Bill Text: CA SB1384 | 2013-2014 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Certified nurse assistants.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Passed) 2014-09-29 - Chaptered by Secretary of State. Chapter 847, Statutes of 2014. [SB1384 Detail]

Download: California-2013-SB1384-Introduced.html

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BILL NUMBER: SB 1384	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Mitchell

                        FEBRUARY 21, 2014

   An act to amend Sections 1337.9 and 1338.5 of the Health and
Safety Code, relating to health facilities.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1384, as introduced, Mitchell. Certified nurse assistants.
   Existing law provides for the certification of nurse assistants by
the State Department of Public Health. Existing law authorizes the
department to deny an application for, initiate an action to suspend
or revoke a certificate for, or deny a training and examination
application for a nurse assistant under specified circumstances.
Existing law requires, with some exceptions, the department to deny a
training and examination application and deny, suspend, or revoke a
certificate if the applicant or certificate holder has been convicted
of a violation of or attempted violation of one of more specified
crimes.
   This bill would delete the requirement that the department deny a
training and examination application and deny, suspend, or revoke a
certificate if the applicant or certificate holder has been convicted
of a violation or attempted violation of one or more of the
specified crimes. The bill would make other related and conforming
changes to these provisions.
   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 1337.9 of the Health and Safety Code is amended
to read:
   1337.9.  (a)  (1)    The state
department may deny an application for, initiate an action to suspend
or revoke a certificate for, or deny a training and examination
application for  ,  a nurse assistant  . 
 for any of the following:  
   (2) The state department shall deny a training and examination
application and deny, suspend, or revoke a certificate issued under
this article if the applicant or certificate holder has been
convicted of a violation or attempted violation of any one or more of
the following Penal Code provisions: Section 187, subdivision (a) of
Section 192, Section 203, 205, 206, 207, 209, 210, 210.5, 211, 220,
222, 243.4, 245, 261, 262, or 264.1, Sections 265 to 267, inclusive,
Section 273a, 273d, 273.5, or 285, subdivisions (c), (d), (f), and
(g) of Section 286, Section 288, subdivisions (c), (d), (f), and (g)
of Section 288a, Section 288.5, 289, 289.5, 368, 451, 459, 470, 475,
484, or 484b, Sections 484d to 484j, inclusive, Section 487,
subdivision (a) of Section 487a, or Section 488, 496, 503, 518, or
666, unless any of the following applies:  
   (A) The person was convicted of a felony and 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 and the
information or accusation against him or her has been dismissed
pursuant to Section 1203.4 of the Penal Code.  
   (B) The person was convicted of a misdemeanor and the information
or accusation against him or her has been dismissed pursuant to
Section 1203.4 or 1203.4a of the Penal Code.  
   (C) The certificate holder was convicted of a felony or a
misdemeanor, but has previously disclosed the fact of each conviction
to the department, and the department has made a determination in
accordance with law that the conviction does not disqualify the
applicant from certification.  
   (D) The person was convicted of a misdemeanor violation of Section
488 or 496, is requesting a renewal of their certificate, and has
had no subsequent convictions in the last five years. This paragraph
shall become inoperative on August 1, 2001.  
   (b) An application or certificate shall be denied, suspended, or
revoked upon conviction in another state of an offense that, if
committed or attempted in this state, would have been punishable as
one or more of the offenses set forth in subdivision (a), unless
evidence of rehabilitation comparable to the certificate of
rehabilitation or dismissal of a misdemeanor set forth in paragraph
(1) or (2) of subdivision (a) is provided.  
   (c) The state department may deny an application or deny, suspend,
or revoke a certificate issued under this article for any of the
following: 
   (1) Unprofessional conduct, including, but not limited to,
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) Conviction of a crime substantially related to the
qualifications, functions, and duties of a certified nurse assistant
 , irrespective of a subsequent order under Section 1203.4,
1203.4a, or 4852.13 of the Penal Code, where   if 
the state department determines that the applicant or certificate
holder has not adequately demonstrated that he or she has been
rehabilitated and will present a threat to the health, safety, or
welfare of patients.  For purposes of this paragraph, completion
of both of the following establishes a presumption of sufficient
rehabilitation:  
   (A) Any probation, mandatory supervision, or parole, if
applicable.  
   (B) After final discharge or release from any term of imprisonment
the elapse of three years without a subsequent conviction. 
   (3) Conviction for, or use of, any controlled substance as defined
in Division 10 (commencing with Section 11000), or any dangerous
drug, as defined in Section 4022 of the Business and Professions
Code, or alcoholic beverages, to an extent or in a manner dangerous
or injurious to the certified nurse assistant, any other person, or
the public, to the extent that this use would impair the ability to
conduct, with safety to the public, the practice authorized by a
certificate.
   (4) Procuring a certified nurse assistant certificate by fraud or
misrepresentation or mistake.
   (5) 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.
   (6) Impersonating any applicant, or acting as proxy for an
applicant, in any examination required under this article for the
issuance of a certificate.
   (7) 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.
   (8) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violating of, or conspiring to violate
any provision or term of, this article. 
   (d) 
