BILL NUMBER: AB 1240 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Mullin
FEBRUARY 21, 2003
An act to amend Sections 1522, 1568.09, 1569.17, and 1596.871 of
the Health and Safety Code, relating to care facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 1240, as introduced, Mullin. Care facilities: criminal record
clearances.
Existing law requires, as a condition of the State Department of
Social Services or other licensing agency issuing a license, permit,
or certificate of approval, as appropriate, for a person to operate
or to provide direct care services in a community care facility,
residential care facility for persons with a chronic life-threatening
illness, residential care facility for the elderly, or day care
facility, the fingerprinting of, and criminal record clearance for,
applicants and persons to be employed by, reside at, or be present in
the any of these facilities, except as specified. Existing law
requires the Department of Justice to conduct the search for criminal
history information, and also to have a 2nd set of fingerprints
processed by the Federal Bureau of Investigation.
Existing law also authorizes the department to revoke a license,
permit, or certificate for approval to operate or manage these
facilities if any person employed by, residing at, or present in, in
specified capacities, a facility listed above has been convicted of
specified offenses, unless the department has granted an exemption
from disqualification.
This bill would authorize the department to take specified actions
if it is determined, after licensure, the issuance of a special
permit, or the granting of a certificate of approval to manage or
operate a facility listed above, that a licensee, special permit
holder, certificate holder, as appropriate, or person employed by,
residing at, or present in the facility, in specified capacities, has
been convicted of specified offenses.
Existing law requires that, subsequent to initial licensure a
licensee must obtain fingerprinting and a criminal record clearance
for any persons who is employed by, resides at, or is present in, a
facility.
This bill would require the department to issue against the
licensee, special permit holder, or certificate holder a citation of
deficiency and assess civil penalties, as specified, for failure to
exclude specified persons convicted of specified offenses who have
not obtained a criminal record clearance or an exemption, and would
provide that the licensee's failure to exclude these persons would be
grounds for disciplining the licensee.
Existing law requires the department to notify an individual with
an arrest or conviction of his or her right to seek an exemption from
disqualification.
This bill would eliminate that requirement and would authorize
only an applicant for, or a holder of, a license, special permit, or
certificate of approval to request an exemption on behalf of an
individual with a record of specified convictions or arrests.
Existing law establishes a procedure by which the director may
grant an exemption from disqualification for a license, special
permit, or certificate of approval to manage or operate a facility
listed above, or to by employed by, reside in, or be present in a
facility listed above. Existing law provides that an exemption shall
not be granted if the conviction was for specified offenses.
This bill would expand that list of offenses.
This bill would also make various conforming changes and correct
cross-references.
Because a violation of any law relating to these facilities is a
crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1522 of the Health and Safety Code is amended
to read:
1522. The Legislature recognizes the need to generate timely and
accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a community
care facility, foster family home, or a certified family home of a
licensed foster family agency. Therefore, the Legislature supports
the use of the fingerprint live-scan technology, as identified in the
long-range plan of the Department of Justice for fully automating
the processing of fingerprints and other data by the year 1999,
otherwise known as the California Crime Information Intelligence
System (CAL-CII), to be used for applicant fingerprints. It is the
intent of the Legislature in enacting this section to require the
fingerprints of those individuals whose contact with community care
clients may pose a risk to the clients' health and safety.
(a) (1) Before issuing a license or special permit to any person
or persons to operate or manage a community care facility , and
before any person specified in subdivision (b) who is not exempted
from fingerprinting is employed by, resides at, or is present in a
community care facility , the State Department of Social
Services shall secure from an appropriate law enforcement agency
a criminal record history
information to determine whether the applicant or any other
person specified in subdivision (b) who is not exempted from
fingerprinting has ever been convicted
any of the following:
(A) A conviction of a crime other than a minor traffic
violation or arrested .
(B) An arrest for any crime specified in Section 290 of the
Penal Code, for violating Section 245 or 273.5 of the Penal Code
, for violating subdivision (b) of Section 273a
of the Penal Code, or, prior to January 1, 1994, paragraph
(2) of Section 273a of the Penal Code , or for
.
(C) A conviction of any crime for which the person has
not been exonerated and for which the department
cannot may not grant an exemption if
the person was convicted and the person has not been exonerated
from disqualification pursuant to subdivision (g)
.
(2) The criminal history information shall include the full
criminal record, if any, of those persons , and
subsequent arrest information pursuant to Section
11105.2 of the Penal Code.
(3) No fee shall be charged by the
Notwithstanding subdivision (k), neither the Department of
Justice or nor the State Department of Social Services
may charge a fee for the fingerprinting of an applicant
for a license or special permit to operate a facility providing
nonmedical board, room, and care for six or less
fewer children , or for obtaining a criminal
record history of the applicant pursuant
to this section.
(4) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) who
is not exempted from fingerprinting , has been convicted of a
crime other than a minor traffic violation, or arrested for a
crime specified in subparagraph (B) of paragraph (1), subject to
subdivision (e), the application shall be denied, unless the
director grants an exemption pursuant to subdivision (g).
(B) If the State Department of Social Services
department finds that the applicant, or any other person
specified in subdivision (b) who is not exempted from
fingerprinting, is awaiting trial for a crime other than a
minor traffic violation, the State Department of Social
Services department may cease processing the
application until the conclusion of the trial or other
disposition of the case .
(C) If no criminal record history
information has been recorded, the Department of Justice shall
provide the applicant and the State Department of Social Services
with a statement of that fact.
(D) If the State Department of Social Services
department finds after licensure or the issuance of a
special permit that the licensee , special
permit holder , or any other person specified in
paragraph (2) of subdivision (b) who is not exempted
from fingerprinting , has been convicted of a crime other than
a minor traffic violation, or arrested for a crime specified in
subparagraph (B) of paragraph (1), subject to subdivision (e),
the license or special permit may be revoked, unless the
director grants an exemption pursuant to subdivision (g).
(E) An In addition to the criminal records
search required by this subdivision, an applicant and
any other person specified in subdivision (b) for
licensure or for a special permit to operate or manage a community
care facility shall submit a second set of fingerprints to the
Department of Justice for the purpose of searching the criminal
records of the Federal Bureau of Investigation , in addition
to the criminal records search required by this subdivision
. If an applicant and all other persons described
in subdivision (b) meet meets all of the
conditions for licensure, except for the State Department of
Social Services' receipt of the Federal Bureau of Investigation'
s criminal history information for the applicant or any of
the persons described in subdivision (b) , the department
may issue a license or special permit if the applicant
and each person described in subdivision (b) has
signed and submitted a statement declaration,
under penalty of perjury, that he or she has never been
convicted of a crime in the United States, other than a traffic
infraction , as defined in punishable
pursuant to paragraph (1) of subdivision (a) of Section 42001
of the Vehicle Code , or arrested for a crime specified in
subparagraph (B) of paragraph (1). If, after licensure or the
granting of a special permit, the department determines, based on the
results from the Federal Bureau of Investigation's criminal record
search, that the licensee or special permit holder has a conviction
for any crime other than a minor traffic violation, or has been
arrested for a crime specified in subparagraph (B) of paragraph (1),
subject to subdivision (e), the department may revoke the license
pursuant to Section 1550. The department may also suspend the
license pending an administrative hearing pursuant to Section 1550.5.
(F) In addition to the criminal records search required by this
subdivision, each person specified in subdivision (b) who is not
exempted from fingerprinting shall submit a second set of
fingerprints to the Department of Justice for the purpose of
searching the criminal records of the Federal Bureau of Investigation
for records for that person. If any person specified in subdivision
(b) who is not exempted from fingerprinting obtains either a
criminal record clearance from the Department of Justice or an
exemption from disqualification pursuant to subdivision (g) from the
State Department of Social Services pending the department's receipt
of the Federal Bureau of Investigation's criminal history information
for that person, the department may allow that person to be employed
by, reside at, or be present, in the community care facility if the
person has signed and submitted to the department a declaration,
under penalty of perjury, that he or she has never been convicted of
a crime in the United States, other than a traffic infraction
punishable pursuant to paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code or the crime for which the exemption from
disqualification was granted, or arrested for a crime specified in
subparagraph (B) of paragraph (1). If, after obtaining a criminal
record clearance or exemption from disqualification pursuant to
subdivision (g) for a person specified in subdivision (b) who is not
exempted from fingerprinting, the department determines, based on the
results from the Federal Bureau of Investigation's criminal record
search, that the person has a conviction for any crime other than a
minor traffic violation, or has been arrested for a crime specified
in subparagraph (B) of paragraph (1), subject to subdivision (e), the
department shall determine if the person should be removed or
excluded, or both, from the facility pursuant to paragraph (3) of
subdivision (c) until a decision on the exemption from
disqualification is rendered .
(G) If, after licensure or the granting of a special
permit , the department determines that the licensee or
special permit holder or any other person specified in
subdivision (b) who is not exempted from fingerprinting
has a criminal record conviction of an
offense other than a minor traffic violation, or a record of arrest
for any crime specified in subparagraph (B) of paragraph (1), subject
to subdivision (e) , the license may be revoked pursuant to
Section 1550. The department may also suspend the license pending an
administrative hearing pursuant to Section 1550.5.
(b) (1) In addition to the applicant, this section shall be
applicable to criminal convictions and arrests of the
following persons:
(A) Adults responsible for administration or direct supervision of
staff.
(B) Any person, other than a client, residing in the facility.
(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the community
care facility. The facility shall maintain the copy of the
certification on file as long as care is being provided by the
certified nurse assistant or certified home health aide at the
facility. Nothing in this paragraph restricts the right of the
department to exclude a certified nurse assistant or certified home
health aide from a licensed community care facility pursuant to
Section 1558.
(D) Any staff person, volunteer, or employee who has contact with
the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
like capacity.
(F) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(2) The following persons are exempt from the requirements
applicable under paragraph (1) . :
(A) A medical professional as defined in department regulations
who holds a valid license or certification from the person's
governing California medical care regulatory entity and who is not
employed, retained, or contracted by the licensee or special
permit holder if all of the following apply:
(i) The criminal record of the person has been cleared as a
condition of licensure or certification by the person's governing
California medical care regulatory entity.
(ii) The person is providing time-limited specialized clinical
care or services.
(iii) The person is providing care or services within the person's
scope of practice.
(iv) The person is not a community care facility licensee or an
employee of the facility.
(B) A third-party repair person or similar retained contractor if
all of the following apply:
(i) The person is hired for a defined, time-limited job.
(ii) The person is not left alone with clients.
(iii) When clients are present in the room in which the
repairperson or contractor is working, a staff person who has a
criminal record clearance or exemption is also present.
(C) Employees of a licensed home health agency and other members
of licensed hospice interdisciplinary teams who have a contract with
a client or resident of the facility and are in the facility at the
request of that client or resident's legal decisionmaker. The
exemption shall not apply to a person who is a community care
facility licensee , special permit holder, or an employee
of the facility.
(D) Clergy and other spiritual caregivers who are performing
services in common areas of the community care facility or who are
advising an individual client at the request of, or with the
permission of, the client or legal decisionmaker, are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption shall not apply to a person
who is a community care licensee , special permit holder,
or employee of the facility.
(E) Members of fraternal, service, or similar organizations who
conduct group activities for clients if all of the following apply:
(i) Members are not left alone with clients.
