CDSS Criminal Background Check Process

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

1. The applicant receives an exemption notification notice stating that a criminal record exemption is needed and how to request an exemption.
2. The applicant requests a criminal record exemption and provides the requested paperwork.
3. All the information is reviewed, and a decision is made on whether a criminal exemption is granted.
4. If the criminal exemption is denied the applicant has 15 days to appeal the decision.
5. The appeal is then transferred to the Legal Division where an CDSS attorney is assigned.
6. 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.
7. 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.
8. 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.
9. The applicant is given discovery which is all the evidence the CDSS attorney will use to argue that the criminal record exemption should denied.
10. 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.
11. 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.
12. When the hearing is concluded, the ALJ has 30 days to render a decision which is called a Proposed Decision.
13. 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.