5400. The Director of Mental Health shall administer this part and
shall adopt rules, regulations and standards as necessary. In
developing rules, regulations, and standards, the Director of Mental
Health shall consult with the California Conference of Local Mental
Health Directors, the California Council on Mental Health, and the
office of the Attorney General. Adoption of such standards, rules and
regulations shall require approval by the California Conference of
Local Mental Health Directors by majority vote of those present at an
official session.
Wherever feasible and appropriate, rules, regulations and
standards adopted under this part shall correspond to comparable
rules, regulations, and standards adopted under the Short-Doyle Act.
Such corresponding rules, regulations, and standards shall include
qualifications for professional personnel.
Regulations adopted pursuant to this part may provide standards
for services for chronic alcoholics which differ from the standards
for services for the mentally disordered.
5402. (a) The State Department of Mental Health shall collect and
publish annually quantitative information concerning the operation of
this division including the number of persons admitted for 72-hour
evaluation and treatment, 14-day and 30-day periods of intensive
treatment, and 180-day postcertification intensive treatment, the
number of persons transferred to mental health facilities pursuant to
Section 4011.6 of the Penal Code, the number of persons for whom
temporary conservatorships are established, and the number of persons
for whom conservatorships are established in each county.
(b) Each local mental health director, and each facility providing
services to persons pursuant to this division, shall provide the
department, upon its request, with any information, records, and
reports which the department deems necessary for the purposes of this
section. The department shall not have access to any patient name
identifiers.
(c) Information published pursuant to this section shall not
contain patient name identifiers and shall contain statistical data
only.
(d) The department shall make the reports available to medical,
legal, and other professional groups involved in the implementation
of this division.
5402.2. The Director of Mental Health shall develop a master plan
for the utilization of state hospital facilities identifying levels
of care. The level of care shall be either general acute care,
skilled nursing care, subacute, intermediate care, or residential
care.
5403. (a) From July 1, 1991 to June 30, 1993, inclusive,
regulations promulgated by the department shall not be subject to the
approval of the California Conference of Local Mental Health
Directors. The impact of this subdivision on regulatory timing shall
be included in the department's report to the Legislature on
September 30, 1992.
(b) The department shall continue to involve the conference in the
development of all regulations which affect local mental health
programs prior to the promulgation of those regulations pursuant to
the Administrative Procedure Act.
5404. Each county may designate facilities, which are not hospitals
or clinics, as 72-hour evaluation and treatment facilities and as
14-day intensive treatment facilities if such facilities meet such
requirements as the Director of Mental Health shall establish by
regulation. The Director of Mental Health shall encourage the use by
counties of appropriate facilities, which are not hospitals or
clinics, for the evaluation and treatment of patients pursuant to
this part.
5405. (a) This section shall apply to each facility licensed by the
State Department of Mental Health, or its delegated agent, on or
after January 1, 2003. For purposes of this section, "facility"
includes psychiatric health facilities, as defined in Section 1250.2
of the Health and Safety Code, licensed pursuant to Chapter 9
(commencing with Section 77001) of Division 5 of Title 22 of the
California Code of Regulations and mental health rehabilitation
centers licensed pursuant to Chapter 3.5 (commencing with Section
781.00) of Division 1 of Title 9 of the California Code of
Regulations.
(b) (1) (A) Prior to the initial licensure or first renewal of a
license on or after January 1, 2003, of any person to operate or
manage a facility specified in subdivision (a), the department shall
submit fingerprint images and related information pertaining to the
applicant or licensee to the Department of Justice for purposes of a
criminal record check, as specified in paragraph (2), at the expense
of the applicant or licensee. The Department of Justice shall provide
the results of the criminal record check to the department. The
department may take into consideration information obtained from or
provided by other government agencies. The department shall determine
whether the applicant or licensee has ever been convicted of a crime
specified in subdivision (c). The department shall submit
fingerprint images and related information each time the position of
administrator, manager, program director, or fiscal officer of a
facility is filled and prior to actual employment for initial
licensure or an individual who is initially hired on or after January
1, 2003. For purposes of this subdivision, "applicant" and "licensee"
include the administrator, manager, program director, or fiscal
officer of a facility.