(ii) Members do not transport clients off the facility premises.
(iii) The same organization does not conduct group activities for
clients more often than defined by the department's regulations.
(3) In addition to the exemptions in paragraph (2), the following
persons in foster family homes, certified family homes, and small
family homes are exempt from the requirements applicable under
paragraph (1):
(A) Adult friends and family of the licensee or special
permit holder who come into the home to visit for a length of
time no longer than defined by the department in regulations,
provided that the adult friends and family of the licensee or
special permit holder are not left alone with the foster
children.
(B) Parents of a foster child's friends when the foster child is
visiting the friend's home and the friend, foster parent, or both are
also present.
(4) In addition to the exemptions specified in paragraph (2), the
following persons in adult day care and adult day support centers are
exempt from the requirements applicable under paragraph (1):
(A) Unless contraindicated by the client's individualized program
plan (IPP) or needs and service plan, a spouse, significant other,
relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee or special permit holder . This exemption
applies only if the person is visiting the client or providing direct
care and supervision to the client.
(B) A volunteer if all of the following applies:
(i) The volunteer is supervised by the licensee or special
permit holder or a facility employee with a criminal record
clearance or exemption.
(ii) The volunteer is never left alone with clients.
(iii) The volunteer does not provide any client assistance with
dressing, grooming, bathing, or personal hygiene other than washing
of hands.
(5) (A) In addition to the exemptions specified in paragraph (2),
the following persons in adult residential and social rehabilitation
facilities, unless contraindicated by the client's individualized
program plan (IPP) or needs and services plan, are exempt from the
requirements applicable under paragraph (1): a spouse, significant
other, relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to that client.
(B) Nothing in this subdivision shall prevent a licensee or
special permit holder from requiring a criminal record
clearance of any individual exempt from the requirements of this
section, provided that the individual has client contact.
(6) Any person similar to those described in this subdivision, as
defined by the department in regulations , is exempt from the
requirements applicable under paragraph (1) .
(c) (1) Subsequent to initial licensure, any
Any person specified in subdivision (b) and
who is not exempted from fingerprinting shall
, as a condition to employment, residence, or presence in a
community care facility, obtain either a criminal
record clearance from the Department of Justice or an exemption from
disqualification pursuant to subdivision (g) from the State
Department of Social Services prior to his or her initial presence in
a facility. Any person specified in subdivision (b) who is not
exempted from fingerprinting shall be fingerprinted and
shall sign a declaration , under penalty of perjury
, regarding any prior criminal convictions
conviction or any arrest for any crime specified in
subparagraph (B) of paragraph (1) of subdivision (a) . The
licensee or special permit holder shall submit these
fingerprints to the Department of Justice, along with a second set of
fingerprints for the purpose of searching the records of the Federal
Bureau of Investigation, or to shall
comply with paragraph (1) of subdivision (h) , prior to the
person's employment, residence, or initial presence in the community
care facility . These fingerprints shall be on a
card provided in a form required by the State
Department of Social Services or sent by electronic transmission in a
manner approved by the State Department of Social Services and the
Department of Justice for the purpose of obtaining a permanent set of
fingerprints, and shall be submitted to the Department of Justice by
the licensee or special permit holder . A licensee's
or a special permit holder's failure to prohibit the
initial presence in a facility of any person specified in subdivision
(b) who is not exempted from fingerprinting and who has not received
either a criminal record clearance or an exemption from
disqualification pursuant to subdivision (g) shall result in the
citation of a deficiency and the immediate assessment of civil
penalties, by the State Department of Social Services and against the
licensee or special permit holder, in the amount of one hundred
dollars ($100) per violation per day, and also shall be grounds for
disciplining the licensee pursuant to Section 1550. A licensee's or a
special permit holder's failure to submit fingerprints to the
Department of Justice or to comply with paragraph (1) of subdivision
(h), as required in this section, shall result in the citation of a
deficiency and the immediate assessment of civil penalties , by
the State Department of Social Services and against the licensee or
special permit holder, in the amount of one hundred dollars
($100) per violation per day, and shall be grounds for
disciplining the licensee pursuant to Section 1550 . The
department may also assess civil penalties against
the licensee for continued violations as permitted by Section
1548. The fingerprints shall then be submitted to the State
Department of Social Services
Justice for processing. Upon request of the licensee or
special permit holder , who shall enclose a self-addressed
stamped postcard for this purpose, the Department of Justice shall
verify receipt of the fingerprints.
(2) Within 14 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the State Department of Social
Services of the criminal record history
information, as provided for in subdivision (a). If no criminal
record history information has been
recorded, the Department of Justice shall provide the licensee
or special permit holder and the State Department of Social
Services with a statement of that fact within 14 calendar days of
receipt of the fingerprints. Documentation of the individual's
clearance or exemption from disqualification pursuant to
subdivision (g) shall be maintained by the licensee or
special permit holder and shall be
available for inspection. If new fingerprints are required for
processing, the Department of Justice shall, within 14 calendar days
from the date of receipt of the fingerprints, notify the licensee
or special permit holder that the fingerprints
were illegible are required . When
live-scan technology is operational, as defined in Section 1522.04,
the The Department of Justice shall notify the
State Department of Social Services, as required by that
section Section 1522.04 , and shall also notify
the licensee or special permit holder by mail, within 14
days of electronic transmission of the fingerprints to the Department
of Justice, if the person has no criminal history recorded. A
violation of the regulations adopted pursuant to Section 1522.04
shall result in the citation of a deficiency and an immediate
assessment of civil penalties , by the State Department of
Social Services and against the licensee or special permit holder,
in the amount of one hundred dollars ($100) per violation
per day, and shall be grounds for disciplining the licensee pursuant
to Section 1550 . The department may also assess
civil penalties for continued violations as permitted by Section
1548.
(3) Except for persons specified in paragraph (2) of
subdivision (b) as exempt from the criminal record
clearance requirement , the licensee or special permit
holder shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision (b) . If it is determined by the
State Department of Social Services, on the basis of the fingerprints
submitted to the Department of Justice, that subsequent to
obtaining a criminal record clearance or exemption from
disqualification pursuant to subdivision (g), the person has
been convicted of, or is awaiting trial for, a sex offense against a
minor, or has been convicted for an offense specified in Section
243.4, 273a, 273d, 273g, or 368 of the Penal Code, or a felony,
or has been arrested for any crime specified in subparagraph (B) of
paragraph (1) of subdivision (a), subject to subdivision (e),
the State Department of Social Services shall notify the licensee
or special permit holder to act immediately to terminate
the person's employment, remove the person from the community care
facility, or bar the person from entering the community care facility
, as appropriate . The State Department of Social
Services may subsequently grant an exemption from
disqualification pursuant to subdivision (g). If the
conviction or arrest was for another crime, except
a minor traffic violation, the licensee or special permit
holder shall, upon notification by the State
Department of Social Services department , act
immediately to either (1) (A) terminate
the person's employment, remove the person from the community care
facility, or bar the person from entering the community care facility
, as appropriate ; or (2) (B)
seek an exemption from disqualification pursuant to
subdivision (g). The State Department of Social Services
department shall determine if the person shall
be allowed to remain in the facility until a decision on the
exemption from disqualification is rendered. A licensee's
or special permit holder's failure to comply with the
department's prohibition of employment, contact with clients, or
presence in the facility as required by this paragraph shall
result in a citation of a deficiency and an immediate assessment of
civil penalties, by the department and against the licensee or
special permit holder, in the amount of one hundred dollars ($100)
per violation per day, and shall be grounds for disciplining
the licensee pursuant to Section 1550.
(4) The department may issue an exemption from
disqualification on its own motion pursuant to subdivision (g)
if the person's criminal history indicates that the person is of good
character based on the age, seriousness, and frequency of the
conviction or convictions. The department, in consultation with
interested parties, shall develop regulations to establish the
criteria to grant an exemption from disqualification
pursuant to this paragraph.
(5) Concurrently with notifying the licensee pursuant to
paragraph (3), the department shall notify the affected individual of
his or her right to seek an exemption pursuant to subdivision (g).
The individual may seek an exemption only if the licensee terminates
the person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (3).
Only an applicant for licensure or a licensee, or an
applicant for a special permit or a special permit holder, may
request an exemption pursuant to subdivision (g) on behalf of an
individual specified in subdivision (b) who is not exempt from
fingerprinting.
(d) (1) Before issuing a license, special permit, or certificate
of approval to any person or persons to operate or manage a foster
family home or certified family home as described in Section 1506,
the State Department of Social Services or other approving authority
shall secure criminal history information from an
appropriate law enforcement agency a criminal record
to determine whether the applicant or any person specified
in subdivision (b) who is not exempted from fingerprinting
has ever been convicted of
a crime other than a minor traffic violation or arrested for any
crime specified in Section 290 of the Penal Code, for violating
Section 245 or 273.5 of the Penal Code , for
violating subdivision (b) of Section 273a or, prior to January
1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any
crime for which the person has not been exonerated and for which
the department cannot may not
grant an exemption if the person was convicted and the
person has not been exonerated from disqualification
pursuant to subdivision (g) .
(2) The criminal history information shall include the full
criminal record, if any, of those persons and arrest information
pursuant to Section 11105.2 of the Penal Code .
(3) No fee shall be charged by the
Notwithstanding subdivision (k), neither the Department of
Justice or nor the State Department of
Social Services may charge a fee for the fingerprinting of
an applicant for a license, special permit, or certificate of
approval described in this subdivision. The record
criminal history , if any, shall be taken into
consideration when evaluating a prospective applicant.
(4) The following shall apply to the criminal record
history information:
(A) If the applicant or other persons specified in subdivision (b)
who are not exempted from fingerprinting have
convictions any conviction or arrest that would
make the applicant's home unfit as a foster family home or a
certified family home, the license, special permit, or certificate of
approval shall be denied.
(B) If the State Department of Social Services finds that the
applicant, or any person specified in subdivision (b) who is not
exempted from fingerprinting, is awaiting trial for a crime
other than a minor traffic violation, the State Department
of Social Services department or other approving
authority may cease processing the application until the conclusion
of the trial or other disposition of the case .
(C) For the purposes of this subdivision, a criminal record
clearance provided under Section 8712 of the Family Code may be used
by the department or other approving agency.
(D) An applicant for a foster family home license or special
permit, or for certification as a family home, and any other
person specified in subdivision (b) who is not exempted from
fingerprinting , shall submit a set of fingerprints to the
Department of Justice for the purpose of searching the criminal
records of the Federal Bureau of Investigation, in addition to the
criminal records search required by subdivision (a). If an applicant
meets all other conditions for licensure, for a special permit,
or for certification, except the State Department of
Social Services' receipt of the Federal Bureau of Investigation'
s criminal history information for the applicant and all persons
described in subdivision (b) who are not exempted from
fingerprinting , the department may issue a license or
special permit , or the foster family agency may issue a
certificate of approval, if the applicant, and each person described
in subdivision (b) who is not exempted from fingerprinting
, has signed and submitted a statement
declaration, under penalty of perjury, that he or she has never
been convicted of a crime in the United States, other than a traffic
infraction , as defined in punishable
pursuant to paragraph (1) of subdivision (a) of Section 42001
of the Vehicle Code , or arrested for any crime specified in
paragraph (1) . If, after licensure , the issuance of a
special permit, or certification, the department determines
that the licensee, special permit holder, certified foster
parent, or any person specified in subdivision (b) who is not
exempted from fingerprinting has a criminal record
history of any conviction or arrest as specified in
this paragraph, subject to subdivision (e) , the license may be
revoked pursuant to Section 1550 and the certificate of approval
revoked pursuant to subdivision (b) of Section 1534. The department
may also suspend the license pending an administrative hearing
pursuant to Section 1550.5.
