Cal. Code Regs. Tit. 22, § 87819 - Criminal Record Clearance
(a) The Department shall conduct a criminal
record review of all the persons listed in Subsection (b) below 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.
(1) Prior to the Department issuing a
license, the applicant, administrator and any adults, other than a client
residing in the facility shall obtain a California criminal record clearance or
exemption.
(2) 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:
(A) A signed Criminal Background Clearance
Transfer Request, LIC 9182 (Rev. 4/02).
(B) A copy of the individual's:
1. Driver's license, or
2. Valid identification card issued by the
Department of Motor Vehicles, or
3.
Valid photo identification issued by another state or the United States
government if the individual is not a California resident.
(C) Any other documentation required by the
Department (e.g., LIC 508, Criminal Record Statement [Rev. 1/03] and job
description).
(3) 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.
(A) A person signing the LIC 508 must:
1. Declare whether he/she has been convicted
of a crime, other than a minor traffic violation as specified in Section
87819(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.
2. If convicted of a crime other than a minor
traffic violation, as specified in Section
87819(g), provide
information regarding the conviction.
(4) The licensee shall submit the
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 complying with Section
87819(a)(2) prior
to the individual's employment, residence, or initial presence in the 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.
(b)
The following persons and any other adults specified in Health and Safety Code
Section 1568.09 shall be required to be fingerprinted and comply with
applicable criminal records requirements:
(1)
The applicant for the license.
(A) If the
applicant is a firm, partnership, association, or corporation, the chief
executive officer or other person serving in like capacity.
(2) Adults responsible for administration or
direct supervision of staff.
(3)
Any person, other than a resident, residing in the facility.
(4) Any facility personnel who provides
resident assistance in dressing, grooming, bathing, or personal hygiene. Any
nurse assistant or home health aide meeting the requirements of Health and
Safety Code 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 fall
under this exemption shall provide one copy of his or her current
certification, prior to providing care, to the adult community care facility.
Nothing in this paragraph restricts the right of the Department to exclude a
certified nurse assistant or certified home health aide from a licensed
community care facility pursuant to Health and Safety Code Section
1558.
(5) Any staff person or
employee who has contact with the residents.
(c) The following individual's are exempt
from the requirements applicable under Section
87819(b).
(1) A medical professional, as defined in
Section 87801(m)(1), 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
governing 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 repair person 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 client's legal decision maker.
(A) The exemption shall not apply to an
individual 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 permission of, the client.
(A) The exemption shall not apply to an
individual 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) A volunteer 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 is never left alone with clients.
(C) The volunteer does not provide any client
assistance with dressing, grooming, bathing or personal
hygiene.
(7) The
following individuals unless contraindicated by the client's needs and service
plan:
(A) A spouse, relative, significant
other, or close friend of a client.
(B) An attendant or facilitator if the
attendant or facilitator is not employed, retained or contracted by the
licensee.
(C) The exemptions in
Sections 87819(d)(7)(A) or
(B) apply only if the individual is visiting
the client or providing direct care and supervision to that client
only.
(8) 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.
(d) All individuals subject to a criminal
record review pursuant to Health and Safety Code Section 1568.09 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
87819(a)(2)
or
(4) Request and be approved for
a transfer of a criminal record exemption, as specified in Section
87819.1(r),
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
87819(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) 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 1568.0822.
(f) Violation of Section
87819(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 1568.09 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
87219.1(a) has
not been granted, the Department shall take the following actions:
(1) For initial applicant, 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 1568.092 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,
including spouses of the applicant, licensee, or employee, exclusion of the
affected individual pursuant to Health and Safety Code Section 1568.092 and
denial of the application or revocation of the license if the individual
continues to provide services and/or reside in the
facility.
(h) 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
87866.
(i) The licensee shall maintain documentation
of criminal record clearances or criminal record exemptions of volunteers that
require fingerprinting and non-client adults residing in the facility.
(1) Documentation shall be available for
inspection by the Department.
(j) 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.
(k) An individual with arrest history
described in Health and Safety Code section 1568.09(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, if
available, as indicated on criminal history information received from
DOJ.
(6) That 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.
(l) 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 (k) notify the subject of the following:
(1) The Department has completed its
investigation into arrest information.
(2) The Department will not grant the
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.
(m) For initial
applications, where the subject does not have a conviction, the Accusation
described in paragraph (7) of subdivision (l) shall be filed
within 40 days of a decision to deny a criminal record clearance.
Notes
2. New section refiled 12-3-91 as an emergency; operative 12-3-91 (Register 92, No. 9). A Certificate of Compliance must be transmitted to OAL 4-1-92 or emergency language will be repealed by operation of law on the following day.
3. Change without regulatory effect amending subsection (a)(3) filed 3-10-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 15).
4. Certificate of Compliance as to 12-3-91 order including amendment of subsection (c)(3) transmitted to OAL 4-1-92 and filed 5-13-92 (Register 92, No. 23).
5. 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.
6. Editorial correction of HISTORY 5 (Register 2000, No. 38).
7. 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).
8. Editorial correction of subsections (a), (a)(3) and (b) (Register 2002, No. 14).
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 of subsection (e), new subsection (e)(1), subsection renumbering, repealer of subsection (h), subsection relettering and amendment of NOTE filed 7-11-2006; operative 8-10-2006 (Register 2006, No. 28).
14. New subsections (d)(1)-(d)(1)(A), subsection renumbering, new subsections (k)-(m) 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.
15. Editorial correction of History 14 (Register 2022, No. 11).
Note: Authority cited: Sections 1568.072 and 1568.0822(e), Health and Safety Code. Reference: Section 11505, Government Code; and Sections 1568.072, 1568.09 and 1568.22, Health and Safety Code.
2. New section refiled 12-3-91 as an emergency; operative 12-3-91 (Register 92, No. 9). A Certificate of Compliance must be transmitted to OAL 4-1-92 or emergency language will be repealed by operation of law on the following day.
3. Change without regulatory effect amending subsection (a)(3) filed 3-10-92 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 15).
4. Certificate of Compliance as to 12-3-91 order including amendment of subsection (c)(3) transmitted to OAL 4-1-92 and filed 5-13-92 (Register 92, No. 23).
5. 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.
6. Editorial correction of History 5 (Register 2000, No. 38).
7. 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).
8. Editorial correction of subsections (a), (a)(3) and (b) (Register 2002, No. 14).
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 of subsection (e), new subsection (e)(1), subsection renumbering, repealer of subsection (h), subsection relettering and amendment of Note filed 7-11-2006; operative 8-10-2006 (Register 2006, No. 28).
14. New subsections (d)(1)-(d)(1)(A), subsection renumbering and new subsections (k)-(k)(7) filed 12-15-2021; operative
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