(a) The Department shall conduct a criminal
record review of all persons specified in Health and Safety Code Section
1596.871(b).
The Department has the authority to approve or deny a facility license, or
employment, residence or presence in the facility, based on the results of this
review.
(b) The following
individuals are exempt from the requirement to submit fingerprints:
(1) A volunteer who is a relative, legal
guardian, or foster parent of a child in the facility.
(2) A volunteer that provides time-limited
specialized services if all of the following apply:
(A) The volunteer is directly supervised by
the licensee or a facility employee with a criminal record clearance or
exemption.
(B) The volunteer spends
no more than 16 hours per week at the facility.
(C) The volunteer is not left alone with
children in care.
(3) A
volunteer who is a senior citizen if all of the following apply:
(A) The senior citizen participates in a
Foster Grandparent Program under the authority of the National Senior Service
Corps and administered by the Corporation for National Service.
(B) The facility has an agreement with the
foster grandparent program concerning the placement of the foster
grandparent.
(C) The foster
grandparent is supervised by the licensee or a facility employee with a
criminal record clearance or exemption.
(D) The foster grandparent is not left alone
with children in care.
(4) A student who is enrolled or
participating at an accredited educational institution if all of the following
apply:
(A) The student is directly supervised
by the licensee or a facility employee with a criminal record clearance or
exemption.
(B) The facility has an
agreement with the educational institution concerning the placement of the
student.
(C) The student spends no
more than 16 hours per week at the facility.
(D) The student is not left alone with the
children in care.
(5) A
third-party repair person, or similar retained contractor, if all of the
following apply:
(A) The individual is hired
for a defined, time-limited job.
(B) The individual is not left alone with
children.
(C) When children are
present in the room in which the repairperson or contractor is working, a staff
person who has a criminal record clearance or exemption is also
present.
(6) A medical
professional, as defined in Section
101152(m)(1), who
holds a valid license or certification from the individual's governing
California medical care regulatory entity if all of the following apply:
(A) The criminal record of the individual has
been cleared as a condition of licensure or certification by the individual's
California medical care regulatory entity.
(B) The individual is providing time-limited
specialized clinical care or services.
(C) The individual is providing care or
services within the individual's scope of practice.
(D) The individual is not a community care
facility licensee and is not employed, retained, or contracted by the
licensee.
(7) Employees
of a licensed home health agency who have a contract with a child's parent or
guardian and are in the facility at the request of that parent or guardian.
(A) The exemption shall not apply to an
individual who is employed, retained or contracted by the
licensee.
(8) An
attendant or facilitator for a child with a developmental disability who is
visiting the child or providing direct care and supervision to the child.
(A) The exemption shall not apply to an
individual who is employed, retained or contracted by the
licensee.
(c)
Prior to the Department issuing a license, the applicant and the administrator
shall obtain a California criminal record clearance or exemption.
(d) All individuals subject to criminal
record review shall, be fingerprinted and sign a Criminal Record Statement (LIC
508 [Rev. 1/03]) under penalty of perjury.
(1)
A person signing the LIC 508 must:
(A) Declare
whether he/she has been convicted of a crime, other than a minor traffic
violation as specified in Section
101170(k)
regardless of whether the individual was granted a pardon for the conviction,
received an expungement pursuant to Penal Code 1203.4 or the individual's
record was sealed as a result of a court order.
(B) If convicted of a crime other than a
minor traffic violation as specified in Section
101170(k),
provide information regarding the conviction.
(2) The licensee shall submit these
fingerprints to the California Department of Justice, along with a second set
of fingerprints for the purpose of searching the records of the Federal Bureau
of Investigation, or comply with Section
101170(e)(1),
prior to the individual's employment or initial presence in the child care
facility.
(A) Fingerprints shall be submitted
to the California Department of Justice by the licensee or sent by electronic
transmission to the California Department of Justice by a fingerprinting entity
approved by the California Department of Social
Services.
(e)
All individuals subject to a criminal record review pursuant to Health and
Safety Code Section
1596.871
shall prior to working, residing or volunteering in a licensed facility:
(1) Submit a valid mailing address at which
the individual shall receive communications from the Department.
(A) An individual who holds a criminal record
clearance or exemption shall maintain a current and valid mailing address with
the Department and shall notify the Department within ten (10) days of any
change in mailing address.
(2) Obtain a California clearance or a
criminal record exemption as required by the Department or
(3) Request a transfer of a criminal record
clearance as specified in Section
101170(f)
or
(4) Request and be approved for
a transfer of a criminal record exemption, as specified in Section
101170.1(r),
unless, upon request for a transfer, the Department permits the individual to
be employed, reside or be present at the facility.