(5) Any person specified in this subdivision shall, as a part of
the application, be fingerprinted and sign a declaration ,
under penalty of perjury , regarding any prior criminal
convictions or arrests for any crime against a child, spousal or
cohabitant abuse , or , any crime for
which the department cannot may not
grant an exemption from disqualification pursuant to subdivision
(g) if the person was convicted , and shall submit
these fingerprints to the licensing agency or other approving
authority.
(6) (A) The foster family agency shall obtain fingerprints from
foster family homes and certified home applicants ,
and from persons specified in subdivision (b) who are not
exempted from fingerprinting, and shall submit them directly to
the Department of Justice or send them by electronic transmission in
a manner approved by the State Department of Social Services. A
foster family home licensee or special permit holder, certified
family home, or foster family agency shall submit these
fingerprints to the Department of Justice, along with a second set of
fingerprints for the purpose of searching the records of the Federal
Bureau of Investigation , or to
shall comply with paragraph (1) of subdivision (b)
(h), prior to the person's employment,
residence, or initial presence. A licensee's , special permit
holder's, or certificate holder's failure to submit
fingerprints to the Department of Justice, or to comply
with paragraph (1) of subdivision (h), as required in this section,
shall result in a citation of a deficiency, and the immediate civil
penalties , by the department and against the licensee, special
permit holder, or certificate holder of one hundred dollars
($100) per violation per day . The State Department of
Social Services may assess penalties for continued violations, as
permitted by Section 1548. The fingerprints shall then be submitted
to the State Department of Social Services for processing.
(B) Upon request of the licensee , special permit holder
, or certificate holder, who shall enclose a
self-addressed envelope for this purpose, the Department of Justice
shall verify receipt of the fingerprints. Within five working days
of the receipt of the criminal record or
history information regarding criminal convictions or
arrests from the Department of Justice, the department
State Department of Social Services shall
notify the applicant of any criminal arrests or convictions. If no
arrests or convictions are recorded, the Department of Justice shall
provide the foster family home licensee or special permit
holder, the certified family home, or the foster family agency
with a statement of that fact concurrent with providing the
information to the State Department of Social Services.
(7) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) who
is not exempted from fingerprinting , has been convicted of a
crime other than a minor traffic violation or arrested for any
crime specified in paragraph (1) , the application shall be
denied, unless the director grants an exemption pursuant to
subdivision (g).
(8) If the State Department of Social Services finds after
licensure or the granting of the a special
permit or a certificate of approval that the licensee,
special permit holder, certified foster parent, or any other
person specified in paragraph (2) of subdivision
(b) who is not exempt from fingerprinting , has been
convicted of a crime other than a minor traffic violation, or
arrested for any crime specified in paragraph (1), the license
, special permit, or certificate of approval may be
revoked by the department or the foster family agency, whichever is
applicable, unless the director grants an exemption pursuant to
subdivision (g). A licensee's , special permit holder's, or
certificate holder's failure to comply with the department's
prohibition of employment, contact with clients, or presence in the
facility as required by paragraph (3) of subdivision (c) shall
result in a citation of a deficiency, and the immediate assessment of
a civil penalty, by the department and against the licensee, special
permit holder, or certificate holder of one hundred dollars ($100)
per violation per day. The department may also assess penalties for
continued violations, pursuant to Section 1548. A licensee's, special
permit holder's, or certificate holder's failure to comply with the
department's prohibition of employment, contact with clients, or
presence in the facility shall also be grounds for disciplining
the licensee pursuant to Section 1550.
(e) The State Department of Social Services shall not use a record
of arrest to deny, revoke, or terminate any application, license,
special permit, certificate of approval, employment, or
residence unless the department investigates the incident and secures
evidence, whether or not related to the incident of arrest, that is
admissible in an administrative hearing to establish conduct by the
person that may pose a risk to the health and safety of any person
who is or may become a client. The State Department of
Social Services department is authorized to
obtain any arrest or conviction records or reports from any law
enforcement agency as necessary to the performance of its duties to
inspect, license, issue a special permit for, and
investigate community care facilities and individuals associated with
a community care facility.
(f) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action
which that the State Department of Social
Services is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed,
or when the judgment of conviction has
been affirmed on appeal , or when an order granting
probation is made suspending the imposition of sentence,
notwithstanding a subsequent order pursuant to Sections 1203.4 and
1203.4a of the Penal Code permitting the person to withdraw his or
her plea of guilty and to enter a plea of not guilty, or setting
aside the verdict of guilty, or dismissing the accusation,
information, or indictment. For purposes of this section or any
other provision of this chapter, 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, shall be conclusive evidence
of the conviction. For purposes of this section or any other
provision of this chapter, the arrest disposition report certified by
the Department of Justice, or documents admissible in a criminal
action pursuant to Section 969b of the Penal Code, shall be prima
facie evidence of the conviction, notwithstanding any other provision
of law prohibiting the admission of these documents in a civil or
administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court , or arrests from another state
or by any federal agency, as if the criminal offense was
committed in this state.
(g) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraphs (1) and (4) of subdivision
(a), or for a license, special permit, or certificate of approval as
specified in paragraphs (4) and (5) of
subdivision (d), or for employment, residence, or presence in a
community care facility as specified in paragraphs (3), (4),
and (5) of subdivision (c), if the director has
substantial and convincing evidence to support a reasonable belief
that the applicant and the or other
person convicted of , or arrested for, the crime
, if other than the applicant, are is of such
good character as to justify issuance of the license or
, special permit , or certificate of
approval, or the granting of an exemption
for purposes of subdivision (c) pursuant to
this subdivision . Except as otherwise provided in this
subdivision, no exemption shall be granted pursuant to this
subdivision if the conviction was for any of the following offenses:
(A) (i) An offense specified in Section 220, 243.4, or
264.1, subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(a) of Section 290, or Section 368 of the Penal Code, or was
subdivision (b) of Section 237, Section 243.4, Section
246, Section 264.1, Section 266a, Section 266e, Section 273a,
Section 273ab, Section 273d, subdivision (e) of Section 273.5,
Section 288, or Section 289, of the Penal Code, any conviction for
which the person is required to register as a sex offender pursuant
to Section 290 of the Penal Code, Section 368, or subdivision (b) of
Section 417, of the Penal Code, a conviction of
another any crime against an individual
specified in subdivision (c) of Section 667.5 of the Penal Code
, or any crime of violence specified in any regulation .
(ii) Notwithstanding clause (i), the director may grant an
exemption regarding the conviction for an offense described in
paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5
of the Penal Code, if the applicant, employee ,
or prospective employee has been rehabilitated as provided in
Section 4852.03 of the Penal Code, has maintained the conduct
required in Section 4852.05 of the Penal Code for at least 10 years,
and has the recommendation of the district attorney representing the
applicant's, employee's , or prospective employee's
county of residence, or if the applicant, employee
, or prospective employee has received a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or in Section
206, Section 215, subdivision (a) of Section 347,
subdivision (b) of Section 417, or subdivision (a) of Section 451
, of the Penal Code.
(C) An offense specified in Section 11379.6.
(D) First degree burglary specified in Sections 459 and 460 of the
Penal Code.
(2) The department shall not prohibit a person from being employed
by or from having contact with clients in a
facility on the basis of a denied criminal record exemption request
or arrest information unless the department complies with the
requirements of Section 1558.
(h) (1) For purposes of compliance with this section, the
department State Department of Social Services
may permit an individual to transfer a current criminal record
clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the State Department of
Social Services department , and shall include a
copy of the person's driver's license or valid identification card
issued by the Department of Motor Vehicles, or a valid photo
identification issued by another state or the United States
government if the person is not a California resident. Upon request
of the licensee, who shall enclose a self-addressed envelope for this
purpose, the State Department of Social Services
department shall verify whether the individual has a
clearance that can be transferred.
(2) The State Department of Social Services
department shall hold criminal record clearances in its
active files for a minimum of two years after an employee
a person is no longer employed at
by, residing at, or present in a licensed
facility in order for the criminal record clearance to be
transferred.
(i) The full criminal record history
obtained for purposes of this section may be used by the department
or by a licensed adoption agency as a clearance required for adoption
purposes.
(j) If a licensee , special permit holder, certificate
holder, or facility is required by law to deny employment or to
terminate employment of any employee based on written notification
from the state department that the employee has a
prior criminal conviction , or an arrest for any crime specified
in subparagraph (B) of paragraph (1) of subdivision (a), or is
determined unsuitable for employment under Section 1558, the
licensee , special permit holder, certificate holder, or
facility shall not incur civil liability or unemployment insurance
liability as a result of that denial or termination.
(k) (1) The Department of Justice shall coordinate with
the State Department of Social Services to establish and implement an
automated live-scan processing system for fingerprints in the
district offices of the Community Care Licensing Division of the
State Department of Social Services by July 1, 1999. These live-scan
processing units shall be connected to the main system at the
Department of Justice by July 1, 1999, and shall become part of that
department's pilot project in accordance with its long-range plan.
The State Department of Social Services may charge a fee
for the costs of processing a set of live-scan fingerprints.
(2) The Department of Justice shall provide a report to the Senate
and Assembly fiscal committees, the Assembly Human Services
Committee, and to the Senate Health and Human Services Committee by
April 15, 1999, regarding the completion of backlogged criminal
record clearance requests for all facilities licensed by the State
Department of Social Services and the progress on implementing the
automated live-scan processing system in the two district offices
pursuant to paragraph (1).
(l) Amendments to this section made in the 1999 portion of the
1999-2000 Regular Session shall be implemented commencing 60 days
after the effective date of the act amending this section in the 1999
portion of the 1999-2000 Regular Session, except that those
provisions for the submission of fingerprints for searching the
records of the Federal Bureau of Investigation shall be implemented
90 days after the effective date of that act.
SEC. 2. Section 1568.09 of the Health and Safety Code is amended
to read:
1568.09. It is the intent of the Legislature in enacting this
section to require the fingerprints of those individuals whose
contact with residents of residential care facilities for persons
with a chronic, life-threatening illness may pose a risk to the
residents' health and safety.
Therefore, the Legislature supports the use of the fingerprint
live-scan technology, as identified in the long-range plan of the
Department of Justice for fully automating the processing of
fingerprints and other data by the year 1999, otherwise known as the
California Crime Information Intelligence System (CAL-CII), to be
used for applicant fingerprints. It is the intent of the
Legislature, in enacting this section, to require the fingerprints of
those individuals whose contact with community care clients may pose
a risk to the clients' health and safety.
(a) (1) Before issuing a license to any person or persons to
operate or manage a residential care facility , and before any
person specified in subdivision (b) who is not exempted from
fingerprinting is employed by, resides at, or is present in a
residential care facility for persons, with a chronic,
life-threatening illness , the department shall secure from an
appropriate law enforcement agency a criminal
record history information to determine
whether the applicant or any other person specified in subdivision
(b) who is not exempted from fingerprinting has
ever been convicted any of the following:
(A) A conviction of a crime other than a minor traffic
violation or arrested .
