Senate Bill No. 1384

Introduced by Senator Mitchell

February 21, 2014

An act to amend Sections 1337.9 and 1338.5 of the Health and Safety Code, relating to health facilities.

LEGISLATIVE COUNSEL’S DIGEST

SB 1384, as introduced, Mitchell. Certified nurse assistants.

Existing law provides for the certification of nurse assistants by the State Department of Public Health. Existing law authorizes the department to deny an application for, initiate an action to suspend or revoke a certificate for, or deny a training and examination application for a nurse assistant under specified circumstances. Existing law requires, with some exceptions, the department to deny a training and examination application and deny, suspend, or revoke a certificate if the applicant or certificate holder has been convicted of a violation of or attempted violation of one of more specified crimes.

This bill would delete the requirement that the department deny a training and examination application and deny, suspend, or revoke a certificate if the applicant or certificate holder has been convicted of a violation or attempted violation of one or more of the specified crimes. The bill would make other related and conforming changes to these provisions.

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 1337.9 of the Health and Safety Code is
amended to read:

1337.9.  

(a)  begin delete (1) end delete begin delete   end delete The state department may deny an application
for, initiate an action to suspend or revoke a certificate for, or deny
a training and examination application for begin insert , end insert a nurse assistant begin delete . end delete begin insert for
any of the following: end insert

begin delete

(2) The state department shall deny a training and examination
application and deny, suspend, or revoke a certificate issued under
this article if the applicant or certificate holder has been convicted
of a violation or attempted violation of any one or more of the
following Penal Code provisions: Section 187, subdivision (a) of
Section 192, Section 203, 205, 206, 207, 209, 210, 210.5, 211,
220, 222, 243.4, 245, 261, 262, or 264.1, Sections 265 to 267,
inclusive, Section 273a, 273d, 273.5, or 285, subdivisions (c), (d),
(f), and (g) of Section 286, Section 288, subdivisions (c), (d), (f),
and (g) of Section 288a, Section 288.5, 289, 289.5, 368, 451, 459,
470, 475, 484, or 484b, Sections 484d to 484j, inclusive, Section
487, subdivision (a) of Section 487a, or Section 488, 496, 503,
518, or 666, unless any of the following applies:

(A) The person was convicted of a felony and has obtained a
certificate of rehabilitation under Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of Part 3 of the Penal Code and the
information or accusation against him or her has been dismissed
pursuant to Section 1203.4 of the Penal Code.

(B) The person was convicted of a misdemeanor and the
information or accusation against him or her has been dismissed
pursuant to Section 1203.4 or 1203.4a of the Penal Code.

(C) The certificate holder was convicted of a felony or a
misdemeanor, but has previously disclosed the fact of each
conviction to the department, and the department has made a
determination in accordance with law that the conviction does not
disqualify the applicant from certification.

(D) The person was convicted of a misdemeanor violation of
Section 488 or 496, is requesting a renewal of their certificate, and
has had no subsequent convictions in the last five years. This
paragraph shall become inoperative on August 1, 2001.

(b) An application or certificate shall be denied, suspended, or
revoked upon conviction in another state of an offense that, if
committed or attempted in this state, would have been punishable
as one or more of the offenses set forth in subdivision (a), unless
evidence of rehabilitation comparable to the certificate of
rehabilitation or dismissal of a misdemeanor set forth in paragraph
(1) or (2) of subdivision (a) is provided.

(c) The state department may deny an application or deny,
suspend, or revoke a certificate issued under this article for any of
the following:

end delete

(1) Unprofessional conduct, including, but not limited to,
incompetence, gross negligence, unless due to circumstances
beyond the nurse assistant’s control, physical, mental, or verbal
abuse of patients, or misappropriation of property of patients or
others.

(2) Conviction of a crime substantially related to the
qualifications, functions, and duties of a certified nurse assistant begin delete ,
irrespective of a subsequent order under Section 1203.4, 1203.4a,
or 4852.13 of the Penal Code, where end delete begin insert if end insert the state department
determines that the applicant or certificate holder has not
adequately demonstrated that he or she has been rehabilitated and
will present a threat to the health, safety, or welfare of patients.
begin insert For purposes of this paragraph, completion of both of the following
establishes a presumption of sufficient rehabilitation: end insert

begin insert

(A) Any probation, mandatory supervision, or parole, if
applicable.

end insert begin insert

(B) After final discharge or release from any term of
imprisonment the elapse of three years without a subsequent
conviction.

end insert

(3) Conviction for, or use of, any controlled substance as defined
in Division 10 (commencing with Section 11000), or any dangerous
drug, as defined in Section 4022 of the Business and Professions
Code, or alcoholic beverages, to an extent or in a manner dangerous
or injurious to the certified nurse assistant, any other person, or
the public, to the extent that this use would impair the ability to
conduct, with safety to the public, the practice authorized by a
certificate.

