Cal. Code Regs. Tit. 22, § 102370 - Criminal Record Clearance
(a) Prior to the Department issuing a
license, the applicant(s) and all adults residing in the home shall obtain a
California criminal record clearance or exemption.
(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
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.
(4) 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.
(5) A medical professional, as defined in
Section 102352(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.
(6) 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.
(7) An
attendant or facilitator for a child with a developmental disability who is
visiting the client 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)
All individuals subject to a 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 102370(g)
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
102370(g),
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
102370(j) prior
to the individual's employment, residence, or initial presence in the child
care home.
(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.
(B) A licensee or an
applicant for a license may not submit, or enable another to submit under the
licensee's or the applicant's authority, the fingerprints of any person who
does not, or whom the licensee or applicant reasonably believes will not
reside, provide care and supervision to, or have contact with clients at the
licensee's or applicant's facility.
1. If the
Department determines that the licensee or applicant has violated Section
102370(c)(2)(B),
the Department may immediately cease processing criminal record and Child Abuse
Central Index clearances for the facility until the licensee or applicant
complies with this section or a disciplinary proceeding is completed.
2. The licensee shall then submit the
fingerprints to the California Department of Justice for
processing.
(d) 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 be able to 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
102370(j)
or
(4) Request and be approved for
a transfer of a criminal record exemption, as specified in Section
102370.1(p),
unless, upon request for a transfer, the Department permits the individual to
be employed, reside or be present at the facility.
(e) Violation of Section
102370(d) 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) pre 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.
(f) Violation of Section
102370(d) may
result in a denial of the license application or suspension and/or revocation
of the license.
(g) 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 a crime other than a minor traffic
violation for which the fine was less than $300, and an exemption pursuant to
Section 102370.1(a) has
not been granted, 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 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
in the facility.
(h) If
the conviction was for another crime, except a minor traffic violation, the
Department shall determine if the person shall be allowed to remain in the
facility until a decision on the exemption is rendered.
(i) A licensee or applicant for a license may
request a transfer of a criminal records 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:
(A) Driver's license, or
(B) Valid identification card issued by the
Department of Motor Vehicles, or
(C) Valid photo identification issued by
another state or the United States government if the individual is not a
California resident.
(3)
Any other documentation required by the Department (e.g., LIC 508, Criminal
Record Statement [Rev. 1/03] and job description).
(j) A criminal record clearance may be
transferred between state and county licensing agencies or between county
licensing agencies provided:
(1) The transfer
is to the same facility type.
(2)
The individual and the licensing agency that processed the clearance submit a
Substitute Agency Notification Request (BCII 9002) to the receiving licensing
agency.
(3) The receiving licensing
agency submits the Substitute Agency Notification Request (BCII 9002) to the
Department of Justice.
(4) The
Department of Justice approves the request and returns a completed BCII 9002 to
the receiving agency.
(k)
The licensee shall maintain documentation of criminal record clearances or
criminal record exemptions of employees, volunteers that require fingerprinting
and non-client adults residing in the facility.
(1) Documentation shall be available for
inspection by the Department.
(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.
(n) 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
as it deems necessary:
(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.
(3) If the individual arrested is the
licensee's spouse or a dependent adult that resides in the licensee's home, the
Department may notify the licensee, by telephone or in writing, to immediately
cease operation for up to 30 days.
(o) After the Department notifies the
licensee, pursuant to Section
102370(n)(1) or
(n)(3), or the individual pursuant to Section
102370(n)(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.
(p) Should
the Department determine at any time during the 30 days referred to in Sections
102370(n)(1), (n)(2), and
(n)(3) 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.
(q) Nothing in this section
shall be interpreted to supercede the Department's authority under Sections
1596.886 and 1596.8897 of the Health and Safety Code.
(r) 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)
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.
(s) 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 (r) 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 denial, 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.
(t) For initial
applications where the subject does not have a conviction, the Accusation
described in paragraph (7) of subdivision (s) shall be filed within 40 days of
a decision to deny a criminal record clearance.
Notes
2. Amendment of subsections (a), (c) and (d)(1) filed 10-6-97; operative 11-5-97 (Register 97, No. 41).
3. 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.
4. Editorial correction of HISTORY 3 (Register 2000, No. 38).
5. 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).
6. Editorial correction of subsection (e) (Register 2001, No. 43).
7. 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.
8. New subsections (n)-(q) and amendment of NOTE 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.
9. 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.
10. Certificate of Compliance as to 7-24-2003 order transmitted to OAL 11-21-2003 and filed 12-30-2003 (Register 2004, No. 1).
11. Editorial correction of HISTORY 12 (Register 2004, No. 11).
12. 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.
13. 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).
14. Amendment of subsection (e), new subsection (e)(1), subsection renumbering, amendment of newly designated subsection (e)(2), repealer of subsection (h), new subsections (j)-(j)(4), subsection relettering and amendment of NOTE filed 7-11-2006; operative 8-10-2006 (Register 2006, No. 28).
15. New subsections (d)(1)-(d)(1)(A), subsection renumbering, new subsections (r)-(t) 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.
16. Editorial correction of HISTORY 15 (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 1596.871, 1596.99 and 1597.59, Health and Safety Code.
2. Amendment of subsections (a), (c) and (d)(1) filed 10-6-97; operative 11-5-97 (Register 97, No. 41).
3. 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.
4. Editorial correction of History 3 (Register 2000, No. 38).
5. 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).
6. Editorial correction of subsection (e) (Register 2001, No. 43).
7. 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.
8. New subsections (n)-(q) and amendment of Note 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.
9. 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.
10. Certificate of Compliance as to 7-24-2003 order transmitted to OAL 11-21-2003 and filed 12-30-2003 (Register 2004, No. 1).
11. Editorial correction of History 12 (Register 2004, No. 11).
12. 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.
13. 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).
14. Amendment of subsection (e), new subsection (e)(1), subsection renumbering, amendment of newly designated subsection (e)(2), repealer of subsection (h), new subsections (j)-(j)(4), subsection relettering and amendment of Note filed 7-11-2006; operative 8-10-2006 (Register 2006, No. 28).
15. New subsections (d)(1)-(d)(1)(A), subsection renumbering and new subsections (r)-(r)(7) filed 12-15-2021; operative
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