2005 California Health and Safety Code Sections 1725-1742 CHAPTER 8. HOME HEALTH AGENCIES

1725.  (a) The purpose of this chapter is to require licensure of
home health agencies in order to protect the health and safety of the
people of California.
   (b) All organizations that provide skilled nursing services to
patients in the home shall obtain a home health agency license issued
by the department.
   (c) The department shall establish high standards of quality for
home health agencies and ensure that unlicensed entities are not
providing skilled nursing services in the home, except as set forth
in Section 1726.
   (d) The department shall require that the appropriate field staff
be informed of the proper protocols and procedures to document,
report, and investigate reported incidents of unlicensed facilities
providing skilled nursing services in the home in order to protect
public health and to facilitate statewide consistency in documenting
and investigating those entities.
1726.  (a) No private or public organization, including, but not
limited to, any partnership, corporation, political subdivision of
the state, or other governmental agency within the state, shall
provide, or arrange for the provision of, skilled nursing services in
the home in this state without first obtaining a home health agency
license.
   (b) No private or public organization, including, but not limited
to, any partnership, corporation, or political subdivision of the
state, or other governmental agency within the state, shall do any of
the following unless it is licensed under this chapter:
   (1) Represent itself to be a home health agency by its name or
advertisement, soliciting, or any other presentments to the public,
or in the context of services within the scope of this chapter imply
that it is licensed to provide those services or to make any
reference to employee bonding in relation to those services.
   (2) Use the words "home health agency," "home health,"
"home-health," "homehealth," or "in-home health," or any combination
of those terms, within its name.
   (3) Use the words "skilled" or "nursing," or any combination of
those terms within its name, to imply that it is licensed as a home
health agency to provide those services.
   (c) In implementing the system of licensing for home health
agencies, the department shall distinguish between the functions of a
home health agency and the functions of an employment agency or a
licensed nurses' registry pursuant to Title 2.91 (commencing with
Section 1812.500) of Part 4 of Division 3 of the Civil Code. An
employment agency or a licensed nurses' registry performing its
functions as specified in Title 2.91 (commencing with Section
1812.500) of Part 4 of Division 3 of the Civil Code is not required
to secure a home health agency license under subdivision (a), unless
it is performing the functions of a home health agency, as defined in
this chapter. However, subdivision (b) shall apply to an employment
agency or a licensed nurses' registry that is not licensed under this
chapter.
   (d) A hospice is not required to secure a home health agency
license under subdivision (a). However, subdivision (b) shall apply
to a hospice that is not licensed under this chapter.
1727.  (a) "Home health agency" means a private or public
organization, including, but not limited to, any partnership,
corporation, political subdivision of the state, or other government
agency within the state, which provides, or arranges for the
provision of, skilled nursing services, to persons in their temporary
or permanent place of residence.
   (b) "Skilled nursing services" means services provided by a
registered nurse or licensed vocational nurse.
   (c) "Home Health Aide" means an aide who has successfully
completed a state-approved training program, is employed by a home
health agency or hospice program, and provides personal care services
in the patient's home.
   (d) "Home health aide services" means personal care services
provided under a plan of treatment prescribed by the patient's
physician and surgeon who is licensed to practice medicine in the
state.  Home health aide services shall be provided by a person
certified by the state department as a home health aide pursuant to
this chapter.  Services which do not involve personal care services
provided under a plan of treatment prescribed by a physician and
surgeon may be provided by a person who is not a certified home
health aide. Home health aide services shall not include services
provided pursuant to Article 7 (commencing with Section 12300) of
Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions
Code.
1727.1.  A licensed home health agency may also provide, or arrange
for the provision of, other therapeutic services to persons in their
temporary or permanent place of residence.  Therapeutic services
include, but are not limited to, physical, speech, or occupational
therapy, medical social services, and home health aide services.
1727.5.  Each home health agency providing home health agency
services shall do all of the following:
   (a) Provide for a plan of treatment for patients receiving skilled
nursing services.
   (b) Maintain clinical records on all patients.
   (c) Provide for the supervision of licensed and unlicensed
personnel by a registered nurse or physical, speech, or occupational
therapist when within the therapist's scope of practice.
   (d) Maintain policies regarding the delivery and supervision of
patient care that are reviewed annually by a group of professional
personnel including a physician and surgeon and a registered nurse
and revised as needed.
   (e) Meet all applicable federal, state, and local requirements.