(B) An arrest for any crime specified in Section 290 of the
Penal Code, for violating Section 245 or 273.5 of the Penal Code
, for violating subdivision (b) of Section 273a
of the Penal Code, or, prior to January 1, 1994, paragraph
(2) of Section 273a of the Penal Code , or for
.
(C) A conviction of any crime for which the person has
not been exonerated and for which the department
cannot may not grant an exemption if
the person was convicted and the person has not been exonerated
from disqualification pursuant to subdivision (f)
.
(2) The criminal history information shall include the full
criminal record if any, of those persons, and subsequent
arrest information pursuant to Section 11105.2 of the Penal
Code.
(3) The following shall apply to the criminal record information:
(A) If the State Department of Social Services
department finds that the applicant or any other person
specified in subdivision (b) who is not exempted from
fingerprinting has been convicted of a crime, other than a
minor traffic violation, or arrested for a crime specified in
subparagraph (B) of paragraph (1), subject to subdivision (e),
the application shall be denied, unless the director grants an
exemption from disqualification pursuant to subdivision
(f).
(B) If the State Department of Social Services
department finds that the applicant, or any other person
specified in subdivision (b) who is not exempted from
fingerprinting is awaiting trial for a crime other than a minor
traffic violation, the State Department of Social Services
department may cease processing the application
until the conclusion of the trial or other deposition of the
case .
(C) If no criminal record history
information has been recorded, the Department of Justice shall
provide the applicant and the State Department of Social Services
with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b) who is not
exempted from fingerprinting , has been convicted of a crime
other than a minor traffic violation, or arrested for a crime
specified in subparagraph (B) of paragraph (1), subject to
subdivision (e), the license may be revoked, unless the
director grants an exemption pursuant to subdivision (f).
(E) An In addition to the criminal records
search required by this subdivision, an applicant and
any other person specified in subdivision (b) for
licensure shall submit to the Department of Justice a second
set of fingerprints for the purpose of searching the records of the
Federal Bureau of Investigation , in addition to the search
required by this subdivision . If an applicant meets all
other conditions for licensure, except for the State Department
of Social Services' receipt of the Federal Bureau of
Investigation's criminal history information for the applicant
and persons listed in subdivision (b) , the
department may issue a license if the applicant and each
person described by subdivision (b) has signed and
submitted a statement declaration, under
penalty of perjury, that he or she has never been convicted of
a crime in the United States, other than a traffic infraction
as defined in punishable pursuant to
paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code
, or arrested for a crime specified in subparagraph (B) of
paragraph (1). If, after licensure, the department determines, based
on the results from the Federal Bureau of Investigation's criminal
record search, that the licensee has a conviction for any crime other
than a minor traffic violation, or has been arrested for a crime
specified in subparagraph (B) of paragraph (1), subject to
subdivision (e), the department may the revoke the license pursuant
to Section 1568.082. The department may also suspend the license
pending an administrative hearing pursuant to Section 1568.082.
(F) In addition to the criminal records search required by this
subdivision, each person specified in subdivision (b) who is not
exempted from fingerprinting shall submit a second set of
fingerprints to the Department of Justice for the purpose of
searching the criminal records of the Federal Bureau of Investigation
for records for that person. If any person specified in subdivision
(b) who is not exempted from fingerprinting obtains either a
criminal record clearance from the Department of Justice or an
exemption from disqualification pursuant to subdivision (f) from the
State Department of Social Services pending the department's receipt
of the Federal Bureau of Investigation's criminal history information
for the person, the department may allow that person to be employed
by, reside at, or be present in, the residential care facility if the
person has signed and submitted to the department a declaration,
under penalty of perjury, that he or she has never been convicted of
a crime in the United States, other than a traffic infraction
punishable pursuant to paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code or the crime for which the exemption from
disqualification was granted, or arrested for any crime specified in
subparagraph (B) of paragraph (1). If, after obtaining a criminal
record clearance or exemption from disqualification pursuant to
subdivision (f) for a person
specified in subdivision (b) who is not exempted from
fingerprinting, the department determines, based on the results from
the Federal Bureau of Investigation's criminal record search, that
the person has a conviction for any crime other than a minor traffic
violation, or has been arrested for a crime specified in subparagraph
(B) of paragraph (1), subject to subdivision (e), the department
shall determine if the person should be removed or excluded, or both,
from the facility pursuant to paragraph (4) of subdivision (c) until
a decision on the exemption from disqualification is rendered
.
(G) If, after licensure, the department determines that the
licensee or person specified in subdivision (b) who is not
exempted from fingerprinting has a criminal record
conviction of an offense other than a minor traffic
violation, or a record of arrest for any crime specified in
subparagraph (B) of paragraph (1), subject to subdivision (e) ,
the license may be revoked pursuant to subdivision (a) of Section
1568.82 1568.082 . The department may
also suspend the license pending an administrative hearing pursuant
to subdivision (b) of Section 1568.82
1568.082 .
(b) In addition to the applicant, the provisions of this section
shall be applicable to criminal convictions and arrests of
the following persons:
(1) Adults responsible for administration or direct supervision of
staff of the facility.
(2) Any person, other than a resident, residing in the facility.
(3) Any person who provides resident assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the
residential care facility for persons with chronic, life-threatening
illness. The facility shall maintain the copy of the certification
on file as long as care is being provided by the certified nurse
assistant or certified home health aide at the facility. Nothing in
this paragraph restricts the right of the department to exclude a
certified nurse assistant or certified home health aide from a
licensed residential care facility for persons with chronic,
life-threatening illness pursuant to Section 1568.092.
(4) (A) Any staff person, volunteer, or employee who has contact
with the residents.
(B) A volunteer shall be exempt from the requirements of this
subdivision if he or she is a relative, significant other, or close
friend of a client receiving care in the facility and the volunteer
does not provide direct care and supervision of residents. A
volunteer who provides direct care and supervision shall be exempt if
the volunteer is a resident's spouse, significant other, close
friend, or family member and provides direct care and supervision to
that resident only at the request of the resident. The department
may define in regulations persons similar to those described in this
subparagraph who may be exempt from the requirements of this
subdivision.
(5) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
that capacity.
(6) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(c) (1) (A) Subsequent to initial licensure, any
Any person specified in subdivision (b)
and who is not exempted from fingerprinting
shall , as a condition to employment, residence, or presence
in a residential care facility, obtain either a
criminal record clearance from the Department of Justice or an
exemption from disqualification pursuant to subdivision (f) from the
State Department of Social Services prior to his or her initial
presence in a residential care facility. Any person specified in
subdivision (b) who is not exempted from fingerprinting shall
be fingerprinted and shall sign a declaration ,
under penalty of perjury , regarding any prior criminal
convictions or any arrest for any crime
specified in subparagraph (B) of paragraph (1) of subdivision (a)
. The licensee shall submit these fingerprints to the
Department of Justice, along with a second set of fingerprints, for
the purpose of searching the records of the Federal Bureau of
Investigation, or to shall comply with
paragraph (1) of subdivision (g) , prior to the person's
employment, residence, or initial presence in the residential care
facility .
(B) These fingerprints shall be on a card provided
in a form required by the State Department of
Social Services for the purpose of obtaining a permanent set of
fingerprints and submitted to the Department of Justice by the
licensee or sent by electronic transmission in a manner approved by
the State Department of Social Services. A licensee's failure
to prohibit the initial presence in a facility of any person
specified in subdivision (b) who is not exempted from fingerprinting
and who has not received either a criminal record clearance or an
exemption from disqualification pursuant to subdivision (f) shall
result in the citation of a deficiency and the immediate assessment
of civil penalties, by the State Department of Social Services and
against the licensee, in the amount of one hundred dollars ($100) per
violation per day, and also shall be grounds for disciplining the
licensee pursuant to Section 1550. A licensee's failure to
submit fingerprints to the Department of Justice, or to comply with
paragraph (1) of subdivision (g), as required in this section, shall
result in the citation of a deficiency and an immediate assessment of
civil penalties , by the State Department of Social Services
and against the licensee, in the amount of one hundred dollars
($100) per violation per day, and shall be grounds for
disciplining the licensee pursuant to Section 1568.082 . The
State Department of Social Services
department may assess civil penalties against the licensee
for continued violations as allowed in Section 1568.0822. The
fingerprints shall then be submitted to the State
Department of Social Services Justice
for processing. The licensee shall maintain and make available for
inspection documentation of the individual's clearance or exemption.
(2) (A) Paragraph (1) shall cease to be implemented when
the State Department of Social Services adopts emergency regulations
pursuant to Section 1522.04, and shall become inoperative when those
regulations become final.
(B) A violation of the regulations adopted pursuant to
Section 1522.04 shall result in the citation of a deficiency and an
immediate assessment of civil penalties , by the State
Department of Social Services and against the licensee, in the
amount of one hundred dollars ($100) per violation per day and
shall be grounds for disciplining the licensee pursuant to Section
1568.082 . The department may also assess civil
penalties for continued violations as permitted by Section 1568.0822.
(3) Within 14 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the State Department of Social
Services of the criminal record history
information, as provided for in this subdivision. If no
criminal record history information has
been recorded, the Department of Justice shall provide the licensee
and the State Department of Social Services with a statement of that
fact within 14 calendar days of receipt of the fingerprints. If new
fingerprints are required for processing, the Department of Justice
shall, within 14 calendar days from the date of receipt of the
fingerprints, notify the licensee that the fingerprints were
illegible. When live-scan technology is operational, as defined in
Section 1522.04, the are required. The
Department of Justice shall notify the department, as required by
that section, and shall notify the licensee by mail within 14 days of
electronic transmission of the fingerprints to the Department of
Justice, if the person has no criminal history record.
(4) Except for persons specified in paragraph (2)
of subdivision (b) as exempt from
the criminal record clearance requirement , the licensee shall
endeavor to ascertain the previous employment history of persons
required to be fingerprinted under this
subdivision (b) . If it is determined by the State
Department of Social Services, on the basis of the fingerprints
submitted to the Department of Justice, that subsequent to
obtaining a criminal record clearance or exemption from
disqualification pursuant to subdivision (f), the person has
been convicted of a sex offense against a minor, an offense specified
in Section 243.4, 273a, 273d, 273g, or 368 of the Penal Code, or a
felony, or has been arrested for any crime specified in
subparagraph (B) of paragraph (1) of subdivision (a), subject to
subdivision (e), the department shall notify the licensee to
act immediately to terminate the person's employment, remove the
person from the residential care facility, or bar the person from
entering the residential care facility , as appropriate .
The department may subsequently grant an exemption from
disqualification pursuant to subdivision (f). If the
conviction was for another crime, except a minor traffic violation,
the licensee shall, upon notification by the department, act
immediately to either (1) (A) terminate
the person's employment, remove the person from the residential care
facility, or bar the person from entering the residential
care facility , as appropriate ; or (2)
(B) seek an exemption from disqualification
pursuant to subdivision (f). The department shall determine
if the person shall be allowed to remain in the facility until a
decision on the exemption from disqualification is
rendered. A licensee's failure to comply with the department's
prohibition of employment, contact with clients, or presence in the
facility as required by this paragraph shall result in a
citation of a deficiency and an immediate assessment of civil
penalties, by the department and against the licensee, in the amount
of one hundred dollars ($100) per violation per day, and shall
be grounds for disciplining the licensee pursuant to Section
1568.082.
