BILL NUMBER: AB 1240 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 7, 2003
AMENDED IN ASSEMBLY APRIL 28, 2003
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 amended, 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 person who is employed by, resides at, or is present in, a
facility.
This bill would require the department to issue against the
licensee, special permitholder, 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 be 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 criminal
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 of a crime, other than an
infraction, 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 of the Penal Code, or,
prior to January 1, 1994, paragraph (2) of Section 273a of the Penal
Code, or any crime for which the department cannot grant an exemption
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) 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 fewer children, or for obtaining a criminal 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 an infraction, the application shall be denied, unless the
director grants an exemption pursuant to subdivision (g).
(B) If the 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, an infraction, the
department may cease processing the application until the conclusion
of the trial or other disposition of the case.
(C) If no criminal 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 department finds after licensure or the issuance of a
special permit that the licensee, special permitholder, or any other
person specified in subdivision (b) who is not exempted from
fingerprinting, has been convicted of a crime other than an
infraction, the license or special permit may be revoked, unless the
director grants an exemption pursuant to subdivision (g).
(E) In addition to the criminal records search required by this
subdivision, an applicant for licensure 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. If an applicant 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, the department may, but is not
required to, issue a license or special permit if the applicant 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 an infraction. 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 permitholder has a conviction for any crime
other than an infraction, 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, but is not required to, 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
an infraction. 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 of any crime other than an infraction,
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 permitholder or
any other person specified in subdivision (b) who is not exempted
from fingerprinting has a criminal record, 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
permitholder 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 permitholder, 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 permitholder, 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
permitholder 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 permitholder
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 permitholder. 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
permitholder 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 permitholder 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) Any person specified in subdivision (b) who is not
exempted from fingerprinting shall 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
conviction. The licensee or special permitholder 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 shall comply with paragraph (1) of
subdivision (h). These fingerprints shall be 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 permitholder. A
licensee's or a special permitholder'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 permitholder, in the amount of one hundred
dollars ($100) per violation per day, for a maximum of 50 days, and
also shall be grounds for disciplining the licensee pursuant to
Section 1550. A licensee's or a special permitholder'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 permitholder, in the amount of one
hundred dollars ($100) per violation per day, for a maximum of 50
days, 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 Department of
Justice for processing. Upon request of the licensee or special
permitholder, 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 history information, as provided for in
subdivision (a). If no criminal history information has been
recorded, the Department of Justice shall provide the licensee or
special permitholder 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 permitholder 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 permitholder that the fingerprints are required. The
Department of Justice shall notify the State Department of Social
Services, as required by Section 1522.04, and shall also notify the
licensee or special permitholder 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 permitholder, in the amount of one hundred
dollars ($100) per violation per day, for a maximum of 50 days, 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 subdivision (b) as exempt from
the criminal record clearance requirement, the licensee or special
permitholder shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under 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, the State Department of Social Services shall notify the
licensee or special permitholder 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. The State Department of Social Services may subsequently
grant an exemption from disqualification pursuant to subdivision (g).
If the conviction was for another crime, except an infraction, the
licensee or special permitholder shall, upon notification by the
department, act immediately to either (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 (B) seek an exemption from disqualification pursuant
to subdivision (g). 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 or special
permitholder'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 permitholder, in the amount of
one hundred dollars ($100) per violation per day, for a maximum of 50
days, 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) Only an applicant for licensure or a licensee, or an applicant
for a special permit or a special permitholder, 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 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 an infraction 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 department cannot grant an exemption 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) Notwithstanding subdivision (k), neither the Department of
Justice 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
criminal history, if any, shall be taken into consideration when
evaluating a prospective applicant.