   (f) Maintain, and revise as needed, and implement policies
regarding the purchase, storage, furnishing, and transportation of
legend devices that are reviewed annually by a group of professional
personnel, including a physician and surgeon, pharmacist, and a
registered nurse.  As used in this subdivision, "legend devices"
means any device that bears the label "Caution:  federal law
restricts this device to sale by or on the order of a ____" or words
of similar meaning.
   (g) Meet other standards, rules, and regulations adopted by the
state department in order to implement this chapter.
1727.7.  (a) The Legislature finds and declares the following:
   (1) Thousands of patients receive home health care each year, thus
preventing, postponing, and limiting the need for unnecessary
institutionalization.
   (2) The adoption of emergency home health agency licensing
regulations is necessary in order to conform existing home health
agency licensing regulations to state law and the current scope and
practice of home health care.
   (3) The adoption of emergency home health agency regulations is
necessary due to the increased provider and consumer demands for home
care services and advances in health care technology.
   (4) The adoption of emergency home health agency regulations is
necessary due to the emerging influences of health care reform and
changing expectations of managed care programs and insurance
providers.
   (b) The director shall adopt revised home health agency licensure
regulations.  These revised regulations shall be adopted on an
emergency basis.  Until January 1, 1996, the adoption of any
emergency regulations pursuant to Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code to implement this section shall be deemed to be an emergency by
the Office of Administrative Law as necessary for the immediate
preservation of the public peace, health and safety, or general
welfare.
   (c) It is the intent of the Legislature that the adoption of home
health agency licensure regulations pursuant to this chapter shall in
no way prohibit interested parties from participating in review of
the revised regulations.  It is also the intent of the Legislature
that the adoption of the revised regulations shall in no way narrow
the existing scope of practice of registered nurses or licensed
vocational nurses or lessen the quality of nurse supervision or care
in the home health care setting.
1728.  Any person, organization, political subdivision of the state
or governmental agency desiring a license under the provisions of
this chapter or a hospital as defined in Section 1401 of this
division which desires to establish, conduct, or maintain a home
health agency shall file with the state department a verified
application on a form prescribed, prepared and furnished by the state
department, containing information as may be required by the state
department for the proper administration and enforcement of this
chapter.
1728.1.  (a) To qualify for a home health agency license, the
following requirements shall be met:
   (1) Every applicant shall satisfy the following conditions:
   (A) Be of good moral character.  If the applicant is a firm,
association, organization, partnership, business trust, corporation,
or company, all principal managing members thereof, and the person in
charge of the agency for which application for license is made,
shall satisfy this requirement.  If the applicant is a political
subdivision of the state or other governmental agency, the person in
charge of the agency for which application for license is made, shall
satisfy this requirement.
   (B) Possess and demonstrate the ability to comply with this
chapter and the rules and regulations adopted under this chapter by
the state department.
   (C) File his or her application pursuant to and in full compliance
with this chapter.
   (2) The following persons shall submit to the State Department of
Health Services an application, including fingerprints, for the
furnishing of the person's criminal record to the state department,
at the person's expense as provided in subdivision (b), for the
purpose of a criminal record review:
   (A) The owner or owners of a private agency if the owners are
individuals.
   (B) If the owner of a private agency is a corporation,
partnership, or association, any person having a 10 percent or
greater interest in that corporation, partnership, or association.
   (C) The administrator of a home health agency.
   (b) The persons specified in paragraph (2) of subdivision (a)
shall be responsible for any costs associated with rolling the
fingerprint cards.  The fee to cover the processing costs of the
Department of Justice, not including the costs associated with
rolling the fingerprint cards, shall not exceed thirty-two dollars
($32) per card.
   (c) If the criminal record review conducted pursuant to paragraph
(2) of subdivision (a) discloses a conviction for a felony or any
crime that evidences an unfitness to provide home health services,
the application for a license shall be denied or the person shall be
prohibited from providing service in the home health agency applying
for a license.  This subdivision shall not apply to deny a license or
prohibit the provision of service if the person presents evidence
satisfactory to the state department that the person has been
rehabilitated and presently is of such good character as to justify
the issuance of the license or the provision of service in the home
health agency.
1728.2.  (a) If a home health agency or an applicant for a license
has not been previously licensed, the state department may only issue
a provisional license to the agency as provided in this section.
   (b) A provisional license to operate a home health agency shall
terminate six months from the date of issuance.
