SB 1057: Licensing: certified nurse assistants and home health aides.

1337.6.

(a) Certificates issued under this article shall be renewed every two years and renewal shall be conditional upon the occurrence of all of the following:

(1) The certificate holder submitting documentation of completion of 48 hours of continuing education or in-service training every two years obtained through a provider approved by the department. At least 12 of the 48 hours of continuing education or in-service training shall be completed in each of the two years. The required 48 continuing education or in-service hours may be obtained through in-person instruction, synchronous online instruction, asynchronous online instruction, or other distance learning formats approved by the department.

(2) (A) A vendor of online programs for continuing education shall ensure that each online course contains all of the following:

(i) An interactive portion where the participants receive feedback, through online communication, based on input from the participant.

(ii) Required use of a personal identification number or personal identification information to confirm the identity of the participant.

(iii) A final screen displaying a printable statement, to be signed by the participant, certifying that the identified participant completed the course. The vendor shall obtain a copy of the final screen statement with the original signature of the participant prior to the issuance of a certificate of completion. The signed statement of completion shall be maintained by the vendor for a period of three years and shall be made available to the department upon demand.

(B) The department may approve online programs for continuing education that do not meet the requirements of subparagraph (A) if the vendor demonstrates to the department’s satisfaction that, through advanced technology, the course and the course delivery meet the other requirements of this section.

(3) The certificate holder obtaining a criminal record clearance.

(b) Certificates issued under this article shall expire on the certificate holder’s birthday.

(c) To renew an unexpired certificate, the certificate holder shall, on or before the certificate expiration date, apply for renewal on a form provided by the department and submit documentation of the required continuing education or in-service training.

(d) The department shall give written notice to a certificate holder 90 days in advance of the renewal date and, 90 days in advance of the expiration of the fourth year that a renewal application has not been submitted, and shall give written notice informing the certificate holder, in general terms, of the provisions of this article. Nonreceipt of the renewal notice does not relieve the certificate holder of the obligation to make a timely renewal. Failure to make a timely renewal shall result in expiration of the certificate.

(e) Except as otherwise provided in this article, an expired certificate may be renewed at any time within two years after its expiration on the filing of an application for renewal on a form prescribed by the department and documentation of the required continuing education or in-service education.

Renewal under this article shall be effective on the date on which the application is filed. If so renewed, the certificate shall continue in effect until the date provided for in this article, when it shall expire if it is not again renewed.

(f) If a certified nurse assistant applies for renewal more than two years after the expiration, the certified nurse assistant shall complete an approved 75-hour competency evaluation training program and competency evaluation program. A suspended certificate is subject to expiration and shall be renewed as provided in this article, but this renewal does not entitle the certificate holder, while the certificate remains suspended, and, until it is reinstated, to engage in the certified activity, or in any other activity or conduct in violation of the order or judgment by which the certificate was suspended.

(g) A revoked certificate is subject to expiration as provided in this article, but it cannot be renewed.

(h) Except as provided in subdivision (i), a certificate that is not renewed within four years after its expiration cannot be renewed, restored, reissued, or reinstated except upon completion of a certification program unless deemed otherwise by the department if both of the following conditions are met:

(1) No fact, circumstance, or condition exists that, if the certificate was issued, would justify its revocation or suspension.

(2) The person takes and passes any examination that may be required of an applicant for a new certificate at that time, that shall be given by an approved provider of a certification training program.

(i) A certified nurse assistant whose certificate has expired after two years may have their certificate renewed if they complete 75 hours in an approved competency evaluation training program, passes a competency test, and obtains a criminal background clearance prior to the renewal. The department shall develop a training program for these previously certified individuals.

(j) Certificate holders shall notify the department within 60 days of any change of address. Any notice sent by the department shall be effective if mailed to the current address filed with the department.

(k) Certificate holders that have been certified as both nurse assistants pursuant to this article and home health aides pursuant to Chapter 8 (commencing with Section 1725) of Division 2 shall renew their certificates at the same time on one application.

1337.9.

(a) The Legislature finds and declares all of the following:

(1) Recidivism is reduced when people convicted of a crime are given the opportunity to secure employment and engage in a trade, occupation, or profession.

(2) It is in the interest of public safety to assist in the rehabilitation of people convicted of a crime by removing impediments and restrictions upon the person’s ability to obtain employment or engage in a trade, occupation, or profession based solely upon the existence of a criminal record.

(3) It is the intent of the Legislature that the department, in determining eligibility under this section, have discretion to consider a conviction, but that the conviction not operate as an automatic bar to certification.