(4) The following shall apply to the criminal history information:
(A) If the applicant or other persons specified in subdivision (b)
who are not exempted from fingerprinting have 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 an infraction, the 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 may, but
is not required to, issue a license or special permit, or the
foster family agency may may, but is not
required to, 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 declaration, under
penalty of perjury, that he or she has never been convicted of a
crime in the United States, other than an infraction. If, after
licensure, the issuance of a special permit, or certification, the
department determines that the licensee, special permitholder,
certified foster parent, or any person specified in subdivision (b)
who is not exempted from fingerprinting has a criminal 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 1550, or the certificate of
approval revoked pursuant to subdivision (b) of Section
1534. 1534, or the person may be excluded from the
facility pursuant to Section 1558. 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 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) Any person specified in subdivision (b) who is not
exempted from fingerprinting shall 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 conviction. The foster family
agency shall obtain fingerprints from 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 permitholder, certified family home,
or foster family agency shall submit these fingerprints to
the Department of Justice, along with a second set of fingerprints
for investigation. A licensee's, special permitholder's, or
certificate 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) this section shall result in a citation
of a deficiency, and the immediate civil penalties, by the department
and against the licensee, special permitholder, or certificate
holder of one hundred dollars ($100) per violation per day, for a
maximum of 50 days. days, and shall be
grounds for disciplining the licensee or certificate holder pursuant
to Section 1534 or Section 1550. 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 permitholder, 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 history information regarding criminal convictions or
arrests from the Department of Justice, the 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 permitholder, 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 an infraction, 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 a special permit or a certificate of
approval that the licensee, special permitholder, certified foster
parent, or any other person specified in subdivision (b) who is not
exempt from fingerprinting, has been convicted of a crime other than
an infraction, 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
permitholder'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 be grounds for disciplining the licensee pursuant
to Section 1550. or certificate holder pursuant to
Section 1534 or 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 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 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, 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 subdivision (a), or for a license, special permit, or
certificate of approval as specified in subdivision (d), or for
employment, residence, or presence in a community care facility as
specified in subdivision (c), if the director has substantial and
convincing evidence to support a reasonable belief that the applicant
or other person convicted of the crime is of such good character as
to justify issuance of the license, special permit, or certificate of
approval, or the granting of an exemption 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,
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 offense listed in Section 290 of
the Penal Code, any conviction for which the court ordered the
individual 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 any crime 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 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 employee's county of residence, or if the
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 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 of the Health and
Safety Code .
(D) First degree burglary.
(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 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 envelope for this purpose, the department shall
verify whether the individual has a clearance that can be
transferred.
(2) The department shall hold criminal record clearances in its
active files for a minimum of two years after a person is no longer
employed by, residing at, or present in a licensed facility in order
for the criminal record clearance to be transferred.
(i) The full criminal 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 permitholder, certificate 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 1558, the licensee, special permitholder, certificate holder,
or facility shall not incur civil liability or unemployment
insurance liability as a result of that denial or termination.
(k) The State Department of Social Services may charge a fee for
the costs of processing a set of live-scan fingerprints.
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
criminal 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 of a crime other than an
infraction, 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 of the Penal Code, or,
prior to January 1, 1994, paragraph (2) of Section 273a of the Penal
Code, or convicted of any crime for which the department cannot grant
an exemption from disqualification pursuant to subdivision (f).
(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) The following shall apply to the criminal record information:
(A) If the 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 an infraction, the
application shall be denied, unless the director grants an exemption
from disqualification pursuant to subdivision (f).
(B) If the 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, an infraction, the
department may cease processing the application until the conclusion
of the trial or other deposition of the case.
(C) If no criminal 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
subdivision (b) who is not exempted from fingerprinting, has been
convicted of a crime other than an infraction, the license may be
revoked, unless the director grants an exemption pursuant to
subdivision (f).
(E) In addition to the criminal records search required by this
subdivision, an applicant 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. 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, the
department may, but is not required to, issue a license if the
applicant 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 an infraction. 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 an infraction, the department may
then 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, but is not required to, 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 an infraction. 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 an infraction,
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, the license may be revoked
pursuant to subdivision (a) of Section 1568.082, or the person may
be excluded from the facility pursuant to Section 1568.092. The
department may also suspend the license pending an administrative
hearing pursuant to subdivision (b) of Section 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) Any person specified in subdivision (b) who is not
exempted from fingerprinting shall 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. 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 shall comply with paragraph (1)
of subdivision (g).
