§ 4689.2. — 4689.2. (Amended by Stats. 1995, Ch. 546, Sec. 1.)

(a)
It is the intent of the Legislature in enacting this section to require the filing of fingerprints of those individuals whose contact with consumers receiving services and supports from family home agencies, as defined in subdivision (c) of Section 4689.1, and family homes, as defined in subdivision (b) of Section 4689.1, may pose a risk to the consumers’ health and safety.
(b)
As part of the vendor approval process for family home agencies and family homes, the State
Department of Developmental Services shall secure from the Department of Justice and, if applicable, the Federal Bureau of Investigation, a full criminal history to determine whether the applicant or any other person specified in subdivision (c) has ever been convicted of, or arrested for, a crime other than a minor traffic violation. If it is found that the applicant, or any other person specified in subdivision (c), has been convicted of, or is awaiting trial for, a crime other than a minor traffic violation, the vendor application shall be denied, unless the director grants an exemption pursuant to subdivision (f). If no criminal record information has been recorded, the Department of Justice shall provide the applicant and the State Department of Developmental Services with a statement of that fact.
(c)
In addition to the applicant, this section shall be applicable to criminal convictions of the following persons:
(1)
Adults responsible for administration or direct supervision of staff.
(2)
Any adult other than a consumer residing in the family home.
(3)
Any adult who provides assistance to the consumer in dressing, grooming, bathing, or personal hygiene.
(4)
Any staff person, employee, consultant, or volunteer who has frequent and routine contact with the consumer. In determining who has frequent contact, any consultant or volunteer shall be exempt unless the volunteer is used to replace or supplement staff or family home personnel in providing services or supports, or both, to consumers. In determining who has routine contact, staff and employees under direct onsite supervision of the family home agency and who are not providing direct services and supports or who
have only occasional or intermittent contact with consumers shall be exempt.
(5)
The executive director of the entity applying for vendorization or other person serving in like capacity.
(6)
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 family home agency or family home.
(d)
(1)
Subsequent to vendorization, any person specified in subdivision (c) and not exempted from fingerprinting shall, as a condition to employment, residence, or presence in a family home agency or a family home, be fingerprinted and sign a
declaration under penalty of perjury regarding any prior criminal convictions. The vendor shall submit these fingerprints to the Department of Justice not later than four calendar days following employment, residence, or initial presence in the family home agency or family home. These fingerprints shall be on a card provided by the State Department of Developmental Services for the purpose of obtaining a permanent set of fingerprints. If fingerprints are not submitted to the Department of Justice, as required in this section, that failure shall result in a sanction and the fingerprints shall then be submitted to the State Department of Developmental Services for processing. Upon request of the vendor, who shall enclose a self-addressed stamped postcard for this purpose, the Department of Justice shall verify receipt of the fingerprints.
(2)
Within 30 calendar days of the receipt of the fingerprints, the Department of Justice shall notify the
State Department of Developmental Services of the criminal record information, as provided in subdivision (b). If no criminal record information has been recorded, the Department of Justice shall provide the vendor and the State Department of Developmental Services with a statement of that fact within 15 calendar days of receipt of the fingerprints. If new fingerprints are required for processing, the Department of Justice shall, within 15 calendar days from the date of receipt of the fingerprints, notify the vendor that the fingerprints were illegible.
(3)
(A)
Except for persons specified in paragraph (2) of subdivision (c), the vendor shall endeavor to ascertain the previous employment history of persons required to be fingerprinted under this subdivision. If it is determined by the State Department of Developmental Services, on the basis of the fingerprints submitted to the Department of Justice, that 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, or subdivision (a) or (b) of Section 368 of the Penal Code, or has been convicted of a felony, the State Department of Developmental Services shall notify the vendor to act immediately to terminate the person’s employment, remove the person from the family home, or bar the person from entering the family home. The State Department of Developmental Services may subsequently grant an exemption pursuant to subdivision (f).
(B)
If the conviction or arrest was for another crime, except a minor traffic violation, the vendor shall, upon notification by the State Department of Developmental Services, act immediately to do either of the following:
(i)
Terminate the person’s employment, remove the person from the family home, or bar the
person from entering the family home.
(ii)
Seek an exemption pursuant to subdivision (f). The State Department of Developmental Services shall determine if the person shall be permitted to remain in the family home until a decision on the exemption is rendered.
(e)
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 Developmental Services is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, or 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, 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 and, if applicable, the Federal Bureau of Investigation, 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 provision of law prohibiting the admission of these documents in a civil or administrative action.
(f)
After review of the record, the Director of Developmental Services may grant an exemption from denial of vendor approval pursuant to subdivision (b), or for
employment in a family home agency or family home of residence or presence in a family home as specified in 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 such good character as to justify vendor approval or granting an exemption for purposes of subdivision (c). Except as otherwise provided in this subdivision, no exemption shall be granted if the conviction was for an offense specified in Section 220, 243.4, 264.1, paragraph (1) of subdivision (a) of Section 273a, Section 273d, 288, 289, or subdivision (a) or (b) of Section 368 of the Penal Code, or for another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code. The director may grant an exemption if the employee, prospective employee, or other person identified in subdivision (c) who was convicted of a crime against an individual in paragraph (1), (2), (7), or (8) of
subdivision (c) of Section 667.5 of the Penal Code, has been rehabilitated as provided in Section 4852.03 of the Penal Code and 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, prospective employee, or other persons identified in subdivision (c) 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.
(g)
For purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as described in subdivision (b), from one family home agency or family home to another, as long as the criminal record clearance has been processed through the State Department of Developmental Services.
(h)
If a family home agency or a family home is required by law to deny employment or to terminate employment of any employee based on written notification from the state department pursuant to subdivision (c) the family home agency or the family home shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.

Legislative History

Amended by Stats. 1995, Ch. 546, Sec. 1. Effective January 1, 1996.