(B) Commencing January 1, 2003, upon the employment of, or
contract with or for, any direct care staff the department shall
submit fingerprint images and related information pertaining to the
direct care staff person to the Department of Justice for purposes of
a criminal record check, as specified in paragraph (2), at the
expense of the direct care staff person or licensee. The Department
of Justice shall provide the results of the criminal record check to
the department. The department shall determine whether the direct
care staff person has ever been convicted of a crime specified in
subdivision (c). The department shall notify the licensee of these
results. No direct client contact by the trainee or newly hired
staff, or by any direct care contractor shall occur prior to
clearance 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 provided
directly to patients or residents shall contain provisions to ensure
that the direct services contractor submits to the department
fingerprint images and related information pertaining to the direct
services contractor for submission to the Department of Justice for
purposes of a criminal record check, as specified in paragraph (2),
at the expense of the direct services contractor or licensee. The
Department of Justice shall provide the results of the criminal
record check to the department. The department shall determine
whether the direct services contractor has ever been convicted of a
crime specified in subdivision (c). The department shall notify the
licensee of these results.
(2) If the applicant, licensee, direct care staff person, or
direct services contractor specified in paragraph (1) has resided in
California for at least the previous seven years, the department
shall only require the submission of one set of fingerprint images
and related information. The Department of Justice shall charge a fee
sufficient to cover the reasonable cost of processing the
fingerprint submission. Fingerprints and related information
submitted pursuant to this subdivision include fingerprint images
captured and transmitted electronically. When requested, the
Department of Justice shall forward one set of fingerprint images to
the Federal Bureau of Investigation for the purpose of obtaining any
record of previous convictions or arrests pending adjudication of the
applicant, licensee, direct care staff person, or direct services
contractor. The results of a criminal record check provided by the
Department of Justice shall contain every conviction rendered against
an applicant, licensee, direct care staff person, or direct services
contractor, and every offense for which the applicant, licensee,
direct care staff person, or direct services contractor is presently
awaiting trial, whether the person is incarcerated or has been
released on bail or on his or her own recognizance pending trial. The
department shall request subsequent arrest notification from the
Department of Justice pursuant to Section 11105.2 of the Penal Code.
(3) An applicant and any other person specified in this
subdivision, as part of the background clearance process, shall
provide information as to whether or not the person has any prior
criminal convictions, has had any arrests within the past 12-month
period, or has any active arrests, and shall certify that, to the
best of his or her knowledge, the information provided is true. This
requirement is not intended to duplicate existing requirements for
individuals who are required to submit fingerprint images as part of
a criminal background clearance process. Every applicant shall
provide information on any prior administrative action taken against
him or her by any federal, state, or local government agency and
shall certify that, to the best of his or her knowledge, the
information provided is true. An applicant or other person required
to provide information pursuant to this section that knowingly or
willfully makes false statements, representations, or omissions may
be subject to administrative action, including, but not limited to,
denial of his or her application or exemption or revocation of any
exemption previously granted.
(c) (1) The department shall deny any application for any license,
suspend or revoke any existing license, and disapprove or revoke any
employment or contract for direct services, if the applicant,
licensee, employee, or direct services contractor has been convicted
of, or incarcerated for, a felony defined in subdivision (c) of
Section 667.5 of, or subdivision (c) of Section 1192.7 of, the Penal
Code, within the preceding 10 years.
(2) The application for licensure or renewal of any license shall
be denied, and any employment or contract to provide direct services
shall be disapproved or revoked, if the criminal record of the person
includes a conviction in another jurisdiction for an offense that,
if committed or attempted in this state, would have been punishable
as one or more of the offenses referred to in paragraph (1).
(d) (1) The department may approve an application for, or renewal
of, a license, or continue any employment or contract for direct
services, if the person has been convicted of a misdemeanor offense
that is not a crime upon the person of another, the nature of which
has no bearing upon the duties for which the person will perform as a
licensee, direct care staff person, or direct services contractor.