(f) A licensee or applicant for a license may
request a transfer of a criminal record clearance from one state licensed
facility to another, or from TrustLine to a state licensed facility by
providing the following documents to the Department:
(1) A signed Criminal Background Clearance
Transfer Request, LIC 9182 (Rev. 4/02).
(2) A copy of the individual's driver's
license, or
(3) A valid
identification card issued by the Department of Motor Vehicles, or
(4) A valid photo identification issued by
another state or the United States government if the individual is not a
California resident.
(5) Any other
documentation required by the Department (e.g., LIC 508, Criminal Record
Statement [Rev. 1/03] and job description).
(g) The licensee shall maintain documentation
of criminal record clearances or criminal record exemptions of employees in the
individual's personnel file as required in Section
101217.
(h) Violation of Section
101170(e) will
result in a citation of a deficiency and an immediate assessment of civil
penalties of one hundred dollars ($100) per violation per day for a maximum of
five (5) days by the Department.
(1)
Subsequent violations within a twelve (12) month period will result in a civil
penalty of one hundred dollars ($100) per violation per day for a maximum of
thirty (30) days.
(2) The
Department may assess civil penalties for continued violations as permitted by
Health and Safety Code Section
1596.99.
(i) Violation of Section
101170(e) may
result in a denial of the license application or suspension and/or revocation
of the license.
(j) The licensee
shall maintain documentation of criminal record clearances or criminal record
exemptions of volunteers that require fingerprinting.
(1) Documentation shall be available for
inspection by the Department.
(k) If the criminal record transcript of any
individuals specified in the Health and Safety Code Section
1596.871(b)
discloses a plea or verdict of guilty, or a conviction following a plea of nolo
contendere, for any crime other than a minor traffic violation for which the
fine was less than $300 and an exemption pursuant to Section
101170.1(a) has
not been granted, the Department shall take the following actions:
(1) For initial applicants, denial of the
application.
(2) For current
licensees, the Department may institute an administrative action, including,
but not limited to, revocation of the license.
(3) For current employees, exclude the
affected individual pursuant to Health and Safety Code Section
1596.8897,
and deny the application or revoke the license, if the individual continues to
provide services and/or reside at the facility.
(4) For convicted individuals residing in the
facility, licensee or employee, exclusion of the affected individual pursuant
to Health and Safety Code Section
1596.8897,
and denial of the application or revocation of the license, if the individual
continues to provide services and/or reside at the
facility.
(l) The
Department may seek verification from a law enforcement agency or court of an
individual's criminal record as reported to the Department from any member of
the public or affected individual.
(1) Upon
obtaining confirmation from a law enforcement agency or court of the offense,
the Department shall proceed as if this criminal record information was
provided by the California Department of Justice.
(m) If the Department determines that any
licensee or individual specified in Health and Safety Code Section
1596.871(b)
is arrested for a crime for which, if convicted, an individual is not eligible,
by law, to receive an exemption, pending completion of its investigation into
the facts underlying the arrest, the Department may take the following actions:
(1) If the arrested individual is a licensee,
the Department may notify the licensee, by telephone or in writing, to
immediately cease operation for up to 30 days.
(2) If the individual arrested is not a
licensee, the Department may notify the licensee and the individual associated
with the facility, by telephone or in writing, that the individual may not be
present in the facility for up to 30 days.
(n) After the Department notifies the
licensee, pursuant to Section
101170(o)(1), or
the individual pursuant to Section
101170(o)(2), he
or she may present a written appeal that:
(1)
he or she is not the individual who was arrested,
(2) he or she has not been arrested for a
crime that by law an individual is not eligible to receive an exemption,
or
(3) he or she was arrested for a
crime that by law an individual is not eligible to receive an exemption but the
charges have been dropped or reduced to a crime that by law an individual would
be eligible to receive an exemption.
The appeal shall contain the licensee's or individual's
current address and telephone number. After the Department receives the appeal
and any supporting documentation, it shall review the appeal and notify the
licensee or individual of its decision within five (5) working
days.
(o) Should
the Department determine at any time during the 30 days referred to in Sections
101170(o)(1) and
(o)(2) that the criminal charges have been
dropped or reduced to a charge for a crime that by law an individual would be
eligible to receive an exemption, the Department shall immediately rescind the
notice.
(p) Nothing in this action
shall be interpreted to supercede the Department's authority under Sections
1596.886
and
1596.8897
of the Health and Safety Code.
