminal investigation or a proceeding brought to declare a person a
dependent child or ward of the juvenile court.
(b) (1) While the Legislature reaffirms its belief that juvenile
court records, in general, should be confidential, it is the intent
of the Legislature in enacting this subdivision to provide for a
limited exception to juvenile court record confidentiality to promote
more effective communication among juvenile courts, family courts,
law enforcement agencies, and schools to ensure the rehabilitation of
juvenile criminal offenders as well as to lessen the potential for
drug use, violence, other forms of delinquency, and child abuse.
(2) Notwithstanding subdivision (a), written notice that a minor
enrolled in a public school, kindergarten to grade 12, inclusive, has
been found by a court of competent jurisdiction to have committed
any felony or any misdemeanor involving curfew, gambling, alcohol,
drugs, tobacco products, carrying of weapons, a sex offense listed in
Section 290 of the Penal Code, assault or battery, larceny,
vandalism, or graffiti shall be provided by the court, within seven
days, to the superintendent of the school district of attendance.
Written notice shall include only the offense found to have been
committed by the minor and the disposition of the minor's case. This
notice shall be expeditiously transmitted by the district
superintendent to the principal at the school of attendance. The
principal shall expeditiously disseminate the information to those
counselors directly supervising or reporting on the behavior or
progress of the minor. In addition, the principal shall disseminate
the information to any teacher or administrator directly supervising
or reporting on the behavior or progress of the minor whom the
principal believes needs the information to work with the pupil in an
appropriate fashion, to avoid being needlessly vulnerable or to
protect other persons from needless vulnerability.
Any information received by a teacher, counselor, or administrator
under this subdivision shall be received in confidence for the
limited purpose of rehabilitating the minor and protecting students
and staff, and shall not be further disseminated by the teacher,
counselor, or administrator, except insofar as communication with the
juvenile, his or her parents or guardians, law enforcement
personnel, and the juvenile's probation officer is necessary to
effectuate the juvenile's rehabilitation or to protect students and
staff.
An intentional violation of the confidentiality provisions of this
paragraph is a misdemeanor punishable by a fine not to exceed five
hundred dollars ($500).
(3) If a minor is removed from public school as a result of the
court's finding described in subdivision (b), the superintendent
shall maintain the information in a confidential file and shall defer
transmittal of the information received from the court until the
minor is returned to public school. If the minor is returned to a
school district other than the one from which the minor came, the
parole or probation officer having jurisdiction over the minor shall
so notify the superintendent of the last district of attendance, who
shall transmit the notice received from the court to the
superintendent of the new district of attendance.
(c) Each probation report filed with
the court concerning a minor whose record is subject to dissemination
pursuant to subdivision (b) shall include on the face sheet the
school at which the minor is currently enrolled. The county
superintendent shall provide the court with a listing of all of the
schools within each school district, within the county, along with
the name and mailing address of each district superintendent.
(d) Each notice sent by the court pursuant to subdivision (b)
shall be stamped with the instruction: "Unlawful Dissemination Of
This Information Is A Misdemeanor." Any information received from
the court shall be kept in a separate confidential file at the school
of attendance and shall be transferred to the minor's subsequent
schools of attendance and maintained until the minor graduates from
high school, is released from juvenile court jurisdiction, or reaches
the age of 18, whichever occurs first. After that time the
confidential record shall be destroyed. At any time after the date
by which a record required to be destroyed by this section should
have been destroyed, the minor or his or her parent or guardian shall
have the right to make a written request to the principal of the
school that the minor's school records be reviewed to ensure that the
record has been destroyed. Upon completion of any requested review
and no later than 30 days after the request for the review was
received, the principal or his or her designee shall respond in
writing to the written request and either shall confirm that the
record has been destroyed or, if the record has not been destroyed,
shall explain why destruction has not yet occurred.
Except as provided in paragraph (2) of subdivision (b), no
liability shall attach to any person who transmits or fails to
transmit any notice or information required under subdivision (b).