(b) Notwithstanding any other state law or regulation, the department may deny an application for, or deny a training and examination application for, a nurse assistant on the grounds that the applicant has been convicted, as defined in subdivision (k), of a crime or has been subject to formal discipline if either of the following conditions are met:

(1) (A) The applicant has been convicted of a crime within the preceding seven years from the date of the application that is directly and adversely related to the qualifications, functions, or duties of a certified nurse assistant, regardless of whether the applicant was incarcerated for that crime, or the applicant has been convicted of a crime that is directly or adversely related to the qualifications, functions, or duties of a certified nurse assistant and for which the applicant is presently incarcerated or for which the applicant was released from incarceration within the preceding seven years from the date of application.

(B) If the applicant was convicted of a serious felony, as defined in Section 1192.7 of the Penal Code, a crime for which registration is required pursuant to paragraph (2) or (3) of subdivision (d) of Section 290 of the Penal Code, or a misdemeanor or felony involving financial abuse, the conviction may be considered regardless of when the conviction occurred.

(2) (A) The applicant has been subjected to formal discipline by the department or a licensing board in or outside California within the preceding seven years from the date of application based on professional misconduct that would have been cause for discipline before the department, as described in subdivision (h), and that is directly and adversely related to the qualifications, functions, or duties of a certified nurse assistant.

(B) (i) The prior disciplinary action by the department or a licensing board within the preceding seven years shall not be the basis for denial of a training and examination application or certificate if the basis for that disciplinary action was a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, 1203.4b, or 1203.425 of the Penal Code or a comparable dismissal or expungement.

(ii) Formal discipline that occurred earlier than seven years preceding the date of the application may be grounds for denial of a certificate only if the formal discipline was for conduct involving financial abuse, or conduct that would have constituted an act of sexual abuse, misconduct, or relations with a patient pursuant to Section 726 of the Business and Professions Code or sexual exploitation as described in Section 729 of the Business and Professions Code.

(c) Notwithstanding any state law or regulation, a person shall not be denied a certificate for, or a training and examination application for, a nurse assistant on the basis that the person has been convicted of a crime, or on the basis of acts underlying a conviction for a crime, if that person has obtained a certificate of rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code, has been granted clemency or a pardon by a state or federal executive, or has made a showing of good character and rehabilitation as determined by the department pursuant to subdivision (i).

(d) Notwithstanding any other state law or regulation, a person shall not be denied a certificate for, or a training and examination application for, a nurse assistant on the basis of any conviction, or on the basis of the acts underlying the conviction, that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, 1203.4b, or 1203.425 of the Penal Code, or a comparable dismissal or expungement. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, 1203.4b, or 1203.425 of the Penal Code, or a comparable dismissal or expungement, shall provide proof of the dismissal if it is not reflected on the report furnished by the Department of Justice.

(e) Notwithstanding any other state law or regulation, a person shall not be denied a certificate for, or a training and examination application for, a nurse assistant on the basis of an arrest that resulted in a disposition other than a conviction, including an arrest that resulted in an infraction, a citation, diversion, deferred entry of judgment, or a juvenile adjudication.

(f) The department may deny a certificate for, or a training and examination application for, a nurse assistant on the grounds that the applicant knowingly made a false statement of fact that is required to be revealed in the application. The department shall not deny a certificate for, or a training and examination application for, a nurse assistant based solely on an applicant’s failure to disclose a fact that would not have been cause for denial had it been disclosed.

(g) The department shall follow the following procedures in requesting or acting on an applicant’s criminal history information:

(1) The department shall not require an applicant to disclose any information or documentation regarding the applicant’s criminal history prior to obtaining the person’s criminal offender record information search response information from the Department of Justice pursuant to Section 1338.5. After the department has received the criminal offender record information, the department may request mitigating information from an applicant regarding the applicant’s criminal history that is grounds for denial under subdivision (b), for purposes of determining direct and adverse relation or demonstrating evidence of rehabilitation, provided that the applicant is informed that disclosure is voluntary and that the applicant’s decision not to disclose any information shall not be a factor in any decision to grant or deny a certificate for, or a training and examination application for, a nurse assistant.

(2) If the department decides to deny a training and examination application or certificate under this section, the department shall notify the applicant in writing of all of the following:

(A) The reasons for the determination.

(B) Existing procedure for the applicant to challenge the determination or to request reconsideration pursuant to this section.

(C) That the applicant has the right to appeal the determination.

