BILL NUMBER: SB 1136 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 27, 2014
AMENDED IN SENATE APRIL 29, 2014
INTRODUCED BY Senators Huff and Mitchell
(Coauthors: Senators Leno and Wolk)
(Coauthors: Assembly Members Chávez, Gorell, Olsen, and
Wieckowski)
FEBRUARY 20, 2014
An act to amend Section Sections
1522 and 1522.08 of the Health and Safety Code, to amend
Section Sections 11105.2 and 11170 of
the Penal Code, and to amend Section 16504.5 of, and to add Section
16504.7 to, the Welfare and Institutions Code, relating to foster
care.
LEGISLATIVE COUNSEL'S DIGEST
SB 1136, as amended, Huff. Foster care providers: criminal
records.
Existing law requires the State Department of Social Services to
license and regulate community care facilities, including foster
family homes, certified family homes of licensed foster family
agencies, and group homes. Existing law requires that persons
providing care or services at these homes or facilities obtain either
a criminal record clearance or an exemption from disqualification
from the department, as prescribed.
Existing law authorizes a child welfare agency to secure from an
appropriate governmental criminal justice agency the state summary
criminal history information for specified purposes, including an
assessment of the appropriateness of placing a child subject to the
jurisdiction of the juvenile court with a relative or nonrelative
extended family member. Existing law also authorizes the Department
of Justice to provide information contained in the Child Abuse
Central Index to the State Department of Social Services, or to any
county licensing agency that has contracted with the state for the
performance of licensing duties.
This bill would authorize the State Department of Social
Services to share summary information related to a criminal record
clearance or exemption granted by the department with a county child
welfare agency with responsibility to monitor the health and safety
of persons receiving care, treatment, or services from state-licensed
foster homes, certified homes of licensed foster family agencies,
and employees of those agencies, and licensed group homes. The bill
would allow the State Department of Social Services and county child
welfare agencies to share information with respect to applicants,
licensees, certificates, or individuals who have been the subject of
any administrative action resulting in the denial or
revocation of a license or in the exclusion of a person from a
facility who is subject to a background check.
The bill would require the State Department of Social
Services to provide to a county child welfare agency a list of each
person who has received a criminal records exemption related to a
licensed or certified foster home so that the county may assess the
appropriateness and safety of placing a child in the foster home with
which the individual is associated. The bill would further authorize
a county child welfare agency to receive state-summary criminal
history information for purposes of assessing the appropriateness
and safety of placing a child who has been detained or is
a dependent of the court in a licensed foster family home, group
home, or state-licensed foster home. The bill would authorize a
county child welfare agency to submit to the Department of
Justice fingerprint images and related information of an individual
who has received a criminal record exemption, for the purposes of
obtaining information as to the existence and content of a record of
state or federal convictions and arrests, as specified. The
bill would require, if the county uses this information as the basis
for determining that a licensed or certified foster care placement is
not an appropriate placement for a child, the county to furnish a
copy of the information to the person to whom the information relates
and to provide the person with an opportunity to contest or appeal
the decision within the agency.
The bill would authorize the Department of Justice to provide
subsequent state or federal arrest or disposition notification to any
entity authorized by state or federal law to receive state or
federal summary criminal history information to assist in fulfilling
duties of placing a child in a licensed foster family home, group
home, or state-licensed foster home.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1522 of the Health and Safety Code is amended
to read:
1522. The Legislature recognizes the need to generate timely and
accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a community
care facility, foster family home, or a certified family home of a
licensed foster family agency, and to assess the appropriateness and
safety of placing specific children in those homes and facilities.
Therefore, the Legislature supports the use of the fingerprint
live-scan technology, as identified in the long-range plan of the
Department of Justice for fully automating the processing of
fingerprints and other data by the year 1999, otherwise known as the
California Crime Information Intelligence System (CAL-CII), to be
used for applicant fingerprints. It is the intent of the Legislature
in enacting this section to require the fingerprints of those
individuals whose contact with community care clients may pose a risk
to the clients' health and safety. An individual shall be required
to obtain either a criminal record clearance or a criminal record
exemption from the State Department of Social Services before his or
her initial presence in a community care facility.
(a) (1) Before issuing a license or special permit to any person
or persons to operate or manage a community care facility, the State
Department of Social Services shall secure from an appropriate law
enforcement agency a criminal record to determine whether the
applicant or any other person specified in subdivision (b) has ever
been convicted of a crime other than a minor traffic violation or
arrested for any crime specified in Section 290 of the Penal Code,
for violating Section 245 or 273.5, of the Penal Code, subdivision
(b) of Section 273a of the Penal Code, or, prior to January 1, 1994,
paragraph (2) of Section 273a of the Penal Code, or for any crime for
which the department cannot grant an exemption if the person was
convicted and the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) Except during the 2003-04 to the 2014-15 fiscal years,
inclusive, neither the Department of Justice nor the State Department
of Social Services may charge a fee for the fingerprinting of an
applicant for a license or special permit to operate a facility
providing nonmedical board, room, and care for six or less children
or for obtaining a criminal record of the applicant pursuant to this
section.
(4) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), has been
convicted of a crime other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (g).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (1) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (g).
(E) An applicant and any other person specified in subdivision (b)
shall submit fingerprint images and related information to the
Department of Justice for the purpose of searching the criminal
records of the Federal Bureau of Investigation, in addition to the
criminal records search required by this subdivision. If an applicant
and all other persons described in subdivision (b) meet all of the
conditions for licensure, except receipt of the Federal Bureau of
Investigation's criminal offender record information search response
for the applicant or any of the persons described in subdivision (b),
the department may issue a license if the applicant and each person
described in subdivision (b) has signed and submitted a statement
that he or she has never been convicted of a crime in the United
States, other than a traffic infraction, as prescribed in paragraph
(1) of subdivision (a) of Section 42001 of the Vehicle Code. If,
after licensure, the department determines that the licensee or any
other person specified in subdivision (b) has a criminal record, the
license may be revoked pursuant to Section 1550. The department may
also suspend the license pending an administrative hearing pursuant
to Section 1550.5.
(F) The State Department of Social Services shall develop
procedures to provide the individual's state and federal criminal
history information with the written notification of his or her
exemption denial or revocation based on the criminal record. Receipt
of the criminal history information shall be optional on the part of
the individual, as set forth in the agency's procedures. The
procedure shall protect the confidentiality and privacy of the
individual's record, and the criminal history information shall not
be made available to the employer.
(G) Notwithstanding any other law, the department is authorized to
provide an individual with a copy of his or her state or federal
level criminal offender record information search response as
provided to that department by the Department of Justice if the
department has denied a criminal background clearance based on this
information and the individual makes a written request to the
department for a copy specifying an address to which it is to be
sent. The state or federal level criminal offender record information
search response shall not be modified or altered from its form or
content as provided by the Department of Justice and shall be
provided to the address specified by the individual in his or her
written request. The department shall retain a copy of the individual'
s written request and the response and date provided.