(e) For purposes of this section, a "juvenile case file" means a
petition filed in any juvenile court proceeding, reports of the
probation officer, and all other documents filed in that case or made
available to the probation officer in making his or her report, or
to the judge, referee, or other hearing officer, and thereafter
retained by the probation officer, judge, referee, or other hearing
officer.
SEC. 169. Section 1788 of the Welfare and Institutions Code is
amended to read:
1788. Each Runaway Youth and Families in Crisis Project
established under this chapter article
shall provide services which shall include, but not be limited to,
all of the following:
(a) Temporary shelter and related services to runaway youth. The
services shall include:
(1) Food and access to overnight shelter for no more than 14 days.
(2) Counseling and referrals to services which address immediate
emotional needs or problems.
(3) Screening for basic health needs and referral to public and
private health providers for health care. Shelters that are not
equipped to house a youth with substance abuse problems shall refer
that youth to an appropriate clinic or facility. The shelter shall
monitor the youth's progress and assist the youth with services upon
his or her release from the substance abuse facility.
(4) Long-term planning so that the youth may be returned to the
home of the parent or guardian under conditions which favor long-term
reunification with the family, or so the youth can be suitably
placed in a situation outside of the parental or guardian home when
such reunification is not possible.
(5) Outreach services and activities to locate runaway youth and
to link them with project services.
(b) Family crisis resolution services to runaway and nonrunaway
youth and their families which shall include:
(1) Parent training.
(2) Family counseling.
(3) Services designed to reunify youth and their families.
(4) Referral to other services offered in the community by public
and private agencies.
(5) Long-term planning so that the youth may be returned to the
home of the parent or guardian under conditions which favor long-term
reunification with the family, or so the youth can be suitably
placed in a situation outside of the parental or guardian home when
such reunification is not possible.
(6) Followup services to ensure that the return to the parent or
guardian or the placement outside of the parental or guardian home is
stable.
(7) Outreach services and activities to locate runaway and
nonrunaway youth and to link them with project services.
(c) Transitional living services shall include:
(1) Long-term shelter.
(2) Independent living skill services.
(3) Preemployment and employment skills training.
(4) Home responsibilities training.
(d) Where appropriate and necessary, some of the services
identified under this section must also be provided in the local
community and in the home of project clients. Projects shall notify
parents that their children are staying at a project site consistent
with state and federal parent notification requirements.
SEC. 170. Section 1789.5 of the Welfare and Institutions Code is
amended to read:
1789.5 The Office of Criminal Justice Planning shall monitor and
evaluate the projects established under this chapter
article , and shall report to the Legislature
after the first and third year of the program's operation the results
of its evaluation. In addition, each project shall be responsible
for evaluating the effectiveness of its programs and services.
SEC. 171. Section 9564 of the Welfare and Institutions Code is
amended to read:
9564. Nothing in this chapter shall preclude expansion of
Multipurpose Senior Services Program services if cost effectiveness
is demonstrated. The expansion shall be accomplished by establishing
new sites, by increasing numbers of clients served in
existing sites, or by expanding the number of sites to
include additional geographic regions of the state.
SEC. 172. Section 14105.26 of the Welfare and Institutions Code is
amended to read:
14105.26. (a) Each eligible facility, as described in paragraph 2
of subdivision (b), may, in addition to the rate of payment that the
facility would otherwise receive for skilled nursing services,
receive supplemental Medi-Cal reimbursement to the extent provided in
this section.
(b) (1) Projects eligible for supplemental reimbursement shall
include any new capital projects for which final plans have been
submitted to the appropriate review agency after January 1, 2000, and
before July 1, 2001. For purposes of this section, "capital project"
means the construction, expansion, replacement, remodeling, or
renovation of an eligible facility, including buildings and fixed
equipment. A "capital project" does not include the provision of
furnishings or of equipment that is not fixed equipment.