(D) The processes for the applicant to request a copy of the applicant’s complete conviction history and question the accuracy or completeness of the record pursuant to Article 5 (commencing with Section 11122) of Chapter 1 of Title 1 of Part 4 of the Penal Code.

(h) The department may initiate an action to suspend or revoke a certificate for a nurse assistant for professional misconduct warranting cause for discipline under this section, which may include any of the following:

(1) Unprofessional conduct involving incompetence, gross negligence, unless due to circumstances beyond the nurse assistant’s control, physical, mental, or verbal abuse of patients, or misappropriation of property of patients or others.

(2) A conviction for a crime that is directly and adversely related to the qualifications, functions, or duties of a certified nurse assistant that may be grounds for denial under subdivisions (b) to (f), inclusive.

(3) Procuring a certified nurse assistant certificate by fraud, misrepresentation, or mistake.

(4) Making or giving any false statement or information in conjunction with the application for issuance of a nurse assistant certificate or training and examination application.

(5) Impersonating any applicant, or acting as proxy for an applicant, in any examination required under this article for the issuance of a certificate.

(6) Impersonating another certified nurse assistant, a licensed vocational nurse, or a registered nurse, or permitting or allowing another person to use a certificate for the purpose of providing nursing services.

(7) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate any provision or term of, this article.

(i) In determining whether or not to deny a training and examination application, or an application for certification, licensure, or renewal, or to suspend or revoke a certificate pursuant to this section, the department shall take into consideration the following factors as evidence of good character and rehabilitation:

(1) The nature and seriousness of the conduct or crime under consideration and whether the crime is directly and adversely related to the person’s employment duties, functions, and responsibilities.

(2) Activities since conviction, including employment or participation in therapy or education, that would indicate changed behavior.

(3) The period of time that has elapsed since the commission of the conduct or offense referred to in paragraph (1) or (2) and the number of offenses.

(4) The extent to which the person has complied with any terms of parole, probation, restitution, or any other sanction lawfully imposed against the person and successful or dearly discharge from probation, parole, post-release community supervision, or any criminal supervision.

(5) Any rehabilitation evidence, including character references, submitted by the person.

(6) Employment history and current employer recommendations.

(7) Circumstances surrounding the commission of the offense that would demonstrate the unlikelihood of repetition.

(8) An order from a superior court pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, or 1203.4b of the Penal Code, or a comparable dismissal or expungement.

(9) The granting by the Governor of a full and unconditional pardon.

(10) A certificate of rehabilitation from a superior court.

(11) Abstinence from the use of controlled substances or alcohol if the conduct which is the basis for the department’s action is attributable in part or whole to the use of controlled substances or alcohol.

(12) Stability of family life and fulfillment of parental and familiar responsibilities subsequent to the conviction or conduct that is the basis for the department’s action.

(j) When the department determines that a certificate shall be suspended, the department shall specify the period of actual suspension. The department may stay the suspension and place the certificate holder on probation with specified conditions for a period not to exceed two years. If the department determines that probation is the appropriate action, the certificate holder shall be notified that in lieu of the department proceeding with a formal action to suspend the certification and in lieu of an appeal pursuant to subdivision (m), the certificate holder may request to enter into a diversion program agreement. A diversion program agreement shall specify terms and conditions related to matters that include, but are not limited to, work performance, rehabilitation, training, counseling, progress reports, and treatment programs, taking into account the person’s ability to pay for basic necessities as well as ordered treatment. If a certificate holder successfully completes a diversion program, no action shall be taken upon the allegations that were the basis for the diversion agreement. Upon failure of the certificate holder to comply with the terms and conditions of an agreement, the department may proceed with a formal action to suspend or revoke the certification.

(k) 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 article. If the person entered a plea and successfully completed deferred entry of judgment or diversion, the arrest will be treated according to subdivision (e). The department may deny an application or deny, suspend, or revoke a certification based on a conviction as provided in this article 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.

(l) Upon determination to revoke or suspend a certificate, the department shall notify the certificate holder in writing by certified mail of all of the following:

(1) The reasons for the determination.

(2) The certificate holder’s right to appeal the determination.

(3) Existing procedure for the certificate holder to challenge the determination or to request reconsideration pursuant to subdivision (m).

(4) The processes for the certificate holder to request a copy of their complete conviction history and question the accuracy or completeness of the record pursuant to Article 5 (commencing with Section 11122) of Chapter 1 of Title 1 of Part 4 of the Penal Code if the determination to revoke or suspend is based on the certificate holder’s criminal history information.

