Amended in Senate June 18, 2014

Amended in Assembly May 7, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2632

Introduced by Assembly Member Maienschein

February 21, 2014

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 2632, as amended, Maienschein. Care facilities.

Under existing law, the State Department of Social Services licenses and regulates, among other things, community care facilities, foster family home or certified family home, residential care facilities for persons with a chronic, life-threatening illness, residential care facilities for the elderly, and child day cares. Existing law requires the department, prior to issuing a license or special permit to operate any of those facilities, to secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person, as specified, has been convicted of a crime other than a minor traffic violation, or arrested for certain crimes, or for any crime for which the department cannot grant an exemption if the person was convicted and the person has not been exonerated. Existing law requires an individual to obtain either a criminal record clearance or a criminal record exemption from the department prior to his or her employment, residence, or initial presence in those facilities listed above. Existing law prohibits the department from using a record of arrest to deny, revoke, or terminate any application, license, employment, or residence unless the department investigates the incident and secures evidence 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.

This bill would prohibit the department, with regard to those facilities, from issuing a criminal record clearance to a person who has been begin delete arrested, and that arrest is pending investigation or conviction, end delete begin insert arrested end insert for specified crimes begin insert or for any crime for which the department is prohibited from granting a criminal record exemption end insert prior to the department’s completion of an investigation of the incident 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. begin insert This bill would also require the department, subsequent to licensing but prior to a person’s employment, residence, or initial presence in a specified facility, to secure from an appropriate law enforcement agency a criminal record to determine whether a person not exempt from fingerprinting or other person, as specified, has been convicted of a crime other than a minor traffic violation, arrested for certain crimes, or for any crime for which the department cannot grant an exemption. end insert

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

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. An individual shall be required to obtain either
a criminal record clearance or a criminal record exemption from
the State Department of Social Services before his or her initial
presence in a community care facility.

(a) (1) Before begin insert and, as applicable, subsequent to end insert issuing a license
or special permit to any person or persons to operate or manage a
community care facility, the State Department of Social Services
shall secure from an appropriate law enforcement agency a criminal
record to determine whether the applicant or any other person
specified in subdivision (b) has ever been convicted of a crime
other than a minor traffic violation or arrested for any crime
specified in Section 290 of the Penal Code, begin insert or end insert for violating Section
245 or 273.5, of the Penal Code, subdivision (b) of Section 273a
of the Penal Code, or, prior to January 1, 1994, paragraph (2) of
Section 273a of the Penal Code, or for any crime for which the
department begin delete cannot grant an exemption if the person was convicted
and the person has not been exonerated. end delete begin insert is prohibited from granting
a criminal record exemption pursuant to subdivision (g). end insert

(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) Except during the 2003-04 to the 2014-15 fiscal years,
inclusive, 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 or special permit to
operate a facility providing nonmedical board, room, and care for
six or less children or for obtaining a criminal record 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), has
been convicted of a crime other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (g).

(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
begin delete application end delete begin insert criminal record information end insert until the conclusion of
the trial.

(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.

(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (1) of subdivision (b), has been convicted of a crime
other than a minor traffic violation, the license may be revoked,
unless the director grants an exemption pursuant to subdivision
(g).

(E) An applicant and any other person specified in subdivision
(b) shall submit fingerprint images and related information to the
Department of Justice for the purpose of searching the criminal
records of the Federal Bureau of Investigation, in addition to the
criminal records search required by this subdivision. If an applicant
and all other persons described in subdivision (b) meet all of the
conditions for licensure, except receipt of the Federal Bureau of
Investigation’s criminal offender record information search
response for the applicant or any of the persons described in
subdivision (b), the department may issue a license if the applicant
and each person described in subdivision (b) has signed and
submitted a statement that he or she has never been convicted of
a crime in the United States, other than a traffic infraction, as
prescribed in paragraph (1) of subdivision (a) of Section 42001 of
the Vehicle Code. If, after licensure, the department determines
that the licensee or any other person specified in subdivision (b)
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.

(F) The State Department of Social Services shall develop
procedures to provide the individual’s state and federal criminal
history information with the written notification of his or her
exemption denial or revocation based on the criminal record.
Receipt of the criminal history information shall be optional on
the part of the individual, as set forth in the agency’s procedures.
The procedure shall protect the confidentiality and privacy of the
individual’s record, and the criminal history information shall not
be made available to the employer.

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

(b) (1) In addition to the applicant, this section shall be
applicable to criminal begin delete convictions of end delete begin insert record clearances and
exemptions for end insert 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 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 repair
person 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 does not apply to a person who is
a community care facility licensee 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 does not apply to a
person who is a community care licensee 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 licensed or certified foster
parent, 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 are not left alone
with the foster children. However, the licensee, acting as a
reasonable and prudent parent, as defined in paragraph (2) of
subdivision (a) of Section 362.04 of the Welfare and Institutions
Code, may allow his or her adult friends and family to provide
short-term care to the foster child and act as an appropriate
occasional short-term babysitter for the child.

(B) Parents of a foster child’s friend when the foster child is
visiting the friend’s home and the friend, licensed or certified foster
parent, or both are also present. However, the licensee, acting as
a reasonable and prudent parent, may allow the parent of the foster
child’s friend to act as an appropriate short-term babysitter for the
child without the friend being present.

(C) Individuals who are engaged by any licensed or certified
foster parent to provide short-term care to the child for periods not
to exceed 24 hours. Caregivers shall use a reasonable and prudent
parent standard in selecting appropriate individuals to act as
appropriate occasional short-term babysitters.

(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. 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 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 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.

