Article 5.5. Employee Actions of California Health And Safety Code >> Division 2. >> Chapter 3. >> Article 5.5.
(a) The department may prohibit any person from being a
member of the board of directors, an executive director, or an
officer of a licensee, or a licensee from employing, or continuing
the employment of, or allowing in a licensed facility or certified
family home, or allowing contact with clients of a licensed facility
or certified family home by, any employee, prospective employee, or
person who is not a client who has:
(1) Violated, or aided or permitted the violation by any other
person of, any provisions of this chapter or of any rules or
regulations promulgated under this chapter.
(2) Engaged in conduct that is inimical to the health, morals,
welfare, or safety of either the people of this state or an
individual in or receiving services from the facility or certified
family home.
(3) Been denied an exemption to work or to be present in a
facility or certified family home, when that person has been
convicted of a crime as defined in Section 1522.
(4) Engaged in any other conduct that would constitute a basis for
disciplining a licensee or certified family home.
(5) Engaged in acts of financial malfeasance concerning the
operation of a facility or certified family home, including, but not
limited to, improper use or embezzlement of client moneys and
property or fraudulent appropriation for personal gain of facility
moneys and property, or willful or negligent failure to provide
services.
(b) The excluded person, the facility or certified family home,
and the licensee shall be given written notice of the basis of the
department's action and of the excluded person's right to an appeal.
The notice shall be served either by personal service or by
registered mail. Within 15 days after the department serves the
notice, the excluded person may file with the department a written
appeal of the exclusion order. If the excluded person fails to file a
written appeal within the prescribed time, the department's action
shall be final.
(c) (1) The department may require the immediate removal of a
member of the board of directors, an executive director, or an
officer of a licensee or exclusion of an employee, prospective
employee, or person who is not a client from a facility or certified
family home pending a final decision of the matter, when, in the
opinion of the director, the action is necessary to protect residents
or clients from physical or mental abuse, abandonment, or any other
substantial threat to their health or safety.
(2) If the department requires the immediate removal of a member
of the board of directors, an executive director, or an officer of a
licensee or exclusion of an employee, prospective employee, or person
who is not a client from a facility or certified family home, the
department shall serve an order of immediate exclusion upon the
excluded person that shall notify the excluded person of the basis of
the department's action and of the excluded person's right to a
hearing.
(3) Within 15 days after the department serves an order of
immediate exclusion, the excluded person may file a written appeal of
the exclusion with the department. The department's action shall be
final if the excluded person does not appeal the exclusion within the
prescribed time. The department shall do the following upon receipt
of a written appeal:
(A) Within 30 days of receipt of the appeal, serve an accusation
upon the excluded person.
(B) Within 60 days of receipt of a notice of defense pursuant to
Section 11506 of the Government Code by the excluded person to
conduct a hearing on the accusation.
(4) An order of immediate exclusion of the excluded person from
the facility or certified family home shall remain in effect until
the hearing is completed and the director has made a final
determination on the merits. However, the order of immediate
exclusion shall be deemed vacated if the director fails to make a
final determination on the merits within 60 days after the original
hearing has been completed.
(d) An excluded person who files a written appeal with the
department pursuant to this section shall, as part of the written
request, provide his or her current mailing address. The excluded
person shall subsequently notify the department in writing of any
change in mailing address, until the hearing process has been
completed or terminated.
(e) Hearings held pursuant to this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Division
3 of Title 2 of the Government Code. The standard of proof shall be
the preponderance of the evidence and the burden of proof shall be on
the department.
(f) The department may institute or continue a disciplinary
proceeding against a member of the board of directors, an executive
director, or an officer of a licensee or an employee, prospective
employee, or person who is not a client upon any ground provided by
this section. The department may enter an order prohibiting any
person from being a member of the board of directors, an executive
director, or an officer of a licensee or prohibiting the excluded
person's employment or presence in the facility or certified family
home, or otherwise take disciplinary action against the excluded
person, notwithstanding any resignation, withdrawal of employment
application, or change of duties by the excluded person, or any
discharge, failure to hire, or reassignment of the excluded person by
the licensee or that the excluded person no longer has contact with
clients at the facility or certified family home.
(g) A licensee's or certified family home's failure to comply with
the department's exclusion order after being notified of the order
shall be grounds for disciplining the licensee pursuant to Section
1550.
(h) (1) (A) In cases where the excluded person appealed the
exclusion order, the person shall be prohibited from working in any
facility or being licensed to operate any facility licensed by the
department or from being a certified foster parent for the remainder
of the excluded person's life, unless otherwise ordered by the
department.
