The California Health and Safety Code requires a background
check of all community care license applicants, community care licensees, adult
residents, volunteers under certain conditions and employees of community care
facilities who have contact with clients.
If an individual has been convicted of a crime other than a
minor traffic violation, the individual cannot work or be present in any
community care facility unless he/she receives a criminal record exemption. A
criminal record exemption is a CDSS-authorized written document that
"exempts" the individual from the requirement of having a criminal
record clearance. It does not matter how
long ago the conviction occurred or whether it was a misdemeanor or felony a
criminal record exemption is required.
Non-Exemptible Convictions
The CDSS is prohibited by law from granting exemptions to
individuals convicted of serious crimes such as sexual battery, child abuse,
elder or dependent adult abuse, arson or kidnapping. These crimes are all
called “Non-Exemptible Convictions”. An exemption can be obtained in some
situations if the applicant obtains a Certificate of Rehabilitation or a pardon.
It is important for the individual to discuss their case with an attorney with
experience dealing with CDSS exemption actions.
Arrests
The CDSS also has the authority and responsibility to
investigate arrests to determine if the underlying conduct is substantiated and
therefore presents a risk to the health and safety of clients who are in care. CDSS
can file what’s called an Exclusion Action based on an arrest and/or actions
that did not result in a conviction.
These actions attempt exclude individuals for life from Community Care Facilities.
It is important for the individual to discuss their case with an attorney with
experience dealing with CDSS exclusion actions.
How the Background Check is Conducted
When an individual submits fingerprints, the California
Department of Justice (DOJ) conducts a criminal history check. If the
individual has no criminal history, DOJ forwards a clearance notice to the
applicant or licensee and to CDSS.
If the individual has a criminal history, DOJ sends a
criminal record transcript to CDSS showing arrests and convictions. The transcript
and if the convictions are for crimes that may be exempted, CDSS sends an
exemption notification letter to the applicant or licensee and to the
individual. The letter explains how to request an exemption and lists the information
that must be submitted to request an exemption. Please note, unless told
otherwise by CDSS, a person seeking an exemption may not be present in any
community care facility until an exemption is approved.
Criminal Record Exemptions Process
- The applicant receives an exemption notification
notice stating that a criminal record exemption is needed and how to request an
exemption.
- The applicant requests a criminal record
exemption and provides the requested paperwork.
- All the information is reviewed, and a decision
is made on whether a criminal exemption is granted.
- If the criminal exemption is denied the
applicant has 15 days to appeal the decision.
- The appeal is then transferred to the Legal Division
where an CDSS attorney is assigned.
- The CDSS attorney then files a pleading called
an Accusation which is sent to the applicant with other documents, including a
Notice of Defense. The applicant is now referred
to as a Respondent from here on in the process.
- The applicant then has fifteen (15) days to return
a signed Notice of Defense to the CDSS attorney which requests a hearing. If
the Notice of Defense is not sent to the CDSS attorney timely a Default
Decision will be filed.
- When the Notice of Defense is received by the
CDSS attorney a hearing date is scheduled and the applicant is notified by a
Notice of Hearing which listed the assigned hearing date and time.
- The applicant is given discovery which is all
the evidence the CDSS attorney will use to argue that the criminal record
exemption should denied.
- The applicant also must provide the CDSS
attorney with all documents that the applicant plans to present at the hearing
and the names of all people he/she plans to call as witnesses.
- The Hearing is then conducted in front of an
Administrative Law Judge (“ALJ”) with the CDSS attorney arguing that the
criminal record exemption should denied.
- When the hearing is concluded, the ALJ has 30 days
to render a decision which is called a Proposed Decision.
- Then the Proposed Decision is sent to the CDSS
attorney and a determination is made whether to adopt the decision (agree with
the Proposed Decision) or alternate the decision (change the ALJ’s decision). CDSS has 100 days to make a determination, if
it doesn’t the Proposed Decision is adopted the decision by operation of law.
Important Things to know about
the Criminal Exemption Process
- The process is timely. If the applicant has to
go to hearing, it could take about six to eight months maybe more from the time
the applicant first requested a criminal record exemption.
- If the applicant is initially denied a Criminal
Exemption, it is still very much possible for them to obtain a criminal record
exemption after they file an appeal.
- Even if the applicant’s case goes to hearing, it
is possible to win at hearing especially if he/she makes an effective case at
the hearing.
- During the administrative process, the DRE will
be represented by an attorney, but the licensee or employee is NOT appointed an
attorney to represent them.
- Applicants DO have the right to have an attorney
represent them throughout the whole process up to and including the hearing.
- It is highly recommended that the applicant who
is initially denied a criminal record exemption contact an attorney experienced
at criminal record exemption cases. Hiring
a experienced attorney can make a huge difference in whether you are finally
granted an exemption.