(2) A facility shall be eligible only if the submitting entity had
all of the following additional characteristics during the 1998
calendar year:
(A) Provided services to Medi-Cal beneficiaries.
(B) Was a distinct part of an acute care hospital providing
skilled nursing care and supportive care to patients whose primary
need is for the availability of skilled nursing care on an extended
basis. For the purposes of this section, "acute care hospital" means
the facilities defined in subdivisions (a) or (b), or both, of
Section 1250 of the Health and Safety Code.
(C) Had not less than 300 licensed skilled nursing beds.
(D) Had an average skilled nursing Medi-Cal patient census of not
less than 80 percent of the total skilled nursing patient days.
(E) Was owned by a county or city and county.
(c) (1) An eligible facility seeking to qualify for supplemental
reimbursement shall submit documentation to the department regarding
debt service on revenue bonds or other financing instruments used for
financing the capital project.
(2) The department shall confirm in writing project eligibility
under this section.
(d) (1) Capital projects receiving funding shall include only the
upgrading or construction of buildings and equipment to a level
required by currently accepted medical practice standards, including
projects designed to correct Joint Commission on Accreditation of
Hospitals and Health Systems, fire and life safety, seismic, or other
related regulatory standards.
(2) Capital projects receiving funding may expand service capacity
as needed to maintain current or reasonably foreseeable necessary
bed capacity to meet the needs of Medi-Cal beneficiaries after giving
consideration to bed capacity needed for other patients, including
unsponsored patients.
(3) Supplemental reimbursement shall only be made for capital
projects, or for that portion of capital projects that provide
skilled nursing services, and that are available and accessible to
patients eligible for services under this chapter.
(e) An eligible facility's supplemental reimbursement for a
capital project qualifying pursuant to this section shall be
calculated and paid as follows:
(1) For any fiscal year for which the facility is eligible to
receive supplemental reimbursement, the facility shall report to the
department the amount of debt service on the revenue bonds or other
financing instruments issued to finance the capital project.
(2) For each fiscal year in which an eligible facility requests
reimbursement, the department shall establish the ratio of skilled
nursing Medi-Cal days of care provided by the eligible facility to
total skilled nursing patient days of care provided by the eligible
facility. The ratio shall be established using data obtained from
audits performed by the department, and shall be applied to the
corresponding fiscal year of debt service on the revenue bonds or
other financing instruments issued to finance the capital project.
(3) The amount of debt service that will be submitted to the
federal Health Care Financing Administration for the purpose of
claiming reimbursement for each fiscal year shall equal the amount
determined annually in paragraph (1) multiplied by the percentage
figure determined in paragraph (2).
(4) The supplemental reimbursement to an eligible facility shall
be equal to the amount of federal financial participation received as
a result of the claims submitted pursuant to paragraph (2) of
subdivision (j).
(5) In no instance shall the total amount of supplemental
reimbursement received under this section combined with that received
from all other sources dedicated exclusively to debt service exceed
100 percent of the debt service for the capital project over the life
of the loan, revenue bond, or other financing mechanism.
(6) A facility qualifying for and receiving supplemental
reimbursement pursuant to this section shall continue to receive
reimbursement until the qualifying loan, revenue bond, or other
financing mechanism is paid off, and as long as the facility meets
the requirements of paragraph (3) of subdivision (d).
(7) The supplemental Medi-Cal reimbursement provided by this
section shall be distributed under a payment methodology based on
skilled nursing services provided to Medi-Cal patients at the
eligible facility, either on a per diem basis, a per discharge basis,
or any other federally permissible basis. The department shall seek
approval from the federal Health Care Financing Administration for
the payment methodology to be utilized, and shall not make any
payment pursuant to this section prior to obtaining that approval.
(8) The supplemental reimbursement provided by this section shall
not commence prior to the date upon which the hospital submits to the
department a copy of the certificate of occupancy for the capital
project.
(f) (1) It is the Legislature's intent in enacting this section to
provide a funding source for a portion of the construction costs of
eligible facilities without any expenditure from the state General
Fund.