   (c) Within 30 days prior to the termination of a provisional
license, the state department shall give the agency a full and
complete inspection, and, if the agency meets all applicable
requirements for licensure, a regular license shall be issued.  If
the home health agency does not meet the requirements for licensure
but has made substantial progress towards meeting the requirements,
as determined by the state department, the initial provisional
license shall be renewed for six months.
   (d) If the state department determines that there has not been
substantial progress towards meeting licensure requirements at the
time of the first full inspection provided by this section, or, if
the state department determines upon its inspection made within 30
days of the termination of a renewed provisional license that there
is lack of full compliance with the requirements, no further license
shall be issued.
   (e) If an applicant for a provisional license to operate a home
health agency has been denied provisional licensing by the state
department, the applicant may contest the denial by filing a request
for a hearing pursuant to Section 100171.
   (f) The department shall not apply less stringent criteria when
granting a provisional license pursuant to this section than it
applies when granting a permanent license.
1728.3.  Notwithstanding Sections 1728.1 and 1732, the state
department may issue a provisional license to a home health agency
if:
   (a) The agency and the applicant for licensure substantially meet
the standards specified by this chapter and regulations adopted
pursuant to this chapter.
   (b) No violation of this chapter or regulations adopted under this
chapter exists in the agency which jeopardizes the health or safety
of patients.
   (c) The applicant has adopted a plan for correction of any
existing violations which is satisfactory to the state department.
   A provisional license issued under this section shall expire not
later than six months after the date of issuance, or at an earlier
time as determined by the state department at the time of issuance,
and may not be renewed.
   The department shall not apply less stringent criteria when
granting a provisional license pursuant to this section than it
applies when granting a permanent license.
1728.7.  (a) Notwithstanding any other provision of this chapter,
the state department shall issue a license to a home health agency
that applies to the state department for a home health agency license
and meets all of the following requirements:
   (1) Is accredited as a home health agency by either the Joint
Commission on Accreditation of Healthcare Organizations (JCAHO) or
the Community Health Accreditation Program (CHAP), and the
accrediting organization forwards to the state department copies of
all initial and subsequent survey and other accreditation reports or
findings.
   (2) Files an application with fees pursuant to this chapter.
   (3) Meets any other additional licensure requirements of, or
regulations adopted pursuant to, this chapter that the state
department identifies, after consulting with either the JCAHO or the
CHAP, as more stringent than the accreditation requirements of either
JCAHO or CHAP.
   (b) The state department may require a survey of an accredited
home health agency to ensure the accreditation requirements are met.
These surveys shall be conducted using a selective sample basis.
   (c) The state department may require a survey of an accredited
home health agency to investigate complaints against an accredited
home health agency for substantial noncompliance, as determined by
the state department, with these accreditation standards.
   (d) Notwithstanding subdivisions (a), (b), and (c), the state
department shall retain its full range of authority over accredited
home health agencies to ensure the licensure and accreditation
requirements are met.  This authority shall include the entire scope
of enforcement sanctions and options available for unaccredited home
health agencies.
1729.  Each application for a license under this chapter, except
applications by political subdivisions, shall be accompanied by a fee
for the headquarters or main office of the agency and for each
additional branch office maintained and operated by the agency in the
amount of five hundred twenty-six dollars ($526).  This fee shall be
eight hundred ninety-eight dollars ($898) commencing on July 1,
1983.  If a license is denied by the state department, all but
twenty-five dollars ($25) of the fee shall be returned to the
applicant.
1729.1.  The fee specified in Section 1729 shall be adjusted
annually in the manner specified in Section 100445.  The adjustments
shall be rounded off to the nearest whole dollar amount.
1730.  Each license issued under this chapter shall expire 12 months
from the date of its issuance.  Application for renewal of license
accompanied by the necessary fee shall be filed with the state
department annually, not less than 10 days prior to expiration date.
Failure to make a timely renewal shall result in expiration of the
license.
1731.  No person, public or private organization, political
subdivision of the state, or other governmental agency within the
state, shall continue to operate, conduct, or maintain an existing
home health agency after September 30, 1966, without having applied
for and obtained a license as provided in this chapter or in the case
of a hospital as defined in Section 1401 of this division, having
been approved by the state department to establish, conduct, or
maintain a home health agency.
1732.  Upon filing of the application for a license provided for in,
and upon full compliance with, the provisions of this chapter and
the rules and regulations promulgated under this chapter by the state
department, the state department  shall issue to the applicant the
license applied for.  However, any hospital, as defined in Section
1401 which is licensed under the provisions of Chapter 2.3
(commencing with Section 1400) is not required to obtain a license.