(m) (1) Upon written notification that the department has determined that an application shall be denied or a certificate shall be denied, suspended, or revoked, the applicant or certificate holder may request an administrative hearing by submitting a written request to the department within 20 business days of receipt of the written notification. Upon receipt of a written request, the department shall hold an administrative hearing pursuant to the procedures specified in Section 100171, except where those procedures are inconsistent with this section.

(2) A hearing under this section shall be conducted within 60 days of the receipt of the written request of the applicant or certificate holder submitted pursuant to paragraph (1) by a hearing officer or administrative law judge designated by the director at a location, other than the work facility, that is convenient to the applicant or certificate holder unless the applicant or certificate holder agrees to an extension. The hearing shall be tape recorded and a written decision shall be sent by certified mail to the applicant or certificate holder within 30 calendar days of the hearing. Except as specified in subdivision (h), the effective date of an action to revoke or suspend a certificate shall be specified in the written decision, or if no administrative hearing is timely requested, the effective date shall be 21 business days from written notification of the department’s determination to revoke or suspend.

(n) The department may revoke or suspend a certificate prior to any hearing when immediate action is necessary in the judgment of the director to protect the public welfare. Notice of this action, including a statement of the necessity of immediate action to protect the public welfare, shall be sent in accordance with subdivision (l). If the certificate holder requests an administrative hearing pursuant to subdivision (m), the department shall hold the administrative hearing as soon as possible but not later than 30 calendar days from receipt of the request for a hearing. A written hearing decision upholding or setting aside the action shall be sent by certified mail to the certificate holder within 30 calendar days of the hearing.

(o) Upon the expiration of the term of suspension, the person shall be reinstated by the department and shall be entitled to resume practice unless there is evidence that the person has practiced as a certified nurse assistant in this state during the term of suspension. In this event, the department shall revoke the person’s certificate, following the procedures provided in subdivisions (l) to (n), inclusive.

(p) Upon a determination to deny an application or deny, revoke, or suspend a certificate, the department shall notify the employer of the applicant or certificate holder in writing of that determination, and whether the determination is final in accordance with paragraph (2) of subdivision (m), or whether a hearing is pending relating to this determination. If a licensee or facility is required to deny employment or terminate employment of the employee based upon notice from the state that the employee is determined to be unsuitable for employment under this section, the licensee or facility shall not incur criminal, civil, unemployment insurance, workers’ compensation, or administrative liability as a result of that denial or termination.

(q) As used in this section, “financial abuse” occurs when a person does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of another for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of another for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of another by undue influence, as defined in Section 15610.70 of the Welfare and Institutions Code.

1338.5.

(a) (1) (A) A criminal record clearance shall be conducted for all nurse assistants by the submission of fingerprint images and related information to the department for processing at the Department of Justice. The licensing and certification program shall issue an All Facilities Letter (AFL) to facility licensees when both of the following criteria are met:

(i) The program receives, within three business days, 95 percent of its total responses indicating no evidence of recorded criminal information from the Department of Justice.

(ii) The program processes 95 percent of its total responses requiring disqualification in accordance with subparagraph (C) of paragraph (2) of subdivision (a) of Section 1337.9, as that section read on January 1, 2014, no later than 45 days after the date that the report is received from the Department of Justice.

(B) After the AFL is issued, licensees shall not allow nurse assistant trainees or newly hired nurse assistants to have direct contact with clients or residents of the facility prior to completion of the criminal record clearance. A criminal record clearance shall be complete when the department has obtained the person’s criminal offender record information search response information from the Department of Justice and has determined pursuant to Section 1337.9 that the person is not disqualified from engaging in the activity for which clearance is required. Notwithstanding any other provision of law, the department may, without taking regulatory action pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, implement, interpret, or make specific this paragraph by means of an AFL or similar instruction. The fee to cover the processing costs of the Department of Justice, not including the costs associated with capturing or transmitting the fingerprint images and related information, shall not exceed thirty-two dollars ($32) per submission.

(C) An applicant or certificate holder whose application was denied or certificate was suspended or revoked on the basis of a criminal conviction under Section 1337.9 may, during a period of two years after the department receives the criminal record report, provide the department with evidence of good character and rehabilitation in accordance with subdivision (i) of Section 1337.9 or provide the department with evidence that the criminal conviction is no longer grounds for denial pursuant to subdivisions (b) to (e), inclusive, of Section 1337.9. Upon receipt of a new application for certification of the individual, the department may receive and consider the evidence during the two-year period without requiring additional fingerprint imaging to clear the individual.