In determining whether to approve the application, employment, or
contract for direct services, the department shall take into
consideration the factors enumerated in paragraph (2).
(2) Notwithstanding subdivision (c), if the criminal record of a
person indicates any conviction other than a minor traffic violation,
the department may deny the application for license or renewal, and
may disapprove or revoke any employment or contract for direct
services. In determining whether or not to deny the application for
licensure or renewal, or to disapprove or revoke any employment or
contract for direct services, the department shall take into
consideration the following factors:
(A) The nature and seriousness of the offense under consideration
and its relationship to the person's employment, duties, and
responsibilities.
(B) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(C) The time that has elapsed since the commission of the conduct
or offense and the number of offenses.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed 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 that
would demonstrate the unlikelihood of repetition.
(H) The granting by the Governor of a full and unconditional
pardon.
(I) A certificate of rehabilitation from a superior court.
(e) Denial, suspension, or revocation of a license, or disapproval
or revocation of any employment or contract for direct services
specified in subdivision (c) and paragraph (2) of subdivision (d) are
not subject to appeal, except as provided in subdivision (f).
(f) After a review of the record, the director may grant an
exemption from denial, suspension, or revocation of any license, or
disapproval of any employment or contract for direct services, if the
crime for which the person was convicted was a property crime that
did not involve injury to any person and the director has substantial
and convincing evidence to support a reasonable belief that the
person is of such good character as to justify issuance or renewal of
the license or approval of the employment or contract.
(g) A plea or verdict of guilty, or a conviction following a plea
of nolo contendere shall be deemed a conviction within the meaning of
this section. The department may deny any application, or deny,
suspend, or revoke a license, or disapprove or revoke any employment
or contract for direct services based on a conviction specified in
subdivision (c) when the judgment of conviction is entered or when an
order granting probation is made suspending the imposition of
sentence.
(h) (1) For purposes of this section, "direct care staff" means
any person who is an employee, contractor, or volunteer who has
contact with other patients or residents in the provision of
services. Administrative and licensed personnel shall be considered
direct care staff when directly providing program services to
participants.
(2) An additional background check shall not be required pursuant
to this section if the direct care staff or licensee has received a
prior criminal history background check while working in a mental
health rehabilitation center or psychiatric health facility licensed
by the department, and provided the department has maintained
continuous subsequent arrest notification on the individual from the
Department of Justice since the prior criminal background check was
initiated.
(3) When an application is denied on the basis of a conviction
pursuant to this section, the department shall provide the individual
whose application was denied with notice, in writing, of the
specific grounds for the proposed denial.
5400. The Director of Mental Health shall administer this part and
shall adopt rules, regulations and standards as necessary. In
developing rules, regulations, and standards, the Director of Mental
Health shall consult with the California Conference of Local Mental
Health Directors, the California Council on Mental Health, and the
office of the Attorney General. Adoption of such standards, rules and
regulations shall require approval by the California Conference of
Local Mental Health Directors by majority vote of those present at an
official session.
Wherever feasible and appropriate, rules, regulations and
standards adopted under this part shall correspond to comparable
rules, regulations, and standards adopted under the Short-Doyle Act.
Such corresponding rules, regulations, and standards shall include
qualifications for professional personnel.
Regulations adopted pursuant to this part may provide standards
for services for chronic alcoholics which differ from the standards
for services for the mentally disordered.
5402. (a) The State Department of Mental Health shall collect and
publish annually quantitative information concerning the operation of
this division including the number of persons admitted for 72-hour
evaluation and treatment, 14-day and 30-day periods of intensive
treatment, and 180-day postcertification intensive treatment, the
number of persons transferred to mental health facilities pursuant to
Section 4011.6 of the Penal Code, the number of persons for whom
temporary conservatorships are established, and the number of persons
for whom conservatorships are established in each county.