(B) The excluded individual may petition for reinstatement one
year after the effective date of the decision and order of the
department upholding the exclusion order pursuant to Section 11522 of
the Government Code. The department shall provide the excluded
person with a copy of Section 11522 of the Government Code with the
decision and order.
(2) (A) In cases where the department informed the excluded person
of his or her right to appeal the exclusion order and the excluded
person did not appeal the exclusion order, the person shall be
prohibited from working in any facility or being licensed to operate
any facility licensed by the department or a certified foster parent
for the remainder of the excluded person's life, unless otherwise
ordered by the department.
(B) The excluded individual may petition for reinstatement after
one year has elapsed from the date of the notification of the
exclusion order pursuant to Section 11522 of the Government Code. The
department shall provide the excluded person with a copy of Section
11522 of the Government Code with the exclusion order.
(a) (1) If the department determines that a person was
issued a license under this chapter or under Chapter 1 (commencing
with Section 1200), Chapter 2 (commencing with Section 1250), Chapter
3.01 (commencing with Section 1568.01), Chapter 3.2 (commencing with
Section 1569), Chapter 3.4 (commencing with Section 1596.70),
Chapter 3.5 (commencing with Section 1596.90), or Chapter 3.6
(commencing with Section 1597.30) and the prior license was revoked
within the preceding two years, the department shall exclude the
person from, and remove the person from the position of a member of
the board of directors, an executive director, or an officer of a
licensee of, any facility licensed by the department pursuant to the
chapter.
(2) If the department determines that a person previously was
issued a certificate of approval by a foster family agency which was
revoked by the department pursuant to subdivision (b) of Section 1534
within the preceding two years, the department shall exclude the
person from, and remove the person from the position of a member of
the board of directors, an executive director, or an officer of a
licensee of, any facility licensed by the department pursuant to this
chapter.
(b) If the department determines that the person had previously
applied for a license under any of the chapters listed in paragraph
(1) of subdivision (a) and the application was denied within the last
year, the department shall exclude the person from, and remove the
person from the position of a member of the board of directors, an
executive director, or an officer of a licensee of, any facility
licensed by the department pursuant to this chapter and as follows:
(1) In cases where the applicant petitioned for a hearing, the
department shall exclude the person from, and remove the person from
the position of a member of the board of directors, an executive
director, or an officer of a licensee of, any facility licensed by
the department pursuant to this chapter until one year has elapsed
from the effective date of the decision and order of the department
upholding a denial.
(2) In cases where the department informed the applicant of his or
her right to petition for a hearing and the applicant did not
petition for a hearing, the department shall exclude the person from,
and remove the person from the position of a member of the board of
directors, an executive director, or an officer of a licensee of, any
facility licensed by the department pursuant to this chapter until
one year has elapsed from the date of the notification of the denial
and the right to petition for a hearing.
(c) If the department determines that the person had previously
applied for a certificate of approval with a foster family agency and
the department ordered the foster family agency to deny the
application pursuant to subdivision (b) of Section 1534, the
department shall exclude the person from, and remove the person from
the position of a member of the board of directors, an executive
director, or an officer of a licensee of, any facility licensed by
the department pursuant to this chapter and as follows:
(1) In cases where the applicant petitioned for a hearing, the
department shall exclude the person from, and remove the person from
the position of a member of the board of directors, an executive
director, or an officer of a licensee of, any facility licensed by
the department pursuant to this chapter until one year has elapsed
from the effective date of the decision and order of the department
upholding a denial.
(2) In cases where the department informed the applicant of his or
her right to petition for a hearing and the applicant did not
petition for a hearing, the department shall exclude the person from,
and remove the person from the position of a member of the board of
directors, an executive director, or an officer of a licensee of, any
facility licensed by the department pursuant to this chapter until
one year has elapsed from the date of the notification of the denial
and the right to petition for a hearing.
(d) Exclusion or removal of an individual pursuant to this section
shall not be considered an order of exclusion for purposes of
Section 1558 or any other law.
(e) The department may determine not to exclude the person from,
or remove the person from the position of a member of the board of
directors, an executive director, or an officer of a licensee of, any
facility licensed by the department pursuant to this chapter if it
has determined that the reasons for the denial of the application or
revocation of the facility license or certificate of approval were
due to circumstances and conditions that either have been corrected
or are no longer in existence.
The department shall conduct an unannounced visit to a
facility within 30 days after the department serves an order of
immediate exclusion from the facility upon the licensee or a person
subject to immediate removal or exclusion from the facility pursuant
to paragraph (3) of subdivision (c) of Section 1522 and subdivision
(c) of Section 1558 and in order to ensure that the excluded person
is not within the facility, unless the department previously has
verified that the excluded person is not within the facility.