(B) These fingerprints shall be 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, for a maximum of 50
days, and also shall be grounds for disciplining the licensee
pursuant to Section 1550. 1568.082. 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, for a
maximum of 50 days, and shall be grounds for disciplining the
licensee pursuant to Section 1568.082. The 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 Department of Justice for processing. The licensee
shall maintain and make available for inspection documentation of the
individual's clearance or exemption.
(2) 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, for a maximum of 50 days, 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 history information, as provided for in
this subdivision. If no criminal 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 are required.
The Department of Justice shall notify the department, as required
by Section 1522.04, 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 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 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, 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. The department may subsequently grant an
exemption from disqualification pursuant to subdivision (f). If the
conviction was for another crime, except an infraction, the licensee
shall, upon notification by the department, act immediately to either
(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 (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, for a maximum of 50 days, 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) 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 that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, 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
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
residential care facilities for persons with a chronic,
life-threatening illness and individuals associated with a
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
subdivision (a), or for employment, residence, or presence in a
residential care facility as specified in subdivision (c), if the
director has substantial and convincing evidence to support a
reasonable belief that the applicant or other person convicted of the
crime is of such good character as to justify issuance of the
license or the granting of an exemption 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, 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 offense listed in Section 290 of the Penal Code, any
conviction for which the court ordered the individual 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 any crime 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 in Section 206, Section 215, subdivision (a) of
Section 347, or subdivision (a) of Section 451, of the Penal Code.
(C) An offense specified in Section 11379.6 of the Health and
Safety Code .
(D) First degree burglary.
(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 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 department shall hold criminal record clearances in its
active files for a minimum of two years after a person is no longer
employed 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) 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 history information.
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 State
Department of Social Services shall secure from an appropriate law
enforcement agency criminal 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 of a crime
other than an infraction, 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 of the
Penal Code, or, prior to January 1, 1994, paragraph (2) of Section
273a of the Penal Code, or convicted of any crime for which the
department cannot grant an exemption 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 an infraction, the application shall be denied, unless the
director grants an exemption from disqualification pursuant to
subdivision (f).
(B) If the 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, an infraction, the
department may cease processing the application until the conclusion
of the trial or other disposition of the case.
(C) If no criminal 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 department finds after licensure or the issuance of a
special permit that the licensee, special permitholder, or any other
person specified in subdivision (b) who is not exempt from
fingerprinting, has been convicted of a crime other than an
infraction, the license or special permit may be revoked, unless the
director grants an exemption pursuant to subdivision (f).
(E) In addition to the criminal records search required by this
subdivision, an applicant 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. 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, the department may,
but is not required to, issue a license or special permit if the
applicant 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 an infraction. 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 permitholder has a conviction for
any crime other than an infraction, the department may revoke the
license 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, but is not required to, 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 an
infraction. 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 an
infraction, 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 permitholder, or a
person specified in subdivision (b) who is not exempted from
fingerprinting has a conviction of an offense other than an
infraction, the license may be revoked pursuant to Section 1569.50 or
the person may be excluded from the facility pursuant to Section
1569.58. 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:
(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, 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
permitholder, 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 residential care facility for the elderly licensee, special
permitholder, 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 residential care facility for the elderly licensee, special
permitholder, 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 residential care
facility for the elderly licensee, special permitholder, or an
employee of the facility.
(H) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(3) Nothing in paragraph (2) shall prevent a licensee or special
permitholder 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) Any person required to be fingerprinted pursuant to
subdivision (b) shall 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 conviction. The licensee or special permitholder
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 shall
comply with paragraph (1) of subdivision (g).
