SECTIONS 5400-5405

5400.  The Director of Mental Health shall administer this part andshall adopt rules, regulations and standards as necessary. Indeveloping rules, regulations, and standards, the Director of MentalHealth shall consult with the California Conference of Local MentalHealth Directors, the California Council on Mental Health, and theoffice of the Attorney General. Adoption of such standards, rules andregulations shall require approval by the California Conference ofLocal Mental Health Directors by majority vote of those present at anofficial session. Wherever feasible and appropriate, rules, regulations andstandards adopted under this part shall correspond to comparablerules, regulations, and standards adopted under the Short-Doyle Act.Such corresponding rules, regulations, and standards shall includequalifications for professional personnel. Regulations adopted pursuant to this part may provide standardsfor services for chronic alcoholics which differ from the standardsfor services for the mentally disordered.5402.  (a) The State Department of Mental Health shall collect andpublish annually quantitative information concerning the operation ofthis division including the number of persons admitted for 72-hourevaluation and treatment, 14-day and 30-day periods of intensivetreatment, and 180-day postcertification intensive treatment, thenumber of persons transferred to mental health facilities pursuant toSection 4011.6 of the Penal Code, the number of persons for whomtemporary conservatorships are established, and the number of personsfor whom conservatorships are established in each county. (b) Each local mental health director, and each facility providingservices to persons pursuant to this division, shall provide thedepartment, upon its request, with any information, records, andreports which the department deems necessary for the purposes of thissection. The department shall not have access to any patient nameidentifiers. (c) Information published pursuant to this section shall notcontain patient name identifiers and shall contain statistical dataonly. (d) The department shall make the reports available to medical,legal, and other professional groups involved in the implementationof this division.5402.2.  The Director of Mental Health shall develop a master planfor the utilization of state hospital facilities identifying levelsof care. The level of care shall be either general acute care,skilled nursing care, subacute, intermediate care, or residentialcare.5403.  (a) From July 1, 1991 to June 30, 1993, inclusive,regulations promulgated by the department shall not be subject to theapproval of the California Conference of Local Mental HealthDirectors. The impact of this subdivision on regulatory timing shallbe included in the department's report to the Legislature onSeptember 30, 1992. (b) The department shall continue to involve the conference in thedevelopment of all regulations which affect local mental healthprograms prior to the promulgation of those regulations pursuant tothe Administrative Procedure Act.5404.  Each county may designate facilities, which are not hospitalsor clinics, as 72-hour evaluation and treatment facilities and as14-day intensive treatment facilities if such facilities meet suchrequirements as the Director of Mental Health shall establish byregulation. The Director of Mental Health shall encourage the use bycounties of appropriate facilities, which are not hospitals orclinics, for the evaluation and treatment of patients pursuant tothis part.5405.  (a) This section shall apply to each facility licensed by theState Department of Mental Health, or its delegated agent, on orafter January 1, 2003. For purposes of this section, "facility"includes psychiatric health facilities, as defined in Section 1250.2of the Health and Safety Code, licensed pursuant to Chapter 9(commencing with Section 77001) of Division 5 of Title 22 of theCalifornia Code of Regulations and mental health rehabilitationcenters licensed pursuant to Chapter 3.5 (commencing with Section781.00) of Division 1 of Title 9 of the California Code ofRegulations. (b) (1) (A) Prior to the initial licensure or first renewal of alicense on or after January 1, 2003, of any person to operate ormanage a facility specified in subdivision (a), the department shallsubmit fingerprint images and related information pertaining to theapplicant or licensee to the Department of Justice for purposes of acriminal record check, as specified in paragraph (2), at the expenseof the applicant or licensee. The Department of Justice shall providethe results of the criminal record check to the department. Thedepartment may take into consideration information obtained from orprovided by other government agencies. The department shall determinewhether the applicant or licensee has ever been convicted of a crimespecified in subdivision (c). The department shall submitfingerprint images and related information each time the position ofadministrator, manager, program director, or fiscal officer of afacility is filled and prior to actual employment for initiallicensure or an individual who is initially hired on or after January1, 2003. For purposes of this subdivision, "applicant" and "licensee"include the administrator, manager, program director, or fiscalofficer of a facility. (B) Commencing January 1, 2003, upon the employment of, orcontract with or for, any direct care staff the department shallsubmit fingerprint images and related information pertaining to thedirect care staff person to the Department of Justice for purposes ofa criminal record check, as specified in paragraph (2), at theexpense of the direct care staff person or licensee. The Departmentof Justice shall provide the results of the criminal record check tothe department. The department shall determine whether the directcare staff person has ever been convicted of a crime specified insubdivision (c). The department shall notify the licensee of theseresults. No direct client contact by the trainee or newly hiredstaff, or by any direct care contractor shall occur prior toclearance by the department unless the trainee, newly hired employee,contractor, or employee of the contractor is constantly supervised. (C) Commencing January 1, 2003, any contract for services provideddirectly to patients or residents shall contain provisions to ensurethat the direct services contractor submits to the departmentfingerprint images and related information pertaining to the directservices contractor for submission to the Department of Justice forpurposes of a criminal record check, as specified in paragraph (2),at the expense of the direct services contractor or licensee. TheDepartment of Justice shall provide the results of the criminalrecord check to the department. The department shall determinewhether the direct services contractor has ever been convicted of acrime specified in subdivision (c). The department shall notify thelicensee of these results. (2) If the applicant, licensee, direct care staff person, ordirect services contractor specified in paragraph (1) has resided inCalifornia for at least the previous seven years, the departmentshall only require the submission of one set of fingerprint imagesand related information. The Department of Justice shall charge a feesufficient