(D) The department’s Licensing and Certification Program shall explore and implement methods for maximizing its efficiency in processing criminal record clearances within the requirements of law, including a streamlined clearance process for persons who have been disqualified on the basis of criminal convictions.

(2) (A) Upon enrollment in a training program for nurse assistant certification, and prior to direct contact with residents, a candidate for training shall submit a training and examination application and the fingerprint cards to the department to receive a criminal record review through the Department of Justice. Submission of the fingerprints to the Federal Bureau of Investigation shall be at the discretion of the department.

(B) 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 any prior administrative action was taken against them by any federal, state, or local governmental agency and shall certify that, to the best of their 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 their application or exemption or revocation of any exemption previously granted.

(3) Each health facility that operates and is used as a clinical skills site for certification training, and each health facility, prior to hiring a nurse assistant applicant certified in another state or country, shall arrange for and pay the cost of the fingerprint live scan service and the Department of Justice processing costs for each applicant. Health facilities may not pass these costs through to nurse assistant applicants unless allowed by federal law enacted subsequent to the effective date of this paragraph.

(b) The use of fingerprint live scan technology implemented by the Department of Justice by the year 1999 shall be used by the Department of Justice to generate timely and accurate positive fingerprint identification prior to nurse assistant certification and prior to direct contact with residents by the nurse assistant applicant. The department shall explore options to work with private and governmental agencies to ensure that licensees have adequate access to electronic transmission sites, including requiring the department to maintain a contract for electronic transmission services in each of the district offices where facilities have indicated problems with timely access to electronic transmission sites or consistent delays of more than three business days in obtaining appointments for electronic transmission services through a private entity, governmental agency, or law enforcement agency.

(c) The department shall develop procedures to ensure that any licensee, direct care staff, or certificate holder for whom a criminal record has been obtained pursuant to this section or Section 1265.5 or 1736 shall not be required to obtain multiple criminal record clearances.

(d) If the department is experiencing a delay in processing the renewal of the certified nursing assistant’s certification at the time of the expiration of the certified nursing assistant’s certification, the department may extend the expiration of the certified nursing assistant’s certification for six months.

(e) If, at any time, the department determines that it does not meet the standards specified in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (a), for a period of 90 consecutive days, the requirements in paragraph (1) of subdivision (a) shall be inoperative until the department can demonstrate it has met those standards for a period of 90 consecutive days.

(f) During any time in which the requirements of paragraph (1) of subdivision (a) are inoperative, facilities may allow newly hired nurse assistants to have direct contact with clients or residents of the facility after those persons have submitted live scan fingerprint images to the Department of Justice, and the department shall issue an AFL advising facilities of this change in the statutory requirements.

(g) Notwithstanding any other law, in addition to the requirement under subparagraph (D) of paragraph (2) of subdivision (g) of Section 1337.9 the department is authorized to provide a training and examination applicant, applicant for certificate, or certificate holder with a copy of their 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 their written request. The department shall retain a copy of the individual’s written request and the response and date provided.

1735.

The department may deny any application for, or suspend or revoke, any license issued under the provisions of this chapter upon any of the following grounds and in the manner hereinafter provided:

(a) Prior termination from the federal Medicare Program or the Medi-Cal program due to noncompliance, or licensure suspension or revocation, of a home health agency owned, operated, or managed by the applicant or licensee.

(b) Demonstration of a pattern and practice of violations of state or federal standards during the last three years of a home health agency owned, operated, or managed by the applicant or licensee.

(c) The applicant or licensee is on the List of Excluded Individuals/Entities of the United States Department of Health and Human Services Office of Inspector General.

(d) Failure by home health agency management personnel to cooperate with the department for the purposes of conducting an inspection or complaint investigation.

(e) Failure by a home health agency to report a change in owner, home health agency management personnel, service area, or location.

1736.5.

(a) Notwithstanding any other state law or regulation, the department may deny an application for a certificate for, or deny a training application for, a home health aide on the grounds that the applicant has been convicted of a crime or has been subject to formal discipline only if either of the following conditions are met:

(1) (A) The applicant has been convicted of a crime within the preceding seven years from the date of the application that is directly and adversely related to the qualifications, functions, or duties of a home health aide, regardless of whether the applicant was incarcerated for that crime, or the applicant has been convicted of a crime that is directly or adversely related to the qualifications, functions, or duties of a home health aide and for which the applicant is presently incarcerated, or for which the applicant was released from incarceration within the preceding seven years from the date of application.