(b) (1) In addition to the applicant, this section shall be
applicable to criminal convictions of the following persons:
(A) Adults responsible for administration or direct supervision of
staff.
(B) Any person, other than a client, residing in the facility.
(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of 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 falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the community
care facility. The facility shall maintain the copy of the
certification on file as long as care is being provided by the
certified nurse assistant or certified home health aide at the
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
Section 1558.
(D) Any staff person, volunteer, or employee who has contact with
the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
like capacity.
(F) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(2) The following persons are exempt from the requirements
applicable under paragraph (1):
(A) A medical professional as defined in department regulations
who holds a valid license or certification from the person's
governing California medical care regulatory entity and who is not
employed, retained, or contracted by the licensee if all of the
following apply:
(i) The criminal record of the person has been cleared as a
condition of licensure or certification by the person's governing
California medical care regulatory entity.
(ii) The person is providing time-limited specialized clinical
care or services.
(iii) The person is providing care or services within the person's
scope of practice.
(iv) The person is not a community care facility licensee or an
employee of the facility.
(B) A third-party repair person or similar retained contractor if
all of the following apply:
(i) The person is hired for a defined, time-limited job.
(ii) The person is not left alone with clients.
(iii) 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.
(C) Employees of a licensed home health agency and other members
of licensed hospice interdisciplinary teams who have a contract with
a client or resident of the facility and are in the facility at the
request of that client or resident's legal decisionmaker. The
exemption does not apply to a person who is a community care facility
licensee or an employee of the facility.
(D) Clergy and other spiritual caregivers who are performing
services in common areas of the community care facility or who are
advising an individual client at the request of, or with the
permission of, the client or legal decisionmaker, are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption does not apply to a person
who is a community care licensee or employee of the facility.
(E) Members of fraternal, service, or similar organizations who
conduct group activities for clients if all of the following apply:
(i) Members are not left alone with clients.
(ii) Members do not transport clients off the facility premises.
(iii) The same organization does not conduct group activities for
clients more often than defined by the department's regulations.
(3) In addition to the exemptions in paragraph (2), the following
persons in foster family homes, certified family homes, and small
family homes are exempt from the requirements applicable under
paragraph (1):
(A) Adult friends and family of the licensed or certified foster
parent, who come into the home to visit for a length of time no
longer than defined by the department in regulations, provided that
the adult friends and family of the licensee are not left alone with
the foster children. However, the licensee, 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 friend when the foster child is
visiting the friend's home and the friend, licensed or certified
foster parent, or both are also present. However, the licensee,
acting as a reasonable and prudent parent, may allow the parent of
the foster child's friend to act as an appropriate short-term
babysitter for the child without the friend being present.
(C) Individuals who are engaged by any licensed or certified
foster parent to provide short-term care to the child for periods not
to exceed 24 hours. Caregivers shall use a reasonable and prudent
parent standard in selecting appropriate individuals to act as
appropriate occasional short-term babysitters.
(4) In addition to the exemptions specified in paragraph (2), the
following persons in adult day care and adult day support centers are
exempt from the requirements applicable under paragraph (1):
(A) Unless contraindicated by the client's individualized program
plan (IPP) or needs and service plan, a spouse, significant other,
relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to the client.
(B) A volunteer if all of the following applies:
(i) The volunteer is supervised by the licensee or a facility
employee with a criminal record clearance or exemption.
(ii) The volunteer is never left alone with clients.
(iii) The volunteer does not provide any client assistance with
dressing, grooming, bathing, or personal hygiene other than washing
of hands.
(5) (A) In addition to the exemptions specified in paragraph (2),
the following persons in adult residential and social rehabilitation
facilities, unless contraindicated by the client's individualized
program plan (IPP) or needs and services plan, are exempt from the
requirements applicable under paragraph (1): a spouse, significant
other, relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to that client.
(B) Nothing in this subdivision 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.
(6) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(c) (1) Subsequent to initial licensure, a person specified in
subdivision (b) who is not exempted from fingerprinting shall obtain
either a criminal record clearance or an exemption from
disqualification pursuant to subdivision (g) from the State
Department of Social Services prior to employment, residence, or
initial presence in the facility. A person specified in subdivision
(b) who is not exempt from fingerprinting shall be fingerprinted and
shall sign a declaration under penalty of perjury regarding any prior
criminal convictions. The licensee shall submit fingerprint images
and related information to the Department of Justice and the Federal
Bureau of Investigation, through the Department of Justice, for a
state and federal level criminal offender record information search,
or comply with paragraph (1) of subdivision (h). These fingerprint
images and related information shall be sent by electronic
transmission in a manner approved by the State Department of Social
Services and the Department of Justice for the purpose of obtaining a
permanent set of fingerprints, and shall be submitted to the
Department of Justice by the licensee. A licensee's failure to
prohibit the employment, residence, or initial presence of a person
specified in subdivision (b) who is not exempt from fingerprinting
and who has not received either a criminal record clearance or an
exemption from disqualification pursuant to subdivision (g) or to
comply with paragraph (1) of subdivision (h), as required in this
section, shall result in the citation of a deficiency and the
immediate assessment of civil penalties in the amount of one hundred
dollars ($100) per violation per day for a maximum of five days,
unless the violation is a second or subsequent violation within a
12-month period in which case the civil penalties shall be in the
amount of one hundred dollars ($100) per violation for a maximum of
30 days, and shall be grounds for disciplining the licensee pursuant
to Section 1550. The department may assess civil penalties for
continued violations as permitted by Section 1548. The fingerprint
images and related information shall then be submitted to the
Department of Justice for processing. Upon request of the licensee,
who shall enclose a self-addressed stamped postcard for this purpose,
the Department of Justice shall verify receipt of the fingerprints.
(2) Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided
for in subdivision (a). If no criminal record information has been
recorded, the Department of Justice shall provide the licensee and
the State Department of Social Services with a statement of that fact
within 14 calendar days of receipt of the fingerprint images.
Documentation of the individual's clearance or exemption from
disqualification shall be maintained by the licensee and be available
for inspection. If new fingerprint images are required for
processing, the Department of Justice shall, within 14 calendar days
from the date of receipt of the fingerprints, notify the licensee
that the fingerprints were illegible, the Department of Justice shall
notify the State Department of Social Services, as required by
Section 1522.04, and shall also notify the licensee by mail, within
14 days of electronic transmission of the fingerprints to the
Department of Justice, if the person has no criminal history
recorded. A violation of the regulations adopted pursuant to Section
1522.04 shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1550. The department may assess civil penalties for continued
violations as permitted by Section 1548.
(3) Except for persons specified in subdivision (b) who are exempt
from fingerprinting, the licensee shall endeavor to ascertain the
previous employment history of persons required to be fingerprinted.