(q)
Prior to issuing a clearance to any individual with arrest history described in
Health and Safety Code section
1596.871(e),
the Department shall be notified of the following:
(1) The fact of the investigation into
conduct associated with arrest information regarding the subject.
(2) The specific arrest(s) upon which the
investigation is based.
(3) The
date of the arrest(s).
(4) The
arresting agency.
(5) The
disposition of the arrest, if available, as indicated on criminal history
information received from DOJ.
(6)
That the subject shall not work or reside in a licensed facility until the
subject has received a criminal record clearance or exemption.
(7) If the Department obtains evidence
through the investigation that the subject may pose a risk to the health and
safety of any person who is or may become a client, the Department may deny a
criminal record clearance and/or exclude the subject.
(8) The subject may provide written
information the subject believes is relevant to the investigation and/or shows
the subject is qualified to work in a licensed facility.
(9) The subject will be notified of the
Department's decision regarding whether or not to grant a clearance and of the
right to appeal any such decision at that time.
(r) The Department shall, in cases where the
subject does not have a conviction, within 5 business days of a decision to
deny a criminal record clearance based on an investigation described in
subdivision (q) notify the subject of the following:
(1) The Department has completed its
investigation into arrest information.
(2) The Department will not grant that
individual a criminal record clearance.
(3) The decision, if not appealed, will bar
the subject from presence in a licensed facility.
(4) The arrests which triggered the
investigation, including the date of arrest, charges, and arresting
agency.
(5) The Department has
determined that the subject may pose a risk to the health and safety of a
person who is or may become a client.
(6) The specific conduct upon which the
decision is based.
(7) The subject
has a right to contest the decision and will receive an Accusation from the
Legal Division as well as information about how to request an administrative
hearing.
(s) For initial
applications where the subject does not have a conviction, the Accusation
described in paragraph (7) of subdivision (r) shall be filed within 40 days of
a decision to deny a criminal record clearance.
Notes
Cal. Code
Regs. Tit. 22, §
101170
1. Change
without regulatory effect (Register 86, No. 29).
2. Amendment of
subsection (f) filed 6-5-87; operative 7-5-87 (Register 87, No.
25).
3. Amendment of subsection (c)(1) filed 2-5-88; operative
3-6-88 (Register 88, No. 8).
4. Change without regulatory effect
amending subsection (c)(1) filed 3-10-92 pursuant to section
100, title 1, California Code of
Regulations (Register 92, No. 15).
5. Amendment of section and NOTE
filed 9-14-98; operative 11-1-98 (Register 98, No. 38).
6. Amendment
filed 5-18-2000 as an emergency; operative 5-18-2000 (Register 2000, No. 20).
Pursuant to Section
73 of Senate Bill 933, Chapter
311, Statutes of 1998 a Certificate of Compliance must be transmitted to OAL by
11-14-2000 or emergency language will be repealed by operation of law on the
following day.
7. Editorial correction of HISTORY 6 (Register 2000,
No. 38).
8. Certificate of Compliance as to 5-18-2000 order,
including further amendment of section, transmitted to OAL 11-14-2000 and filed
12-19-2000 (Register 2000, No. 51).
9. Amendment filed 7-14-2003 as
an emergency; operative 7-16-2003 (Register 2003, No. 29). A Certificate of
Compliance must be transmitted to OAL by 11-13-2003 or emergency language will
be repealed by operation of law on the following day.
10. New
subsections (o)-(r) filed 7-24-2003 as an emergency; operative 7-24-2003
(Register 2003, No. 30). A Certificate of Compliance must be transmitted to OAL
by 11-21-2003 or emergency language will be repealed by operation of law on the
following day.
11. Amendment refiled 11-12-2003 as an emergency;
operative 11-12-2003 (Register 2003, No. 46). A Certificate of Compliance must
be transmitted to OAL by 3-11-2004 or emergency language will be repealed by
operation of law on the following day.
12. Certificate of Compliance
as to 7-24-2003 order transmitted to OAL 11-21-2003 and filed 12-30-2003
(Register 2004, No. 1).
13. Editorial correction of HISTORY 12
(Register 2004, No. 11).
14. Amendment refiled 3-11-2004 as an
emergency; operative 3-11-2004 (Register 2004, No. 11). A Certificate of
Compliance must be transmitted to OAL by 7-9-2004 or emergency language will be
repealed by operation of law on the following day.
15. Certificate
of Compliance as to 3-11-2004 order, including further amendment of section,
transmitted to OAL 7-9-2004 and filed 8-20-2004 (Register 2004, No.
34).