(2) The state share of the amount of the debt service submitted to
the federal Health Care Financing Administration for purposes of
supplemental reimbursement shall be paid with county-only funds and
certified to the state as provided in subdivision (g). Any amount of
the costs of the capital project that are not reimbursed by federal
funds shall be borne solely by the eligible facility.
(3) Prior to receiving any funding through this section, an
eligible facility shall demonstrate its ability to cover all of the
anticipated costs of construction, including those not reimbursed
through federal funding.
(g) The county or city and county, on behalf of any eligible
facility, shall do all of the following:
(1) Certify, in conformity with the requirements of Section 433.51
of Title 42 of the Code of Federal Regulations, that the claimed
expenditures for the capital project are eligible for federal
financial participation.
(2) Provide evidence supporting the certification as specified by
the department.
(3) Submit data, as specified by the department, to determine the
appropriate amounts to claim as expenditures qualifying for financial
participation.
(4) Keep, maintain, and have readily retrievable, such
those records as specified by the department in
order to fully disclose reimbursement amounts to which the eligible
facility is entitled, and any other records required by the federal
Health Care Financing Administration.
(h) The department may require that any county or city and county
seeking supplemental reimbursement under this section enter into an
interagency agreement with the department for the purpose of
implementing this section.
(i) All payments received by an eligible facility pursuant to this
section shall be placed in a special account, the funds of which
shall be used exclusively for the payment of expenses related to the
eligible capital project.
(j) (1) The department shall promptly seek any necessary federal
approvals for the implementation of this section. If necessary to
obtain federal approval, the department may, for federal purposes,
limit the program to those costs that are allowable expenditures
under Title XIX of the federal Social Security Act (Subchapter 19
(commencing with Section 1396) of Chapter 7 of Title 42 of the United
States Code). If federal approval is not obtained for
implementation of this section, this section shall become
inoperative.
(2) The department shall submit claims for federal financial
participation for the expenditures for debt service that are
allowable expenditures under federal law.
(3) The department shall, on an annual basis, submit any necessary
materials to the federal government to provide assurances that
claims for federal financial participation will include only those
expenditures that are allowable under federal law.
(k) Supplemental reimbursement paid under this section shall not
duplicate any reimbursement received by an eligible facility pursuant
to this chapter for construction costs that would otherwise be
eligible for reimbursement under this section. In no event shall the
total Medi-Cal reimbursement pursuant to this chapter to a facility
eligible under this section be less than what would have been paid
had this section not existed.
(l) In the event there is a final judicial determination by any
court of appellate jurisdiction or a final determination by the
administrator of the federal Health Care Financing Administration
that the supplemental reimbursement provided in this section must be
made to any facility not described therein, this section shall become
immediately inoperative.
(m) Any and all funds expended pursuant to this section shall be
subject to review and audit by the department.
SEC. 173. Section 25002 of the Welfare and Institutions Code is
amended to read:
25002. To develop the options for achieving universal health care
coverage described in Section 25001, the secretary shall establish a
process by which these options are developed. The process shall at
a minimum include the following:
(a) The examination and utilization of research results from the
study performed by the University of California with regard to
methods of financing, delivering and defining universal health
coverage, done pursuant to the criteria in Senate Concurrent
Resolution 100 of the 1997-1998 Regular Session of the Legislature.
(b) The examination and utilization of other data and information,
as requested by the secretary or provided to the secretary, with
regard to methods of financing, delivering, or defining universal
health coverage.
(c) Developing a process by which representatives of health care
consumers, providers, insurers, health care workers, advocates,
counties, and all other interested parties are engaged in discussion
and debate of the issues faced by the state in providing universal
health coverage. The secretary shall develop the methods by which
this discussion occurs, provided that it is broadly inclusive of all
groups with an interest in universal health coverage.