(4) Procuring a certified nurse assistant certificate by fraud or
misrepresentation or mistake.

(5) Making or giving any false statement or information in
conjunction with the application for issuance of a nurse assistant
certificate or training and examination application.

(6) Impersonating any applicant, or acting as proxy for an
applicant, in any examination required under this article for the
issuance of a certificate.

(7) Impersonating another certified nurse assistant, a licensed
vocational nurse, or a registered nurse, or permitting or allowing
another person to use a certificate for the purpose of providing
nursing services.

(8) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violating of, or conspiring to violate
any provision or term of, this article.

begin delete

(d)

end delete

begin insert (b) end insert  In determining whether or not to deny the application for
licensure or renewal pursuant to begin delete subdivision (c) end delete begin insert paragraph (2) of
subdivision (a) end insert , the department shall take into consideration the
following factors as evidence of good character and rehabilitation:

(1) The nature and seriousness of the conduct or crime under
consideration and its relationship to their employment duties and
responsibilities.

(2) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.

(3) The begin insert period of end insert time that has elapsed since the commission
of the conduct or offense referred to in paragraph (1) or (2) and
the number of offenses.

(4) The extent to which the person has complied with any terms
of parole, probation, restitution, or any other sanction lawfully
imposed against the person.

(5) Any rehabilitation evidence, including character references,
submitted by the person.

(6) Employment history and current employer recommendations.

(7) Circumstances surrounding the commission of the offense
that would demonstrate the unlikelihood of repetition.

begin insert

(8) An order from a superior court pursuant to Section 1203.4,
1203.4a, or 1203.41 of the Penal Code.

end insert begin delete

(8)

end delete

begin insert (9) end insert  The granting by the Governor of a full and unconditional
pardon.

begin delete

(9)

end delete

begin insert (10) end insert  A certificate of rehabilitation from a superior court.

begin delete

(e)

end delete

begin insert (c) end insert  When the state department determines that a certificate shall
be suspended, the state department shall specify the period of actual
suspension. The state department may begin delete determine that end delete begin insert stay end insert the
suspension begin delete shall be stayed, placing end delete begin insert and place end insert the certificate holder
on probation with specified conditions for a period not to exceed
two years. begin delete When end delete begin insert If end insert the state department determines that probation
is the appropriate action, the certificate holder shall be notified
that in lieu of the state department proceeding with a formal action
to suspend the certification and in lieu of an appeal pursuant to
subdivision begin delete (h) end delete begin insert (f) end insert , the certificate holder may request to enter into
a diversion program agreement. A diversion program agreement
shall specify terms and conditions related to matters, including,
but not limited to, work performance, rehabilitation, training,
counseling, progress reports, and treatment programs. If a
certificate holder successfully completes a diversion program, no
action shall be taken upon the allegations that were the basis for
the diversion agreement. Upon failure of the certificate holder to
comply with the terms and conditions of an agreement, the state
department may proceed with a formal action to suspend or revoke
the certification.

begin delete

(f)

end delete

begin insert (d) end insert  A plea or verdict of guilty, or a conviction following a plea
of nolo contendere shall be deemed a conviction within the
meaning of this article. The state department may deny an
application or deny, suspend, or revoke a certification based on a
conviction as provided in this article when the judgment of
conviction is entered or when an order granting probation is made
suspending the imposition of sentence.

begin delete

(g)

end delete

begin insert (e) end insert  Upon determination to deny an application or deny, revoke,
or suspend a certificate, the state department shall notify the
applicant or certificate holder in writing by certified mail of all of
the following:

(1) The reasons for the determination.