If it is determined by the State Department of Social Services, on
the basis of the fingerprint images and related information submitted
to the Department of Justice, that subsequent to obtaining a
criminal record clearance or exemption from disqualification pursuant
to subdivision (g), the person has been convicted of, or is awaiting
trial for, a sex offense against a minor, or has been convicted for
an offense specified in Section 243.4, 273a, 273d, 273g, or 368 of
the Penal Code, or a felony, the State Department of Social Services
shall notify the licensee to act immediately to terminate the person'
s employment, remove the person from the community care facility, or
bar the person from entering the community care facility. The State
Department of Social Services may subsequently grant an exemption
from disqualification pursuant to subdivision (g). If the conviction
or arrest was for another crime, except a minor traffic violation,
the licensee shall, upon notification by the State Department of
Social Services, act immediately to either (A) terminate the person's
employment, remove the person from the community care facility, or
bar the person from entering the community care facility; or (B) seek
an exemption from disqualification pursuant to subdivision (g). The
State Department of Social Services shall determine if the person
shall be allowed to remain in the facility until a decision on the
exemption from disqualification is rendered. A licensee's failure to
comply with the department's prohibition of employment, contact with
clients, or presence in the facility as required by this paragraph
shall result in a citation of deficiency and an immediate assessment
of civil penalties in the amount of one hundred dollars ($100) per
violation per day and shall be grounds for disciplining the licensee
pursuant to Section 1550.
(4) The department may issue an exemption from disqualification on
its own motion pursuant to subdivision (g) if the person's criminal
history indicates that the person is of good character based on the
age, seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption from
disqualification pursuant to this paragraph.
(5) Concurrently with notifying the licensee pursuant to paragraph
(3), the department shall notify the affected individual of his or
her right to seek an exemption from disqualification pursuant to
subdivision (g). The individual may seek an exemption from
disqualification only if the licensee terminates the person's
employment or removes the person from the facility after receiving
notice from the department pursuant to paragraph (3).
(d) (1) Before issuing a license or certificate of approval to any
person or persons to operate a foster family home or certified
family home as described in Section 1506, the State Department of
Social Services or other approving authority shall secure California
and Federal Bureau of Investigation criminal history information to
determine whether the applicant or any person specified in
subdivision (b) who is not exempt from fingerprinting has ever been
convicted of a crime other than a minor traffic violation or arrested
for any crime specified in subdivision (c) of Section 290 of the
Penal Code, for violating Section 245 or 273.5, subdivision (b) of
Section 273a or, prior to January 1, 1994, paragraph (2) of Section
273a of the Penal Code, or for any crime for which the department
cannot grant an exemption if the person was convicted and the person
has not been exonerated. The State Department of Social Services or
other approving authority shall not issue a license or certificate of
approval to any foster family home or certified family home
applicant who has not obtained both a California and Federal Bureau
of Investigation criminal record clearance or exemption from
disqualification pursuant to subdivision (g).
(2) The criminal history information shall include the full
criminal record, if any, of those persons.
(3) Neither the Department of Justice nor the State Department of
Social Services may charge a fee for the fingerprinting of an
applicant for a license, special permit, or certificate of approval
described in this subdivision. The record, if any, shall be taken
into consideration when evaluating a prospective applicant.
(4) The following shall apply to the criminal record information:
(A) If the applicant or other persons specified in subdivision (b)
who are not exempt from fingerprinting have convictions that would
make the applicant's home unfit as a foster family home or a
certified family home, the license, special permit, or certificate of
approval shall be denied.
(B) If the State Department of Social Services finds that the
applicant, or any person specified in subdivision (b) who is not
exempt from fingerprinting is awaiting trial for a crime other than a
minor traffic violation, the State Department of Social Services or
other approving authority may cease processing the application until
the conclusion of the trial.
(C) For purposes of this subdivision, a criminal record clearance
provided under Section 8712 of the Family Code may be used by the
department or other approving agency.
(D) To the same extent required for federal funding, an applicant
for a foster family home license or for certification as a family
home, and any other person specified in subdivision (b) who is not
exempt from fingerprinting, shall submit a set of fingerprint images
and related information to the Department of Justice and the Federal
Bureau of Investigation, through the Department of Justice, for a
state and federal level criminal offender record information search,
in addition to the criminal records search required by subdivision
(a).
(5) Any person specified in this subdivision shall, as a part of
the application, be fingerprinted and sign a declaration under
penalty of perjury regarding any prior criminal convictions or
arrests for any crime against a child, spousal or cohabitant abuse
or, any crime for which the department cannot grant an exemption if
the person was convicted and shall submit these fingerprints to the
licensing agency or other approving authority.
(6) (A) Subsequent to initial licensure or certification, a person
specified in subdivision (b) who is not exempt from fingerprinting
shall obtain both a California and Federal Bureau of Investigation
criminal record clearance, or an exemption from disqualification
pursuant to subdivision (g), prior to employment, residence, or
initial presence in the foster family or certified family home. A
foster family home licensee or foster family agency shall submit
fingerprint images and related information of persons specified in
subdivision (b) who are not exempt from fingerprinting to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, or to comply with
paragraph (1) of subdivision (h). A foster family home licensee's or
a foster family agency's failure to either prohibit the employment,
residence, or initial presence of a person specified in subdivision
(b) who is not exempt from fingerprinting and who has not received
either a criminal record clearance or an exemption from
disqualification pursuant to subdivision (g), or comply with
paragraph (1) of subdivision (h), as required in this section, shall
result in a citation of a deficiency, and the immediate civil
penalties of one hundred dollars ($100) per violation per day for a
maximum of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining the
licensee pursuant to Section 1550. A violation of the regulation
adopted pursuant to Section 1522.04 shall result in the citation of a
deficiency and an immediate assessment of civil penalties in the
amount of one hundred
dollars ($100) per violation per day for a maximum of five days,
unless the violation is a second or subsequent violation within a
12-month period in which case the civil penalties shall be in the
amount of one hundred dollars ($100) per violation for a maximum of
30 days, and shall be grounds for disciplining the foster family home
licensee or the foster family agency pursuant to Section 1550. The
State Department of Social Services may assess penalties for
continued violations, as permitted by Section 1548. The fingerprint
images shall then be submitted to the Department of Justice for
processing.
(B) Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the Department of Justice
shall verify receipt of the fingerprints. Within five working days of
the receipt of the criminal record or information regarding criminal
convictions from the Department of Justice, the department shall
notify the applicant of any criminal arrests or convictions. If no
arrests or convictions are recorded, the Department of Justice shall
provide the foster family home licensee or the foster family agency
with a statement of that fact concurrent with providing the
information to the State Department of Social Services.
(7) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) who is
not exempt from fingerprinting, has been convicted of a crime other
than a minor traffic violation, the application shall be denied,
unless the director grants an exemption from disqualification
pursuant to subdivision (g).
(8) If the State Department of Social Services finds after
licensure or the granting of the certificate of approval that the
licensee, certified foster parent, or any other person specified in
subdivision (b) who is not exempt from fingerprinting, has been
convicted of a crime other than a minor traffic violation, the
license or certificate of approval may be revoked by the department
or the foster family agency, whichever is applicable, unless the
director grants an exemption from disqualification pursuant to
subdivision (g). A licensee's failure to comply with the department's
prohibition of employment, contact with clients, or presence in the
facility as required by paragraph (3) of subdivision (c) shall be
grounds for disciplining the licensee pursuant to Section 1550.