(B) These fingerprints shall be 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 permitholder'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 permitholder, in the amount of one hundred
dollars ($100) per violation per day, for a maximum of 50 days, and
shall also be grounds for disciplining the licensee pursuant to
Section 1569.50. A licensee's or special permitholder'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 permitholder, in the amount of one
hundred dollars ($100) per violation per day, for a maximum of 50
days, 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. Documentation
of the individual's clearance or exemption shall be maintained by the
licensee or special permitholder and shall be available for
inspection. The Department of Justice shall notify the department,
as required by that section, and notify the licensee or special
permitholder by mail within 14 days of electronic transmission of the
fingerprints to the Department of Justice, if the person has no
criminal 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 permitholder, in the amount of one hundred dollars ($100) per
violation per day, for a maximum of 50 days, 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 history information has been recorded,
the Department of Justice shall provide the licensee or special
permitholder 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
permitholder that the fingerprints are required.
(3) Except for persons specified in subdivision (b) as exempt from
the criminal record clearance requirement, the licensee or special
permitholder shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under 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, the State Department of Social Services
shall notify the licensee or special permitholder 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 department may
subsequently grant an exemption pursuant to subdivision (f). If the
conviction was for another crime, except for an infraction, the
licensee or special permitholder shall, upon notification by the
department, act immediately to either (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 (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 permitholder, in the
amount of one hundred dollars ($100) per violation per day, for a
maximum of 50 days, 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) Only an applicant for licensure or a special permit or a
licensee or special permitholder 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, 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 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 residential care facilities
for the elderly and individuals associated with a 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
subdivision (a), or for employment, residence, or presence in a
residential care facility for the elderly as specified in subdivision
(c), if the director has substantial and convincing evidence to
support a reasonable belief that the applicant or other person
convicted of the crime is of such good character as to justify
issuance of the license or special permit or granting an exemption
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, 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 offense listed in Section 290 of the Penal Code, any conviction
for which a court ordered the individual 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
any crime 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, or subdivision (a) of Section 451 of the Penal Code.
(C) An offense specified in Section 11379.6 of the Health and
Safety Code .
(D) First degree burglary.
(2) The director shall notify in writing the licensee, special
permitholder, or 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 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
permitholder, 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 department shall hold criminal record clearances in its
active files for a minimum of two years after a person is no longer
employed 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 permitholder, 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 permitholder, or facility shall not incur civil
liability or unemployment insurance liability as a result of that
denial or termination.
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 care facility 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 care facility, the department shall secure from an
appropriate law enforcement agency criminal 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 of any crime other than an infraction, 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 of the Penal Code, or, prior to January 1, 1994,
paragraph (2) of Section 273a of the Penal Code, or convicted of any
crime for which the department cannot grant an exemption 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 child 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 an infraction, the application shall be denied, unless the
director grants an exemption pursuant to subdivision (f).
(B) If the 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 an
infraction, the department may cease processing the application until
the conclusion of the trial or other disposition of the case.
(C) If no criminal 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 department finds after licensure or the issuance of a
special permit that the licensee, special permitholder, or any other
person specified in subdivision (b) who is not exempted from
fingerprinting, has been convicted of a crime other than an
infraction, the license or special permit may be revoked, unless the
director grants an exemption pursuant to subdivision (f).
(E) In addition to the criminal records search required by this
subdivision, an applicant 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. 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, the department may,
but is not required to, issue a license or special permit if the
applicant 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 an infraction. 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 permitholder has a conviction
for any crime other than an infraction, 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 care facility 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 an
infraction. 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 an infraction, the department shall determine if the person
should be removed or excluded, or both, from the child
care facility 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 permitholder or
person specified in subdivision (b) who is not exempted from
fingerprinting has a criminal record, the license may be revoked
pursuant to Section 1596.885, or the person may be excluded from the
facility pursuant to Section 1596.8712. 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.
(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 care facility, 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.
(2) The following persons are exempt from the requirements
applicable under paragraph (1):
(A) A volunteer providing time-limited specialized services if
this person is directly supervised by the licensee, special
permitholder, or a child care facility employee with a criminal
record clearance or exemption, the volunteer spends no more than 16
hours per week at the child care facility, and the volunteer is not
left alone with children in care.
