1568.09
. It is the intent of the Legislature in enacting this
section to require the electronic fingerprint images of those
individuals whose contact with residents of residential care
facilities for persons with a chronic, life-threatening illness may
pose a risk to the residents' health and safety.
It is the intent of the Legislature, in enacting this section, to
require the electronic fingerprint images of those individuals whose
contact with community care clients may pose a risk to the clients'
health and safety. An individual shall be required to obtain either a
criminal record clearance or a criminal record exemption from the
State Department of Social Services before his or her initial
presence in a residential care facility for persons with a chronic,
life-threatening illness.
(a) (1) Before and, as applicable, subsequent to issuing a license
to a person or persons to operate or manage a residential care
facility, the department shall secure from an appropriate law
enforcement agency a criminal record to determine whether the
applicant or any other person specified in subdivision (b) has ever
been convicted of a crime other than a minor traffic violation or
arrested for any crime specified in subdivision (c) of Section 290 of
the Penal Code, or for violating Section 245, 273ab, or 273.5,
subdivision (b) of Section 273a, or, prior to January 1, 1994,
paragraph (2) of Section 273a, of the Penal Code, or for any crime
for which the department is prohibited from granting a criminal
record exemption pursuant to subdivision (f).
(2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant or another person specified in subdivision (b), has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).
(B) If the State Department of Social Services finds that the
applicant, or another person specified in subdivision (b), is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the criminal
record information until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
(E) An applicant and any other person specified in subdivision (b)
shall submit fingerprint images and related information to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, in addition to the
search required by this subdivision. If an applicant meets all other
conditions for licensure, except receipt of the Federal Bureau of
Investigation's criminal history information for the applicant and
persons listed in subdivision (b), the department may issue a license
if the applicant and each person described by subdivision (b) has
signed and submitted a statement that he or she has never been
convicted of a crime in the United States, other than a traffic
infraction as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after licensure, the department
determines that the licensee or person specified in subdivision (b)
has a criminal record, the license may be revoked pursuant to
subdivision (a) of Section 1568.082. The department may also suspend
the license pending an administrative hearing pursuant to subdivision
(b) of Section 1568.082.
(b) In addition to the applicant, this section shall be applicable
to criminal record clearances and exemptions for the following
persons:
(1) Adults responsible for administration or direct supervision of
staff of the facility.
(2) A person, other than a resident, residing in the facility.
(3) A person who provides resident assistance in dressing,
grooming, bathing, or personal hygiene. A nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the
residential care facility for persons with a chronic,
life-threatening illness. The facility shall maintain the copy of the
certification on file as long as care is being provided by the
certified nurse assistant or certified home health aide at the
facility. This paragraph does not restrict the right of the
department to exclude a certified nurse assistant or certified home
health aide from a licensed residential care facility for persons
with a chronic, life-threatening illness pursuant to Section
1568.092.
(4) (A) A staff person, volunteer, or employee who has contact
with the residents.
(B) A volunteer shall be exempt from the requirements of this
subdivision if he or she is a relative, significant other, or close
friend of a client receiving care in the facility and the volunteer
does not provide direct care and supervision of residents. A
volunteer who provides direct care and supervision shall be exempt if
the volunteer is a resident's spouse, significant other, close
friend, or family member and provides direct care and supervision to
that resident only at the request of the resident. The department may
define in regulations persons similar to those described in this
subparagraph who may be exempt from the requirements of this
subdivision.
(5) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
that capacity.
(6) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(c) (1) (A) Subsequent to initial licensure, a person specified in
subdivision (b) and not exempted from fingerprinting shall obtain
either a criminal record clearance or an exemption from
disqualification, pursuant to subdivision (f), from the State
Department of Social Services prior to employment, residence, or
initial presence in the facility. A person specified in subdivision
(b) who is not exempt from fingerprinting shall be fingerprinted and
shall sign a declaration under penalty of perjury regarding any prior
criminal convictions. The licensee shall submit fingerprint images
and related information to the Department of Justice and the Federal
Bureau of Investigation, through the Department of Justice, for a
state and federal level criminal offender record information search,
or to comply with paragraph (1) of subdivision (g), prior to the
person's employment, residence, or initial presence in the
residential care facility.
(B) These fingerprint images and related information shall be
electronically submitted to the Department of Justice in a manner
approved by the State Department of Social Services and the
Department of Justice, for the purpose of obtaining a permanent set
of fingerprints. A licensee's failure to submit fingerprint images
and related information to the Department of Justice, or to comply
with paragraph (1) of subdivision (g), as required in this section,
shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1568.082. The State Department of Social Services may assess
civil penalties for continued violations as allowed in Section
1568.0822. The fingerprint images and related information shall then
be submitted to the Department of Justice for processing. The
licensee shall maintain and make available for inspection
documentation of the individual's clearance or exemption.
(2) A violation of the regulations adopted pursuant to Section
1522.04 shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1568.082. The department may assess civil penalties for
continued violations as permitted by Section 1568.0822.