(e) The State Department of Social Services shall not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client. The State
Department of Social Services is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license, and
investigate community care facilities and individuals associated with
a community care facility.
(f) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
State Department of Social Services is permitted to take following
the establishment of a conviction may be taken when the time for
appeal has elapsed, when the judgment of conviction has been affirmed
on appeal, or when an order granting probation is made suspending
the imposition of sentence, notwithstanding a subsequent order
pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting
the person to withdraw his or her plea of guilty and to enter a plea
of not guilty, or setting aside the verdict of guilty, or dismissing
the accusation, information, or indictment. For purposes of this
section or any other provision of this chapter, the record of a
conviction, or a copy thereof certified by the clerk of the court or
by a judge of the court in which the conviction occurred, shall be
conclusive evidence of the conviction. For purposes of this section
or any other provision of this chapter, the arrest disposition report
certified by the Department of Justice, or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code, shall be
prima facie evidence of the conviction, notwithstanding any other
law prohibiting the admission of these documents in a civil or
administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(g) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraph (4) of subdivision (a), or for a license,
special permit, or certificate of approval as specified in paragraphs
(4), (7), and (8) of subdivision (d), or for employment, residence,
or presence in a community care facility as specified in paragraphs
(3), (4), and (5) of subdivision (c), if the director has substantial
and convincing evidence to support a reasonable belief that the
applicant and the person convicted of the crime, if other than the
applicant, are of good character as to justify issuance of the
license or special permit or granting an exemption for purposes of
subdivision (c). Except as otherwise provided in this subdivision, an
exemption shall not be granted pursuant to this subdivision if the
conviction was for any of the following offenses:
(A) (i) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(c) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(ii) Notwithstanding clause (i), the director may grant an
exemption regarding the conviction for an offense described in
paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5
of the Penal Code, if the employee or prospective employee has been
rehabilitated as provided in Section 4852.03 of the Penal Code, has
maintained the conduct required in Section 4852.05 of the Penal Code
for at least 10 years, and has the recommendation of the district
attorney representing the employee's county of residence, or if the
employee or prospective employee has received a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code. This clause shall
not apply to foster care providers, including relative caregivers,
nonrelated extended family members, or any other person specified in
subdivision (b), in those homes where the individual has been
convicted of an offense described in paragraph (1) of subdivision (c)
of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) of Section
451 of the Penal Code.
(C) Under no circumstances shall an exemption be granted pursuant
to this subdivision to any foster care provider applicant if that
applicant, or any other person specified in subdivision (b) in those
homes, has a felony conviction for either of the following offenses:
(i) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subparagraph, a crime involving violence means a violent crime
specified in clause (i) of subparagraph (A), or subparagraph (B).
(ii) A felony conviction, within the last five years, for physical
assault, battery, or a drug- or alcohol-related offense.
(iii) This subparagraph shall not apply to licenses or approvals
wherein a caregiver was granted an exemption to a criminal conviction
described in clause (i) or (ii) prior to the enactment of this
subparagraph.
(iv) This subparagraph shall remain operative only to the extent
that compliance with its provisions is required by federal law as a
condition for receiving funding under Title IV-E of the federal
Social Security Act (42 U.S.C. Sec. 670 et seq.).
(2) The department shall not prohibit a person from being employed
or having contact with clients in a facility on the basis of a
denied criminal record exemption request or arrest information unless
the department complies with the requirements of Section 1558.
(h) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the State Department of Social
Services, and shall include a copy of the person's driver's license
or valid identification card issued by the Department of Motor
Vehicles, or a valid photo identification issued by another state or
the United States government if the person is not a California
resident. Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the State Department of
Social Services shall verify whether the individual has a clearance
that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of three years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearance to be transferred.
(3) The following shall apply to a criminal record clearance or
exemption from the department or a county office with
department-delegated licensing authority:
(A) A county office with department-delegated licensing authority
may accept a clearance or exemption from the department.
(B) The department may accept a clearance or exemption from any
county office with department-delegated licensing authority.
(C) A county office with department-delegated licensing authority
may accept a clearance or exemption from any other county office with
department-delegated licensing authority.
(4) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning an
individual whose criminal record clearance was originally processed
by the department or a county office with department-delegated
licensing authority, all of the following shall apply:
(A) The Department of Justice shall process a request from the
department or a county office with department-delegated licensing
authority to receive the notice only if all of the following
conditions are met:
(i) The request shall be submitted to the Department of Justice by
the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.
(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the
department and the Department of Justice.
(B) (i) On or before January 7, 2005, the department shall notify
the Department of Justice of all county offices that have
department-delegated licensing authority.
(ii) The department shall notify the Department of Justice within
15 calendar days of the date on which a new county office receives
department-delegated licensing authority or a county's delegated
licensing authority is rescinded.
(C) The Department of Justice shall charge the department, a
county office with department-delegated licensing authority, or a
county child welfare agency with criminal record clearance and
exemption authority, a fee for each time a request to substitute the
recipient agency is received for purposes of this paragraph. This fee
shall not exceed the cost of providing the service.
(5) (A) A county child welfare agency with authority to secure
clearances pursuant to Section 16504.5 of the Welfare and
Institutions Code and to grant exemptions pursuant to Section 361.4
of the Welfare and Institutions Code may accept a clearance or
exemption from another county with criminal record and exemption
authority pursuant to these sections.
(B) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning an
individual whose criminal record clearance was originally processed
by a county child welfare agency with criminal record clearance and
exemption authority, the Department of Justice shall process a
request from a county child welfare agency with criminal record and
exemption authority to receive the notice only if all of the
following conditions are met:
(i) The request shall be submitted to the Department of Justice by
the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.
(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the State
Department of Social Services and the Department of Justice.
(i) The full criminal record obtained for purposes of this section
may be used by the department or by a licensed adoption agency as a
clearance required for adoption purposes.
(j) The State Department of Social Services may share summary
information related to a criminal record clearance or exemption from
the department with a county child welfare agency with the
responsibility to monitor the health and safety of persons receiving
care, treatment, or services from state-licensed foster homes,
certified homes of licensed foster family agencies, licensed group
homes, and foster family agencies and their employees. A county
welfare agency may review information related to a criminal record
clearance or exemption granted by the State Department of Social
Services as one factor in addition to all other factors, considered
by a county welfare agency to determine the appropriate placement for
a child in a licensed or certified foster home.
(j)
(k) If a licensee or facility is required by law to
deny employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1558, the licensee or facility shall not
incur civil liability or unemployment insurance liability as a result
of that denial or termination.
(k)
(l) The State Department of Social Services may charge
a fee for the costs of processing electronic fingerprint images and
related information.