(c) (1) Subsequent to initial licensure, a person specified in
subdivision (b) who is not exempted from fingerprinting shall
obtain either a criminal record clearance or an exemption from
disqualification pursuant to subdivision (g) from the State
Department of Social Services prior to employment, residence, or
initial presence in the facility. A person specified in subdivision
(b) who is not exempt from fingerprinting shall be fingerprinted
and shall sign a declaration under penalty of perjury regarding any
prior criminal convictions. The licensee shall submit fingerprint
images and related information to the Department of Justice and
the Federal Bureau of Investigation, through the Department of
Justice, for a state and federal level criminal offender record
information search, or comply with paragraph (1) of subdivision
(h). These fingerprint images and related information shall be 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. A
licensee’s failure to prohibit the employment, residence, or initial
presence of a person specified in subdivision (b) who is not exempt
from fingerprinting and who has not received either a criminal
record clearance or an exemption from disqualification pursuant
to subdivision (g) 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 in the
amount of one hundred dollars ($100) per violation per day for a
maximum of five days, unless the violation is a second or
subsequent violation within a 12-month period in which case the
civil penalties shall be in the amount of one hundred dollars ($100)
per violation for a maximum of 30 days, and shall be grounds for
disciplining the licensee pursuant to Section 1550. The department
may assess civil penalties for continued violations as permitted by
Section 1548. The fingerprint images and related information shall
then be submitted to the Department of Justice for processing.
Upon request of the licensee, 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 fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided
for in subdivision (a). If no criminal record 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 fingerprint images.
Documentation of the individual’s clearance or exemption from
disqualification shall be maintained by the licensee and be available
for inspection. If new fingerprint images are required for
processing, the Department of Justice shall, within 14 calendar
days from the date of receipt of the fingerprints, notify the licensee
that the fingerprints were illegible, the Department of Justice shall
notify the State Department of Social Services, as required by
Section 1522.04, and shall also 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
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 in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless
the violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30
days, and shall be grounds for disciplining the licensee pursuant
to Section 1550. The department may assess civil penalties for
continued violations as permitted by Section 1548.

(3) Except for persons specified in subdivision (b) who are
exempt from fingerprinting, the licensee shall endeavor to ascertain
the previous employment history of persons required to be
fingerprinted. If it is determined by the State Department of Social
Services, on the basis of the fingerprint images and related
information 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 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 or
arrest was for another crime, except a minor traffic violation, the
licensee shall, upon notification by the State Department of Social
Services, 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; or
(B) seek an exemption from disqualification pursuant to subdivision
(g). The State Department of Social Services 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 deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day and shall be grounds for disciplining
the licensee pursuant to Section 1550.

(4) The department may issue an exemption from
disqualification on its own motion pursuant to subdivision (g) if
the person’s criminal history indicates that the person is of good
character based on the age, seriousness, and frequency of the
conviction or convictions. The department, in consultation with
interested parties, shall develop regulations to establish the criteria
to grant an exemption from disqualification pursuant to this
paragraph.

(5) Concurrently with notifying the licensee pursuant to
paragraph (3), the department shall notify the affected individual
of his or her right to seek an exemption from disqualification
pursuant to subdivision (g). The individual may seek an exemption
from disqualification only if the licensee terminates the person’s
employment or removes the person from the facility after receiving
notice from the department pursuant to paragraph (3).

(d) (1) Before begin insert and, as applicable, subsequent to end insert issuing a
license or certificate of approval to any person or persons to operate
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 California and Federal Bureau of
Investigation criminal history information to determine whether
the applicant or any person specified in subdivision (b) who is not
exempt from fingerprinting has ever been convicted of a crime
other than a minor traffic violation or arrested for any crime
specified in subdivision (c) of Section 290 of the Penal Code, for
violating Section 245 or 273.5, 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 begin delete cannot
grant an exemption if the person was convicted and the person has
not been exonerated. end delete begin insert is prohibited from granting a criminal record
exemption pursuant to subdivision (g). end insert The State Department of
Social Services or other approving authority shall not issue a
license or certificate of approval to any foster family home or
certified family home applicant who has not obtained both a
California and Federal Bureau of Investigation criminal record
clearance or exemption from disqualification pursuant to
subdivision (g).

(2) The criminal history information shall include the full
criminal record, if any, of those persons.

(3) 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 record, if any, shall be taken
into consideration when evaluating a prospective applicant.

(4) The following shall apply to the criminal record information:

(A) If the applicant or other persons specified in subdivision
(b) who are not exempt from fingerprinting have convictions that
would make the applicant’s home unfit as a foster family home or
a certified family home, the license, special permit, begin delete or end delete certificate
of approval begin insert , or presence end insert 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
exempt from fingerprinting is awaiting trial for a crime other than
a minor traffic violation, the State Department of Social Services
or other approving authority may cease processing the begin delete application end delete
begin insert criminal record information end insert until the conclusion of the trial.

(C) For 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) To the same extent required for federal funding, an applicant
for a foster family home license or for certification as a family
home, and any other person specified in subdivision (b) who is
not exempt from fingerprinting, shall submit a set of fingerprint
images and related information to the Department of Justice and
the Federal Bureau of Investigation, through the Department of
Justice, for a state and federal level criminal offender record
information search, in addition to the criminal records search
required by subdivision (a).

(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
if the person was convicted and shall submit these fingerprints to
the licensing agency or other approving authority.

(6) (A) Subsequent to initial licensure or certification, a person
specified in subdivision (b) who is not exempt from fingerprinting
shall obtain both a California and Federal Bureau of Investigation
criminal record clearance, or an exemption from disqualification
pursuant to subdivision (g), prior to employment, residence, or
initial presence in the foster family or certified family home. A
foster family home licensee or foster family agency shall submit
fingerprint images and related information of persons specified in
subdivision (b) who are not exempt from fingerprinting to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, or to comply with
paragraph (1) of subdivision (h). A foster family home licensee’s
or a foster family agency’s failure to either prohibit the
employment, residence, or initial presence of a person specified
in subdivision (b) who is not exempt from fingerprinting and who
has not received either a criminal record clearance or an exemption
from disqualification pursuant to subdivision (g), or comply with
paragraph (1) of subdivision (h), as required in this section, shall
result in a citation of a deficiency, and the immediate civil penalties
of one hundred dollars ($100) per violation per day for a maximum
of five days, unless the violation is a second or subsequent violation
within a 12-month period in which case the civil penalties shall
be in the amount of one hundred dollars ($100) per violation for
a maximum of 30 days, and shall be grounds for disciplining the
licensee pursuant to Section 1550. A violation of the regulation
adopted pursuant to Section 1522.04 shall result in the citation of
a deficiency and an immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation per day for a
maximum of five days, unless the violation is a second or
subsequent violation within a 12-month period in which case the
civil penalties shall be in the amount of one hundred dollars ($100)
per violation for a maximum of 30 days, and shall be grounds for
disciplining the foster family home licensee or the foster family
agency pursuant to Section 1550. The State Department of Social
Services may assess penalties for continued violations, as permitted
by Section 1548. The fingerprint images shall then be submitted
to the Department of Justice for processing.