In order for a hospital to establish, conduct, or maintain a home
health agency, it shall comply with all the provisions of this
chapter and be approved by the state department. The approval shall
be deemed to be licensure and shall not extend past midnight on the
31st day of December of each calendar year. The fee set forth in
Section 1729 shall be paid before approval is granted.  Approval may
be denied or withdrawn by the state department on the same grounds as
provided for denial, suspension, or revocation of a home health
agency license. The state department may take the same action against
any approved hospital home health agency as it may against any
licensed home health agency under this chapter.
1733.  Every home health agency for which a license has been issued,
except a facility that is certified to participate either in the
Medicare program under Title XVIII (42 U.S.C. Sec. 1395 et seq.) of
the federal Social Security Act, or the medicaid program under Title
XIX (42 U.S.C. Sec. 1396 et seq.) of the federal Social Security Act,
or both, shall be periodically inspected by a duly authorized
representative of the state department no less than once a year.
Reports of each such inspection shall be prepared by the
representative conducting it upon forms prepared and furnished by the
state department and filed with the state department.  Such
inspection shall be for the purpose of ensuring that the provisions
of this chapter and the rules and regulations of the department are
being followed.  The state department is directed to ensure by such
inspection that the home health agency is providing high quality care
to its patients in accordance with the orders of the patient's
physician.
1734.  (a) The state department shall adopt, and may thereafter
modify, amend, or rescind, reasonable rules and regulations to carry
out the purposes of this chapter, including, the prohibition of
specific conduct, determined by the state department to be inimical
to the public health, morals, welfare or safety of the people of the
State of California in the maintenance and operation of the home
health agency for which a license is issued.  In adopting, modifying,
amending or rescinding the rules and regulations, the state
department shall consult with, and receive recommendations from among
other physicians and surgeons, pharmacists, public health nurses,
and persons representing hospitals, nonprofit home health agencies,
proprietary home health agencies and counties whose health department
or hospital has a home health agency.  The state department shall
also comply with Chapter 3.5 (commencing with Section 11340) of Part
1 of Division 3 of Title 2 of the Government Code.
   (b) The state department shall adopt rules and regulations
regarding the purchase, storage, furnishing, and transportation of
legend devices for a patient of a home health agency.  As used in
this subdivision, "legend devices" means any device that bears the
label "Caution:  federal law restricts this device to sale by or on
the order of a ____" or words of similar meaning.
1734.5.  The department may grant to entities contracting with the
department under the PACE program, as defined in Chapter 8.75
(commencing with Section 14590) of Part 3 of Division 9 of the
Welfare and Institutions Code, exemptions from the provisions
contained in this chapter in accordance with the requirements of
Section 100315.
1735.  The state department may deny any application for, or suspend
or revoke any license issued under the provisions of this chapter
upon any of the following grounds and in the manner hereinafter
provided:
   (a) Violation by the licensee of any of the provisions of this
chapter or of any other law of this state or of the rules and
regulations promulgated under this chapter.
   (b) Aiding, abetting or permitting the commission of any illegal
act.
   (c) Misrepresentation of a material fact in the application for a
license.
1736.  Proceedings for the denial, suspension or revocation of
licenses or denial or withdrawal of approval under this chapter shall
be conducted in accordance with Section 100171.
   The suspension, expiration, or forfeiture by operation of law of a
license issued by the state department; its suspension, forfeiture,
or cancellation by order of the state department or by order of a
court of law; or its surrender without the written consent of the
state department, shall not deprive the state department of its
authority to institute or continue a disciplinary proceeding against
the licensee upon any ground provided by law or to enter an order
suspending or revoking the license or otherwise taking disciplinary
action against the licensee on any such ground.
1736.1.  (a) An applicant for certification as a certified home
health aide shall comply with each of the following requirements:
   (1) Have successfully completed a training program approved by the
department pursuant to applicable federal and state regulations.
   (2) Obtain a criminal record clearance pursuant to Section 1736.6.
   (b) Any person who violates this article is guilty of a
misdemeanor and, upon a conviction thereof, shall be punished by
imprisonment in the county jail for not more than 180 days, or by a
fine of not less than twenty dollars ($20) nor more than one thousand
dollars ($1,000), or by both fine and imprisonment.
1736.2.  (a) Certificates issued for certified home health aides
shall be renewed every two years and renewal shall be conditioned on
the certificate holder obtaining a criminal record clearance pursuant
to Section 1736.6.