(l)
(m) Amendments to this section made in the 1999 portion
of the 1999-2000 Regular Session shall be implemented commencing 60
days after the effective date of the act amending this section in the
1999 portion of the 1999-2000 Regular Session, except that those
provisions for the submission of fingerprints for searching the
records of the Federal Bureau of Investigation shall be implemented
90 days after the effective date of that act.
SEC. 2. Section 1522.08 of the Health
and Safety Code , as amended by Section 15 of Chapter 22
of the Statutes of 2013, is amended to read:
1522.08. (a) In order to protect the health and safety of persons
receiving care or services from individuals or facilities licensed
or certified by the state, the following information may be
shared:
(1) The California Department of
Aging, State Department of Public Health, State Department of Health
Care Services, State Department of Social Services, and the Emergency
Medical Services Authority may share information with respect to
applicants, licensees, certificates, or individuals who have been the
subject of any administrative action resulting in the denial,
suspension, probation, or revocation of a license, permit, or
certificate, or in the exclusion of any person from a facility who is
subject to a background check, as otherwise provided by law.
(2) The State Department of Social Services and county child
welfare agencies may share information with respect to applicants,
licensees, certificates, or individuals who have been the subject of
any administrative action resulting in the denial, suspension,
probation, or revocation of a license, permit, or certificate, or in
the exclusion of any person from a facility who is subject to a
background check, as otherwise provided by law.
(b) The State Department of Social Services shall maintain a
centralized system for the monitoring and tracking of final
administrative actions, to be used by the California Department of
Aging, State Department of Public Health, State Department of Health
Care Services, State Department of Social Services, and
the Emergency Medical Services Authority , and county
child welfare agencies as a part of the background check
process. The State Department of Social Services may charge a fee to
departments under the jurisdiction of the California Health and Human
Services Agency and to county child welfare agencies
sufficient to cover the cost of providing those departments with the
final administrative action specified in subdivision (a). To the
extent that additional funds are needed for this purpose,
implementation of this subdivision shall be contingent upon a
specific appropriation provided for this purpose in the annual Budget
Act.
(c) The State Department of Social Services, in consultation with
the other departments under the jurisdiction of the California Health
and Human Services Agency, may adopt regulations to implement this
section.
(d) For the purposes of this section and Section 1499,
"administrative action" means any proceeding initiated by the
California Department of Aging, State Department of Public Health,
State Department of Health Care Services, State Department of Social
Services, and the Emergency Medical Services Authority to determine
the rights and duties of an applicant, licensee, or other individual
or entity over which the department has jurisdiction. "Administrative
action" may include, but is not limited to, action involving the
denial of an application for, or the suspension or revocation of, any
license, special permit, administrator certificate, criminal record
clearance, or exemption.
SEC. 3. Section 11105.2 of the Penal
Code is amended to read:
11105.2. (a) The Department of Justice may provide subsequent
state or federal arrest or disposition notification to any entity
authorized by state or federal law to receive state or federal
summary criminal history information to assist in fulfilling
employment, licensing, certification duties, duties of placing a
child in a licensed foster family home, group home, or state
-licensed foster home, or the duties of approving relative
caregivers and nonrelative extended family members, upon the arrest
or disposition of any person whose fingerprints are maintained on
file at the Department of Justice or the Federal Bureau of
Investigation as the result of an application for licensing,
employment, certification, or approval. Nothing in this section shall
authorize the notification of a subsequent disposition pertaining to
a disposition that does not result in a conviction, unless the
department has previously received notification of the arrest and has
previously lawfully notified a receiving entity of the pending
status of that arrest. When the department supplies subsequent arrest
or disposition notification to a receiving entity, the entity shall,
at the same time, expeditiously furnish a copy of the information to
the person to whom it relates if the information is a basis for an
adverse employment, licensing, or certification decision. When
furnished other than in person, the copy shall be delivered to the
last contact information provided by the applicant.
(b) For purposes of this section, "approval" means those duties
described in subdivision (d) of Section 309 of the Welfare and
Institutions Code for approving the home of a relative caregiver or
of a nonrelative extended family member for placement of a child
supervised by the juvenile court.
(c) Any entity, other than a law enforcement agency employing
peace officers as defined in Section 830.1, subdivisions (a) and (e)
of Section 830.2, subdivision (a) of Section 830.3, subdivisions (a)
and (b) of Section 830.5, and subdivision (a) of Section 830.31,
shall enter into a contract with the Department of Justice in order
to receive notification of subsequent state or federal arrests or
dispositions for licensing, employment, or certification purposes.
(d) Any entity which submits the fingerprints of applicants for
licensing, employment, certification, or approval to the Department
of Justice for the purpose of establishing a record of the applicant
to receive notification of subsequent state or federal arrests or
dispositions shall immediately notify the department when the
employment of the applicant is terminated, when the applicant's
license or certificate is revoked, when the applicant may no longer
renew or reinstate the license or certificate, when a placement
in a licensed foster family home, group home, or state
-licensed foster home associated with the applicant is terminated,
or when a relative caregiver's or nonrelative extended family
member's approval is terminated. The Department of Justice shall
terminate state or federal subsequent notification on any applicant
upon the request of the licensing, employment, certifying, or
approving authority.
(e) Any entity receiving a notification of a state or federal
subsequent arrest or disposition for a person unknown to the entity,
or for a person no longer employed by the entity, or no longer
eligible to renew the certificate or license for which subsequent
notification service was established shall immediately return the
subsequent notification to the Department of Justice, informing the
department that the entity is no longer interested in the applicant.
The entity shall not record or otherwise retain any information
received as a result of the subsequent notice.
(f) Any entity that submits the fingerprints of an applicant for
employment, licensing, certification, or approval to the Department
of Justice for the purpose of establishing a record at the department
or the Federal Bureau of Investigation to receive notification of
subsequent arrest or disposition shall immediately notify the
department if the applicant is not subsequently employed, or if the
applicant is denied licensing certification, or approval.
(g) An entity that fails to provide the Department of Justice with
notification as set forth in subdivisions (c), (d), and (e) may be
denied further subsequent notification service.
(h) Notwithstanding subdivisions (c), (d), and (f), subsequent
notification by the Department of Justice and retention by the
employing agency shall continue as to retired peace officers listed
in subdivision (c) of Section 830.5.
SEC. 2. SEC. 4. Section 11170 of the
Penal Code is amended to read:
11170. (a) (1) The Department of Justice shall maintain an index
of all reports of child abuse and severe neglect submitted pursuant
to Section 11169. The index shall be continually updated by the
department and shall not contain any reports that are determined to
be not substantiated. The department may adopt rules governing
recordkeeping and reporting pursuant to this article.
(2) The department shall act only as a repository of reports of
suspected child abuse and severe neglect to be maintained in the
Child Abuse Central Index (CACI) pursuant to paragraph (1). The
submitting agencies are responsible for the accuracy, completeness,
and retention of the reports described in this section. The
department shall be responsible for ensuring that the CACI accurately
reflects the report it receives from the submitting agency.