(b) Each local mental health director, and each facility providing
services to persons pursuant to this division, shall provide the
department, upon its request, with any information, records, and
reports which the department deems necessary for the purposes of this
section. The department shall not have access to any patient name
identifiers.
(c) Information published pursuant to this section shall not
contain patient name identifiers and shall contain statistical data
only.
(d) The department shall make the reports available to medical,
legal, and other professional groups involved in the implementation
of this division.
5402.2. The Director of Mental Health shall develop a master plan
for the utilization of state hospital facilities identifying levels
of care. The level of care shall be either general acute care,
skilled nursing care, subacute, intermediate care, or residential
care.
5403. (a) From July 1, 1991 to June 30, 1993, inclusive,
regulations promulgated by the department shall not be subject to the
approval of the California Conference of Local Mental Health
Directors. The impact of this subdivision on regulatory timing shall
be included in the department's report to the Legislature on
September 30, 1992.
(b) The department shall continue to involve the conference in the
development of all regulations which affect local mental health
programs prior to the promulgation of those regulations pursuant to
the Administrative Procedure Act.
5404. Each county may designate facilities, which are not hospitals
or clinics, as 72-hour evaluation and treatment facilities and as
14-day intensive treatment facilities if such facilities meet such
requirements as the Director of Mental Health shall establish by
regulation. The Director of Mental Health shall encourage the use by
counties of appropriate facilities, which are not hospitals or
clinics, for the evaluation and treatment of patients pursuant to
this part.
5405. (a) This section shall apply to each facility licensed by the
State Department of Mental Health, or its delegated agent, on or
after January 1, 2003. For purposes of this section, "facility"
includes psychiatric health facilities, as defined in Section 1250.2
of the Health and Safety Code, licensed pursuant to Chapter 9
(commencing with Section 77001) of Division 5 of Title 22 of the
California Code of Regulations and mental health rehabilitation
centers licensed pursuant to Chapter 3.5 (commencing with Section
781.00) of Division 1 of Title 9 of the California Code of
Regulations.
(b) (1) (A) Prior to the initial licensure or first renewal of a
license on or after January 1, 2003, of any person to operate or
manage a facility specified in subdivision (a), the department shall
submit fingerprint images and related information pertaining to the
applicant or licensee to the Department of Justice for purposes of a
criminal record check, as specified in paragraph (2), at the expense
of the applicant or licensee. The Department of Justice shall provide
the results of the criminal record check to the department. The
department may take into consideration information obtained from or
provided by other government agencies. The department shall determine
whether the applicant or licensee has ever been convicted of a crime
specified in subdivision (c). The department shall submit
fingerprint images and related information each time the position of
administrator, manager, program director, or fiscal officer of a
facility is filled and prior to actual employment for initial
licensure or an individual who is initially hired on or after January
1, 2003. For purposes of this subdivision, "applicant" and "licensee"
include the administrator, manager, program director, or fiscal
officer of a facility.
(B) Commencing January 1, 2003, upon the employment of, or
contract with or for, any direct care staff the department shall
submit fingerprint images and related information pertaining to the
direct care staff person to the Department of Justice for purposes of
a criminal record check, as specified in paragraph (2), at the
expense of the direct care staff person or licensee. The Department
of Justice shall provide the results of the criminal record check to
the department. The department shall determine whether the direct
care staff person has ever been convicted of a crime specified in
subdivision (c). The department shall notify the licensee of these
results. No direct client contact by the trainee or newly hired
staff, or by any direct care contractor shall occur prior to
clearance 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 provided
directly to patients or residents shall contain provisions to ensure
that the direct services contractor submits to the department
fingerprint images and related information pertaining to the direct
services contractor for submission to the Department of Justice for
purposes of a criminal record check, as specified in paragraph (2),
at the expense of the direct services contractor or licensee. The
Department of Justice shall provide the results of the criminal
record check to the department. The department shall determine
whether the direct services contractor has ever been convicted of a
crime specified in subdivision (c). The department shall notify the
licensee of these results.