(B) A student enrolled or participating at an accredited
educational institution if the student is directly supervised by the
licensee, special permitholder, or a child care facility employee
with a criminal record clearance or exemption, the child care
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 child care facility, 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 child in the child care facility.
(D) A contracted repair person retained by the child care
facility, if not left alone with children in care.
(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.
(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.
(3) Nothing in this subdivision shall prevent a licensee or
special permitholder from requiring a criminal record clearance of
any individuals exempt from the requirements under this subdivision.
(c) (1) (A) Any person specified in subdivision (b) who is not
exempted from fingerprinting shall obtain, prior to his or her
initial presence in a child care facility, 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. 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 shall comply with
paragraph (1) of subdivision (h).
(B) These fingerprints shall be 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 permitholder's failure to prohibit the initial
presence in a child care 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
permitholder, in the amount of one hundred dollars ($100) per
violation per day, for a maximum of 50 days, and shall be grounds for
disciplining the licensee pursuant to Section 1596.885 or 1596.886.
A licensee's or special permitholder'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 permitholder, and
an immediate assessment of civil penalties in the amount of one
hundred dollars ($100) per violation per day, for a maximum of 50
days, 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 Department of 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 history information, as provided in this
subdivision. If no criminal history information has been recorded,
the Department of Justice shall provide the licensee or special
permitholder 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 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 permitholder, and shall be available for
inspection. The Department of Justice shall notify the department,
as required by Section 1522.04, and shall notify the licensee or
special permitholder, by mail within 14 days of electronic
transmission of the fingerprints to the Department of Justice, if the
person has no criminal 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 permitholder, in the amount of one hundred dollars ($100) per
violation per day, for a maximum of 50 days, 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 subdivision (b) who are not
exempted from fingerprinting, the licensee or special permitholder
shall endeavor to ascertain the previous employment history of
persons required to be fingerprinted under 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, the State Department of
Social Services shall notify the licensee or special permitholder to
act immediately to terminate the person's employment, remove the
person from the child care facility, or bar the person from entering
the child care facility. The department may subsequently grant an
exemption from disqualification pursuant to subdivision (f). If the
conviction was for another crime except for an infraction, the
licensee or special permitholder shall, upon notification by the
department, act immediately to either (A) terminate the person's
employment, remove the person from the child care facility, or bar
the person from entering the child care facility, or (B) seek an
exemption pursuant to subdivision (f). The department shall
determine if the person shall be allowed to remain in the child care
facility until a decision on the exemption from disqualification
pursuant to subdivision (f) is rendered. A licensee's or special
permitholder's failure to comply with the department's prohibition of
employment, contact with clients, or presence in the child care
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 permitholder, in the
amount of one hundred dollars ($100) per violation per day, for a
maximum for 50 days, 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) Only an applicant for licensure or a special permit or a
licensee or special permitholder 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 that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, 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 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 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 child care facilities and
individuals associated with child care facilities.
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in subdivision (a), or for employment, residence, or
presence in a child care facility as specified in subdivision (c), if
the director has substantial and convincing evidence to support a
reasonable belief that the applicant or other person convicted of the
crime is of good character so as to justify issuance of the license
or special permit or granting an exemption 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, 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 offense
listed in Section 290 of the Penal Code, any conviction for which the
court has ordered the person 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 any crime 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, or subdivision (a) or (b) of Section 451, of the Penal Code.
(C) An offense specified in Section 11379.6 of the Health and
Safety Code .
(D) First degree burglary.
(2) The department shall not prohibit a person from being employed
or having contact with clients in a child care facility 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 permitholder, 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
State Department of Social Services may permit an individual to
transfer a current criminal record clearance, as defined in
subdivision (a), from one child care facility to another, as long as
the criminal record clearance has been processed through a state
licensing office, and is being transferred to another child care
facility licensed by a state licensing 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
permitholder, 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 department shall hold criminal record clearances in its
active files for a minimum of two years after a person is no longer
employed by, residing at, or present in a licensed child care
facility in order for the criminal record clearances to be
transferred.
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.