(5) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(6) Concurrently with notifying the licensee pursuant to
paragraph (4), the department shall notify the affected individual of
his or her right to seek an exemption pursuant to subdivision (f).
The individual may seek an exemption only if the licensee terminates
the person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (4).
Only an applicant for licensure or a licensee may
request an exemption from disqualification pursuant to subdivision
(f) on behalf of an individual specified in subdivision (b) who is
not exempt from fingerprinting.
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action
which that the department is permitted to take
following the establishment of a conviction may be taken when the
time for appeal has elapsed, or when
the judgment of conviction has been affirmed on appeal ,
or when an order granting probation is made suspending the imposition
of the sentence, notwithstanding a subsequent order pursuant to
Sections 1203.4 and 1203.4a of the Penal Code permitting that person
to withdraw his or her plea of guilty and to enter a plea of not
guilty, setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment. For purposes of this
chapter, 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, shall be conclusive evidence of the conviction.
For purposes of this section or any other provision of this chapter,
the arrest disposition report certified by the Department of
Justice, or documents admissible in a criminal action pursuant to
Section 969b of the Penal Code, shall be prima facie evidence of the
conviction, notwithstanding any other provision of law prohibiting
the admission of these documents in a civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court , or arrests from another state
or by any federal agency, as if the criminal offense was
committed in this state.
(e) The State Department of Social Services shall not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client. The
State Department of Social Services department
is authorized to obtain any arrest or conviction records or reports
from any law enforcement agency as necessary to the performance of
its duties to inspect, license, and investigate community
residential care facilities for persons
with a chronic, life-threatening illness and individuals
associated with a community residential
care facility for persons with a chronic, life-threatening
illness .
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for
employment, residence, or presence in a residential care facility as
specified in paragraphs (4), (5), and (6) of
subdivision (c) , if the director has substantial and
convincing evidence to support a reasonable belief that the applicant
and the or other person convicted of
, or arrested for, the crime , if other than the
applicant, are is of such good character as to
justify issuance of the license or special permit
or the granting of an exemption for
purposes of subdivision (c) pursuant to this
subdivision . However, no exemption shall be granted pursuant
to this subdivision if the conviction was for any of the following
offenses:
(A) An offense specified in Section 220, subdivision (b) of
Section 237, Section 243.4, or Section
246, Section 264.1, subdivision (a) of
Section 266a, Section 266e, Section 273a or,
prior to January 1, 1994, paragraph (1) of Section 273a, Section
, Section 273ab, Section 273d, subdivision
(e) of Section 273.5, Section 288, or Section 289,
subdivision (a) of Section 290, or
the Penal Code, any conviction for which the person is
required to register as a sex offender pursuant to Section 290 of
the Penal Code, Section 368 , or subdivision (b) of
Section 417, of the Penal Code, or was a
conviction of another any crime against
an individual specified in subdivision (c) of Section 667.5 of the
Penal Code , or any crime of violence specified in any
regulation .
(B) A felony offense specified in Section 729 of the Business and
Professional Code or Section 206 or in
Section 206, Section 215, subdivision (a) of Section 347,
subdivision (b) of Section 417, or subdivision (a)
of Section 451 , of the Penal Code.
(C) An offense specified in Section 11379.6.
(D) First degree burglary specified in Sections 459 and 460 of the
Penal Code.
(2) The department shall not prohibit a person from being employed
by or from having contact with clients in a
facility on the basis of a denied criminal record exemption request
or arrest information unless the department complies with the
requirements of Section 1568.092.
(g) (1) For purposes of compliance with this section, the
department State Department of Social Services
may permit an individual to transfer a current criminal record
clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the department, and shall include
a copy of the person's driver's license or valid identification card
issued by the Department of Motor Vehicles, or a valid photo
identification issued by another state or the United States
government if the person is not a California resident. Upon request
of the licensee, who shall enclose a self-addressed stamped envelope
for this purpose, the department shall verify whether the individual
has a clearance that can be transferred.
(2) The State Department of Social Services
department shall hold criminal record clearances in its
active files for a minimum of two years after an employee
a person is no longer employed at
by, residing at, or present in a licensed
facility in order for the criminal record clearance to be
transferred.
(h) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction , or has an arrest for
any crime specified in subparagraph (B) of paragraph (1) of
subdivision (a), or is determined unsuitable for employment
under Section 1568.092, the licensee or facility shall not incur
civil liability or unemployment insurance liability as a result of
that denial or termination.
(i) (1) The Department of Justice shall charge
a fee sufficient to cover its cost in providing services to comply
with the 14-day requirement contained in subdivision (c) for
provision to the department of criminal record
history information.
(2) Paragraph (1) shall cease to be implemented when the
department adopts emergency regulations pursuant to Section 1522.04,
and shall become inoperative when permanent regulations are adopted
under that section.
(j) Amendments to the provisions of this section made in the 1998
calendar year shall be implemented commencing 60 days after the
effective date of the act amending this section in the 1998 calendar
year, except those provisions for the submission of fingerprints for
searching the records of the Federal Bureau of Investigation, which
shall be implemented commencing January 1, 1999.
SEC. 3. Section 1569.17 of the Health and Safety Code is amended
to read:
1569.17. The Legislature recognizes the need to generate timely
and accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a
residential care facility for the elderly. The Legislature supports
the use of the fingerprint live-scan technology, as identified in the
long-range plan of the Department of Justice for fully automating
the processing of fingerprints and other data by the year 1999. It
is the intent of the Legislature in enacting this section to require
the fingerprints of those individuals whose contact with clients of
residential care facilities for the elderly may pose a risk to the
clients' health and safety.
(a) (1) Before issuing a license or special permit to
any person or persons to operate or manage a residential care
facility for the elderly , and before any person specified in
subdivision (b) who is not exempted from fingerprinting is employed
by, resides at, or is present in a residential care facility for the
elderly , the department State
Department of Social Services shall secure from an appropriate
law enforcement agency a criminal record
history information to determine whether the
applicant or any other person specified in subdivision (b) who
is not exempted from fingerprinting has ever been
convicted any of the following:
(A) A conviction of a crime other than a minor traffic
violation or arrested .
(B) An arrest for any crime specified in Section 290 of the
Penal Code, for violating Section 245 or 273.5 of the Penal Code
, for violating subdivision (b) of Section 273a
of the Penal Code, or, prior to January 1, 1994, paragraph
(2) of Section 273a of the Penal Code , or for
.
(C) A conviction of any crime for which the person has
not been exonerated and for which the department
cannot may not grant an exemption if
the person was convicted and the person has not been exonerated
from disqualification pursuant to subdivision (f)
.
(2) The criminal history information shall include the full
criminal record, if any, of those persons , and
subsequent arrest information pursuant to Section
11105.2 of the Penal Code.
(3) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) who
is not exempted from fingerprinting has been convicted of a
crime, other than a minor traffic violation, or arrested for a
crime specified in subparagraph (B) of paragraph (1), subject to
subdivision (e), the application shall be denied, unless the
director grants an exemption from disqualification
pursuant to subdivision (f).
(B) If the State Department of Social Services
department finds that the applicant, or any other person
specified in subdivision (b) who is not exempted from
fingerprinting, is awaiting trial for a crime other than a
minor traffic violation, the State Department of Social
Services department may cease processing the
application until the conclusion of the trial or other
disposition of the case .
(C) If no criminal record history
information has been recorded, the Department of Justice shall
provide the applicant and the State Department of Social Services
with a statement of that fact.
(D) If the State Department of Social Services
department finds after licensure or the issuance of a
special permit that the licensee , special permit holder
, or any other person specified in paragraph (2) of
subdivision (b) who is not exempt from fingerprinting
, has been convicted of a crime other than a minor traffic
violation or arrested for a crime specified in subparagraph (B)
of paragraph (1), subject to subdivision (e) , the license
or special permit may be revoked, unless the director grants
an exemption pursuant to subdivision (f).
(E) An In addition to the criminal records
search required by this subdivision, an applicant and
any other person specified in subdivision (b) for
licensure or for a special permit shall submit a
second set of fingerprints to the Department of Justice, for the
purpose of searching the records of the Federal Bureau of
Investigation , in addition to the search required by
subdivision (a) . If an applicant meets all other
conditions for licensure or for a special permit , except
for the State Department of Social Services' receipt of
the Federal Bureau of Investigation's criminal history information
for the applicant and persons listed in subdivision (b)
, the department may issue a license or special permit
if the applicant and each person described by
subdivision (b) has signed and submitted a
statement declaration, under penalty of perjury,
that he or she has never been convicted of a crime in the United
States, other than a traffic infraction as defined in paragraph (1)
of subdivision (a) of Section 42001 of the Vehicle Code , or
arrested for a crime specified in subparagraph (B) of paragraph (1)
. If, after licensure or the issuance of a special permit
, the department determines , based on the results from
the Federal Bureau of Investigation's criminal record search
that the licensee or person specified in subdivision (b) has
a criminal record or special permit holder
has a conviction for any crime other than a minor traffic violation,
or has been arrested for a crime specified in subparagraph (B) of
paragraph (1), subject to subdivision (e), the department
may revoke the license may be revoked
pursuant to Section 1569.50. The department may also suspend the
license pending an administrative hearing pursuant to Sections
1569.50 and 1569.51.
(F) In addition to the criminal records search required by this
subdivision, each person specified in subdivision (b) who is not
exempted from fingerprinting shall submit a second set of
fingerprints to the Department of Justice for the purpose of
searching the criminal records of the Federal
Bureau of Investigation for records for that
person. If any person specified in subdivision (b) who is not
exempted from fingerprinting obtains either a criminal record
clearance from the Department of Justice or an exemption from
disqualification pursuant to subdivision (f) from the State
Department of Social Services pending the department's receipt of the
Federal Bureau of Investigation's criminal history for the person,
the department may allow that person to be employed by, to reside at,
or to be present in the residential care facility for the elderly if
the person has signed and submitted a declaration, under penalty of
perjury, that he or she has never been convicted of a crime in the
United States, other than a minor traffic infraction punishable
pursuant to paragraph (1) of subdivision (a) of Section 42001 of the
Vehicle Code or the crime for which the exemption from
disqualification was granted, or arrested for a crime specified in
subparagraph (B) of paragraph (1). If after obtaining a criminal
record clearance or exemption for a person specified in subdivision
(b) who is not exempted from fingerprinting, the department
determines, based on the results from the Federal Bureau of
Investigation's criminal record search, that the person has a
conviction for any crime other than a minor traffic violation, or has
been arrested for a crime specified in subparagraph (B) of paragraph
(1), subject to subdivision (e), the department shall determine if
the person should be removed or excluded, or both, from the facility
pursuant to paragraph (3) of subdivision (c) until a decision on the
exemption from disqualification is rendered.