   (b) Certificates issued to certified home health aides shall
expire on the certificate holder's birthday.  If the certificate is
renewed more than 30 days after its expiration, the certificate
holder, as a condition precedent to renewal, shall also pay the
delinquency fee prescribed by this article.
   (c) To renew an unexpired certificate, the certificate holder
shall, on or before the certificate expiration date, apply for
renewal on a form provided by the state department and pay the
renewal fee prescribed in Section 1736.3.
   (d) The state department shall give written notice to a
certificate holder 90 days in advance of the renewal date and 90 days
in advance of the expiration of the fourth year that a renewal fee
has not been paid, and shall give written notice informing the
certificate holder in general terms of the provisions governing
certificate renewal for certified home health aides.  Nonreceipt of
the renewal notice does not relieve the certificate holder of the
obligation to make a timely renewal.  Failure to make a timely
renewal shall result in expiration of the certificate.
   (e) Except as otherwise provided in this article, an expired
certificate may be renewed at any time within four years after its
expiration on the filing of an application for renewal on a form
prescribed by the state department, and payment of the renewal fee in
effect on the date the application is filed.
   Renewal under this article shall be effective on the date on which
the application is filed, on the date when the renewal fee is paid,
or on the date on which the delinquency fee is paid, whichever occurs
last.  If renewed, the certificate shall continue in effect until
the date provided for in this section, when it shall expire if it is
not again renewed.
   (f) If a certified home health aide applies for renewal more than
30 days after expiration but within four years after the expiration,
and demonstrates in writing to the state department's satisfaction
why the renewal application was late, then the state department shall
issue a renewal, upon payment of the renewal fee.  If the certified
home health aide demonstrates in writing to the state department's
satisfaction why he or she cannot pay the delinquency fee, then the
state department on a case-by-case basis shall consider waiving the
delinquency fee.  A suspended certificate is subject to expiration
and shall be renewed as provided in this article, but this renewal
does not entitle the certificate holder, while the certificate
remains suspended, and until it is reinstated, to engage in the
certified activity, or in any other activity or conduct in violation
of the order or judgment by which the certificate was suspended.
   (g) A revoked certificate is subject to expiration as provided in
this section, but it cannot be renewed.  If reinstatement of the
certificate is approved by the state department, the certificate
holder, as a condition precedent to reinstatement, shall pay a
reinstatement fee in an amount equal to the renewal fee in effect on
the date the application for reinstatement is filed, plus the
delinquency fee, if any, accrued at the time of its revocation.
   (h) A certificate that is not renewed within four years after its
expiration cannot be renewed, restored, reissued, or reinstated
except upon completion of a certification training program unless
deemed otherwise by the state department if all of the following
conditions are met:
   (1) No fact, circumstance, or condition exists that, if the
certificate were issued, would justify its revocation or suspension.
   (2) The person pays the application fee provided for by
subdivision (a) of Section 1736.3.
   (3) The person takes and passes any examination that may be
required of an applicant for a new certificate at that time, that
shall be given by an approved provider of a certification training
program.
   (i) Certificate holders shall notify the state department within
60 days of any change of address.  Any notice sent by the department
shall be effective if mailed to the current address filed with the
department.
   (j) Certificate holders that have been certified as both nurse
assistants pursuant to Article 9 (commencing with Section 1337) of
Chapter 2 of Division 2 and home health aides pursuant to this
chapter shall renew their certificates at the same time on one
application.
1736.3.  (a) Fees shall be submitted with home health aide training
certificate renewal applications.  The state department shall collect
fees according to the following schedule:
   (1) The training application fee shall be fifteen dollars ($15).
   (2) The renewal fee for certified home health aides shall be no
more than twenty dollars ($20).
   (3) The renewal fee for persons who are certified as both home
health aides and nurse assistants shall be no more than twenty
dollars ($20).
   (4) The duplicate fee for lost certificates shall be five dollars
($5).
   (5) The delinquency fee for late renewals is ten dollars ($10).
   (b) The penalty for submitting insufficient funds or any
fictitious check, draft, or order on any bank or depository for
payment of any fee to the state department shall be ten dollars
($10).
1736.4.  (a) The state department shall investigate complaints
concerning misconduct by certified home health aides and may take
disciplinary action pursuant to Section 1736.5.
   (b) The department shall maintain a registry that includes the
certification status of all certified home health aides, including
the status of any proposed or completed disciplinary actions.