(B) If the applicant was convicted of a serious felony, as defined in Section 1192.7 of the Penal Code, a crime for which registration is required pursuant to paragraph (2) or (3) of subdivision (d) of Section 290 of the Penal Code, or a misdemeanor or felony involving financial abuse, the conviction may be considered regardless of when the conviction occurred.

(2) (A) The applicant has been subjected to formal discipline by the department or a licensing board in or outside California within the preceding seven years from the date of application based on professional misconduct that would have been cause for discipline before the department, as described in paragraph (1) of subdivision (g), and that is directly and adversely related to the qualifications, functions, or duties of a home health aide.

(B) (i) Prior disciplinary action by the department or a licensing board within the preceding seven years shall not be the basis for denial of a training application or certification if the basis for that disciplinary action was a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, 1203.4b, or 1203.425 of the Penal Code or a comparable dismissal or expungement.

(ii) Formal discipline that occurred earlier than seven years preceding the date of the application may be grounds for denial of a license only if the formal discipline was for conduct involving financial abuse, or conduct that would have constituted an act of sexual abuse, misconduct, or relations with a patient pursuant to Section 726 of the Business and Professions Code or sexual exploitation as described in Section 729 of the Business and Professions Code.

(b) Notwithstanding any other law or regulation, a person shall not be denied a certificate for, or a training application for, a home health aide on the basis that the person has been convicted of a crime, or on the basis of acts underlying a conviction for a crime, if that person has obtained a certificate of rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code, has been granted clemency or a pardon by a state or federal executive, or has made a showing of good character and rehabilitation as determined by the department pursuant to paragraph (2) of subdivision (g).

(c) Notwithstanding any other law or regulation, a person shall not be denied a certificate for, or a training application for, a home health aide on the basis of any conviction, or on the basis of the acts underlying the conviction, that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, 1203.4b, or 1203.425 of the Penal Code, or a comparable dismissal or expungement. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, 1203.4b, or 1203.425 of the Penal Code, or a comparable dismissal or expungement, shall provide proof of the dismissal if it is not reflected on the report furnished by the Department of Justice.

(d) Notwithstanding any other law or regulation, a person shall not be denied a certificate for, or a training application for, a home health aide on the basis of an arrest that resulted in a disposition other than a conviction, including an arrest that resulted in an infraction, a citation, diversion, deferred entry of judgment, or a juvenile adjudication.

(e) The department may deny a certificate for, or a training application for, a home health aide on the grounds that the applicant knowingly made a false statement of fact that is required to be revealed in the application. The department shall not deny a certificate for, or a training application for, a home health aide based solely on an applicant’s failure to disclose a fact that would not have been cause for denial had it been disclosed.

(f) The department shall follow the following procedures in requesting or acting on an applicant’s criminal history information:

(1) The department shall not require an applicant to disclose any information or documentation regarding the applicant’s criminal history prior to obtaining the person’s criminal offender record information search response information from the Department of Justice pursuant to Section 1736.6. After the department has received the criminal offender record information, the department may request mitigating information from an applicant regarding the applicant’s criminal history that is grounds for denial under subdivision (a), for purposes of determining direct and adverse relation or demonstrating evidence of rehabilitation, provided that the applicant is informed that disclosure is voluntary and that the applicant’s decision not to disclose any information shall not be a factor in any decision to grant or deny a certificate for, or a training application for, a home health aide.

(2) If the department decides to deny a training application or certificate under this section, the department shall notify the applicant in writing of all of the following:

(A) The reasons for the determination.

(B) Existing procedure for the applicant to challenge the determination or to request reconsideration pursuant to subdivision (k).

(C) That the applicant has the right to appeal the determination.

(D) The processes for the applicant to request a copy of the applicant’s complete conviction history and question the accuracy or completeness of the record pursuant to Article 5 (commencing with Section 11122) of Chapter 1 of Title 1 of Part 4 of the Penal Code.

(g) (1) The department may initiate an action to suspend or revoke a certificate for a home health aide for professional misconduct warranting cause for discipline under this article, which may include any of the following:

(A) Unprofessional conduct involving incompetence, gross negligence, physical, mental, or verbal abuse of patients, or misappropriation of property of patients or others.

(B) A conviction for a crime that is directly and adversely related to the qualifications, functions, or duties of a home health aide that may be grounds for denial under subdivisions (a) to (e), inclusive.

(C) Procuring a home health aide certificate by fraud, misrepresentation, or mistake.

(D) Making or giving any false statement or information in conjunction with the application for issuance of a home health aide certificate or training and examination application.

(E) Impersonating any applicant, or acting as proxy for an applicant, in any examination required under this article for the issuance of a certificate.