(2) The applicant’s or certificate holder’s right to appeal the
determination begin delete if the determination was made under subdivision
(c) end delete .

begin delete

(h)

end delete

begin insert (f) end insert  (1) Upon written notification that the state department has
determined that an application shall be denied or a certificate shall
be denied, suspended, or revoked begin delete under subdivision (c) end delete , the
applicant or certificate holder may request an administrative
hearing by submitting a written request to the state department
within 20 business days of receipt of the written notification. Upon
receipt of a written request, the state department shall hold an
administrative hearing pursuant to the procedures specified in
Section 100171, except where those procedures are inconsistent
with this section.

(2) A hearing under this section shall be conducted within 60
days of the receipt of the written request of the applicant or
certificate holder submitted pursuant to paragraph (1) by a hearing
officer or administrative law judge designated by the director at a
location, other than the work facility, convenient to the applicant
or certificate holder unless the applicant or certificate holder agrees
to an extension. The hearing shall be tape recorded and a written
decision shall be sent by certified mail to the applicant or certificate
holder within 30 calendar days of the hearing. Except as specified
in subdivision begin delete (i) end delete begin insert (g) end insert , the effective date of an action to revoke or
suspend a certificate shall be specified in the written decision, or
if no administrative hearing is timely requested, the effective date
shall be 21 business days from written notification of the
department’s determination to revoke or suspend.

begin delete

(i)

end delete

begin insert (g) end insert  The state department may revoke or suspend a certificate
prior to any hearing when immediate action is necessary in the
judgment of the director to protect the public welfare. Notice of
this action, including a statement of the necessity of immediate
action to protect the public welfare, shall be sent in accordance
with subdivision begin delete (g) end delete begin insert (e) end insert . If the certificate holder requests an
administrative hearing pursuant to subdivision begin delete (h) end delete begin insert (f) end insert , the state
department shall hold the administrative hearing as soon as possible
but not later than 30 calendar days from receipt of the request for
a hearing. A written hearing decision upholding or setting aside
the action shall be sent by certified mail to the certificate holder
within 30 calendar days of the hearing.

begin delete

(j)

end delete

begin insert (h) end insert  Upon the expiration of the term of suspension, he or she
shall be reinstated by the state department and shall be entitled to
resume practice unless it is established to the satisfaction of the
state department that the person has practiced as a certified nurse
assistant in this state during the term of suspension. In this event,
the state department shall revoke the person’s certificate.

begin delete

(k)

end delete

begin insert (i) end insert  Upon a determination to deny an application or deny, revoke,
or suspend a certificate, the state department shall notify the
employer of the applicant and certificate holder in writing of that
determination, and whether the determination is final, or whether
a hearing is pending relating to this determination. If a licensee or
facility is required to deny employment or terminate employment
of the employee based upon notice from the state that the employee
is determined to be unsuitable for employment under this section,
the licensee or facility shall not incur criminal, civil, unemployment
insurance, workers’ compensation, or administrative liability as a
result of that denial or termination.

SEC. 2.  

Section 1338.5 of the Health and Safety Code is
amended to read:

1338.5.  

(a) (1) (A) A criminal record clearance shall be
conducted for all nurse assistants by the submission of fingerprint
images and related information to the state department for
processing at the Department of Justice. The licensing and
certification program shall issue an All Facilities Letter (AFL) to
facility licensees when both of the following criteria are met:

(i) The program receives, within three business days, 95 percent
of its total responses indicating no evidence of recorded criminal
information from the Department of Justice.

(ii) The program processes 95 percent of its total responses
requiring disqualification in accordance with paragraph (2) of
subdivision begin delete (C) end delete begin insert (c) end insert of Section 1337.9, begin insert as that section read on
January 1, 2014, end insert no later than 45 days after the date that the report
is received from the Department of Justice.

(B) After the AFL is issued, licensees shall not allow nurse
assistant trainees or newly hired nurse assistants to have direct
contact with clients or residents of the facility prior to completion
of the criminal record clearance. A criminal record clearance shall
be complete when the department has obtained the person’s
criminal offender record information search response information
from the Department of Justice and has determined that the person
is not disqualified from engaging in the activity for which clearance
is required. Notwithstanding any other provision of law, the
department may, without taking regulatory action pursuant to
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
3 of Title 2 of the Government Code, implement, interpret, or make
specific this paragraph by means of an AFL or similar instruction.
The fee to cover the processing costs of the Department of Justice,
not including the costs associated with capturing or transmitting
the fingerprint images and related information, shall not exceed
thirty-two dollars ($32) per submission.

