1337.9
. (a) The Legislature finds and declares all of the
following:
(1) Recidivism is reduced when criminal offenders are given the
opportunity to secure employment and engage in a trade, occupation,
or profession.
(2) It is in the interest of public safety to assist in the
rehabilitation of criminal offenders by removing impediments and
restrictions upon the offenders' ability to obtain employment or
engage in a trade, occupation, or profession based solely upon the
existence of a criminal record.
(3) It is the intent of the Legislature that the state department,
in determining eligibility under this section, have discretion to
consider a conviction, but that the conviction not operate as an
automatic bar to certification.
(b) 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, a nurse assistant for any of the
following:
(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
if 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.
(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.
(c) In determining whether or not to deny the application for
licensure or renewal pursuant to paragraph (2) of subdivision (b),
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 period of 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) An order from a superior court pursuant to Section 1203.4,
1203.4a, or 1203.41 of the Penal Code.
(9) The granting by the Governor of a full and unconditional
pardon.
(10) A certificate of rehabilitation from a superior court.
(d) 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 stay the suspension and place
the certificate holder on probation with specified conditions for a
period not to exceed two years. If 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 (g), 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.
(e) 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.
(f) 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.
(g) (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, 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 (h), 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.
(h) 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
(d). If the certificate holder requests an administrative hearing
pursuant to subdivision (g), 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.
(i) 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.
(j) 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.