(d) Interagency participation including, but not limited to, the
State Department of Health Services, the State Department of Mental
Health, the Department of Finance, the Managed Risk Medical Insurance
Board, the Department of Consumer Affairs, the Public Employees'
Retirement System, the State Department of Social Services, the
Department of Corporations, the Department of Insurance, and any
other appropriate agencies which the secretary determines can
contribute to the effort to provide universal health coverage.
(e) Obtaining information from the United States Health Care
Financing Administration regarding whether federal waivers or other
forms of federal participation if are
necessary.
SEC. 174. Section 1 of Chapter 868 of the Statutes of 1998, as
amended by Section 1 of Chapter 153 of the Statutes of 1999, is
amended to read:
Section 1. (a) Commencing with the 1999-2000 school year, the area
of Eastview as delineated in subdivision (c) is an optional
attendance area. Parents and legal guardians residing in the area of
Eastview may make an election for each pupil as to whether that
pupil will attend schools in the Palos Verdes Peninsula Unified
School District or the Los Angeles Unified School District. For the
1999-2000 school year, the parents or legal guardians of all pupils
who reside in the area of Eastview may make an election by March 1,
1999, as to the school district their child or children will attend.
For the 2000-01 school year and each subsequent school year, the
parents or legal guardians residing in the area of Eastview shall
make their initial election as to the school district their child or
children will attend by March 1 of the school year in which the pupil
first enters elementary school, and shall make a second election by
March 1 of the school year in which the pupil enters middle school.
Parents and legal guardians residing in the area of Eastview may
elect, for each of their children, whether to attend schools in the
Palos Verdes Peninsula Unified School District or the Los Angeles
Unified School District twice during the time that their child
attends school. This election may be made once during any time the
child attends kindergarten or any of grades 1 to 8, inclusive, and be
made once during the time the child attends any of grades 9 to 12,
inclusive. Parents or legal guardians who newly move into the area of
Eastview shall make their initial election as to the school district
their child or children will attend when the parents or legal
guardians first enroll their child or children in public school.
This section is applicable to all pupils who reside within the area
of Eastview of Los Angeles County regardless of whether the pupil
previously attended a private school.
(b) Any school facility belonging to the Los Angeles Unified
School District that is located in the area delineated in subdivision
(c) shall remain the property of the Los Angeles Unified School
District. The status of an employee as an employee of the Los
Angeles Unified School District shall not be affected by this act.
(c) For the purposes of this section, the following are the
boundaries of the area in Eastview in Los Angeles County: begin at
the southeast corner of Tract #19028 as shown on map filed in book
587, pages 83 and 84, of maps in the office of the Recorder of the
County of Los Angeles, said corner being angle point in the boundary
of the City of Rancho Palos Verdes as same existed on November 1,
1978; thence northerly along the boundary of the City of Rolling
Hills Estates as same existed on said date to its first intersection
with the boundary of the City of Lomita as same existed on said date;
thence easterly along said less mentioned boundary and following the
same in all its various courses to the intersection of the northerly
line of Lot 1 of Tract #3192 as shown on map filed in book 44, pages
91 to 94, inclusive, of said maps and the centerline of Western
Avenue as shown on map filed in book 77, page 88, of record of
surveys, in the office of said recorder; thence southerly along said
centerline and continuing southerly along the centerline of Western
Avenue as shown on map of Tract #24436 filed in book 653, pages 96 to
100, inclusive, of said maps to the centerline of Westmont Drive as
shown on map of parcel map #5375 filed in book 63, pages 92 and 93,
of parcel maps in the office of said recorder; thence continuing
southerly along the centerline of Western Avenue as shown on said
last mentioned map a distance of 67 feet; thence easterly at right
angles from said last mentioned centerline a distance of 50 feet to
the northerly termimus terminus of that
certain course having a bearing and length of N1343 feet 42 inches
East along that certain 27 foot radius curve in said last mentioned
boundary of the City of Rancho Palos Verdes, thence northerly along
said last mentioned boundary to the point of beginning.