(C) An applicant or certificate holder who may be disqualified
on the basis of a criminal conviction shall provide the department
with a certified copy of the judgment of each conviction. In
addition, the individual may, during a period of two years after
the department receives the criminal record report, provide the
department with evidence of good character and rehabilitation in
accordance with subdivision begin delete (d) end delete begin insert (b) end insert of Section 1337.9. Upon receipt
of a new application for certification of the individual, the
department may receive and consider the evidence during the
two-year period without requiring additional fingerprint imaging
to clear the individual.

(D) The department’s Licensing and Certification Program shall
explore and implement methods for maximizing its efficiency in
processing criminal record clearances within the requirements of
law, including a streamlined clearance process for persons who
have been disqualified on the basis of criminal convictions begin delete that do
not require automatic denial pursuant to paragraph (2) of
subdivision (a) of Section 1337.9 end delete .

(2) (A) Upon enrollment in a training program for nurse
assistant certification, and prior to direct contact with residents, a
candidate for training shall submit a training and examination
application and the fingerprint cards to the state department to
receive a criminal record review through the Department of Justice.
Submission of the fingerprints to the Federal Bureau of
Investigation shall be at the discretion of the state department.

(B) An applicant and any other person specified in this
subdivision, as part of the background clearance process, shall
provide information as to whether or not the person has any prior
criminal convictions, has had any arrests within the past 12-month
period, or has any active arrests, and shall certify that, to the best
of his or her knowledge, the information provided is true. This
requirement is not intended to duplicate existing requirements for
individuals who are required to submit fingerprint images as part
of a criminal background clearance process. Every applicant shall
provide information on any prior administrative action taken
against him or her by any federal, state, or local government agency
and shall certify that, to the best of his or her knowledge, the
information provided is true. An applicant or other person required
to provide information pursuant to this section that knowingly or
willfully makes false statements, representations, or omissions
may be subject to administrative action, including, but not limited
to, denial of his or her application or exemption or revocation of
any exemption previously granted.

(3) Each health facility that operates and is used as a clinical
skills site for certification training, and each health facility, prior
to hiring a nurse assistant applicant certified in another state or
country, shall arrange for and pay the cost of the fingerprint
live-scan service and the Department of Justice processing costs
for each applicant. Health facilities may not pass these costs
through to nurse assistant applicants unless allowed by federal law
enacted subsequent to the effective date of this paragraph.

(b) The use of fingerprint live-scan technology implemented
by the Department of Justice by the year 1999 shall be used by the
Department of Justice to generate timely and accurate positive
fingerprint identification prior to nurse assistant certification and
prior to direct contact with residents by the nurse assistant
applicant. The department shall explore options to work with
private and governmental agencies to ensure that licensees have
adequate access to electronic transmission sites, including requiring
the department to maintain a contract for electronic transmission
services in each of the district offices where facilities have
indicated problems with timely access to electronic transmission
sites or consistent delays of more than three business days in
obtaining appointments for electronic transmission services through
a private entity, government agency, or law enforcement agency.

(c) The state department shall develop procedures to ensure that
any licensee, direct care staff, or certificate holder for whom a
criminal record has been obtained pursuant to this section or
Section 1265.5 or 1736 shall not be required to obtain multiple
criminal record clearances.

(d) If the department is experiencing a delay in processing the
renewal of the certified nursing assistant’s certification at the time
of the expiration of the certified nursing assistant’s certification,
the department may extend the expiration of the certified nursing
assistant’s certification for six months.

(e) If, at any time, the department determines that it does not
meet the standards specified in clauses (i) and (ii) of subparagraph
(A) of paragraph (1) of subdivision (a), for a period of 90
consecutive days, the requirements in paragraph (1) of subdivision
(a) shall be inoperative until the department can demonstrate it has
met those standards for a period of 90 consecutive days.

(f) During any time in which the requirements of paragraph (1)
of subdivision (a) are inoperative, facilities may allow newly hired
nurse assistants to have direct contact with clients or residents of
the facility after those persons have submitted livescan fingerprint
images to the Department of Justice, and the department shall issue
an AFL advising facilities of this change in the statutory
requirements.

(g) Notwithstanding any other begin delete provision of end delete 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
their written request. The department shall retain a copy of the
individual’s written request and the response and date provided.