(B) Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the Department of Justice
shall verify receipt of the fingerprints. Within five working days
of the receipt of the criminal record or information regarding
criminal convictions from the Department of Justice, the
department 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 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 exempt from fingerprinting, has been convicted of a crime
other than a minor traffic violation, the application begin insert or presence end insert
shall be denied, unless the director grants an exemption from
disqualification pursuant to subdivision (g).

(8) If the State Department of Social Services finds after
licensure or the granting of the certificate of approval that the
licensee, 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 a minor traffic violation, the license
or certificate of approval may be revoked by the department or the
foster family agency, whichever is applicable, unless the director
grants an exemption from disqualification pursuant to subdivision
(g). A licensee’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.

(e) (1) 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.

(2) The department shall not issue a criminal record clearance
to a person who has been begin delete arrested, and that arrest is pending
investigation or conviction, end delete begin insert arrested end insert for any crime specified in
Section 290 of the Penal Code, begin insert or end insert for violating Section 245 or
273.5, subdivision (b) of Section 273a, of the Penal Code, or, prior
to January 1, 1994, paragraph (2) of Section 273a of the Penal
Code, begin insert or for any crime for which the department is prohibited from
granting a criminal record exemption pursuant to subdivision (g), end insert
prior to the department’s completion of an investigation pursuant
to paragraph (1).

(3) The State Department of Social Services is authorized to
obtain any arrest or conviction records or reports from any law
enforcement agency as necessary to the performance of its duties
to inspect, license, and investigate community 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 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.

(g) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraph (4) of subdivision (a), or for a license,
special permit, or certificate of approval as specified in paragraphs
(4), (7), and (8) of subdivision (d), or for employment, residence,
or presence in a community care facility as specified in paragraphs
(3), (4), and (5) of subdivision (c), if the director has substantial
and convincing evidence to support a reasonable belief that the
applicant and the person convicted of the crime, if other than the
applicant, are of good character as to justify issuance of the license
or special permit or granting an exemption for purposes of
subdivision (c). Except as otherwise provided in this subdivision,
an exemption shall not be granted pursuant to this subdivision if
the conviction was for any of the following offenses:

(A) (i) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a, or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289,
subdivision (c) of Section 290, or Section 368, of the Penal Code,
or was a conviction of another crime against an individual specified
in subdivision (c) of Section 667.5 of the Penal Code.

(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. This
clause shall not apply to foster care providers, including relative
caregivers, nonrelated extended family members, or any other
person specified in subdivision (b), in those homes where the
individual has been convicted of an offense described in paragraph
(1) of subdivision (c) of Section 667.5 of the Penal Code.

(B) A felony offense specified in Section 729 of the Business
and Professions Code or Section 206 or 215, subdivision (a) of
Section 347, subdivision (b) of Section 417, or subdivision (a) of
Section 451 of the Penal Code.

(C) Under no circumstances shall an exemption be granted
pursuant to this subdivision to any foster care provider applicant
if that applicant, or any other person specified in subdivision (b)
in those homes, has a felony conviction for either of the following
offenses:

(i) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide,
but not including other physical assault and battery. For purposes
of this subparagraph, a crime involving violence means a violent
crime specified in clause (i) of subparagraph (A), or subparagraph
(B).

(ii) A felony conviction, within the last five years, for physical
assault, battery, or a drug- or alcohol-related offense.

(iii) This subparagraph shall not apply to licenses or approvals
wherein a caregiver was granted an exemption to a criminal
conviction described in clause (i) or (ii) prior to the enactment of
this subparagraph.

(iv) This subparagraph shall remain operative only to the extent
that compliance with its provisions is required by federal law as
a condition for receiving funding under Title IV-E of the federal
Social Security Act (42 U.S.C. Sec. 670 et seq.).

(2) 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
1558.

(h) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility
to another, as long as the criminal record clearance has been
processed through a state licensing district office, and is being
transferred to another facility licensed by a state licensing district
office. The request shall be in writing to the State Department of
Social Services, and shall include a copy of the person’s driver’s
license or valid identification card issued by the Department of
Motor Vehicles, or a valid photo identification issued by another
state or the United States government if the person is not a
California resident. Upon request of the licensee, who shall enclose
a self-addressed envelope for this purpose, the State Department
of Social Services shall verify whether the individual has a
clearance that can be transferred.

(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of three years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearance to be transferred.

(3) The following shall apply to a criminal record clearance or
exemption from the department or a county office with
department-delegated licensing authority:

(A) A county office with department-delegated licensing
authority may accept a clearance or exemption from the
department.

(B) The department may accept a clearance or exemption from
any county office with department-delegated licensing authority.

(C) A county office with department-delegated licensing
authority may accept a clearance or exemption from any other
county office with department-delegated licensing authority.

(4) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning
an individual whose criminal record clearance was originally
processed by the department or a county office with
department-delegated licensing authority, all of the following shall
apply:

(A) The Department of Justice shall process a request from the
department or a county office with department-delegated licensing
authority to receive the notice only if all of the following conditions
are met:

(i) The request shall be submitted to the Department of Justice
by the agency to be substituted to receive the notification.

(ii)  The request shall be for the same applicant type as the type
for which the original clearance was obtained.

(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the
department and the Department of Justice.

(B) (i) On or before January 7, 2005, the department shall notify
the Department of Justice of all county offices that have
department-delegated licensing authority.

(ii) The department shall notify the Department of Justice within
15 calendar days of the date on which a new county office receives
department-delegated licensing authority or a county’s delegated
licensing authority is rescinded.

(C) The Department of Justice shall charge the department, a
county office with department-delegated licensing authority, or a
county child welfare agency with criminal record clearance and
exemption authority, a fee for each time a request to substitute the
recipient agency is received for purposes of this paragraph. This
fee shall not exceed the cost of providing the service.

(5) (A) A county child welfare agency with authority to secure
clearances pursuant to Section 16504.5 of the Welfare and
Institutions Code and to grant exemptions pursuant to Section
361.4 of the Welfare and Institutions Code may accept a clearance
or exemption from another county with criminal record and
exemption authority pursuant to these sections.

(B) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning
an individual whose criminal record clearance was originally
processed by a county child welfare agency with criminal record
clearance and exemption authority, the Department of Justice shall
process a request from a county child welfare agency with criminal
record and exemption authority to receive the notice only if all of
the following conditions are met:

(i) The request shall be submitted to the Department of Justice
by the agency to be substituted to receive the notification.

(ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.

(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the State
Department of Social Services and the Department of Justice.

(i) The full criminal record 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 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 is determined unsuitable for employment
under Section 1558, the licensee 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 electronic fingerprint images and related
information.

(l) Amendments to this section made in the 1999 portion of the
1999-2000 Regular Session shall be implemented commencing
60 days after the effective date of the act amending this section in
the 1999 portion of the 1999-2000 Regular Session, except that
those provisions for the submission of fingerprints for searching
the records of the Federal Bureau of Investigation shall be
implemented 90 days after the effective date of that act.

SEC. 2.  

Section 1568.09 of the Health and Safety Code is
amended to read:

1568.09.  

It is the intent of the Legislature in enacting this
section to require the electronic fingerprint images 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.

It is the intent of the Legislature, in enacting this section, to
require the electronic fingerprint images of those individuals whose
contact with community care clients may pose a risk to the clients’
health and safety. An individual shall be required to obtain either
a criminal record clearance or a criminal record exemption from
the State Department of Social Services before his or her initial
presence in a residential care facility for persons with a chronic,
life-threatening illness.

(a) (1) Before begin insert and, as applicable, subsequent to end insert issuing a license
to a person or persons to operate or manage a residential care
facility, the department shall secure from an appropriate law
enforcement agency a criminal record to determine whether the
applicant or any other person specified in subdivision (b) has ever
been convicted of a crime other than a minor traffic violation or
arrested for any crime specified in subdivision (c) of Section 290
of the Penal Code, begin insert or end insert for violating Section 245 or 273.5,
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 begin delete cannot grant an exemption if the person
was convicted and the person has not been exonerated. end delete begin insert is prohibited
from granting a criminal record exemption pursuant to subdivision
(f). end insert

(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 another person specified in subdivision (b), has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).

(B) If the State Department of Social Services finds that the
applicant, or another person specified in subdivision begin delete (b) end delete begin insert (b), end insert is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
begin delete application end delete begin insert criminal record information end insert until the conclusion of
the trial.

(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.

(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime
other than a minor traffic violation, the license may be revoked,
unless the director grants an exemption pursuant to subdivision
(f).

(E) An applicant and any other person specified in subdivision
(b) shall submit fingerprint images and related information to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, in addition to the
search required by this subdivision. If an applicant meets all other
conditions for licensure, except receipt of the Federal Bureau of
Investigation’s criminal history information for the applicant and
persons listed in subdivision (b), the department may issue a license
if the applicant and each person described by subdivision (b) has
signed and submitted a statement that he or she has never been
convicted of a crime in the United States, other than a traffic
infraction as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after licensure, the department
determines that the licensee or person specified in subdivision (b)
has a criminal record, the license may be revoked pursuant to
subdivision (a) of Section 1568.082. 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, this section shall be applicable
to criminal begin delete convictions of end delete begin insert record clearances and exemptions for end insert
the following persons:

(1) Adults responsible for administration or direct supervision
of staff of the facility.

(2) A person, other than a resident, residing in the facility.

(3) A person who provides resident assistance in dressing,
grooming, bathing, or personal hygiene. A 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 a 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. This paragraph does not restrict
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 a chronic, life-threatening illness pursuant
to Section 1568.092.

(4) (A) A staff person, volunteer, or employee who has contact
with the residents.

(B) A volunteer shall be exempt from the requirements of this
subdivision if he or she is a relative, significant other, or close
friend of a client receiving care in the facility and the volunteer
does not provide direct care and supervision of residents. A
volunteer who provides direct care and supervision shall be exempt
if the volunteer is a resident’s spouse, significant other, close
friend, or family member and provides direct care and supervision
to that resident only at the request of the resident. The department
may define in regulations persons similar to those described in this
subparagraph who may be exempt from the requirements of this
subdivision.

(5) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
that capacity.

(6) Additional officers of the governing body of the applicant,
or other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person’s capability to exercise substantial influence over the
operation of the facility.

(c) (1) (A) Subsequent to initial licensure, a person specified
in subdivision (b) and not exempted from fingerprinting begin delete shall, as
a condition to employment, residence, or presence in a residential
care facility, be fingerprinted and sign a declaration under penalty
of perjury regarding any prior criminal convictions. end delete begin insert shall obtain
either a criminal record clearance or an exemption from
disqualification, pursuant to subdivision (f), from the State
Department of Social Services prior to employment, residence, or
initial presence in the facility. A person specified in subdivision
(b) who is not exempt from fingerprinting shall be fingerprinted
and shall sign a declaration under penalty of perjury regarding
any prior criminal convictions. end insert The licensee shall submit
fingerprint images and related information to the Department of
Justice and the Federal Bureau of Investigation, through the
Department of Justice, for a state and federal level criminal
offender record information search, or to comply with paragraph
(1) of subdivision (g), prior to the person’s employment, residence,
or initial presence in the residential care facility.

(B) These fingerprint images and related information shall be
electronically submitted to the Department of Justice 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. A licensee’s failure to submit fingerprint images
and related information 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 in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless
the violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30
days, and shall be grounds for disciplining the licensee pursuant
to Section 1568.082. The State Department of Social Services may
assess civil penalties for continued violations as allowed in Section
1568.0822. The fingerprint images and related information 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 in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless
the violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30
days, and shall be grounds for disciplining the licensee pursuant
to Section 1568.082. The department may assess civil penalties
for continued violations as permitted by Section 1568.0822.

(3) Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided
for in this subdivision. If no criminal record 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 fingerprint images.
If new fingerprint images are required for processing, the
Department of Justice shall, within 14 calendar days from the date
of receipt of the fingerprint images, notify the licensee that the
fingerprint images were illegible. 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 fingerprint images to the Department of Justice,
if the person has no criminal history record.

(4) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous
employment history of persons required to be fingerprinted under
this subdivision. If it is determined by the State Department of
Social Services, on the basis of the fingerprint images submitted
to the Department of Justice, that 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 pursuant to subdivision (f). If the conviction was for
another crime, except a minor traffic violation, the licensee shall,
upon notification by the department, act immediately to either (A)
terminate the person’s employment, remove the person from the
residential care facility, or bar the person from entering the
residential 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 facility until a decision on the
exemption 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 deficiency and an immediate assessment of civil
penalties by the department against the licensee, in the amount of
one hundred dollars ($100) per violation per day for a maximum
of five days, unless the violation is a second or subsequent violation
within a 12-month period in which case the civil penalties shall
be in the amount of one hundred dollars ($100) per violation for
a maximum of 30 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) Concurrently with notifying the licensee pursuant to
paragraph (4), the department shall notify the affected individual
of his or her right to seek an exemption pursuant to subdivision
(f). The individual may seek an exemption only if the licensee
terminates the person’s employment or removes the person from
the facility after receiving notice from the department pursuant to
paragraph (4).