(2) If the applicant, licensee, direct care staff person, or
direct services contractor specified in paragraph (1) has resided in
California for at least the previous seven years, the department
shall only require the submission of one set of fingerprint images
and related information. The Department of Justice shall charge a fee
sufficient to cover the reasonable cost of processing the
fingerprint submission. Fingerprints and related information
submitted pursuant to this subdivision include fingerprint images
captured and transmitted electronically. When requested, the
Department of Justice shall forward one set of fingerprint images to
the Federal Bureau of Investigation for the purpose of obtaining any
record of previous convictions or arrests pending adjudication of the
applicant, licensee, direct care staff person, or direct services
contractor. The results of a criminal record check provided by the
Department of Justice shall contain every conviction rendered against
an applicant, licensee, direct care staff person, or direct services
contractor, and every offense for which the applicant, licensee,
direct care staff person, or direct services contractor is presently
awaiting trial, whether the person is incarcerated or has been
released on bail or on his or her own recognizance pending trial. The
department shall request subsequent arrest notification from the
Department of Justice pursuant to Section 11105.2 of the Penal Code.
(3) An applicant and any other person specified in this
subdivision, as part of the background clearance process, shall
provide information as to whether or not the person has any prior
criminal convictions, has had any arrests within the past 12-month
period, or has any active arrests, and shall certify that, to the
best of his or her knowledge, the information provided is true. This
requirement is not intended to duplicate existing requirements for
individuals who are required to submit fingerprint images as part of
a criminal background clearance process. Every applicant shall
provide information on any prior administrative action taken against
him or her by any federal, state, or local government agency and
shall certify that, to the best of his or her knowledge, the
information provided is true. An applicant or other person required
to provide information pursuant to this section that knowingly or
willfully makes false statements, representations, or omissions may
be subject to administrative action, including, but not limited to,
denial of his or her application or exemption or revocation of any
exemption previously granted.
(c) (1) The department shall deny any application for any license,
suspend or revoke any existing license, and disapprove or revoke any
employment or contract for direct services, if the applicant,
licensee, employee, or direct services contractor has been convicted
of, or incarcerated for, a felony defined in subdivision (c) of
Section 667.5 of, or subdivision (c) of Section 1192.7 of, the Penal
Code, within the preceding 10 years.
(2) The application for licensure or renewal of any license shall
be denied, and any employment or contract to provide direct services
shall be disapproved or revoked, if the criminal record of the person
includes a conviction in another jurisdiction for an offense that,
if committed or attempted in this state, would have been punishable
as one or more of the offenses referred to in paragraph (1).
(d) (1) The department may approve an application for, or renewal
of, a license, or continue any employment or contract for direct
services, if the person has been convicted of a misdemeanor offense
that is not a crime upon the person of another, the nature of which
has no bearing upon the duties for which the person will perform as a
licensee, direct care staff person, or direct services contractor.
In determining whether to approve the application, employment, or
contract for direct services, the department shall take into
consideration the factors enumerated in paragraph (2).
(2) Notwithstanding subdivision (c), if the criminal record of a
person indicates any conviction other than a minor traffic violation,
the department may deny the application for license or renewal, and
may disapprove or revoke any employment or contract for direct
services. In determining whether or not to deny the application for
licensure or renewal, or to disapprove or revoke any employment or
contract for direct services, the department shall take into
consideration the following factors:
(A) The nature and seriousness of the offense under consideration
and its relationship to the person's employment, duties, and
responsibilities.
(B) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(C) The time that has elapsed since the commission of the conduct
or offense and the number of offenses.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed 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 that
would demonstrate the unlikelihood of repetition.
(H) The granting by the Governor of a full and unconditional
pardon.
(I) A certificate of rehabilitation from a superior court.
(e) Denial, suspension, or revocation of a license, or disapproval
or revocation of any employment or contract for direct services
specified in subdivision (c) and paragraph (2) of subdivision (d) are
not subject to appeal, except as provided in subdivision (f).
