Cal. Code Regs. Tit. 22, § 80019 - Criminal Record Clearance

(a) The Department shall conduct a criminal record review of all individuals specified in Health and Safety Code Section 1522(b) and shall have the authority to approve or deny a facility license, or employment, residence, or presence in the facility, based upon the results of such review.

[Sections 80019(b) et seq. are to be effective on January 1, 2001.]

(b) The following persons are exempt from the requirement to submit fingerprints:

(1) A medical professional, as defined by the Department in regulations, who holds a valid license or certification from the individual's governing California medical care regulatory entity and who is not employed, retained, or contracted by the licensee, 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 or an employee of the facility.

(2) 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 clients.

(C) When clients 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.

(3) Employees of a licensed home health agency and other members of licensed hospice interdisciplinary teams who have a contract with a client of the facility, and are in the facility at the request of that client or resident's legal decision maker.

(A) The exemption shall not apply to a person who is a community care facility licensee or an employee of the facility.

(4) Clergy and other spiritual caregivers who are performing services in common areas of the residential care facility, or who are advising an individual client at the request of, or with the permission of, the client.

(A) This exemption shall not apply to a person who is a community care facility licensee or an employee of the facility.

(5) Members of fraternal, service and similar organizations who conduct group activities for clients, if all of the following apply:

(A) Members are not left alone with the clients.

(B) Members do not transport clients off the facility premises.

(C) The same group does not conduct such activities more often than once a month.

(6) The following persons in homes certified by licensed Foster Family Agencies:

(A) Adult friends and family of the certified foster parent, who come into the home to visit for a length of time no longer than one month, provided they are not left alone with the foster children. However, the certified foster parent, acting as a reasonable and prudent parent, as defined in paragraph (2) of subdivision (a) of Section 362.04 of the Welfare and Institutions Code, may allow his or her adult friends and family to provide short-term care to the foster child and act as an appropriate occasional short-term babysitter for the child.

(B) Parents of a foster child's friends when the child is visiting the friend's home and the friend, certified foster parent or both are also present. However, the certified foster parent, acting as a reasonable and prudent parent, may allow the parent of the foster child's friends to act as an appropriate short-term babysitter for the child without the friend being present.

(C) Individuals who are engaged by any certified foster parent to provide short-term babysitting to the child for periods not to exceed 24 hours. Certified foster parents shall use a reasonable and prudent parent standard in selecting appropriate individuals to act as appropriate occasional short-term babysitters.

(7) The following persons in small family homes:

(A) Adult friends and family of the licensee who come into the home to visit, for a length of time no longer than one month, provided they are not left alone with the children.

(B) Parents of a child's friends when the child is visiting the friend's home and the friend, foster parent or both are also present.

(8) The following persons in adult residential facilities unless contraindicated by the client's individualized program plan (IPP), or needs and service plan:

(A) A spouse, significant other, relative, close friend of a client, or the attendant or facilitator who is not employed, retained or contracted by the licensee for a client with a developmental disability, as long as the person is visiting the resident or providing direct care and supervision to that client only.

(B) An attendant or facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained or contracted by the licensee.

(C) The exemptions in Section 80019(b)(9)(A) or (B) apply only if the person is visiting the client or providing direct care and supervision to the client.

(9) Nothing in this paragraph shall prevent a licensee from requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.

(c) Prior to the Department issuing a licensee, the applicant, administrator and any adult other than a client, residing in the facility shall obtain a California criminal record clearance or exemption as specified in Health and Safety Code section 1522(a)(4).

(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 80019(i) 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, 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 to comply with the requirements of Section 80019(e), prior to the individual's employment, residence, or initial presence in the community 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 Department.

(e) All individuals subject to a criminal record review pursuant to Health and Safety Code Section 1522 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 80019(f) or

(4) Request and be approved for a transfer of a criminal record exemption, as specified in Section 80019.1(r), unless, upon request for the 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:

(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., Criminal Record Statement -- LIC 508, (Rev. 1/03) or for Foster Family Homes, Small Family Homes and Certified Family Homes an LIC 508D (Rev. 1/03) which are incorporated by reference, and job description].