(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. An 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 as if the criminal offense was
committed in this state.

(e) (1) 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.

(2) The department shall not issue a criminal record clearance
to a person who has been begin delete arrested, and that arrest is pending
investigation or conviction, end delete begin insert arrested end insert for any crime specified in
Section 290 of the Penal Code, for violating Section 245 or 273.5,
begin insert or end insert subdivision (b) of Section 273a, of the Penal Code, or, prior to
January 1, 1994, paragraph (2) of Section 273a of the Penal Code,
begin insert or for any crime for which the department is prohibited from
granting a criminal record exemption pursuant to subdivision (f), end insert
prior to the department’s completion of an investigation pursuant
to paragraph (1).

(3) The State Department of Social Services is authorized to
obtain arrest or conviction records or reports from a law
enforcement agency as necessary to the performance of its duties
to inspect, license, and investigate community care facilities and
individuals associated with a community care facility.

(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for employment,
residence, or presence in a residential care facility as specified in
paragraphs (4), (5), and (6) of subdivision (c) if the director has
substantial and convincing evidence to support a reasonable belief
that the applicant and the person convicted of the crime, if other
than the applicant, are of such good character as to justify issuance
of the license or special permit or granting an exemption for
purposes of subdivision (c). However, an exemption shall not be
granted pursuant to this subdivision if the conviction was for any
of the following offenses:

(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a, or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289,
subdivision (c) of Section 290, or Section 368, of the Penal Code,
or was a conviction of another crime against an individual specified
in subdivision (c) of Section 667.5 of the Penal Code.

(B) A felony offense specified in Section 729 of the Business
and Professions Code or Section 206 or 215, subdivision (a) of
Section 347, subdivision (b) of Section 417, or subdivision (a) of
Section 451 of the Penal Code.

(2) 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 Section 1568.092.

(g) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility
to another, as long as the criminal record clearance has been
processed through a state licensing district office, and is being
transferred to another facility licensed by a state licensing district
office. The request shall be in writing to the department, and shall
include a copy of the person’s driver’s license or valid
identification card issued by the Department of Motor Vehicles,
or a valid photo identification issued by another state or the United
States government if the person is not a California resident. Upon
request of the licensee, who shall enclose a self-addressed stamped
envelope for this purpose, the department shall verify whether the
individual has a clearance that can be transferred.

(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at 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 is determined unsuitable for
employment under Section 1568.092, the licensee or facility shall
not incur civil liability or unemployment insurance liability as a
result of that denial or termination.

(i) (1) The Department of Justice shall charge a fee sufficient
to cover its cost in providing services to comply with the 14-day
requirement contained in subdivision (c) for provision to the
department of criminal record information.

(2) Paragraph (1) shall cease to be implemented when the
department adopts emergency regulations pursuant to Section
1522.04, and shall become inoperative when permanent regulations
are adopted under that section.

(j) Notwithstanding any other law, the department may provide
an individual with a copy of his or her state or federal level criminal
offender record information search response as provided to that
department by the Department of Justice if the department has
denied a criminal background clearance based on this information
and the individual makes a written request to the department for
a copy specifying an address to which it is to be sent. The state or
federal level criminal offender record information search response
shall not be modified or altered from its form or content as provided
by the Department of Justice and shall be provided to the address
specified by the individual in his or her written request. The
department shall retain a copy of the individual’s written request
and the response and date provided.

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. 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. An
individual shall be required to obtain either a criminal record
clearance or a criminal record exemption from the State Department
of Social Services before his or her initial presence in a residential
care facility for the elderly.

(a) (1) Before begin insert and, as applicable, subsequent to end insert issuing a license
to any person or persons to operate or manage a residential care
facility for the elderly, the department shall secure from an
appropriate law enforcement agency a criminal record to determine
whether the applicant or any other person specified in subdivision
(b) has ever been convicted of a crime other than a minor traffic
violation or arrested for any crime specified in subdivision (c) of
Section 290 of the Penal Code, begin insert or end insert for violating Section 245 or
273.5, 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 begin delete cannot grant an exemption if the person
was convicted and the person has not been exonerated. end delete begin insert is prohibited
from granting a criminal record exemption pursuant to subdivision
(f). end insert

(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) has been
convicted of a crime, other than a minor traffic violation, the
application begin insert or presence end insert shall be denied, unless the director grants
an exemption pursuant to subdivision (f).

(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
begin delete application end delete begin insert criminal record information end insert until the conclusion of
the trial.

(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.

(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime
other than a minor traffic violation, the license may be revoked,
unless the director grants an exemption pursuant to subdivision
(f).

(E) An applicant and any other person specified in subdivision
(b) shall submit fingerprint images and related information to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, in addition to the
search required by subdivision (a). If an applicant meets all other
conditions for licensure, except receipt of the Federal Bureau of
Investigation’s criminal history information for the applicant and
persons listed in subdivision (b), the department may issue a license
if the applicant and each person described by subdivision (b) has
signed and submitted a statement that he or she has never been
convicted of a crime in the United States, other than a traffic
infraction as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after licensure, the department
determines that the licensee or person specified in subdivision (b)
has a criminal record, the license may be revoked pursuant to
Section 1569.50. The department may also suspend the license
pending an administrative hearing pursuant to Sections 1569.50
and 1569.51.

(b) In addition to the applicant, the provisions of this section
shall apply to criminal begin delete convictions of end delete begin insert record clearances and
exemptions for end insert the following persons:

(1) (A) Adults responsible for administration or direct
supervision of staff.

(B) Any person, other than a client, residing in the facility.
Residents of unlicensed independent senior housing facilities that
are located in contiguous buildings on the same property as a
residential care facility for the elderly shall be exempt from these
requirements.