(3) Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided
for in this subdivision. If no criminal record information has been
recorded, the Department of Justice shall provide the licensee and
the State Department of Social Services with a statement of that fact
within 14 calendar days of receipt of the fingerprint images. If new
fingerprint images are required for processing, the Department of
Justice shall, within 14 calendar days from the date of receipt of
the fingerprint images, notify the licensee that the fingerprint
images were illegible. The Department of Justice shall notify the
department, as required by Section 1522.04, and shall notify the
licensee by mail within 14 days of electronic transmission of the
fingerprint images to the Department of Justice, if the person has no
criminal history record.
(4) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision. If it is determined by the State Department of Social
Services, on the basis of the fingerprint images submitted to the
Department of Justice, that the person has been convicted of a sex
offense against a minor, an offense specified in Section 243.4, 273a,
273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the
department shall notify the licensee to act immediately to terminate
the person's employment, remove the person from the residential care
facility, or bar the person from entering the residential care
facility. The department may subsequently grant an exemption pursuant
to subdivision (f). If the conviction was for another crime, except
a minor traffic violation, the licensee shall, upon notification by
the department, act immediately to either (A) terminate the person's
employment, remove the person from the residential care facility, or
bar the person from entering the residential care facility; or (B)
seek an exemption pursuant to subdivision (f). The department shall
determine if the person shall be allowed to remain in the facility
until a decision on the exemption is rendered. A licensee's failure
to comply with the department's prohibition of employment, contact
with clients, or presence in the facility as required by this
paragraph shall result in a citation of deficiency and an immediate
assessment of civil penalties by the department against the licensee,
in the amount of one hundred dollars ($100) per violation per day
for a maximum of five days, unless the violation is a second or
subsequent violation within a 12-month period in which case the civil
penalties shall be in the amount of one hundred dollars ($100) per
violation for a maximum of 30 days, and shall be grounds for
disciplining the licensee pursuant to Section 1568.082.
(5) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(6) Concurrently with notifying the licensee pursuant to paragraph
(4), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (f). The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (4).
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. An action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, when
the judgment of conviction has been affirmed on appeal, or when an
order granting probation is made suspending the imposition of the
sentence, notwithstanding a subsequent order pursuant to Sections
1203.4 and 1203.4a of the Penal Code permitting that person to
withdraw his or her plea of guilty and to enter a plea of not guilty,
setting aside the verdict of guilty, or dismissing the accusation,
information, or indictment. For purposes of this chapter, the record
of a conviction, or a copy thereof certified by the clerk of the
court or by a judge of the court in which the conviction occurred,
shall be conclusive evidence of the conviction. For purposes of this
section or any other provision of this chapter, the arrest
disposition report certified by the Department of Justice, or
documents admissible in a criminal action pursuant to Section 969b of
the Penal Code, shall be prima facie evidence of the conviction,
notwithstanding any other provision of law prohibiting the admission
of these documents in a civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(e) (1) The State Department of Social Services shall not use a
record of arrest to deny, revoke, or terminate any application,
license, employment, or residence unless the department investigates
the incident and secures evidence, whether or not related to the
incident of arrest, that is admissible in an administrative hearing
to establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client.
(2) The department shall not issue a criminal record clearance to
a person who has been arrested for any crime specified in Section 290
of the Penal Code, for violating Section 245, 273ab, or 273.5, or
subdivision (b) of Section 273a, of the Penal Code, or, prior to
January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or
for any crime for which the department is prohibited from granting a
criminal record exemption pursuant to subdivision (f), prior to the
department's completion of an investigation pursuant to paragraph
(1).
(3) The State Department of Social Services is authorized to
obtain arrest or conviction records or reports from a law enforcement
agency as necessary to the performance of its duties to inspect,
license, and investigate community care facilities and individuals
associated with a community care facility.
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for employment,
residence, or presence in a residential care facility as specified in
paragraphs (4), (5), and (6) of subdivision (c) if the director has
substantial and convincing evidence to support a reasonable belief
that the applicant and the person convicted of the crime, if other
than the applicant, are of such good character as to justify issuance
of the license or special permit or granting an exemption for
purposes of subdivision (c). However, an exemption shall not be
granted pursuant to this subdivision if the conviction was for any of
the following offenses:
(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a, or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289,
subdivision (c) of Section 290, or Section 368, of the Penal Code, or
was a conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) of Section
451 of the Penal Code.
(2) The department shall not prohibit a person from being employed
or having contact with clients in a facility on the basis of a
denied criminal record exemption request or arrest information unless
the department complies with Section 1568.092.
(g) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the department, and shall include
a copy of the person's driver's license or valid identification card
issued by the Department of Motor Vehicles, or a valid photo
identification issued by another state or the United States
government if the person is not a California resident. Upon request
of the licensee, who shall enclose a self-addressed stamped envelope
for this purpose, the department shall verify whether the individual
has a clearance that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearance to be transferred.
(h) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1568.092, the licensee or facility shall not
incur civil liability or unemployment insurance liability as a
result of that denial or termination.
(i) (1) The Department of Justice shall charge a fee sufficient to
cover its cost in providing services to comply with the 14-day
requirement contained in subdivision (c) for provision to the
department of criminal record information.
(2) Paragraph (1) shall cease to be implemented when the
department adopts emergency regulations pursuant to Section 1522.04,
and shall become inoperative when permanent regulations are adopted
under that section.
(j) Notwithstanding any other law, the department may 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.