1265.5
. (a) (1) Prior to the initial licensure or renewal of a
license of any person or persons to operate or manage an intermediate
care facility/developmentally disabled habilitative, an intermediate
care facility/developmentally disabled-nursing, an intermediate care
facility/developmentally disabled-continuous nursing, or an
intermediate care facility/developmentally disabled, other than an
intermediate care facility/developmentally disabled operated by the
state, that secures criminal record clearances for its employees
through a method other than as specified in this section or upon the
hiring of direct care staff by any of these facilities, the
department shall secure from the Department of Justice criminal
offender record information to determine whether the applicant,
facility administrator or manager, any direct care staff, or any
other adult living in the same location, has ever been convicted of a
crime other than a minor traffic violation.
(2) (A) The criminal record clearance shall require the applicant
to submit electronic fingerprint images and related information of
the facility administrator or manager, and any direct care staff, or
any other adult living in the same location, to the Department of
Justice. Applicants shall be responsible for any cost associated with
capturing or transmitting the fingerprint images and related
information.
(B) The criminal record clearance shall be completed prior to
direct staff contact with residents of the facility. A criminal
record clearance shall be complete when the department has obtained
the person's criminal record information from the Department of
Justice and has determined that he or she is not disqualified from
engaging in the activity for which clearance is required.
(3) (A) The Licensing and Certification Program shall issue an All
Facilities Letter (AFL) to facility licensees when it determines
that both of the following criteria have been met for a period of 30
days:
(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 subdivision (b), with
notices mailed to the facility no later than 45 days after the date
that the criminal offender record information report is received from
the Department of Justice.
(B) After the AFL is issued, facilities shall not allow newly
hired facility administrators, managers, direct care staff, or any
other adult living in the same location 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 from the Department of
Justice and has determined that the person is not disqualified from
engaging in the activity for which clearance is required.
(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 (c). 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 that have been
disqualified on the basis of criminal convictions that do not
require automatic denial pursuant to subdivision (b).
(4) 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 governmental 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.
(b) (1) The application for licensure or renewal shall be denied
if the criminal record indicates that the person seeking initial
licensure or renewal of a license referred to in subdivision (a) 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 the person has been dismissed
pursuant to Section 1203.4 of the Penal Code with regard to that
felony.
(B) The person was convicted of a misdemeanor and the information
or accusation against the person has been dismissed pursuant to
Section 1203.4 or 1203.4a of the Penal Code.
(C) The person 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 person.
(2) The application for licensure or renewal shall be denied if
the criminal record of the person includes a conviction in another
state for an offense that, if committed or attempted in this state,
would have been punishable as one or more of the offenses set forth
in paragraph (1), unless evidence of rehabilitation comparable to the
dismissal of a misdemeanor or a certificate of rehabilitation as set
forth in subparagraph (A) or (B) of paragraph (1) is provided to the
department.
(c) If the criminal record of a person described in subdivision
(a) indicates any conviction other than a minor traffic violation or
other than a conviction listed in subdivision (b), the department may
deny the application for licensure or renewal. In determining
whether or not to deny the application for licensure or renewal
pursuant to this subdivision, the department shall take into
consideration the following factors as evidence of good character and
rehabilitation:
(1) The nature and seriousness of the offense 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 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.
(8) The granting by the Governor of a full and unconditional
pardon.
(9) A certificate of rehabilitation from a superior court.
(d) Nothing in this section shall be construed to require a
criminal record check of a person receiving services in an
intermediate care facility/developmentally disabled habilitative,
intermediate care facility/developmentally disabled-nursing,
intermediate care facility/developmentally disabled-continuous
nursing, or intermediate care facility/developmentally disabled.
(e) For purposes of this section, "direct care staff" means all
facility staff who are trained and experienced in the care of persons
with developmental disabilities and who directly provide program and
nursing services to clients. Administrative and licensed personnel
shall be considered direct care staff when directly providing program
and nursing services to clients. Persons employed as consultants and
acting as direct care staff shall be subject to the same
requirements for a criminal record clearance as other direct care
staff. However, the employing facility shall not be required to pay
any costs associated with that criminal record clearance.
(f) Upon the employment of any person specified in subdivision
(a), and prior to any contact with clients or residents, the facility
shall ensure that electronic fingerprint images are submitted to the
Department of Justice for the purpose of obtaining a criminal record
check.
(g) The 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
1338.5 or 1736 shall not be required to obtain multiple criminal
record clearances.
(h) In addition to the persons who are not required to obtain
multiple criminal record clearances pursuant to subdivision (g), a
person shall not be required to obtain a separate criminal record
clearance if the person meets all of the following criteria:
(1) The person is employed as a consultant and acts as direct care
staff.
(2) The person is a registered nurse, licensed vocational nurse,
physical therapist, occupational therapist, or speech-language
pathologist.
(3) The person has obtained a criminal record clearance as a
prerequisite to holding a license or certificate to provide direct
care services.
(4) The person has a license or certificate to provide direct care
service that is in good standing with the appropriate licensing or
certification board.
(5) The person is providing time-limited specialized clinical care
or services.
(6) The person is not left alone with the client.
(i) 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 (3) of subdivision (a), for a period of 90
consecutive days, the requirements in paragraph (3) of subdivision
(a) shall be suspended until the department determines that it has
met those standards for a period of 90 consecutive days.
(j) During any period of time in which paragraph (3) of
subdivision (a) is inoperative, facilities may allow newly hired
facility administrators, managers, direct care staff, or any other
adult living in the same location to have direct contact with clients
or residents of the facility after those persons have submitted
live-scan fingerprint images to the Department of Justice, and the
department shall issue an AFL advising of this change in the
statutory requirement.
(k) Notwithstanding any other provision of 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.