(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or
home health aide meeting the requirements of Section 1338.5 or
1736.6, respectively, who is not employed, retained, or contracted
by the licensee, and who has been certified or recertified on or
after July 1, 1998, shall be deemed to meet the criminal record
clearance requirements of this section. A certified nurse assistant
and certified home health aide who will be providing client
assistance and who falls under this exemption shall provide one
copy of his or her current certification, prior to providing care, to
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 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 does not apply to a
person who is a community care facility licensee 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 does not apply to a person who is
a community care facility licensee 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 does not apply to a person who is
a community care facility licensee or an employee of the facility.

(H) Any person similar to those described in this subdivision,
as defined by the department in regulations.

(I) Nothing in this paragraph shall prevent a licensee from
requiring a criminal record clearance of any individual exempt
from the requirements of this section, provided that the individual
has client contact.

(c) (1) (A) Subsequent to initial licensure, begin delete any end delete begin insert a end insert person
begin delete required to be fingerprinted pursuant to end delete begin insert specified in end insert subdivision
(b) begin delete shall, as a condition to employment, residence, or presence in
a residential facility for the elderly, be fingerprinted and sign a
declaration under penalty of perjury regarding any prior criminal
convictions. end delete begin insert who is not exempted from fingerprinting shall obtain
either a criminal record clearance or an exemption, pursuant to
subdivision (f), from the State Department of Social Services prior
to employment, residence, or initial presence in a facility. A person
specified in subdivision (b) who is not exempt from fingerprinting
shall be fingerprinted and shall sign a declaration under penalty
of perjury regarding any prior criminal convictions. end insert The licensee
shall submit these fingerprint images and related information to
the Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, or to comply with
paragraph (1) of subdivision (g) prior to the person’s employment,
residence, or initial presence in the residential care facility for the
elderly.

(B) These fingerprint images and related information shall be
electronically transmitted in a manner approved by the State
Department of Social Services and the Department of Justice. A
licensee’s failure to submit fingerprint images and related
information 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 in the amount of one hundred dollars ($100) per
violation per day for a maximum of five days, unless the violation
is a second or subsequent violation within a 12-month period in
which case the civil penalties shall be in the amount of one hundred
dollars ($100) per violation for a maximum of 30 days, and shall
be grounds for disciplining the licensee pursuant to Section
1569.50. The State Department of Social Services may assess civil
penalties for continued violations as permitted by Section 1569.49.
The licensee shall then submit these fingerprint images to the State
Department of Social Services for processing. Documentation of
the individual’s clearance or exemption shall be maintained by the
licensee and be available for inspection. The Department of Justice
shall notify the department, as required by Section 1522.04, and
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 record. 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 in the
amount of one hundred dollars ($100) per violation per day for a
maximum of five days, unless the violation is a second or
subsequent violation within a 12-month period in which case the
civil penalties shall be in the amount of one hundred dollars ($100)
per violation for a maximum of 30 days, and shall be grounds for
disciplining the licensee pursuant to Section 1569.50. The
department may assess civil penalties for continued violations as
permitted by Section 1569.49.

(2) Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided
for in this subdivision. If no criminal record 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 fingerprint images.
If new fingerprint images are required for processing, the
Department of Justice shall, within 14 calendar days from the date
of receipt of the fingerprint images, notify the licensee that the
fingerprint images were illegible.

(3) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous
employment history of persons required to be fingerprinted under
this subdivision. If the State Department of Social Services
determines, on the basis of the fingerprint images submitted to the
Department of Justice, that 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 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. The State Department of Social Services
may subsequently grant an exemption pursuant to subdivision (f).
If the conviction was for another crime, except a minor traffic
violation, the licensee shall, upon notification by the State
Department of Social Services, act immediately to either (1)
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 or (2) 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 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 deficiency
and an immediate assessment of civil penalties by the department
against the licensee, in the amount of one hundred dollars ($100)
per violation per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30
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 pursuant to this
paragraph.

(5) Concurrently with notifying the licensee pursuant to
paragraph (4), the department shall notify the affected individual
of his or her right to seek an exemption pursuant to subdivision
(f). The individual may seek an exemption only if the licensee
terminates the person’s employment or removes the person from
the facility after receiving notice from the department pursuant to
paragraph (4).

(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 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) (1) 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.

(2) The department shall not issue a criminal record clearance
to a person who has been begin delete arrested, and that arrest is pending
investigation or conviction, end delete begin insert arrested end insert for any crime specified in
Section 290 of the Penal Code, begin insert or end insert for violating Section 245 or
273.5, subdivision (b) of Section 273a, of the Penal Code, or, prior
to January 1, 1994, paragraph (2) of Section 273a, of the Penal
Code begin insert , or for any crime for which the department is prohibited from
granting a record exemption pursuant to subdivision (f), end insert prior to
the department’s completion of an investigation pursuant to
paragraph (1).

(3) The State Department of Social Services is authorized to
obtain any arrest or conviction records or reports from any law
enforcement agency as necessary to the performance of its duties
to inspect, license, and investigate community care facilities and
individuals associated with a community care facility.

(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for employment,
residence, or presence in a residential care facility for the elderly
as specified in paragraphs (4), (5), and (6) of subdivision (c) if the
director has substantial and convincing evidence to support a
reasonable belief that the applicant and the person convicted of
the crime, if other than the applicant, are of such good character
as to justify issuance of the license or special permit or granting
an exemption for purposes of subdivision (c). However, an
exemption shall not be granted pursuant to this subdivision if the
conviction was for any of the following offenses:

(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a, or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289,
subdivision (c) of Section 290, or Section 368, of the Penal Code,
or was a conviction of another crime against an individual specified
in subdivision (c) of Section 667.5 of the Penal Code.

(B) A felony offense specified in Section 729 of the Business
and Professions Code or Section 206 or 215, subdivision (a) of
Section 347, subdivision (b) of Section 417, or subdivision (a) of
Section 451 of the Penal Code.

(2) The director shall notify in writing the licensee or the
applicant of his or her decision within 60 days of receipt of all
information from the applicant and other sources determined
necessary by the director for the rendering of a decision pursuant
to this subdivision.

(3) The department shall not prohibit a person from being
employed or having contact with clients in a facility on the basis
of a denied criminal record exemption request or arrest information
unless the department complies with the requirements of Section
1569.58.

(g) (1) For purposes of compliance with this section, the
department 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, who shall enclose a self-addressed stamped
envelope for this purpose, the department shall verify whether the
individual has a clearance that can be transferred.