(G) If, after licensure or the granting of a special permit, the
department determines that the licensee, special permit holder, or a
person specified in subdivision (b) who is not exempted from
fingerprinting has a conviction of an offense other than a minor
traffic violation, or a record of arrest for any crime specified in
subparagraph (B) of paragraph (1), subject to subdivision (e), the
license may be revoked pursuant to Section 1569.50. The department
may also suspend the license pending an administrative hearing
pursuant to Sections 1569.50 and 1569.51.
(b) (1) In addition to the applicant, the provisions of
this section shall apply to criminal convictions and arrests
of the following persons:
(1) (A)
(A) Adults responsible for administration or direct
supervision of staff.
(B) Any person, other than a client, residing in the facility.
Residents of unlicensed independent senior housing facilities that
are located in contiguous buildings on the same property as a
residential care facility for the elderly shall be exempt from these
requirements.
(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to
at the residential care facility for the
elderly. The facility shall maintain the copy of the certification
on file as long as the care is being provided by the certified nurse
assistant or certified home health aide at the facility. Nothing in
this paragraph restricts the right of the department to exclude a
certified nurse assistant or certified home health aide from a
licensed residential care facility for the elderly pursuant to
Section 1569.58.
(D) Any staff person, volunteer, or employee who has contact with
the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in a
similar capacity.
(F) Additional officers of the governing body of the applicant or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(2) The following persons are exempt from requirements applicable
under paragraph (1):
(A) A spouse, relative, significant other, or close friend of a
client shall be exempt if this person is visiting the client or
provides direct care and supervision to that client only.
(B) A volunteer to whom all of the following apply:
(i) The volunteer is at the facility during normal waking hours.
(ii) The volunteer is directly supervised by the licensee ,
special permit holder, or a facility employee with a criminal
record clearance or exemption.
(iii) The volunteer spends no more than 16 hours per week at the
facility.
(iv) The volunteer does not provide clients with assistance in
dressing, grooming, bathing, or personal hygiene.
(v) The volunteer is not left alone with clients in care.
(C) A third-party contractor retained by the facility if the
contractor is not left alone with clients in care.
(D) A third-party contractor or other business professional
retained by a client and at the facility at the request or by
permission of that client. These individuals shall not be left alone
with other clients.
(E) Licensed or certified medical professionals are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption shall not apply to a person
who is a community care residential care
facility for the elderly licensee , special
permit holder, or an employee of the facility.
(F) Employees of licensed home health agencies and members of
licensed hospice interdisciplinary teams who have contact with a
resident of a residential care facility at the request of the
resident or resident's legal decisionmaker are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption shall not apply to a person
who is a community care residential care
facility for the elderly licensee , special
permit holder, or an employee of the facility.
(G) Clergy and other spiritual caregivers who are performing
services in common areas of the residential care facility, or who are
advising an individual resident at the request of, or with
permission of, the resident, are exempt from fingerprint and criminal
background check requirements imposed by community care licensing.
This exemption shall not apply to a person who is a
community residential care facility for the
elderly licensee , special permit holder, or an
employee of the facility.
(H) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(I)
(3) Nothing in this paragraph (2)
shall prevent a licensee or special permit holder
from requiring a criminal record clearance of any individual exempt
from the requirements of this section, provided that the individual
has client contact.
(c) (1) (A) Subsequent to initial licensure, any
Any person required to be fingerprinted pursuant
to subdivision (b) shall , as a condition to employment,
residence, or presence in a residential facility for the elderly,
obtain either a criminal record clearance from the
Department of Justice or an exemption from disqualification pursuant
to subdivision (f) from the State Department of Social Services prior
to his or her initial presence in a residential care facility for
the elderly. Any person specified in subdivision (b) who is not
exempted from fingerprinting shall be fingerprinted and
shall sign a declaration , under penalty of perjury
, regarding any prior criminal convictions
conviction or any arrest for any crime specified in
subparagraph (B) of paragraph (1) of subdivision (a) . The
licensee or special permit holder shall submit these
fingerprints, along with a second set of fingerprints for the purpose
of searching the records of the Federal Bureau of Investigation, to
the Department of Justice, or to shall
comply with paragraph (1) of subdivision (g) prior to the
person's employment, residence, or initial presence in the
residential care facility for the elderly .
(B) These fingerprints shall be on a fingerprint card
provided in a form required by the State
Department of Social Services, or sent by electronic transmission in
a manner approved by the State Department of Social Services and the
Department of Justice and submitted to the Department of Justice by
the licensee. A licensee's or special permit holder's failure
to prohibit the initial presence in a facility of any person
specified in subdivision (b) who is not exempted from fingerprinting
and who has not received either a criminal record clearance or an
exemption from disqualification pursuant to subdivision (f) shall
result in the citation of a deficiency and the immediate assessment
of civil penalties, by the State Department of Social Services and
against the licensee or special permit holder, in the amount of one
hundred dollars ($100) per violation per day, and shall also be
grounds for disciplining the licensee pursuant to Section 1569.50.
A licensee's or special permit holder's failure to
submit fingerprints to the Department of Justice, or to comply with
paragraph (1) of subdivision (g), as required in this section, shall
result in the citation of a deficiency and an immediate assessment of
civil penalties , by the State Department of Social Services
and against the licensee or special permit holder, in the
amount of one hundred dollars ($100) per violation per day, and
shall be grounds for disciplining the licensee pursuant to Section
1569.50 . The State Department of Social Services
department may also assess civil
penalties for continued violations as permitted by Section 1569.49.
The licensee shall then submit these fingerprints to the
State Department of Social Services for processing.
Documentation of the individual's clearance or exemption shall be
maintained by the licensee or special permit holder and
shall be available for inspection. When
live-scan technology is operational, as defined in Section 1522.04,
the The Department of Justice shall notify the
department, as required by that section, and notify the licensee
or special permit holder by mail within 14 days of electronic
transmission of the fingerprints to the Department of Justice, if the
person has no criminal record history
information . A violation of the regulations adopted pursuant
to Section 1522.04 shall result in the citation of a deficiency and
an immediate assessment of civil penalties , by the State
Department of Social Services and against the licensee or special
permit holder, in the amount of one hundred dollars ($100) per
violation per day, and shall be grounds for disciplining the
licensee pursuant to Section 1569.50 . The department may
also assess civil penalties for continued violations as
permitted by Section 1569.49.
(2) Within 14 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the State Department of Social
Services of the criminal record information, as provided for in this
subdivision. If no criminal record history
information has been recorded, the Department of Justice shall
provide the licensee or special permit holder and the
State Department of Social Services with a statement of that fact
within 14 calendar days of receipt of the fingerprints. If new
fingerprints are required for processing, the Department of Justice
shall, within 14 calendar days from the date of receipt of the
fingerprints, notify the licensee or special permit holder
that the fingerprints were illegible are
required .
(3) Except for persons specified in paragraph
(2) of subdivision (b) as
exempt from the criminal record clearance requirement , the
licensee or special permit holder shall endeavor to
ascertain the previous employment history of persons required to be
fingerprinted under this subdivision (b)
. If the State Department of Social Services determines, on
the basis of the fingerprints submitted to the Department of Justice,
that subsequent to obtaining either a criminal record clearance
or exemption from disqualification pursuant to subdivision (f),
the person has been convicted of a sex offense against a minor,
an offense specified in Section 243.4, 273a, 273d, 273g, or 368 of
the Penal Code, or a felony, or has been arrested for any crime
specified in subparagraph (B) of paragraph (1) of subdivision (a),
subject to subdivision (e), the State Department of Social
Services shall notify the licensee or special permit holder
in writing within 15 calendar days of the receipt of the
notification from the Department of Justice to act immediately to
terminate the person's employment, remove the person from the
residential care facility for the elderly, or bar the person from
entering the residential care facility for the elderly , as
appropriate . The State Department of Social Services
department may subsequently grant an exemption
pursuant to subdivision (f). If the conviction was for another
crime, except a minor traffic violation, the licensee or special
permit holder shall, upon notification by the State
Department of Social Services department , act
immediately to either (1) (A) terminate
the person's employment, remove the person from the residential care
facility for the elderly, or bar the person from entering the
residential care facility for the elderly , as appropriate;
or (2) (B) seek an exemption
pursuant to subdivision (f). The department shall determine if the
person shall be allowed to remain in the facility until a decision on
the exemption is rendered by the department. A licensee's or
special permit holder's failure to comply with the department's
prohibition of employment, contact with clients, or presence in the
facility as required by this paragraph shall result in a
citation of a deficiency and an immediate assessment of civil
penalties, by the department and against the licensee or special
permit holder, in the amount of one hundred dollars ($100) per
violation per day and shall be grounds for disciplining the
licensee pursuant to Section 1569.50.
(4) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption from
disqualification pursuant to this paragraph.
(5) Concurrently with notifying the licensee pursuant to
paragraph (4), the department shall notify the affected individual of
his or her right to seek an exemption pursuant to subdivision (f).
The individual may seek an exemption only if the licensee terminates
the person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (4).
Only an applicant for licensure or a special permit
or a licensee or special permit holder may request an exemption
pursuant to subdivision (f) on behalf of an individual specified in
subdivision (b) who is not exempt from fingerprinting.
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed,
or when the judgment of conviction has
been affirmed on appeal , or when an order granting
probation is made suspending the imposition of the sentence,
notwithstanding a subsequent order pursuant to the provisions of
Sections 1203.4 and 1203.4a of the Penal Code permitting a person to
withdraw his or her plea of guilty and to enter a plea of not guilty,
or setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment. For purposes of this section
or any other provision of this chapter, 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, shall be conclusive
evidence of the conviction. For purposes of this section or any
other provision of this chapter, the arrest disposition report
certified by the Department of Justice or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code shall be
prima facie evidence of the conviction, notwithstanding any other
provision of law prohibiting the admission of these documents in a
civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court or arrests from another state or
by any federal agency, as if the criminal offense was committed
in this state.
(e) The State Department of Social Services shall not use a record
of arrest to deny, revoke, or terminate any application, license,
special permit, employment, or residence unless the
department investigates the incident and secures evidence, whether or
not related to the incident of arrest, that is admissible in an
administrative hearing to establish conduct by the person that may
pose a risk to the health and safety of any person who is or may
become a client. The State Department of Social Services
department is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license,
issue a special permit for, and investigate community
residential care facilities for the elderly
and individuals associated with a community
residential care facility for the elderly .
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for
employment, residence, or presence in a residential care facility for
the elderly as specified in paragraphs (4), (5), and (6) of
subdivision (c) , if the director has
substantial and convincing evidence to support a reasonable belief
that the applicant and the or other
person convicted of , or arrested for, the crime
, if other than the applicant, are is of such
good character as to justify issuance of the license or special
permit or granting an exemption for purposes of subdivision
(c) pursuant to this subdivision . However, no
exemption shall be granted pursuant to this subdivision if the
conviction was for any of the following offenses:
(A) An offense specified in Section 220, subdivision (b) of
Section 237, Section 243.4, or Section
246, Section 264.1, subdivision (a) of
Section 266a, Section 266e, Section 273a or,
prior to January 1, 1994, paragraph (1) of Section 273a, Section
, Section 273ab, Section 273d, subdivision
(e) of Section 273.5, Section 288, or Section 289
, subdivision (a) of Section 290, or
the Penal Code, any conviction for which the person is
required to register as a sex offender pursuant to Section 290 of
the Penal Code, Section 368 , or subdivision (b) of
Section 417, of the Penal Code, or was a
conviction of another any crime against
an individual specified in subdivision (c) of Section 667.5 of the
Penal Code , or any crime of violence specified in any
regulation .
