§ 82019. Criminal Record Clearance.

(a) The Department shall conduct a criminal record review of all individuals specified in Health and Safety Code Sections 1522(a) and (b)(1) and shall have the authority to approve or deny a day program license, employment, residence, or presence in the program, based on the results of the review.

(b) The following persons, who are not licensees or employees of the licensee, are exempt from the requirement to submit fingerprints:

(1) A medical professional, as defined in Section 82001(m), who holds a valid license or certification from the individual's governing California medical care regulatory entity and who is not 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.

(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, and are in the day program at the request of that client or the client's legal decision maker.

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

(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 day program premises.

(C) The same group does not conduct such activities more often than four times a month not to exceed two hours each time.

(6) The following persons, unless contraindicated by the client's individualized program plan (IPP), or needs and services plan:

(A) A client's relative or close friend who is visiting the client.

(B) An attendant or facilitator providing direct care and supervision for a client with a developmental disability if the attendant or facilitator is not retained or contracted by the licensee.

(C) A volunteer, if all of the following apply:

1. The volunteer is supervised by the licensee or a day program employee with a criminal record clearance or exemption.

2. The volunteer is never left alone with clients.

3. The volunteer does not provide any client assistance with dressing, grooming, bathing or personal hygiene other than washing of hands.

(7) 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 license, the applicant and administrator shall obtain a California criminal record clearance or exemption as specified in Health and Safety Code Section 1522(a)(1).

(d) All individuals subject to a criminal record review shall be fingerprinted and sign a Criminal Record Statement (LIC 508) under penalty of perjury with the following information.

(1) Declare whether he/she has been convicted of a crime, other than a minor traffic violation as specified in Section 82019(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.

(2) If convicted of a crime other than a minor traffic violation, provide information regarding the conviction.

(3) 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 the requirements of Section 82019(e), prior to the individual's employment or initial presence in the day program.

(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) Prior to working, residing or volunteering in a licensed day program, all individuals subject to a criminal record review pursuant to Health and Safety Code Section 1522 shall do the following:

(1) Obtain a California clearance or a criminal record exemption as required by the Department; or

(2) Request the licensee or applicant for a license to request a transfer of a criminal record clearance as specified in Section 82019(f); or

(3) Request and be approved for a transfer of a criminal record exemption, as specified in Section 82019.1(r), unless, upon request for the transfer, the Department permits the individual to be employed, reside or be present at the day program.

(f) A licensee or applicant for a license may request of 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).

(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) Documentation required by the Department on form LIC 508, Criminal Record Statement and job description.

(g) Violation of Section 82019(e) shall result in an immediate assessment of civil penalties of one hundred dollars ($100) per violation per day for maximum of five (5) days by the Department.

(1) Subsequent violations within a twelve (12) month period shall 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 82019(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 the individuals specified in Health and Safety Code Sections 1522(a) and (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 82019.1(k) has not been granted, the Department shall take the following actions:

(1) For initial applicants, deny 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 at the day program.

(4) For convicted individuals residing at the day program, including spouses of the applicant, licensee, or employee, 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 reside at the day program.

(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 82066, Personnel Records.

(k) The licensee shall maintain documentation of criminal record clearances or criminal record exemptions of volunteers that require fingerprinting.

(1) The licensing agency shall have the authority to inspect, audit, and copy this documentation upon demand during normal business hours. Records may be removed if necessary for copying. Removal of records shall be subject to the requirements specified in Sections 82066(c).

(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.

HISTORY

1. New section filed 12-13-2006; operative 1-12-2007 (Register 2006, No. 50).

Note

Note: Authority cited: Sections 1530 and 1530.1, Health and Safety Code. Reference: Sections 1522, 1531, 1540, 1549 and 1564, Health and Safety Code.