(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearances to be transferred under
this section.

(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 department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1569.58, the licensee or facility shall
not incur civil liability or unemployment insurance liability as a
result of that denial or termination.

(i) Notwithstanding any other law, the department may provide
an individual with a copy of his or her state or federal level criminal
offender record information search response as provided to that
department by the Department of Justice if the department has
denied a criminal background clearance based on this information
and the individual makes a written request to the department for
a copy specifying an address to which it is to be sent. The state or
federal level criminal offender record information search response
shall not be modified or altered from its form or content as provided
by the Department of Justice and shall be provided to the address
specified by the individual in his or her written request. The
department shall retain a copy of the individual’s written request
and the response and date provided.

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. 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. An individual
shall be required to obtain either a criminal record clearance or a
criminal record exemption from the State Department of Social
Services before his or her initial presence in a child day care
facility.

(a) (1) Before begin insert and, as applicable, subsequent to end insert issuing a license
or special permit to any person to operate or manage a day care
facility, the department shall secure from an appropriate law
enforcement agency a criminal record to determine whether the
applicant or any other person specified in subdivision (b) has ever
been convicted of a crime other than a minor traffic violation or
arrested for any crime specified in subdivision (c) of Section 290
of the Penal Code, begin insert or end insert for violating Section 245 or 273.5,
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 begin delete cannot grant an exemption if the person
was convicted and the person has not been exonerated. end delete begin insert is prohibited
from granting a criminal record exemption pursuant to subdivision
(f). end insert

(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) Except during the 2003-04 to the 2014-15 fiscal years,
inclusive, neither the Department of Justice nor the department
may charge a fee for the fingerprinting of an applicant who will
serve six or fewer children or any family day care applicant for a
license, 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) has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).

(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
begin delete application end delete begin insert criminal record information end insert until the conclusion of
the trial.

(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.

(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime
other than a minor traffic violation, the license may be revoked,
unless the director grants an exemption pursuant to subdivision
(f).

(E) An applicant and any other person specified in subdivision
(b) shall submit fingerprint images and related information to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, in addition to the
search required by subdivision (a). If an applicant meets all other
conditions for licensure, except receipt of the Federal Bureau of
Investigation’s criminal history information for the applicant and
persons listed in subdivision (b), the department may issue a license
if the applicant and each person described by subdivision (b) has
signed and submitted a statement that he or she has never been
convicted of a crime in the United States, other than a traffic
infraction as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after licensure, the department
determines that the licensee or person specified in subdivision (b)
has a criminal record, the license may be revoked pursuant to
Section 1596.885. The department may also suspend the license
pending an administrative hearing pursuant to Section 1596.886.

(b) (1) In addition to the applicant, this section shall be
applicable to criminal begin delete convictions of end delete begin insert record clearances and
exemptions for end insert the following persons:

(A) Adults responsible for administration or direct supervision
of staff.

(B) Any person, other than a child, residing in the facility.

(C) Any person who provides care and supervision to the
children.

(D) Any staff person, volunteer, or employee who has contact
with the children.

(i) A volunteer providing time-limited specialized services shall
be exempt from the requirements of this subdivision if this person
is directly supervised by the licensee or a facility employee with
a criminal record clearance or exemption, the volunteer spends no
more than 16 hours per week at the facility, and the volunteer is
not left alone with children in care.

(ii) A student enrolled or participating at an accredited
educational institution shall be exempt from the requirements of
this subdivision if the student is directly supervised by the licensee
or a facility employee with a criminal record clearance or
exemption, the facility has an agreement with the educational
institution concerning the placement of the student, the student
spends no more than 16 hours per week at the facility, and the
student is not left alone with children in care.

(iii) A volunteer who is a relative, legal guardian, or foster parent
of a client in the facility shall be exempt from the requirements of
this subdivision.

(iv) A contracted repair person retained by the facility, if not
left alone with children in care, shall be exempt from the
requirements of this subdivision.

(v) Any person similar to those described in this subdivision,
as defined by the department in regulations.

(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer, other person serving in
like capacity, or a person designated by the chief executive officer
as responsible for the operation of the 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.

(H) This section does not apply to employees of child care and
development programs under contract with the State Department
of Education who have completed a criminal record clearance as
part of an application to the Commission on Teacher Credentialing,
and who possess a current credential or permit issued by the
commission, including employees of child care and development
programs that serve both children subsidized under, and children
not subsidized under, a State Department of Education contract.
The Commission on Teacher Credentialing shall notify the
department upon revocation of a current credential or permit issued
to an employee of a child care and development program under
contract with the State Department of Education.

(I) This section does not apply to employees of a child care and
development program operated by a school district, county office
of education, or community college district under contract with
the State Department of Education who have completed a criminal
record clearance as a condition of employment. The school district,
county office of education, or community college district upon
receiving information that the status of an employee’s criminal
record clearance has changed shall submit that information to the
department.

(2) Nothing in this subdivision shall prevent a licensee from
requiring a criminal record clearance of any individuals exempt
from the requirements under this subdivision.

(c) (1) (A) Subsequent to initial licensure, begin delete any end delete begin insert a end insert person
specified in subdivision (b) begin delete and not exempted end delete begin insert who is not exempt end insert
from fingerprinting begin delete shall, as a condition to employment, residence,
or presence in a child day care facility, be fingerprinted and sign
a declaration under penalty of perjury regarding any prior criminal
conviction. end delete begin insert shall obtain either a criminal record clearance or an
exemption from disqualification, pursuant to subdivision (f), from
the State Department of Social Services prior to employment,
residence, or initial presence in the facility. A person specified in
subdivision (b) who is not exempt from fingerprinting shall be
fingerprinted and shall sign a declaration under penalty of perjury
regarding any prior criminal convictions. end insert The licensee shall submit
fingerprint images and related information to the Department of
Justice and the Federal Bureau of Investigation, through the
Department of Justice, or to comply with paragraph (1) of
subdivision (h), prior to the person’s employment, residence, or
initial presence in the child day care facility.