16. Amendment of subsection (h), new subsection (h)(1),
subsection renumbering, amendment of newly designated subsection (h)(2),
repealer of subsection (l), subsection relettering and amendment of NOTE filed
7-11-2006; operative 8-10-2006 (Register 2006, No. 28).
16.
Amendment of subsection (h), new subsection (h)(1), subsection renumbering,
amendment of newly designated subsection (h)(2), repealer of subsection (l),
subsection relettering and amendment of NOTE filed 7-11-2006; operative
8-10-2006 (Register 2006, No. 28).
17. New subsections
(e)(1)-(e)(1)(A), subsection renumbering, new subsections (q)-(s) and amendment
of NOTE filed 12-15-2021; operative 4-1-2022 (Register 2021, No. 51). Filing
deadline specified in Government Code section
11349.3(a)
extended 60 calendar days pursuant to Executive Order N-40-20 and an additional
60 calendar days pursuant to Executive Order N-71-20.
18. Editorial
correction of HISTORY 17 (Register 2022, No. 11).
Note: Authority cited: Sections
1596.81
and
1596.98(c),
Health and Safety Code. Reference: Section
11505,
Government Code; and Sections
1596.81(b),
1596.871
and
1596.99,
Health and Safety Code.
1. Change without
regulatory effect (Register 86, No. 29).
2. Amendment of subsection
(f) filed 6-5-87; operative 7-5-87 (Register 87, No. 25).
3.
Amendment of subsection (c)(1) filed 2-5-88; operative 3-6-88 (Register 88, No.
8).
4. Change without regulatory effect amending subsection (c)(1)
filed 3-10-92 pursuant to section 100, title 1, California Code of Regulations
(Register 92, No. 15).
5. Amendment of section and Note filed
9-14-98; operative 11-1-98 (Register 98, No. 38).
6. Amendment
filed 5-18-2000 as an emergency; operative 5-18-2000 (Register 2000, No. 20).
Pursuant to Section 73 of Senate Bill 933, Chapter 311, Statutes of 1998 a
Certificate of Compliance must be transmitted to OAL by 11-14-2000 or emergency
language will be repealed by operation of law on the following day.
7. Editorial correction of History 6 (Register 2000, No. 38).
8.
Certificate of Compliance as to 5-18-2000 order, including further amendment of
section, transmitted to OAL 11-14-2000 and filed 12-19-2000 (Register 2000, No.
51).
9. Amendment filed 7-14-2003 as an emergency; operative
7-16-2003 (Register 2003, No. 29). A Certificate of Compliance must be
transmitted to OAL by 11-13-2003 or emergency language will be repealed by
operation of law on the following day.
10. New subsections (o)-(r)
filed 7-24-2003 as an emergency; operative 7-24-2003 (Register 2003, No. 30). A
Certificate of Compliance must be transmitted to OAL by 11-21-2003 or emergency
language will be repealed by operation of law on the following day.
11. Amendment refiled 11-12-2003 as an emergency; operative 11-12-2003
(Register 2003, No. 46). A Certificate of Compliance must be transmitted to OAL
by 3-11-2004 or emergency language will be repealed by operation of law on the
following day.
12. Certificate of Compliance as to 7-24-2003 order
transmitted to OAL 11-21-2003 and filed 12-30-2003 (Register 2004, No.
1).
13. Editorial correction of History 12 (Register 2004, No.
11).
14. Amendment refiled 3-11-2004 as an emergency; operative
3-11-2004 (Register 2004, No. 11). A Certificate of Compliance must be
transmitted to OAL by 7-9-2004 or emergency language will be repealed by
operation of law on the following day.
15. Certificate of
Compliance as to 3-11-2004 order, including further amendment of section,
transmitted to OAL 7-9-2004 and filed 8-20-2004 (Register 2004, No.
34).
16. Amendment of subsection (h), new subsection (h)(1),
subsection renumbering, amendment of newly designated subsection (h)(2),
repealer of subsection (l), subsection relettering and amendment of Note filed
7-11-2006; operative 8-10-2006 (Register 2006, No. 28).
16.
Amendment of subsection (h), new subsection (h)(1), subsection renumbering,
amendment of newly designated subsection (h)(2), repealer of subsection (l),
subsection relettering and amendment of Note filed 7-11-2006; operative
8-10-2006 (Register 2006, No. 28).
17. New subsections
(e)(1)-(e)(1)(A), subsection renumbering and new subsections (q)-(q)(6) filed
12-15-2021; operative 4/1/2022 (Register
2021, No. 51). Filing deadline specified in Government Code
section
11349.3(a)
extended 60 calendar days pursuant to Executive Order N-40-20 and an additional
60 calendar days pursuant to Executive Order
N-71-20.