(g) Violation of Section 80019(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 1548.

(h) Violation of Section 80019(e) may result in a denial of the license application or suspension and/or revocation of the license.

(i) If the criminal record transcript of any individuals specified in Health and Safety Code Section 1522(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 80019.1(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 1558, 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, exclusion of the affected individual pursuant to Health and Safety Code Section 1558, and denial of the application or revocation of the license, if the individual continues to provide services and/or reside at the facility.

(j) 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 80066.

(1) Documentation shall be available for inspection by the Department.

(k) 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.

(l) An individual with arrest history described in Health and Safety Code section 1522(e) 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(s), if available, as indicated on criminal history information received from Department of Justice.

(6) The subject of the notice 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 of the notice 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 of the notice 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.

(m) 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 (l) notify the subject of the following:

(1) The Department has completed its investigation into arrest information.

(2) The Department will not grant the subject a criminal record clearance.

(3) The decision, if not appealed, will bar the subject from presence in a licensed facility.

(4) The arrest information 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.

(n) For initial applications where the subject does not have a conviction, the Accusation described in paragraph (7) of subdivision (m) shall be filed within 40 days of a decision to deny a criminal record clearance.

Notes

Cal. Code Regs. Tit. 22, § 80019

1. Amendment filed 8-17-88; operative 9-16-88 (Register 88, No. 34).
2. Amendment of subsection (c)(1) filed 2-5-88; operative 3-6-88 (Register 88, No. 8).
3. Amendment of subsection (d) and NOTE filed 10-9-91; operative 11-8-91 (Register 92, 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. Editorial correction deleting extraneous text (Register 95, No. 25).
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, and new subsections (b)-(b)(10) filed 12-19-2000; operative 1-1-2001 (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. 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.
11. 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.
12. 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).
13. Amendment filed 7-11-2006; operative 8-10-2006 (Register 2006, No. 28).
14. Repealer of subsections (b)(7)-(b)(7)(D)3. and subsection renumbering filed 12-13-2006; operative 1-12-2007 (Register 2006, No. 50).
15. Change without regulatory effect amending subsections (b)(8) and (c) filed 1-5-2016 pursuant to section 100, title 1, California Code of Regulations (Register 2016, No. 2).
16. New subsections (e)(1)-(e)(1)(A), subsection renumbering, new subsections (l)-(n) 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.
17. Editorial correction of HISTORY 16 (Register 2022, No. 11).

Note: Authority cited: Sections 1530 and 1548(e), Health and Safety Code. Reference: Section 11505, Government Code; and Sections 1503.5, 1505, 1508, 1522, 1531, 1533, 1538, 1540, 1540.1, 1541, 1547, 1548 and 1549, Health and Safety Code.

1. Amendment filed 8-17-88; operative 9-16-88 (Register 88, No. 34).
2. Amendment of subsection (c)(1) filed 2-5-88; operative 3-6-88 (Register 88, No. 8).
3. Amendment of subsection (d) and Note filed 10-9-91; operative 11-8-91 (Register 92, 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. Editorial correction deleting extraneous text (Register 95, No. 25).
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, and new subsections (b)-(b)(10) filed 12-19-2000; operative 1-1-2001 (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. 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.
11. 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.
12. 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).
13. Amendment filed 7-11-2006; operative 8-10-2006 (Register 2006, No. 28).
14. Repealer of subsections (b)(7)-(b)(7)(D)3. and subsection renumbering filed 12-13-2006; operative 1-12-2007 (Register 2006, No. 50).
15. Change without regulatory effect amending subsections (b)(8) and (c) filed 1-5-2016 pursuant to section 100, title 1, California Code of Regulations (Register 2016, No. 2).
16. New subsections (e)(1)-(e)(1)(A), subsection renumbering and new subsections (l)-(l)(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.