(f) After a review of the record, the director may grant an
exemption from denial, suspension, or revocation of any license, or
disapproval of any employment or contract for direct services, if the
crime for which the person was convicted was a property crime that
did not involve injury to any person and the director has substantial
and convincing evidence to support a reasonable belief that the
person is of such good character as to justify issuance or renewal of
the license or approval of the employment or contract.
(g) A plea or verdict of guilty, or a conviction following a plea
of nolo contendere shall be deemed a conviction within the meaning of
this section. The department may deny any application, or deny,
suspend, or revoke a license, or disapprove or revoke any employment
or contract for direct services based on a conviction specified in
subdivision (c) when the judgment of conviction is entered or when an
order granting probation is made suspending the imposition of
sentence.
(h) (1) For purposes of this section, "direct care staff" means
any person who is an employee, contractor, or volunteer who has
contact with other patients or residents in the provision of
services. Administrative and licensed personnel shall be considered
direct care staff when directly providing program services to
participants.
(2) An additional background check shall not be required pursuant
to this section if the direct care staff or licensee has received a
prior criminal history background check while working in a mental
health rehabilitation center or psychiatric health facility licensed
by the department, and provided the department has maintained
continuous subsequent arrest notification on the individual from the
Department of Justice since the prior criminal background check was
initiated.
(3) When an application is denied on the basis of a conviction
pursuant to this section, the department shall provide the individual
whose application was denied with notice, in writing, of the
specific grounds for the proposed denial.
5400. The Director of Mental Health shall administer this part and
shall adopt rules, regulations and standards as necessary. In
developing rules, regulations, and standards, the Director of Mental
Health shall consult with the California Conference of Local Mental
Health Directors, the California Council on Mental Health, and the
office of the Attorney General. Adoption of such standards, rules and
regulations shall require approval by the California Conference of
Local Mental Health Directors by majority vote of those present at an
official session.
Wherever feasible and appropriate, rules, regulations and
standards adopted under this part shall correspond to comparable
rules, regulations, and standards adopted under the Short-Doyle Act.
Such corresponding rules, regulations, and standards shall include
qualifications for professional personnel.
Regulations adopted pursuant to this part may provide standards
for services for chronic alcoholics which differ from the standards
for services for the mentally disordered.
5402. (a) The State Department of Mental Health shall collect and
publish annually quantitative information concerning the operation of
this division including the number of persons admitted for 72-hour
evaluation and treatment, 14-day and 30-day periods of intensive
treatment, and 180-day postcertification intensive treatment, the
number of persons transferred to mental health facilities pursuant to
Section 4011.6 of the Penal Code, the number of persons for whom
temporary conservatorships are established, and the number of persons
for whom conservatorships are established in each county.
(b) Each local mental health director, and each facility providing
services to persons pursuant to this division, shall provide the
department, upon its request, with any information, records, and
reports which the department deems necessary for the purposes of this
section. The department shall not have access to any patient name
identifiers.
(c) Information published pursuant to this section shall not
contain patient name identifiers and shall contain statistical data
only.
(d) The department shall make the reports available to medical,
legal, and other professional groups involved in the implementation
of this division.
5402.2. The Director of Mental Health shall develop a master plan
for the utilization of state hospital facilities identifying levels
of care. The level of care shall be either general acute care,
skilled nursing care, subacute, intermediate care, or residential
care.
5403. (a) From July 1, 1991 to June 30, 1993, inclusive,
regulations promulgated by the department shall not be subject to the
approval of the California Conference of Local Mental Health
Directors. The impact of this subdivision on regulatory timing shall
be included in the department's report to the Legislature on
September 30, 1992.
(b) The department shall continue to involve the conference in the
development of all regulations which affect local mental health
programs prior to the promulgation of those regulations pursuant to
the Administrative Procedure Act.
5404. Each county may designate facilities, which are not hospitals
or clinics, as 72-hour evaluation and treatment facilities and as
14-day intensive treatment facilities if such facilities meet such
requirements as the Director of Mental Health shall establish by
regulation. The Director of Mental Health shall encourage the use by
counties of appropriate facilities, which are not hospitals or
clinics, for the evaluation and treatment of patients pursuant to
this part.
