1736.5
. (a) The department shall deny a training application and
deny, suspend, or revoke a certificate issued under this article if
the applicant or certificate holder has been convicted of a violation
or attempted violation of any 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:
(1) 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 him or her has been dismissed
pursuant to Section 1203.4 of the Penal Code.
(2) The person was convicted of a misdemeanor and the information
or accusation against him or her has been dismissed pursuant to
Section 1203.4 or 1203.4a of the Penal Code.
(3) The certificate holder 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
applicant from certification.
(b) An application or certificate shall be denied, suspended, or
revoked upon conviction in another state of an offense that, if
committed or attempted in this state, would have been punishable as
one or more of the offenses set forth in subdivision (a), unless
evidence of rehabilitation comparable to the certificate of
rehabilitation or dismissal of a misdemeanor set forth in paragraph
(1) or (2) of subdivision (a) is provided.
(c) (1) The department may deny an application or deny, suspend,
or revoke a certificate issued under this article for any of the
following:
(A) Unprofessional conduct, including, but not limited to,
incompetence, gross negligence, physical, mental, or verbal abuse of
patients, or misappropriation of property of patients or others.
(B) Conviction of a crime substantially related to the
qualifications, functions, and duties of a home health aide,
irrespective of a subsequent order under Section 1203.4, 1203.4a, or
4852.13 of the Penal Code, where the 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.
(C) Conviction for, or use of, any controlled substance as defined
in Division 10 (commencing with Section 11000) of this code, 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 home health aide, 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.
(D) Procuring a home health aide certificate by fraud,
misrepresentation, or mistake.
(E) Making or giving any false statement or information in
conjunction with the application for issuance of a home health aide
certificate or training and examination application.
(F) Impersonating any applicant, or acting as proxy for an
applicant, in any examination required under this article for the
issuance of a certificate.
(G) Impersonating another home health aide, 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.
(H) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violation of, or conspiring to violate
any provision or term of, this article.
(2) In determining whether or not to deny an application or deny,
suspend, or revoke a certificate issued under this article pursuant
to this subdivision, the department shall take into consideration the
following factors as evidence of good character and rehabilitation:
(A) The nature and seriousness of the offense under consideration
and its relationship to the person's employment duties and
responsibilities.
(B) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(C) The time that has elapsed since the commission of the conduct
or offense referred to in subparagraph (A) or (B) and the number of
offenses.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(E) Any rehabilitation evidence, including character references,
submitted by the person.
(F) Employment history and current employer recommendations.
(G) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(H) Granting by the Governor of a full and unconditional pardon.
(I) A certificate of rehabilitation from a superior court.
(d) When the department determines that a certificate shall be
suspended, the department shall specify the period of actual
suspension. The department may determine that the suspension shall be
stayed, placing the certificate holder on probation with specified
conditions for a period not to exceed two years. When the department
determines that probation is the appropriate action, the certificate
holder shall be notified that in lieu of the 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
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 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 department shall notify the applicant or
certificate holder in writing by certified mail of both of the
following:
(1) The reasons for the determination.
(2) The applicant's or certificate holder's right to appeal the
determination if the determination was made under subdivision (c).
(g) (1) Upon written notification that the department has
determined that an application shall be denied or a certificate shall
be denied, suspended, or revoked under subdivision (c), the
applicant or certificate holder may request an administrative hearing
by submitting a written request to the department within 20 business
days of receipt of the written notification. Upon receipt of a
written request, the 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 by a hearing
officer or administrative law judge designated by the director at a
location, other than the work facility, that is convenient to the
applicant or certificate holder. The hearing shall be audio or video
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 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
(f). If the certificate holder requests an administrative hearing
pursuant to subdivision (g), the 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, the certificate
holder shall be reinstated by the department and shall be entitled
to resume practice unless it is established to the satisfaction of
the department that the person has practiced as a home health aide in
California during the term of suspension. In this event, the
department shall revoke the person's certificate.
(j) Upon a determination to deny an application or deny, revoke,
or suspend a certificate, the department shall notify the employer of
the applicant or 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.