(3) Only information from reports that are reported as
substantiated shall be filed pursuant to paragraph (1), and all other
determinations shall be removed from the central list. If a person
listed in the CACI was under 18 years of age at the time of the
report, the information shall be deleted from the CACI 10 years from
the date of the incident resulting in the CACI listing, if no
subsequent report concerning the same person is received during that
time period.
(b) The provisions of subdivision (c) of Section 11169 apply to
any information provided pursuant to this subdivision.
(1) The Department of Justice shall immediately notify an agency
that submits a report pursuant to Section 11169, or a prosecutor who
requests notification, of any information maintained pursuant to
subdivision (a) that is relevant to the known or suspected instance
of child abuse or severe neglect reported by the agency. The agency
shall make that information available to the reporting health care
practitioner who is treating a person reported as a possible victim
of known or suspected child abuse. The agency shall make that
information available to the reporting child custodian, Child Abuse
Prevention and Treatment Act guardian ad litem appointed under Rule
5.662 of the California Rules of Court, or counsel appointed under
Section 317 or 318 of the Welfare and Institutions Code, or the
appropriate licensing agency, if he or she or the licensing agency is
handling or investigating a case of known or suspected child abuse
or severe neglect.
(2) When a report is made pursuant to subdivision (a) of Section
11166, or Section 11166.05, the investigating agency, upon completion
of the investigation or after there has been a final disposition in
the matter, shall inform the person required or authorized to report
of the results of the investigation and of any action the agency is
taking with regard to the child or family.
(3) The Department of Justice shall make relevant information from
the CACI available to a law enforcement agency, county welfare
department, or county probation department that is conducting a child
abuse investigation.
(4) The department shall make available to the State Department of
Social Services, or to any county licensing agency that has
contracted with the state for the performance of licensing duties, or
to any county child welfare agency under the conditions described by
Section 16504.5 of the Welfare and Institutions Code, or to a tribal
court or tribal child welfare agency of a tribe, consortium of
tribes, or tribal organization that has entered into an agreement
with the state pursuant to Section 10553.1 of the Welfare and
Institutions Code, information regarding a known or suspected child
abuser maintained pursuant to this section and subdivision (a) of
Section 11169 concerning any person who is an applicant for licensure
or approval, or any adult who resides or is employed in the home of
an applicant for licensure or approval, or who is an applicant for
employment in a position having supervisorial or disciplinary power
over a child or children, or who will provide 24-hour care for a
child or children in a residential home or facility, pursuant to
Section 1522.1 or 1596.877 of the Health and Safety Code, or Section
8714, 8802, 8912, or 9000 of the Family Code, or Section 11403.2 of
the Welfare and Institutions Code.
(5) The Department of Justice shall make available to a Court
Appointed Special Advocate program that is conducting a background
investigation of an applicant seeking employment with the program or
a volunteer position as a Court Appointed Special Advocate, as
defined in Section 101 of the Welfare and Institutions Code,
information contained in the index regarding known or suspected child
abuse by the applicant.
(6) For purposes of child death review, the Department of Justice
shall make available to the chairperson, or the chairperson's
designee, for each county child death review team, or the State Child
Death Review Council, information for investigative purposes only
that is maintained in the CACI pursuant to subdivision (a) relating
to the death of one or more children and any prior child abuse or
neglect investigation reports maintained involving the same victims,
siblings, or suspects. Local child death review teams may share any
relevant information regarding case reviews involving child death
with other child death review teams.
(7) The department shall make available to investigative agencies
or probation officers, or court investigators acting pursuant to
Section 1513 of the Probate Code, responsible for placing children or
assessing the possible placement of children pursuant to Article 6
(commencing with Section 300), Article 7 (commencing with Section
305), Article 10 (commencing with Section 360), or Article 14
(commencing with Section 601) of Chapter 2 of Part 1 of Division 2 of
the Welfare and Institutions Code, or Article 2 (commencing with
Section 1510) or Article 3 (commencing with Section 1540) of Chapter
1 of Part 2 of Division 4 of the Probate Code, information regarding
a known or suspected child abuser contained in the index concerning
any adult residing in the home where the child may be placed, when
this information is requested for purposes of ensuring that the
placement is in the best interest of the child. Upon receipt of
relevant information concerning child abuse or neglect investigation
reports contained in the CACI from the Department of Justice pursuant
to this subdivision, the agency or court investigator shall notify,
in writing, the person listed in the CACI that he or she is in the
index. The notification shall include the name of the reporting
agency and the date of the report.
(8) The Department of Justice shall make available to a government
agency conducting a background investigation pursuant to Section
1031 of the Government Code of an applicant seeking employment as a
peace officer, as defined in Section 830, information regarding a
known or suspected child abuser maintained pursuant to this section
concerning the applicant.
(9) The Department of Justice shall make available to a county
child welfare agency or delegated county adoption agency, as defined
in Section 8515 of the Family Code, conducting a background
investigation, or a government agency conducting a background
investigation on behalf of one of those agencies, information
regarding a known or suspected child abuser maintained pursuant to
this section and subdivision (a) of Section 11169 concerning any
applicant seeking employment or volunteer status with the agency who,
in the course of his or her employment or volunteer work, will have
direct contact with children who are alleged to have been, are at
risk of, or have suffered, abuse or neglect.
(10) (A) Persons or agencies, as specified in subdivision (b), if
investigating a case of known or suspected child abuse or neglect, or
the State Department of Social Services or any county licensing
agency pursuant to paragraph (4), or a Court Appointed Special
Advocate (CASA) program conducting a background investigation for
employment or volunteer candidates pursuant to paragraph (5), or an
investigative agency, probation officer, or court investigator
responsible for placing children or assessing the possible placement
of children pursuant to paragraph (7), or a government agency
conducting a background investigation of an applicant seeking
employment as a peace officer pursuant to paragraph (8), or a county
child welfare agency or delegated county adoption agency conducting a
background investigation of an applicant seeking employment or
volunteer status who, in the course of his or her employment or
volunteer work, will have direct contact with children who are
alleged to have been, are at risk of, or have suffered, abuse or
neglect, pursuant to paragraph (9), to whom disclosure of any
information maintained pursuant to subdivision (a) is authorized, are
responsible for obtaining the original investigative report from the
reporting agency, and for drawing independent conclusions regarding
the quality of the evidence disclosed, and its sufficiency for making
decisions regarding investigation, prosecution, licensing, placement
of a child, employment or volunteer positions with a CASA program,
or employment as a peace officer.
(B) If CACI information is requested by an agency for the
temporary placement of a child in an emergency situation pursuant to
Article 7 (commencing with Section 305) of Chapter 2 of Part 1 of
Division 2 of the Welfare and Institutions Code, the department is
exempt from the requirements of Section 1798.18 of the Civil Code if
compliance would cause a delay in providing an expedited response to
the agency's inquiry and if further delay in placement may be
detrimental to the child.