5405. (a) This section shall apply to each facility licensed by the
State Department of Mental Health, or its delegated agent, on or
after January 1, 2003. For purposes of this section, "facility"
includes psychiatric health facilities, as defined in Section 1250.2
of the Health and Safety Code, licensed pursuant to Chapter 9
(commencing with Section 77001) of Division 5 of Title 22 of the
California Code of Regulations and mental health rehabilitation
centers licensed pursuant to Chapter 3.5 (commencing with Section
781.00) of Division 1 of Title 9 of the California Code of
Regulations.
(b) (1) (A) Prior to the initial licensure or first renewal of a
license on or after January 1, 2003, of any person to operate or
manage a facility specified in subdivision (a), the department shall
submit fingerprint images and related information pertaining to the
applicant or licensee to the Department of Justice for purposes of a
criminal record check, as specified in paragraph (2), at the expense
of the applicant or licensee. The Department of Justice shall provide
the results of the criminal record check to the department. The
department may take into consideration information obtained from or
provided by other government agencies. The department shall determine
whether the applicant or licensee has ever been convicted of a crime
specified in subdivision (c). The department shall submit
fingerprint images and related information each time the position of
administrator, manager, program director, or fiscal officer of a
facility is filled and prior to actual employment for initial
licensure or an individual who is initially hired on or after January
1, 2003. For purposes of this subdivision, "applicant" and "licensee"
include the administrator, manager, program director, or fiscal
officer of a facility.
(B) Commencing January 1, 2003, upon the employment of, or
contract with or for, any direct care staff the department shall
submit fingerprint images and related information pertaining to the
direct care staff person to the Department of Justice for purposes of
a criminal record check, as specified in paragraph (2), at the
expense of the direct care staff person or licensee. The Department
of Justice shall provide the results of the criminal record check to
the department. The department shall determine whether the direct
care staff person has ever been convicted of a crime specified in
subdivision (c). The department shall notify the licensee of these
results. No direct client contact by the trainee or newly hired
staff, or by any direct care contractor shall occur prior to
clearance 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 provided
directly to patients or residents shall contain provisions to ensure
that the direct services contractor submits to the department
fingerprint images and related information pertaining to the direct
services contractor for submission to the Department of Justice for
purposes of a criminal record check, as specified in paragraph (2),
at the expense of the direct services contractor or licensee. The
Department of Justice shall provide the results of the criminal
record check to the department. The department shall determine
whether the direct services contractor has ever been convicted of a
crime specified in subdivision (c). The department shall notify the
licensee of these results.
(2) If the applicant, licensee, direct care staff person, or
direct services contractor specified in paragraph (1) has resided in
California for at least the previous seven years, the department
shall only require the submission of one set of fingerprint images
and related information. The Department of Justice shall charge a fee
sufficient to cover the reasonable cost of processing the
fingerprint submission. Fingerprints and related information
submitted pursuant to this subdivision include fingerprint images
captured and transmitted electronically. When requested, the
Department of Justice shall forward one set of fingerprint images to
the Federal Bureau of Investigation for the purpose of obtaining any
record of previous convictions or arrests pending adjudication of the
applicant, licensee, direct care staff person, or direct services
contractor. The results of a criminal record check provided by the
Department of Justice shall contain every conviction rendered against
an applicant, licensee, direct care staff person, or direct services
contractor, and every offense for which the applicant, licensee,
direct care staff person, or direct services contractor is presently
awaiting trial, whether the person is incarcerated or has been
released on bail or on his or her own recognizance pending trial. The
department shall request subsequent arrest notification from the
Department of Justice pursuant to Section 11105.2 of the Penal Code.