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or
subdivision (a) of Section 451 of the Penal Code.
(C) An offense specified in Section 11379.6.
(D) First degree burglary specified in Sections 459 and 460 of the
Penal Code.
(2) The director shall notify in writing the licensee ,
special permit holder, or the applicant of
his or her decision within 60 days of receipt of all information from
the applicant and other sources determined necessary by the director
for the rendering of a decision pursuant to this subdivision.
(3) The department shall not prohibit a person from being employed
or having contact with clients in a facility on the basis of a
denied criminal record exemption request or arrest information unless
the department complies with the requirements of Section 1569.58.
(g) (1) For purposes of compliance with this section, the
department State Department of Social Services
may permit an individual to transfer a current criminal record
clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be submitted in writing to the department, and
shall include a copy of the person's driver's license or valid
identification card issued by the Department of Motor Vehicles, or a
valid photo identification issued by another state or the United
States government if the person is not a California resident. Upon
request of the licensee or special permit holder , who
shall enclose a self-addressed stamped envelope for this purpose, the
department shall verify whether the individual has a clearance that
can be transferred.
(2) The State Department of Social Services
department shall hold criminal record clearances in its
active files for a minimum of two years after an employee
a person is no longer employed at
by, residing at, or present in a licensed
facility in order for the criminal record clearances to be
transferred under this section.
(h) If a licensee , special permit holder, or facility
is required by law to deny employment or to terminate employment of
any employee based on written notification from the department that
the employee has a prior criminal conviction , or an arrest for
any crime specified in subparagraph (B) of paragraph (1) of
subdivision (a), or is determined unsuitable for employment
under Section 1569.58, the licensee , special permit holder,
or facility shall not incur civil liability or unemployment
insurance liability as a result of that denial or termination.
(i) Amendments to the provisions of this section made in the 1998
calendar year shall be implemented commencing 60 days after the
effective date of the act amending this section in the 1998 calendar
year, except those provisions for the submission of fingerprints for
searching the records of the Federal Bureau of Investigation, which
shall be implemented commencing on January 1, 1999.
SEC. 4. Section 1596.871 of the Health and Safety Code is amended
to read:
1596.871. The Legislature recognizes the need to generate timely
and accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a child
care center or family child care home. Therefore, the Legislature
supports the use of the fingerprint live-scan technology, as defined
in the long-range plan of the Department of Justice for fully
automating the processing of fingerprints and other data by the year
1999, otherwise known as the California Crime Information
Intelligence System (CAL-CII), to be used for applicant fingerprints.
It is the intent of the Legislature in enacting this section to
require the fingerprints of those individuals whose contact with
child day care facility clients may pose a risk to the children's
health and safety.
(a) (1) Before issuing a license or special permit to any person
to operate or manage a child day care facility or
family day care home licensed pursuant to this chapter, and before
any person specified in subdivision (b) who is not exempted from
fingerprinting is employed by, resides at, or is present in a child
day care facility or family day care home , the department
shall secure from an appropriate law enforcement agency a
criminal record history information
to determine whether the applicant or any other person
specified in subdivision (b) who is not exempted from
fingerprinting has ever been convicted
any of the following:
(A) A conviction of a crime other than a minor traffic
violation or arrested .
(B) An arrest for any crime specified in Section 290 of the
Penal Code, for violating Section 245 or 273.5 of the Penal Code
, for violating subdivision (b) of Section 273a
of the Penal Code, or, prior to January 1, 1994, paragraph
(2) of Section 273a of the Penal Code , or for
.
(C) A conviction of any crime for which the person has
not been exonerated for which the department cannot
may not grant an exemption if the
person was convicted and the person has not been exonerated
from disqualification pursuant to subdivision (f) .
(2) The criminal history information shall include the full
criminal record, if any, of those persons , and
subsequent arrest information pursuant to Section
11105.2 of the Penal Code.
(3) No fee shall be charged by the Department of Justice or the
department for the fingerprinting of an applicant who will serve six
or fewer children or any family day care home applicant
for a license or special permit , or for obtaining a
criminal record of an applicant pursuant to this section.
(4) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) who
is not exempted from fingerprinting has been convicted of a
crime, other than a minor traffic violation , or arrested for a
crime specified in subparagraph (B) of paragraph (1), subject to
subdivision (e) , the application shall be denied, unless the
director grants an exemption pursuant to subdivision (f).
(B) If the State Department of Social Services
department finds that the applicant, or any other person
specified in subdivision (b) who is not exempted from
fingerprinting , is awaiting trial for a crime other than a
minor traffic violation, the State Department of Social
Services department may cease processing the
application until the conclusion of the trial or other
disposition of the case .
(C) If no criminal record history
information has been recorded, the Department of Justice shall
provide the applicant and the State Department of Social Services
with a statement of that fact.
(D) If the State Department of Social Services
department finds after licensure or the issuance of a
special permit that the licensee , special permit holder
, or any other person specified in paragraph
(2) of subdivision (b) who is not exempted
from fingerprinting , has been convicted of a crime other than
a minor traffic violation, or arrested for a crime specified in
subparagraph (B) of paragraph (1), subject to subdivision (e),
the license or special permit may be revoked, unless the
director grants an exemption pursuant to subdivision (f).
(E) An In addition to the criminal records
search required by this subdivision, an applicant and
any other person specified in subdivision (b) for
licensure or for a special permit shall submit a second set of
fingerprints to the Department of Justice, for the purpose of
searching the records of the Federal Bureau of Investigation
, in addition to the search required by subdivision (a) .
If an applicant meets all other conditions for licensure or for
a special permit , except for the State Department of
Social Services' receipt of the Federal Bureau of Investigation'
s criminal history information for the applicant and persons
listed in subdivision (b) , the department may issue a
license or special permit if the applicant and
each person described by subdivision (b) has signed and
submitted a statement declaration, under
penalty of perjury, that he or she has never been convicted of
a crime in the United States, other than a traffic infraction
as defined in punishable pursuant to
paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code
, or arrested for a crime specified in subparagraph (B) of
paragraph (1). If, after licensure or the issuance of a special
permit, the department determines, based on the results from the
Federal Bureau of Investigation's criminal record search, that the
licensee or special permit holder has a conviction for any crime
other than a minor traffic violation, or has been arrested for a
crime specified subparagraph (B) of paragraph (1), subject to
subdivision (e), the department may revoke the license pursuant to
Section 1596.885. The department may also suspend the license
pending an administrative hearing pursuant to Section 1596.886.
(F) In addition to the criminal records search required by this
subdivision, each person specified in subdivision (b) who is not
exempted from fingerprinting shall submit a second set of
fingerprints to the Department of Justice for the purpose of
searching the criminal records of the Federal Bureau of Investigation
records for that person. If any person specified in subdivision (b)
who is not exempted from fingerprinting obtains either a criminal
record clearance from the Department of Justice or an exemption from
disqualification pursuant to subdivision (f) from the State
Department of Social Services pending the department's receipt of the
Federal Bureau of Investigation's criminal history for the person,
the department may allow that person to be employed by, reside at, or
be present in the child day care facility or family day care home if
the person has signed and submitted a declaration, under penalty of
perjury, that he or she has never been convicted of a crime in the
United States, other than a minor traffic infraction punishable
pursuant to paragraph (1) of subdivision (a) of Section 42001 of the
Vehicle Code or the crime for which the exemption from
disqualification was granted, or arrested for a crime specified in
subparagraph (B) of paragraph (1). If after obtaining a criminal
record clearance or exemption for a person specified in subdivision
(b) who is not exempted from fingerprinting, the department
determines, based on the results from the Federal Bureau of
Investigation's criminal record search, that a person specified in
subdivision (b) who is not exempted from fingerprinting has a
conviction for any crime other than a minor traffic violation, or has
been arrested for a crime specified in subparagraph (B) of paragraph
(1), subject to subdivision (e), the department shall determine if
the person should be removed or excluded, or both, from the child day
care facility or family day care home pursuant to paragraph (2) of
subdivision (c) until a decision on the exemption from
disqualification is rendered .
(G) If, after licensure or the issuance of a special
permit , the department determines that the licensee or
special permit holder or person specified in subdivision (b)
who is not exempted from fingerprinting has a
criminal record conviction of an offense other than a
minor traffic violation or a record of arrest for any crime specified
in subparagraph (B) of paragraph (1), subject to subdivision (e)
, the license may be revoked pursuant to Section 1596.885. The
department may also suspend the license pending an administrative
hearing pursuant to Section 1596.886.
(b) (1) In addition to the applicant, this section shall be
applicable to criminal convictions and arrests of the
following persons:
(A) Adults responsible for administration or direct supervision of
staff.
(B) Any person, other than a child, residing in the facility.
(C) Any person who provides care and supervision to the children.
(D) Any staff person, volunteer, or employee who has contact with
the children.
(i) A volunteer providing time-limited specialized services shall
be exempt from the requirements of this subdivision if this person is
directly supervised by the licensee or a facility employee with a
criminal record clearance or exemption, the volunteer spends no more
than 16 hours per week at the facility, and the volunteer is not left
alone with children in care.
(ii) A student enrolled or participating at an accredited
educational institution shall be exempt from the requirements of this
subdivision if the student is directly supervised by the licensee or
a facility employee with a criminal record clearance or exemption,
the facility has an agreement with the educational institution
concerning the placement of the student, the student spends no more
than 16 hours per week at the facility, and the student is not left
alone with children in care.
(iii) A volunteer who is a relative, legal guardian, or foster
parent of a client in the facility shall be exempt from the
requirements of this subdivision.
(iv) A contracted repair person retained by the facility, if not
left alone with children in care, shall be exempt from the
requirements of this subdivision.
(v) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer, other person serving in
like capacity, or a person designated by the chief executive officer
as responsible for the operation of the child cay care
facility or family day care home , as designated by the
applicant agency.
(F) If the applicant is a local educational agency, the president
of the governing board, the school district superintendent, or a
person designated to administer the operation of the facility, as
designated by the local educational agency.
(G) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(H) This section does not apply to employees
(2) The following persons are exempt from the requirements
applicable under paragraph (1):
(A) A volunteer providing time-limited specialized services shall
be exempt from the requirements of this subdivision if this person is
directly supervised by the licensee, special permit holder, or a
child day care facility or family day care home employee with a
criminal record clearance or exemption, the volunteer spends no more
than 16 hours per week at the child day care facility or family day
care home, and the volunteer is not left alone with children in care.
(B) A student enrolled or participating at an accredited
educational institution shall be exempt from the requirements of this
subdivision if the student is directly supervised by the licensee,
special permit holder, or a child day care facility or family day
care home employee with a criminal record clearance or exemption, the
child day care facility or family day care home has an agreement
with the educational institution concerning the placement of the
student, the student spends no more than 16 hours per week at the
child day care facility or family day care home, and the student is
not left alone with children in care.
(C) A volunteer who is a relative, legal guardian, or foster
parent of a client in the child day care facility or family day care
home shall be exempt from the requirements of this subdivision.
(D) A contracted repair person retained by the child day care
facility or family day care home, if not left alone with children in
care, shall be exempt from the requirements of this subdivision.