(11) (A) Whenever information contained in the Department of
Justice files is furnished as the result of an application for
employment or licensing or volunteer status pursuant to paragraph
(4), (5), (8), or (9), the Department of Justice may charge the
person or entity making the request a fee. The fee shall not exceed
the reasonable costs to the department of providing the information.
The only increase shall be at a rate not to exceed the legislatively
approved cost-of-living adjustment for the department. In no case
shall the fee exceed fifteen dollars ($15).
(B) All moneys received by the department pursuant to this section
to process trustline applications for purposes of Chapter 3.35
(commencing with Section 1596.60) of Division 2 of the Health and
Safety Code shall be deposited in a special account in the General
Fund that is hereby established and named the Department of Justice
Child Abuse Fund. Moneys in the fund shall be available, upon
appropriation by the Legislature, for expenditure by the department
to offset the costs incurred to process trustline automated child
abuse or neglect system checks pursuant to this section.
(C) All moneys, other than those described in subparagraph (B),
received by the department pursuant to this paragraph shall be
deposited in a special account in the General Fund which is hereby
created and named the Department of Justice Sexual Habitual Offender
Fund. The funds shall be available, upon appropriation by the
Legislature, for expenditure by the department to offset the costs
incurred pursuant to Chapter 9.5 (commencing with Section 13885) and
Chapter 10 (commencing with Section 13890) of Title 6 of Part 4, and
the DNA and Forensic Identification Data Base and Data Bank Act of
1998 (Chapter 6 (commencing with Section 295) of Title 9 of Part 1),
and for maintenance and improvements to the statewide Sexual Habitual
Offender Program and the California DNA offender identification file
(CAL-DNA) authorized by Chapter 9.5 (commencing with Section 13885)
of Title 6 of Part 4 and the DNA and Forensic Identification Data
Base and Data Bank Act of 1998 (Chapter 6 (commencing with Section
295) of Title 9 of Part 1).
(c) (1) The Department of Justice shall make available to any
agency responsible for placing children pursuant to Article 7
(commencing with Section 305) of Chapter 2 of Part 1 of Division 2 of
the Welfare and Institutions Code, upon request, relevant
information concerning child abuse or neglect reports contained in
the index, when making a placement with a responsible relative
pursuant to Sections 281.5, 305, and 361.3 of the Welfare and
Institutions Code. Upon receipt of relevant information concerning
child abuse or neglect reports contained in the index from the
Department of Justice pursuant to this subdivision, the agency shall
also notify in writing the person listed in the CACI that he or she
is in the index. The notification shall include the location of the
original investigative report and the submitting agency. The
notification shall be submitted to the person listed at the same time
that all other parties are notified of the information, and no later
than the actual judicial proceeding that determines placement.
(2) If information is requested by an agency for the placement of
a child with a responsible relative in an emergency situation
pursuant to Article 7 (commencing with Section 305) of Chapter 2 of
Part 1 of Division 2 of the Welfare and Institutions Code, the
department is exempt from the requirements of Section 1798.18 of the
Civil Code if compliance would cause a delay in providing an
expedited response to the child protective agency's inquiry and if
further delay in placement may be detrimental to the child.
(d) The department shall make available any information maintained
pursuant to subdivision (a) to out-of-state law enforcement agencies
conducting investigations of known or suspected child abuse or
neglect only when an agency makes the request for information in
writing and on official letterhead, or as designated by the
department, identifying the suspected abuser or victim by name and
date of birth or approximate age. The request shall be signed by the
department supervisor of the requesting law enforcement agency. The
written requests shall cite the out-of-state statute or interstate
compact provision that requires that the information contained within
these reports shall be disclosed only to law enforcement,
prosecutorial entities, or multidisciplinary investigative teams, and
shall cite the safeguards in place to prevent unlawful disclosure of
any confidential information provided by the requesting state or the
applicable interstate compact provision.
(e) (1) The department shall make available to an out-of-state
agency, for purposes of approving a prospective foster or adoptive
parent in compliance with the Adam Walsh Child Protection and Safety
Act of 2006 (Public Law 109-248), information regarding a known or
suspected child abuser maintained pursuant to subdivision (a)
concerning the prospective foster or adoptive parent, and any other
adult living in the home of the prospective foster or adoptive
parent. The department shall make that information available only
when the out-of-state agency makes the request indicating that
continual compliance will be maintained with the requirement in
paragraph (20) of subsection (a) of Section 671 of Title 42 of the
United States Code that requires the state to have in place
safeguards to prevent the unauthorized disclosure of information in
any child abuse and neglect registry maintained by the state and
prevent the information from being used for a purpose other than the
conducting of background checks in foster or adoption placement
cases.
(2) With respect to any information provided by the department in
response to the out-of-state agency's request, the out-of-state
agency is responsible for obtaining the original investigative report
from the reporting agency, and for drawing independent conclusions
regarding the quality of the evidence disclosed and its sufficiency
for making decisions regarding the approval of prospective foster or
adoptive parents.
(3) (A) Whenever information contained in the index is furnished
pursuant to this subdivision, the department shall charge the
out-of-state agency making the request a fee. The fee shall not
exceed the reasonable costs to the department of providing the
information. The only increase shall be at a rate not to exceed the
legislatively approved cost-of-living adjustment for the department.
In no case shall the fee exceed fifteen dollars ($15).
(B) All moneys received by the department pursuant to this
subdivision shall be deposited in the Department of Justice Child
Abuse Fund, established under subparagraph (B) of paragraph (11) of
subdivision (b). Moneys in the fund shall be available, upon
appropriation by the Legislature, for expenditure by the department
to offset the costs incurred to process requests for information
pursuant to this subdivision.
(f) (1) Any person may determine if he or she is listed in the
CACI by making a request in writing to the Department of Justice. The
request shall be notarized and include the person's name, address,
date of birth, and either a social security number or a California
identification number. Upon receipt of a notarized request, the
Department of Justice shall make available to the requesting person
information identifying the date of the report and the submitting
agency. The requesting person is responsible for obtaining the
investigative report from the submitting agency pursuant to paragraph
(11) of subdivision (b) of Section 11167.5.
(2) No person or agency shall require or request another person to
furnish a copy of a record concerning himself or herself, or
notification that a record concerning himself or herself exists or
does not exist, pursuant to paragraph (1).
(g) If a person is listed in the CACI only as a victim of child
abuse or neglect, and that person is 18 years of age or older, that
person may have his or her name removed from the index by making a
written request to the Department of Justice. The request shall be
notarized and include the person's name, address, social security
number, and date of birth.
SEC. 3. SEC. 5. Section 16504.5 of
the Welfare and Institutions Code is amended to read:
16504.5. (a) (1) Notwithstanding any other law, pursuant to
subdivision (b) of Section 11105 of the Penal Code, a child welfare
agency may secure from an appropriate governmental criminal justice
agency the state summary criminal history information, as defined in
subdivision (a) of Section 11105 of the Penal Code, through the
California Law Enforcement Telecommunications System pursuant to
subdivision (d) of Section 309 of this code, and subdivision (a) of
Section 1522 of the Health and Safety Code, for the following
purposes:
(A) To conduct an investigation pursuant to Section 11166.3 of the
Penal Code or an investigation involving a child in which the child
is alleged to come within the jurisdiction of the juvenile court
under Section 300 of this code.