SEC. 175. Section 7 of Chapter 84 of the Statutes of 1999, as
amended by Section 7 of Chapter 86 of the Statutes of 1999, is
amended to read:
Sec. 7. For purposes of allocating one-half of the moneys
appropriated by Item 9210-118-0001 of the Budget Act of 1999, all of
the following apply:
(a) A county is prohibited from receiving any portion of the
moneys unless the county complies with all of the following:
(1) No later than October 1, 1999, the county auditor reports to
the Controller and the Director of Finance the total amount of ad
valorem property tax revenue allocated from the county's Educational
Revenue Augmentation Fund to school districts, community college
districts, and county superintendents of schools for the 1998-99
fiscal year.
(2) The county board of supervisors adopts an ordinance or
resolution that specifies each amount of ad valorem property tax
revenue shifted from a local agency within the county to the county's
Educational Revenue Augmentation Fund for the 1998-99 fiscal year,
and the chairperson of the county board of supervisors reports those
revenue shift amounts to the Controller and the Director of Finance
in a manner that identifies the revenue shift amount for each local
agency in the county.
(3) The county board of supervisors adopts an ordinance or
resolution pursuant to which the county agrees to both of the
following:
(A) The county will allocate its share of the appropriated moneys
subject to this section in accordance with subdivision (c).
(B) The county will not, in connection with either paragraphs (1)
or (2) of this subdivision or subdivision (c), make any claim for
reimbursement of state-mandated local costs.
No later than December 1, 1999, the county board of supervisors
shall transmit the ordinance or resolution adopted pursuant to this
paragraph to the Director of Finance. The Controller shall
promulgate guidelines for the making of reports as required by this
subdivision.
(b) For each county that complies with all of the conditions set
forth in subdivision (a), the Controller shall do both of the
following:
(1) Perform the following calculations:
(A) Divide the amount reported by the county auditor in accordance
with paragraph (1) of subdivision (a) by the total of all of the
amounts reported by counties all county
auditors in accordance with paragraph (1) of subdivision (a).
(B) Divide the amount appropriated by Item 9210-118-0001 of the
Budget Act of 1999 by two.
(C) Multiply the amount determined in accordance with subparagraph
(A) by the amount determined in accordance with subparagraph (B).
For purposes of performing these calculations, the Controller
shall review the information submitted by the county. If, consistent
with information available from any other reliable source, the
Controller determines that the information may be inaccurate, the
Controller may request the Director of Finance to review the amount
reported by the county in accordance with paragraph (1) of
subdivision (a). The Director of Finance may direct the Controller
to adjust the amount reported to the Controller by the county in
accordance with paragraph (1) of subdivision (a). The Controller
shall inform the county of any adjustment that is so made.
(2) No later than February 1, 2000, the Controller shall, from the
appropriated revenues subject to this section, allocate to the
county the amount determined for that county pursuant to paragraph
(1).
(c) In each county that receives revenue in accordance with
subdivision (b), the county auditor shall allocate that revenue to
those local agencies among the county, and cities and special
districts in the county, that contributed a positive amount to the
county's Educational Revenue Augmentation Fund for the 1998-99 fiscal
year. The allocation share for each recipient local agency shall be
determined pursuant to the following calculations:
(1) Divide the amount of revenue shifted for the 1998-99 fiscal
year from the local agency to the county's Educational Revenue
Augmentation Fund by the total amount of revenue shifted for the
1998-99 fiscal year to the county's Educational Revenue Augmentation
Fund by all local agencies in the county contributing a positive
amount to that fund.
(2) Multiply the ratio determined pursuant to paragraph (1) by the
amount of revenues allocated to the county pursuant to paragraph (2)
of subdivision (b).
SEC. 176. Any section of any act enacted by the Legislature during
the 2000 calendar year that takes effect on or before January 1,
2001, 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 2000 calendar year and takes effect on or before January
1, 2001, amends, amends and renumbers, adds, repeals and adds, or
repeals any section contained in that article, chapter, part, title,
or division.