(3) An applicant and any other person specified in this
subdivision, as part of the background clearance process, shall
provide information as to whether or not the person has any prior
criminal convictions, has had any arrests within the past 12-month
period, or has any active arrests, and shall certify that, to the
best of his or her knowledge, the information provided is true. This
requirement is not intended to duplicate existing requirements for
individuals who are required to submit fingerprint images as part of
a criminal background clearance process. Every applicant shall
provide information on any prior administrative action taken against
him or her by any federal, state, or local government agency and
shall certify that, to the best of his or her knowledge, the
information provided is true. An applicant or other person required
to provide information pursuant to this section that knowingly or
willfully makes false statements, representations, or omissions may
be subject to administrative action, including, but not limited to,
denial of his or her application or exemption or revocation of any
exemption previously granted.
(c) (1) The department shall deny any application for any license,
suspend or revoke any existing license, and disapprove or revoke any
employment or contract for direct services, if the applicant,
licensee, employee, or direct services contractor has been convicted
of, or incarcerated for, a felony defined in subdivision (c) of
Section 667.5 of, or subdivision (c) of Section 1192.7 of, the Penal
Code, within the preceding 10 years.
(2) The application for licensure or renewal of any license shall
be denied, and any employment or contract to provide direct services
shall be disapproved or revoked, if the criminal record of the person
includes a conviction in another jurisdiction for an offense that,
if committed or attempted in this state, would have been punishable
as one or more of the offenses referred to in paragraph (1).
(d) (1) The department may approve an application for, or renewal
of, a license, or continue any employment or contract for direct
services, if the person has been convicted of a misdemeanor offense
that is not a crime upon the person of another, the nature of which
has no bearing upon the duties for which the person will perform as a
licensee, direct care staff person, or direct services contractor.
In determining whether to approve the application, employment, or
contract for direct services, the department shall take into
consideration the factors enumerated in paragraph (2).
(2) Notwithstanding subdivision (c), if the criminal record of a
person indicates any conviction other than a minor traffic violation,
the department may deny the application for license or renewal, and
may disapprove or revoke any employment or contract for direct
services. In determining whether or not to deny the application for
licensure or renewal, or to disapprove or revoke any employment or
contract for direct services, the department shall take into
consideration the following factors:
(A) The nature and seriousness of the offense under consideration
and its relationship to the person's employment, duties, and
responsibilities.
(B) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(C) The time that has elapsed since the commission of the conduct
or offense and the number of offenses.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed 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 that
would demonstrate the unlikelihood of repetition.
(H) The granting by the Governor of a full and unconditional
pardon.
(I) A certificate of rehabilitation from a superior court.
(e) Denial, suspension, or revocation of a license, or disapproval
or revocation of any employment or contract for direct services
specified in subdivision (c) and paragraph (2) of subdivision (d) are
not subject to appeal, except as provided in subdivision (f).
(f) After a review of the record, the director may grant an
exemption from denial, suspension, or revocation of any license, or
disapproval of any employment or contract for direct services, if the
crime for which the person was convicted was a property crime that
did not involve injury to any person and the director has substantial
and convincing evidence to support a reasonable belief that the
person is of such good character as to justify issuance or renewal of
the license or approval of the employment or contract.
(g) A plea or verdict of guilty, or a conviction following a plea
of nolo contendere shall be deemed a conviction within the meaning of
this section. The department may deny any application, or deny,
suspend, or revoke a license, or disapprove or revoke any employment
or contract for direct services based on a conviction specified in
subdivision (c) when the judgment of conviction is entered or when an
order granting probation is made suspending the imposition of
sentence.
(h) (1) For purposes of this section, "direct care staff" means
any person who is an employee, contractor, or volunteer who has
contact with other patients or residents in the provision of
services. Administrative and licensed personnel shall be considered
direct care staff when directly providing program services to
participants.
(2) An additional background check shall not be required pursuant
to this section if the direct care staff or licensee has received a
prior criminal history background check while working in a mental
health rehabilitation center or psychiatric health facility licensed
by the department, and provided the department has maintained
continuous subsequent arrest notification on the individual from the
Department of Justice since the prior criminal background check was
initiated.
(3) When an application is denied on the basis of a conviction
pursuant to this section, the department shall provide the individual
whose application was denied with notice, in writing, of the
specific grounds for the proposed denial.