(B) (i) To assess the appropriateness and safety of placing a
child who has been detained or is a dependent of the court, in the
home of a relative assessed pursuant to Section 309 or 361.4, or in
the home of a nonrelative extended family member assessed as
described in Section 362.7 during an emergency situation.
(ii) When a relative or nonrelative family member who has been
assessed pursuant to clause (i) and approved as a caregiver moves to
a different county and continued placement of the child with that
person is intended, the move shall be considered an emergency
situation for purposes of this subparagraph.
(C) To attempt to locate a parent or guardian of a child who is
the subject of dependency court proceedings.
(D) To obtain information about the background of a nonminor who
has petitioned to reenter foster care under subdivision (e) of
Section 388, in order to assess the appropriateness and safety of
placing the nonminor in a foster care or other placement setting with
minor dependent children.
(E) To assess the appropriateness and safety of placing a child
who has been detained or is a dependent of the court in a licensed
foster family home, group home, or state-licensed foster home.
(2) Any time that a child welfare agency initiates a criminal
background check through the California Law Enforcement
Telecommunications System for the purpose described in subparagraph
(B) of paragraph (1), the agency shall ensure that a state-level
fingerprint check is initiated within 10 calendar days of the check,
unless the whereabouts of the subject of the check are unknown or the
subject of the check refuses to submit to the fingerprint check. The
Department of Justice shall provide the requesting agency a copy of
all criminal history information regarding an individual that it
maintains pursuant to subdivision (b) of Section 11105 of the Penal
Code.
(b) Criminal justice personnel shall cooperate with requests for
criminal history information authorized pursuant to this section and
shall provide the information to the requesting entity in a timely
manner.
(c) Any law enforcement officer or person authorized by this
section to receive the information who obtains the information in the
record and knowingly provides the information to a person not
authorized by law to receive the information is guilty of a
misdemeanor as specified in Section 11142 of the Penal Code.
(d) Information obtained pursuant to this section shall not be
used for any purposes other than those described in subdivision (a).
(e) Nothing in this section shall preclude a nonminor petitioning
to reenter foster care or a relative or other person living in a
relative's home from refuting any of the information obtained by law
enforcement if the individual believes the state- or federal-level
criminal records check revealed erroneous information.
(f) (1) A state or county welfare agency may submit to the
Department of Justice fingerprint images and related information
required by the Department of Justice of parents or legal guardians
when determining their suitability for reunification with a dependent
child subject to the jurisdiction of the juvenile court, for the
purposes of obtaining information as to the existence and content of
a record of state or federal convictions and state or federal
arrests, as well as information as to the existence and content of a
record of state or federal arrests for which the Department of
Justice establishes that the person is free on bail or on his or her
own recognizance pending trial or appeal. Of the information received
by the Department of Justice pursuant to this subdivision, only the
parent's or legal guardian's criminal history for the time period
following the removal of the child from the parent or legal guardian
shall be considered.
(2) A county welfare agency or county probation office may submit
to the Department of Justice fingerprint images and related
information required by the Department of Justice of nonminors
petitioning to reenter foster care under Section 388, in order to
assess the appropriateness and safety of placing the nonminor in a
foster care or other placement setting with minor dependent children.
(3) When received, the Department of Justice shall forward to the
Federal Bureau of Investigation requests for federal summary criminal
history information received pursuant to this subdivision. The
Department of Justice shall review the information returned from the
Federal Bureau of Investigation and respond to the state or county
welfare agency.
(4) The Department of Justice shall provide a response to the
state or county welfare agency pursuant to subdivision (p) of Section
11105 of the Penal Code.
(5) The state or county welfare agency shall not request from the
Department of Justice subsequent arrest notification service, as
provided pursuant to Section 11105.2 of the Penal Code, for
individuals described in this subdivision.
(6) The Department of Justice shall charge a fee sufficient to
cover the costs of processing the request described in this
subdivision.
(7) This subdivision shall become operative on July 1, 2007.
(g) A fee, determined by the Federal Bureau of Investigation and
collected by the Department of Justice, shall be charged for each
federal-level criminal offender record information request submitted
pursuant to this section and Section 361.4.
(h) (1) A county child welfare agency may submit to the Department
of Justice fingerprint images and related information required by
the Department of Justice of an individual who has received a
criminal record exemption from the California
State Department of Social Services pertaining to a licensed
or certified foster home for the purposes of obtaining information as
to the existence and content of a record of state or federal
convictions and state or federal arrests and also information as to
the existence and content of a record of state or federal arrests for
which the Department of Justice establishes that the person is free
on bail or on his or her own recognizance pending trial or
appeal.
(A) appeal.
Except as otherwise limited by state or federal law, a county child
welfare agency that requests criminal record information pursuant to
this section shall request from the California
State Department of Social Services any additional
information the department used in making the determination to grant
the exemption.
(B) Whenever state or federal summary information is provided by
the Department of Justice pursuant to this section and is used by a
county child welfare agency as the basis for determining that a
licensed or certified foster care placement is not an appropriate
placement for a child, the county shall expeditiously furnish a copy
of the information to the person to whom the information relates and
shall provide the person with an opportunity to contest or appeal the
decision within the agency.
(2) When received, the Department of Justice shall forward to the
Federal Bureau of Investigation each request for federal summary
criminal history information received pursuant to this section. The
Department of Justice shall review the information returned from the
Federal Bureau of Investigation and compile and disseminate a
response to the county child welfare agency.
(3) The Department of Justice shall provide a state or federal
level response to the county child welfare agency pursuant to
paragraph (1) of subdivision (m) of Section 11105 of the Penal Code.
(4) The county child welfare agency shall
may request from the Department of Justice subsequent
notification service, as provided pursuant to Section 11105.2 of the
Penal Code, for persons described in paragraph (1) for whom the
county has requested criminal record information.
(5) The Department of Justice shall charge a fee sufficient to
cover the reasonable cost of processing the request described in this
subdivision.
SEC. 4. SEC. 6. Section 16504.7 is
added to the Welfare and Institutions Code, to read:
16504.7. (a) The department shall provide to a county child
welfare agency a list of each person who has received a criminal
records exemption pursuant to subdivision (g) of Section 1522 of the
Health and Safety Code related to a licensed or certified foster home
so that the county may assess the appropriateness and safety of
placing a child who has been detained or is a dependent of the court
in the licensed or certified foster home with which the individual is
associated.
(b) Except as otherwise limited by state or federal law, the
department shall make available to the county child welfare agency,
any investigative summary information
used in making the determination to grant the exemption. The
department shall consult with the Department of Justice, counties,
and other interested stakeholders to ensure that information is
shared expeditiously and in accordance with state and federal law.