    (b)  In determining whether or not to deny the
application for licensure or renewal pursuant to  subdivision
(c)  paragraph (2) of subdivision (a)  , 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 its relationship to their employment duties 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.
   (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, or 1203.41 of the Penal Code.  
   (8) 
    (9)  The granting by the Governor of a full and
unconditional pardon. 
   (9) 
    (10)  A certificate of rehabilitation from a superior
court. 
   (e) 
    (c)  When the state department determines that a
certificate shall be suspended, the state department shall specify
the period of actual suspension. The state department may 
determine that   stay  the suspension 
shall be stayed, placing   and place  the
certificate holder on probation with specified conditions for a
period not to exceed two years.  When   If 
the state department determines that probation is the appropriate
action, the certificate holder shall be notified that in lieu of the
state department proceeding with a formal action to suspend the
certification and in lieu of an appeal pursuant to subdivision
 (h)   (f) , the certificate holder may
request to enter into a diversion program agreement. A diversion
program agreement shall specify terms and conditions related to
matters, including, but not limited to, work performance,
rehabilitation, training, counseling, progress reports, and treatment
programs. 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
state department may proceed with a formal action to suspend or
revoke the certification. 
   (f) 
    (d)  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. The state department may deny an
application or deny, suspend, or revoke a certification based on a
conviction as provided in this article when the judgment of
conviction is entered or when an order granting probation is made
suspending the imposition of sentence. 
   (g) 
    (e)  Upon determination to deny an application or deny,
revoke, or suspend a certificate, the state department shall notify
the applicant or certificate holder in writing by certified mail of
all of the following:
   (1) The reasons for the determination.
   (2) The applicant's or certificate holder's right to appeal the
determination  if the determination was made under
subdivision (c)  . 
   (h) 
    (f)  (1) Upon written notification that the state
department has determined that an application shall be denied or a
certificate shall be denied, suspended, or revoked  under
subdivision (c)  , the applicant or certificate holder may
request an administrative hearing by submitting a written request to
the state department within 20 business days of receipt of the
written notification. Upon receipt of a written request, the state
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, 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  (i)   (g)  , 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. 
   (i) 
    (g)  The state 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  (g)   (e)  . If the
certificate holder requests an administrative hearing pursuant to
subdivision  (h)   (f) , the state
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. 
   (j) 
    (h)  Upon the expiration of the term of suspension, he
or she shall be reinstated by the state department and shall be
entitled to resume practice unless it is established to the
satisfaction of the state department that the person has practiced as
a certified nurse assistant in this state during the term of
suspension. In this event, the state department shall revoke the
person's certificate. 
   (k) 
    (i)  Upon a determination to deny an application or
deny, revoke, or suspend a certificate, the state department shall
notify the employer of the applicant and certificate holder in
writing of that determination, and whether the determination is
final, 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.
  SEC. 2.  Section 1338.5 of the Health and Safety Code is amended to
read:
   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 state 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 paragraph (2) of
subdivision  (C)   (c)  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 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 who may be disqualified on
the basis of a criminal conviction shall provide the department with
a certified copy of the judgment of each conviction. In addition, the
individual 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  (d)   (b)  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  that do
not require automatic denial pursuant to paragraph (2) of subdivision
(a) of Section 1337.9  .
   (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 state 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 state 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 the person has any prior
criminal convictions, has had any arrests within the past 12-month
period, or has any active arrests, and shall certify that, to the
best of his or her knowledge, the information provided is true. This
requirement is not intended to duplicate existing requirements for
individuals who are required to submit fingerprint images as part of
a criminal background clearance process. Every applicant shall
provide information on any prior administrative action taken against
him or her by any federal, state, or local government agency and
shall certify that, to the best of his or her knowledge, the
information provided is true. An applicant or other person required
to provide information pursuant to this section that knowingly or
willfully makes false statements, representations, or omissions may
be subject to administrative action, including, but not limited to,
denial of his or her application or exemption or revocation of any
exemption previously granted.
   (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, government agency, or law enforcement agency.
   (c) The state 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 livescan 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  provision of  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 their written request. The department shall
retain a copy of the individual's written request and the response
and date provided.