to cover the reasonable cost of processing thefingerprint submission. Fingerprints and related informationsubmitted pursuant to this subdivision include fingerprint imagescaptured and transmitted electronically. When requested, theDepartment of Justice shall forward one set of fingerprint images tothe Federal Bureau of Investigation for the purpose of obtaining anyrecord of previous convictions or arrests pending adjudication of theapplicant, licensee, direct care staff person, or direct servicescontractor. The results of a criminal record check provided by theDepartment of Justice shall contain every conviction rendered againstan applicant, licensee, direct care staff person, or direct servicescontractor, and every offense for which the applicant, licensee,direct care staff person, or direct services contractor is presentlyawaiting trial, whether the person is incarcerated or has beenreleased on bail or on his or her own recognizance pending trial. Thedepartment shall request subsequent arrest notification from theDepartment of Justice pursuant to Section 11105.2 of the Penal Code. (3) An applicant and any other person specified in thissubdivision, as part of the background clearance process, shallprovide information as to whether or not the person has any priorcriminal convictions, has had any arrests within the past 12-monthperiod, or has any active arrests, and shall certify that, to thebest of his or her knowledge, the information provided is true. Thisrequirement is not intended to duplicate existing requirements forindividuals who are required to submit fingerprint images as part ofa criminal background clearance process. Every applicant shallprovide information on any prior administrative action taken againsthim or her by any federal, state, or local government agency andshall certify that, to the best of his or her knowledge, theinformation provided is true. An applicant or other person requiredto provide information pursuant to this section that knowingly orwillfully makes false statements, representations, or omissions maybe subject to administrative action, including, but not limited to,denial of his or her application or exemption or revocation of anyexemption previously granted. (c) (1) The department shall deny any application for any license,suspend or revoke any existing license, and disapprove or revoke anyemployment or contract for direct services, if the applicant,licensee, employee, or direct services contractor has been convictedof, or incarcerated for, a felony defined in subdivision (c) ofSection 667.5 of, or subdivision (c) of Section 1192.7 of, the PenalCode, within the preceding 10 years. (2) The application for licensure or renewal of any license shallbe denied, and any employment or contract to provide direct servicesshall be disapproved or revoked, if the criminal record of the personincludes a conviction in another jurisdiction for an offense that,if committed or attempted in this state, would have been punishableas one or more of the offenses referred to in paragraph (1). (d) (1) The department may approve an application for, or renewalof, a license, or continue any employment or contract for directservices, if the person has been convicted of a misdemeanor offensethat is not a crime upon the person of another, the nature of whichhas no bearing upon the duties for which the person will perform as alicensee, direct care staff person, or direct services contractor.In determining whether to approve the application, employment, orcontract for direct services, the department shall take intoconsideration the factors enumerated in paragraph (2). (2) Notwithstanding subdivision (c), if the criminal record of aperson indicates any conviction other than a minor traffic violation,the department may deny the application for license or renewal, andmay disapprove or revoke any employment or contract for directservices. In determining whether or not to deny the application forlicensure or renewal, or to disapprove or revoke any employment orcontract for direct services, the department shall take intoconsideration the following factors: (A) The nature and seriousness of the offense under considerationand its relationship to the person's employment, duties, andresponsibilities. (B) Activities since conviction, including employment orparticipation in therapy or education, that would indicate changedbehavior. (C) The time that has elapsed since the commission of the conductor offense and the number of offenses. (D) The extent to which the person has complied with any terms ofparole, probation, restitution, or any other sanction lawfullyimposed against the person. (E) Any rehabilitation evidence, including character references,submitted by the person. (F) Employment history and current employer recommendations. (G) Circumstances surrounding the commission of the offense thatwould demonstrate the unlikelihood of repetition. (H) The granting by the Governor of a full and unconditionalpardon. (I) A certificate of rehabilitation from a superior court. (e) Denial, suspension, or revocation of a license, or disapprovalor revocation of any employment or contract for direct servicesspecified in subdivision (c) and paragraph (2) of subdivision (d) arenot subject to appeal, except as provided in subdivision (f). (f) After a review of the record, the director may grant anexemption from denial, suspension, or revocation of any license, ordisapproval of any employment or contract for direct services, if thecrime for which the person was convicted was a property crime thatdid not involve injury to any person and the director has substantialand convincing evidence to support a reasonable belief that theperson is of such good character as to justify issuance or renewal ofthe license or approval of the employment or contract. (g) A plea or verdict of guilty, or a conviction following a pleaof nolo contendere shall be deemed a conviction within the meaning ofthis section. The department may deny any application, or deny,suspend, or revoke a license, or disapprove or revoke any employmentor contract for direct services based on a conviction specified insubdivision (c) when the judgment of conviction is entered or when anorder granting probation is made suspending the imposition ofsentence. (h) (1) For purposes of this section, "direct care staff" meansany person who is an employee, contractor, or volunteer who hascontact with other patients or residents in the provision ofservices. Administrative and licensed personnel shall be considereddirect care staff when directly providing program services toparticipants. (2) An additional background check shall not be required pursuantto this section if the direct care staff or licensee has received aprior criminal history background check while working in a mentalhealth rehabilitation center or psychiatric health facility licensedby the department, and provided the department has maintainedcontinuous subsequent arrest notification on the individual from theDepartment of Justice since the prior criminal background check wasinitiated. (3) When an application is denied on the basis of a convictionpursuant to this section, the department shall provide the individualwhose application was denied with notice, in writing, of thespecific grounds for the proposed denial.