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 subparagraph (C) of
paragraph (2) of subdivision (a) of Section 1337.9, as that section
read on January 1, 2014, 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 (c) 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.
(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 live scan 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 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.