(E) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(F) Employees of child care and development programs under
contract with the State Department of Education who have completed a
criminal records clearance as part of an application to the
Commission on Teacher Credentialing, and who possess a current
credential or permit issued by the commission, including employees of
child care and development programs that serve both children
subsidized under, and children not subsidized under, a State
Department of Education contract. The Commission on Teacher
Credentialing shall notify the department upon revocation of a
current credential or permit issued to an employee of a child care
and development program under contract with the State Department of
Education.
(I) This section does not apply to employees
(G) Employees of a child care and development program
operated by a school district, county office of education, or
community college district under contract with the State Department
of Education who have completed a criminal record clearance as a
condition of employment. The school district, county office of
education, or community college district upon receiving information
that the status of an employee's criminal record clearance has
changed shall submit that information to the department.
(2)
(3) Nothing in this subdivision shall prevent a licensee
or special permit holder from requiring a criminal record
clearance of any individuals exempt from the requirements under this
subdivision.
(c) (1) (A) Subsequent to initial licensure, any
Any person specified in subdivision (b)
and who is not exempted from fingerprinting
shall , as a condition to employment, residence, or
obtain, prior to his or her initial presence in
a child day care facility or family day care home, either a
criminal record clearance from the Department of Justice or an
exemption from disqualification pursuant to subdivision (f) from the
State Department of Social Services. Any person specified in
subdivision (b) who is not exempted from fingerprinting shall
be fingerprinted and shall sign a declaration ,
under penalty of perjury , regarding any prior criminal
conviction or any arrest for any crime specified in subparagraph
(B) of paragraph (1) of subdivision (a) . The licensee shall
submit these fingerprints to the Department of Justice, along with a
second set of fingerprints for the purpose of searching the records
of the Federal Bureau of Investigation, or to
shall comply with paragraph (1) of subdivision (h) ,
prior to the person's employment, residence, or initial presence in
the child day care facility .
(B) These fingerprints shall be on a card provided
in a form required by the State Department of
Social Services for the purpose of obtaining a permanent set of
fingerprints and submitted to the Department of Justice by the
licensee or sent by electronic transmission in a manner approved by
the State Department of Social Services. A licensee's or
special permit holder's failure to prohibit the initial presence in a
facility of any person specified in subdivision (b) who is not
exempted from fingerprinting and who has not received either a
criminal record clearance or an exemption from disqualification
pursuant to subdivision (f) shall result in a citation of a
deficiency and the immediate assessment of civil penalties, by the
department and against the licensee or special permit holder, in the
amount of one hundred dollars ($100) per violation per day, and shall
be grounds for disciplining the licensee pursuant to Section
1596.885 or 1596.886. A licensee's or special permit
holder's failure to submit fingerprints to the Department of
Justice, or to comply with paragraph (1) of subdivision (h), as
required in this section, shall result in the citation of a
deficiency, by the State Department of Social Services and
against the licensee or special permit holder, and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day and shall be grounds for
disciplining the licensee pursuant to Section 1596.885 or 1596.886
. The State Department of Social Services may assess civil
penalties for continued violations permitted by Sections 1596.99 and
1597.62. The fingerprints shall then be submitted to the
State Department of Social Services
Justice for processing. Within 14 calendar days of the
receipt of the fingerprints, the Department of Justice shall notify
the State Department of Social Services of the criminal
record history information, as provided in this
subdivision. If no criminal record history
information has been recorded, the Department of Justice shall
provide the licensee or special permit holder and the State
Department of Social Services with a statement of that fact within
14 calendar days of receipt of the fingerprints. If new fingerprints
are required for processing, the Department of Justice shall, within
14 calendar days from the date of receipt of the fingerprints,
notify the licensee that the fingerprints were illegible
are required .
(C) Documentation of the individual's clearance or exemption
from disqualification pursuant to subdivision (f) shall be
maintained by the licensee or special permit holder , and
shall be available for inspection. When live-scan technology
is operational, as defined in Section 1522.04, the
The Department of Justice shall notify the department, as
required by that section Section 1522.04
, and shall notify the licensee or special
permit holder, by mail within 14 days of electronic
transmission of the fingerprints to the Department of Justice, if the
person has no criminal record history
. Any violation of the regulations adopted pursuant to Section
1522.04 shall result in the citation of a deficiency and an immediate
assessment of civil penalties , by the State Department of
Social Services and against the licensee or special permit holder,
in the amount of one hundred dollars ($100) per violation
per day, and shall be grounds for disciplining the licensee pursuant
to Section 1596.885 or 1596.886 . The department may assess
civil penalties for continued violations, as permitted by Sections
1596.99 and 1597.62.
(2) Except for persons specified in paragraph (2) of
subdivision (b) who are not exempted from
fingerprinting , the licensee or special permit holder
shall endeavor to ascertain the previous employment history of
persons required to be fingerprinted under this
subdivision (b) . If it is determined by the department,
on the basis of fingerprints submitted to the Department of Justice,
that subsequent to obtaining either a criminal record clearance
or exemption from disqualification pursuant to subdivision (f),
the person has been convicted of a sex offense against a minor, an
offense specified in Section 243.4, 273a, 273d, 273g, or 368 of the
Penal Code, or a felony, or has been arrested for any crime
specified in subparagraph (B) of paragraph (1) of subdivision (a),
subject to subdivision (e), the State Department of Social
Services shall notify the licensee or special permit holder
to act immediately to terminate the person's employment, remove
the person from the child day care facility or family day care
home , or bar the person from entering the child day care
facility or family day care home, as appropriate . The
department may subsequently grant an exemption from
disqualification pursuant to subdivision (f). If the
conviction was for another crime except a minor traffic violation,
the licensee or special permit holder shall, upon
notification by the State Department of Social Services
department , act immediately to either
(1) (A) terminate the person's employment,
remove the person from the child day care facility or family day
care home , or bar the person from entering the child day care
facility or family day care home, as appropriate ; or
(2) (B) seek an exemption pursuant to
subdivision (f). The department shall determine if the person shall
be allowed to remain in the child day care facility
or family day care home until a decision on the exemption
from disqualification pursuant to subdivision (f) is rendered.
A licensee's or special permit holder's failure to comply
with the department's prohibition of employment, contact with
clients, or presence in the child day care facility
or family day care home as required by this paragraph shall
result in a citation of a deficiency and an immediate assessment
of civil penalties, by the department and against the licensee or
special permit holder, in the amount of one hundred dollars ($100)
per violation per day, and shall be grounds for disciplining
the licensee pursuant to Section 1596.885 or 1596.886.
(3) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(4) Concurrently with notifying the licensee pursuant to
paragraph (3), the department shall notify the affected individual of
his or her right to seek an exemption pursuant to subdivision (f).
The individual may seek an exemption only if the licensee terminates
the person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (3).
Only an applicant for licensure or a special permit or
a licensee or special permit holder may request an exemption on
behalf of an individual specified in subdivision (b) who is not
exempted from fingerprinting.
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action
which that the department is permitted to take
following the establishment of a conviction may be taken when the
time for appeal has elapsed, or when
the judgment of conviction has been affirmed on appeal ,
or when an order granting probation is made suspending the imposition
of sentence, notwithstanding a subsequent order pursuant to Sections
1203.4 and 1203.4a of the Penal Code permitting the person to
withdraw his or her plea of guilty and to enter a plea of not guilty,
or setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment. For purposes of this section
or any other provision of this chapter, 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, shall be conclusive
evidence of the conviction. For purposes of this section or any
other provision of this chapter, the arrest disposition report
certified by the Department of Justice, or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code, shall be
prima facie evidence of conviction, notwithstanding any other
provision of law prohibiting the admission of these documents in a
civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court , or arrests from another state
or by any federal agency, as if the criminal offense was
committed in this state.
(e) The State Department of Social Services shall not use a record
of arrest to deny, revoke, or terminate any application, license,
special permit, employment, or residence unless the
department investigates the incident and secures evidence, whether or
not related to the incident of arrest, that is admissible in an
administrative hearing to establish conduct by the person that may
pose a risk to the health and safety of any person who is or may
become a client. The State Department of Social Services
department is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license,
issue a special permit for, and investigate community
child day care facilities or family day
care homes and individuals associated with a community
child day care facility or family day care
home .
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraphs (1) and (4) of subdivision
(a), or for employment, residence, or presence in a child day care
facility or family day care home as specified in
paragraphs (3), (4), and (5) of subdivision (c) ,
if the director has substantial and convincing evidence to
support a reasonable belief that the applicant and the
or other person convicted of, or arrested
for, the crime , if other than the applicant, are
is of good character so as to justify issuance
of the license or special permit or granting an exemption
for purposes of subdivision (c) pursuant to this
subdivision . However, no exemption shall be granted pursuant
to this subdivision if the conviction was for any of the following
offenses:
(A) An offense specified in Section 220, subdivision (b) of
Section 237, Section 243.4, or Section
246, Section 264.1, subdivision (a) of Section 273a
or, prior to January 1, 1994, paragraph (1) of Section
266a, Section 266e, Section 273a, Section 273ab, Section
273d, subdivision (e) of Section 273.5, Section 288,
or Section 289, subdivision (a) of
Section 290, or the Penal Code, any
conviction for which the person is required to register as a sex
offender pursuant to Section 290 of the Penal Code, Section 368
, or subdivision (b) of Section 417, of the Penal Code,
or was a conviction of another
any crime against an individual specified in subdivision
(c) of Section 667.5 of the Penal Code , or any crime of
violence specified in
any regulation .
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or
subdivision (a) or (b) of Section 451 , of the Penal Code.
(C) An offense specified in Section 11379.6.
(D) First degree burglary specified in Sections 459 and 460 of the
Penal Code.
(2) The department shall not prohibit a person from being employed
or having contact with clients in a child day care
facility or a family day care home on the basis of a
denied criminal record exemption request or arrest information unless
the department complies with the requirements of Section 1596.8897.
(g) Upon request of the licensee or special permit holder
, who shall enclose a self-addressed stamped postcard for this
purpose, the Department of Justice shall verify receipt of the
fingerprints.
(h) (1) For the purposes of compliance with this section, the
department State Department of Social
Services may permit an individual to transfer a current
criminal record clearance, as defined in subdivision (a), from one
child day care facility or family day care home
to another, as long as the criminal record clearance has been
processed through a state licensing district office, and is being
transferred to another child day care facility or
family day care home licensed by a state licensing district
office. The request shall be in writing to the department, and shall
include a copy of the person's driver's license or valid
identification card issued by the Department of Motor Vehicles, or a
valid photo identification issued by another state or the United
States government if the person is not a California resident. Upon
request of the licensee or special permit holder , who
shall enclose a self-addressed stamped envelope for this purpose, the
department shall verify whether the individual has a clearance that
can be transferred.
(2) The State Department of Social Services
department shall hold criminal record clearances in its
active files for a minimum of two years after an employee
a person is no longer employed at
by, residing at, or present in a licensed
child day care facility or family day care home in
order for the criminal record clearances to be transferred.
(i) Amendments to this section made in the 1998 calendar year
shall be implemented commencing 60 days after the effective date of
the act amending this section in the 1998 calendar year, except those
provisions for the submission of fingerprints for searching the
records of the Federal Bureau of Investigation, which shall be
implemented commencing January 1, 1999.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.