(F) Impersonating another home health aide, a licensed vocational nurse, or a registered nurse, or permitting or allowing another person to use a certificate for the purpose of providing nursing services.

(G) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate any provision or term of, this article.

(2) In determining whether or not to deny a training application or an application for certification, or to suspend or revoke a certificate issued under this article pursuant to this section, the department shall take into consideration the following factors as evidence of good character and rehabilitation:

(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 referred to in subparagraph (A) or (B) 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) An order from a superior court pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, or 1203.4b of the Penal Code, or a comparable dismissal or expungement.

(I) Granting by the Governor of a full and unconditional pardon.

(J) A certificate of rehabilitation from a superior court.

(K) Abstinence from the use of controlled substances or alcohol if the conduct which is the basis for the department’s action is attributable in part or whole to the use of controlled substances or alcohol.

(L) Stability of family life and fulfillment of parental and familiar responsibilities subsequent to the conviction or conduct that is the basis for the department’s action.

(h) When the department determines that a certificate shall be suspended, the department shall specify the period of actual suspension. The department may determine that the suspension shall be stayed, placing the certificate holder on probation with specified conditions for a period not to exceed two years. When the department determines that probation is the appropriate action, the certificate holder shall be notified that in lieu of the department proceeding with a formal action to suspend the certification and in lieu of an appeal pursuant to subdivision (k), the certificate holder may request to enter into a diversion program agreement. A diversion program agreement shall specify terms and conditions related to matters that include, but are not limited to, work performance, rehabilitation, training, counseling, progress reports, and treatment programs subject to the certificate holder’s ability to pay for basic necessities and the costs to comply with ordered terms and conditions. If a certificate holder successfully completes a diversion program, no action shall be taken upon the allegations that were the basis for the diversion agreement. Upon failure of the certificate holder to comply with the terms and conditions of an agreement, the department may proceed with a formal action to suspend or revoke the certification.

(i) 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 article, except for successfully completed diversion and deferred entry of judgment. The department may deny an application or deny, suspend, or revoke a certification based on a conviction as provided in this article 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.

(j) Upon determination to revoke or suspend a certificate, the department shall notify the certificate holder in writing by certified mail of all of the following:

(1) The reasons for the determination.

(2) The certificate holder’s right to appeal the determination.

(3) Existing procedure for the certificate holder to challenge the determination or to request reconsideration pursuant to subdivision (k).

(4) The processes for the certificate holder to request a copy of their complete conviction history and question the accuracy or completeness of the record pursuant to Article 5 (commencing with Section 11122) of Chapter 1 of Title 1 of Part 4 of the Penal Code if the determination to revoke or suspend is based on the certificate holder’s criminal history information.

(k) (1) Upon written notification that the department has determined that an application shall be denied or a certificate shall be denied, suspended, or revoked under this section, the applicant or certificate holder may request an administrative hearing by submitting a written request to the department within 20 business days of receipt of the written notification. Upon receipt of a written request, the department shall hold an administrative hearing pursuant to the procedures specified in Section 100171, except where those procedures are inconsistent with this section.

(2) A hearing under this section shall be conducted by a hearing officer or administrative law judge designated by the director at a location, other than the work facility, that is convenient to the applicant or certificate holder. The hearing shall be audio or video recorded and a written decision shall be sent by certified mail to the applicant or certificate holder within 30 calendar days of the hearing. Except as specified in subdivision (i), the effective date of an action to revoke or suspend a certificate shall be specified in the written decision, or if no administrative hearing is timely requested, the effective date shall be 21 business days from written notification of the department’s determination to revoke or suspend.

(l) The department may revoke or suspend a certificate prior to any hearing when immediate action is necessary in the judgment of the director to protect the public welfare. Notice of this action, including a statement of the necessity of immediate action to protect the public welfare, shall be sent in accordance with subdivision (j). If the certificate holder requests an administrative hearing pursuant to subdivision (k), the department shall hold the administrative hearing as soon as possible but not later than 30 calendar days from receipt of the request for a hearing. A written hearing decision upholding or setting aside the action shall be sent by certified mail to the certificate holder within 30 calendar days of the hearing.

(m) Upon the expiration of the term of suspension, the certificate holder shall be reinstated by the department and shall be entitled to resume practice unless it is established to the satisfaction of the department that the person has practiced as a home health aide in California during the term of suspension. In this event, the department shall revoke the person’s certificate.