(B) These fingerprint images for the purpose of obtaining a
permanent set of fingerprints shall be electronically submitted to
the Department of Justice in a manner approved by the State
Department of Social Services and 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 an
immediate assessment of civil penalties in the amount of one
hundred dollars ($100) per violation per day for a maximum of
five days, unless the violation is a second or subsequent violation
within a 12-month period in which case the civil penalties shall
be in the amount of one hundred dollars ($100) per violation for
a maximum of 30 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 fingerprint images and related information shall then be
submitted to the department for processing. Within 14 calendar
days of the receipt of the fingerprint images, the Department of
Justice shall notify the State Department of Social Services of the
criminal record information, as provided in this subdivision. If no
criminal record 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 fingerprint images. If new fingerprint images
are required for processing, the Department of Justice shall, within
14 calendar days from the date of receipt of the fingerprint images,
notify the licensee that the fingerprints were illegible.

(C) Documentation of the individual’s clearance or exemption
shall be maintained by the licensee, and shall be available for
inspection. When live-scan technology is operational, as defined
in Section 1522.04, the Department of Justice shall notify the
department, as required by that section, and 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 record.
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 in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless
the violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30
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 paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous
employment history of persons required to be fingerprinted under
this subdivision. If it is determined by the department, on the basis
of fingerprints submitted to the Department of Justice, that 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 to act immediately to terminate
the person’s employment, remove the person from the child day
care facility, or bar the person from entering the child day care
facility. The department may subsequently grant an exemption
pursuant to subdivision (f). If the conviction was for another crime
except a minor traffic violation, the licensee shall, upon notification
by the State Department of Social Services, act immediately to
either (1) terminate the person’s employment, remove the person
from the child day care facility, or bar the person from entering
the child day care facility; or (2) 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. 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 deficiency and an immediate assessment of civil
penalties by the department against the licensee, in the amount of
one hundred dollars ($100) per violation per day for a maximum
of five days, unless the violation is a second or subsequent violation
within a 12-month period in which case the civil penalties shall
be in the amount of one hundred dollars ($100) per violation for
a maximum of 30 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) Concurrently with notifying the licensee pursuant to
paragraph (3), the department shall notify the affected individual
of his or her right to seek an exemption pursuant to subdivision
(f). The individual may seek an exemption only if the licensee
terminates the person’s employment or removes the person from
the facility after receiving notice from the department pursuant to
paragraph (3).

(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 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) (1) 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.

(2) The department shall not issue a criminal record clearance
to a person who has been begin delete arrested, and that arrest is pending
investigation or conviction, end delete begin insert arrested end insert for any crime specified in
Section 290 of the Penal Code, begin insert or end insert for violating Section 245 or
273.5, subdivision (b) of Section 273a, of the Penal Code, or, prior
to January 1, 1994, paragraph (2) of Section 273a, of the Penal
Code, begin insert or for any crime for which the department is prohibited from
granting a criminal record exemption pursuant to subdivision (f), end insert
prior to the department’s completion of an investigation pursuant
to paragraph (1).

(3) The State Department of Social Services is authorized to
obtain any arrest or conviction records or reports from any law
enforcement agency as necessary to the performance of its duties
to inspect, license, and investigate community care facilities and
individuals associated with a community care facility.

(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraphs (1) and (4) of subdivision (a), or for
employment, residence, or presence in a child day care facility as
specified in paragraphs (3), (4), and (5) of subdivision (c) if the
director has substantial and convincing evidence to support a
reasonable belief that the applicant and the person convicted of
the crime, if other than the applicant, are of good character so as
to justify issuance of the license or special permit or granting an
exemption for purposes of subdivision (c). However, an exemption
shall not be granted pursuant to this subdivision if the conviction
was for any of the following offenses:

(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a, or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289,
subdivision (c) of Section 290, or Section 368, of the Penal Code,
or was a conviction of another crime against an individual specified
in subdivision (c) of Section 667.5 of the Penal Code.

(B) A felony offense specified in Section 729 of the Business
and Professions Code or Section 206 or 215, subdivision (a) of
Section 347, subdivision (b) of Section 417, or subdivision (a) or
(b) of Section 451 of the Penal Code.

(2) 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
1596.8897.

(g) Upon request of the licensee, who shall enclose a
self-addressed stamped postcard for this purpose, the Department
of Justice shall verify receipt of the fingerprint images.

(h) (1) For the purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility
to another, as long as the criminal record clearance has been
processed through a state licensing district office, and is being
transferred to another facility licensed by a state licensing district
office. The request shall be in writing to the department, and shall
include a copy of the person’s driver’s license or valid
identification card issued by the Department of Motor Vehicles,
or a valid photo identification issued by another state or the United
States government if the person is not a California resident. Upon
request of the licensee, who shall enclose a self-addressed stamped
envelope for this purpose, the department shall verify whether the
individual has a clearance that can be transferred.

(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearances to be transferred.

(3) The following shall apply to a criminal record clearance or
exemption from the department or a county office with
department-delegated licensing authority:

(A) A county office with department-delegated licensing
authority may accept a clearance or exemption from the
department.

(B) The department may accept a clearance or exemption from
any county office with department-delegated licensing authority.

(C) A county office with department-delegated licensing
authority may accept a clearance or exemption from any other
county office with department-delegated licensing authority.

(4) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning
an individual whose criminal record clearance was originally
processed by the department or a county office with
department-delegated licensing authority, all of the following shall
apply:

(A) The Department of Justice shall process a request from the
department or a county office with department-delegated licensing
authority to receive the notice, only if all of the following
conditions are met:

(i) The request shall be submitted to the Department of Justice
by the agency to be substituted to receive the notification.

(ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.

(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the
department and the Department of Justice.

(B) (i) On or before January 7, 2005, the department shall notify
the Department of Justice of all county offices that have
department-delegated licensing authority.

(ii) The department shall notify the Department of Justice within
15 calendar days of the date on which a new county office receives
department-delegated licensing authority or a county’s delegated
licensing authority is rescinded.

(C) The Department of Justice shall charge the department or
a county office with department-delegated licensing authority a
fee for each time a request to substitute the recipient agency is
received for purposes of this paragraph. This fee shall not exceed
the cost of providing the service.

(i) Notwithstanding any other law, the department may provide
an individual with a copy of his or her state or federal level criminal
offender record information search response as provided to that
department by the Department of Justice if the department has
denied a criminal background clearance based on this information
and the individual makes a written request to the department for
a copy specifying an address to which it is to be sent. The state or
federal level criminal offender record information search response
shall not be modified or altered from its form or content as provided
by the Department of Justice and shall be provided to the address
specified by the individual in his or her written request. The
department shall retain a copy of the individual’s written request
and the response and date provided.