CA Health & Safety Code Section 1337.9

(a)

The Legislature finds and declares all of the following:

(1)

Recidivism is reduced when criminal offenders 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 criminal offenders by removing impediments and restrictions upon the offenders’ 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 state 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)

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:

(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 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.

(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.

(c)

In determining whether or not to deny the application for licensure or renewal pursuant to paragraph (2) of subdivision (b), 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.

(9)

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

(10)

A certificate of rehabilitation from a superior court.

(d)

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 stay the suspension and place the certificate holder on probation with specified conditions for a period not to exceed two years. 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 (g), 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.

(e)

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.

(f)

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.

(g)

(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, 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 (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.

(h)

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 (d). If the certificate holder requests an administrative hearing pursuant to subdivision (g), 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.

(i)

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.

(j)

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.