(n) Upon a determination to deny an application or deny, revoke, or suspend a certificate, the department shall notify the employer of the applicant or certificate holder in writing of that determination, and whether the determination is final in accordance with paragraph (2) of subdivision (k), or whether a hearing is pending relating to this determination. If a licensee or facility is required to deny employment or terminate employment of the employee based upon notice from the state that the employee is determined to be unsuitable for employment under this section, the licensee or facility shall not incur criminal, civil, unemployment insurance, workers’ compensation, or administrative liability as a result of that denial or termination.

(o) As used in this section, “financial abuse” occurs when a person does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of another for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of another for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of another by undue influence, as defined in Section 15610.70 of the Welfare and Institutions Code.

1736.6.

(a) (1) A criminal record clearance shall be conducted by the department for all home health aides by electronically submitting fingerprint images and related information to the Department of Justice. The Licensing and Certification Program shall issue an All Facilities Letter (AFL) to facility licensees when it determines that both of the following criteria have been met for a period of 30 days:

(A) The program receives, within three business days, 95 percent of its total responses indicating no evidence of recorded criminal information from the Department of Justice.

(B) The program processes 95 percent of its total responses requiring disqualification with notices mailed to the individual in accordance with subdivision (a) of Section 1736.5, no later than 45 days after the date that the report is received from the Department of Justice.

(2) After the AFL is issued, facilities must not allow newly hired administrators, program directors, and fiscal officers to have direct contact with clients or residents of the facility prior to completion of the criminal record clearance. A criminal record clearance shall be complete when the department has obtained the person’s criminal offender record information search response from the Department of Justice and has determined pursuant to Section 1736.5 that the person is not disqualified from engaging in the activity for which clearance is required. Applicants shall be responsible for any costs associated with capturing or transmitting the fingerprint images and related information. The fee to cover the processing costs of the Department of Justice, not including the costs associated with capturing or transmitting the fingerprint images and related information, shall not exceed thirty-two dollars ($32) per submission.

(3) An applicant or certificate holder whose application was denied or certificate was suspended or revoked on the basis of a criminal conviction under Section 1736.5 may, during a period of two years after the department receives the criminal record report, provide the department with evidence of good character and rehabilitation in accordance with paragraph (2) of subdivision (g) of Section 1736.5 or provide the department with evidence that the criminal conviction is no longer grounds for denial pursuant to subdivisions (a) to (d), inclusive, of Section 1736.5. Upon receipt of a new application for certification of the individual, the department may receive and consider the evidence during the two-year period without requiring additional fingerprint imaging to clear the individual.

(4) The department’s Licensing and Certification Program shall explore and implement methods for maximizing its efficiency in processing criminal record clearances within the requirements of law, including a streamlined clearance process for persons that have been disqualified on the basis of criminal convictions.

(b) Upon enrollment in a training program for home health aide certification, and prior to direct contact with residents, a candidate for training shall submit a training and examination application to the department and submit electronic fingerprint images and related information to receive a criminal record review through the Department of Justice. This criminal record clearance shall be completed prior to direct contact with residents. Submission of the fingerprint images to the Federal Bureau of Investigation, through the Department of Justice, shall be at the discretion of the department.

(c) A criminal record clearance, consistent with this section, shall be implemented for home health aide applicants beginning July 1, 1998, and phased in for all certified home health aides by June 30, 2000.

(d) The department shall develop procedures to ensure that any licensee, direct care staff, or certificate holder for whom a criminal record has been obtained pursuant to this section or Section 1265.6 or 1338.5 shall not be required to obtain multiple criminal record clearances.

(e) 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 any prior administrative action was taken against them by any federal, state, or local governmental agency and shall certify that, to the best of their 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 their application or exemption or revocation of any exemption previously granted.

(f) If, at any time, the department determines that it does not meet the standards specified in subparagraphs (A) and (B) of paragraph (1) of subdivision (a) for a period of 90 consecutive days, the requirements in subdivision (a) shall be inoperative until the department determines that it has met those standards for a period of 90 consecutive days.

(g) During any period of time in which the requirements of subdivision (a) are inoperative, home health agencies may allow newly hired home health aides to have direct contact with patients after those persons have submitted live-scan fingerprint images to the Department of Justice, and the department shall issue an AFL advising facilities of this change in the statutory requirement.

(h) Notwithstanding any other provision of law, in addition to the requirement under subparagraph (D) of paragraph (2) of subdivision (f) of Section 1736.5, the department may provide a training examination applicant, applicant for certificate, or certificate holder with a copy of their 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 their written request. The department shall retain a copy of the individual’s written request and the response and date provided.