   (c) Home health agencies, as defined in subdivision (a) of Section
1727, and hospice providers, as defined in subdivision (b) of
Section 1745, that hire certified home health aides after July 1,
1997, shall consult the state department's registry prior to hiring
these individuals or placing them in direct contact with patients.
1736.5.  (a) The state department shall deny a training 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 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, 488, 496, 503, 518, or
666, unless any of the following apply:
   (1) 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 the Penal Code and the information or
accusation against him or her has been dismissed pursuant to Section
1203.4 of the Penal Code.
   (2) 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.
   (3) 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.
   (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) (1) The state department may deny an application or deny,
suspend, or revoke a certificate issued under this article for any of
the following:
   (A) Unprofessional conduct, including, but not limited to,
incompetence, gross negligence, physical, mental, or verbal abuse of
patients, or misappropriation of property of patients or others.
   (B) Conviction of a crime substantially related to the
qualifications, functions, and duties of a home health aide,
irrespective of a subsequent order under Section 1203.4, 1203.4a, or
4852.13 of the Penal Code, where 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.
   (C) 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 home health aide, 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.
   (D) Procuring a home health aide certificate by fraud,
misrepresentation, or mistake.
   (E) Making or giving any false statement or information in
conjunction with the application for issuance of a home health aide
certificate or training and examination application.
   (F) Impersonating any applicant, or acting as proxy for an
applicant, in any examination required under this article for the
issuance of a certificate.
   (G) Impersonating another home health aide, 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.
   (H) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violation of, or conspiring to violate
any provision or term of, this article.
   (2) In determining whether or not to deny an application or deny,
suspend, or revoke a certificate issued under this article pursuant
to this subdivision, the department shall take into consideration the
following factors as evidence of good character and rehabilitation:
   (A) The nature and seriousness of the offense under consideration
and its relationship to their employment duties and responsibilities.
   (B) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
   (C) The time that has elapsed since the commission of the conduct
or offense referred to in subparagraph (A) or (B) and the number of
offenses.
   (D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
   (E) Any rehabilitation evidence, including character references,
submitted by the person.
   (F) Employment history and current employer recommendations.
   (G) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
   (H) Granting by the Governor of a full and unconditional pardon.
   (I) 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 determine that the suspension
shall be stayed, placing the certificate holder on probation with
specified conditions for a period not to exceed two years.  When 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 if the determination was made under subdivision (c).
   (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 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 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.  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
(f).  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 home health aide
in California 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 department shall notify the employer of
the applicant or 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.
1736.6.  (a) (1) A criminal record clearance shall be conducted for
all home health aides by the submission of fingerprint cards to the
state department for processing at the Department of Justice.  This
criminal record clearance shall be completed prior to issuing or
renewing a certificate.  Applicants shall be responsible for any
costs associated with rolling the fingerprint cards.  The fee to
cover the processing costs of the Department of Justice, not
including the costs associated with rolling the fingerprint cards,
shall not exceed thirty-two dollars ($32) per card.
   (2) (A) Upon enrollment in a training program for home health aide
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) New home health aide applicants who are unemployed and unable
to pay the fee charged by the Department of Justice pursuant to
paragraph (1) of subdivision (a) due to financial hardship may
request a waiver for a period not to exceed six months.  The request
for waiver shall be made in writing at the time the fingerprint card
is submitted for processing.  The applicant shall agree to pay the
fee within six months of employment.  The failure to pay the fee
within the six-month period shall result in the inactivation of the
applicant's certificate until the fee is paid in full.
   (b) Upon receipt of the fingerprints, the Department of Justice
shall notify the state department of the criminal record information,
as provided for in this subdivision.  If no criminal record
information has been recorded, the Department of Justice shall
provide the state department with a statement of that fact.  If the
fingerprints are illegible, the Department of Justice shall, within
15 calendar days from receipt of the fingerprints, notify the state
department of that fact.
   (c) The department shall respond to the applicant and employer
within 30 days from the date of receipt of the fingerprint cards.
   (d) A criminal record clearance, consistent with this section
shall be implemented for home health aide applicants beginning July
1, 1998, and phased in for all certified home health aides by June
30, 2000.
   (e) 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 home health aide certification.
   (f) The 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
1265.6 or 1338.5 shall not be required to obtain multiple criminal
record clearances.
   (g) If the department receives a fingerprint card from a certified
home health aide 60 days prior to the expiration of the certified
health aide's certification and the department has received no
response from the Department of Justice, or if the department is
experiencing a delay in processing the renewal of the certified home
health aide's certification at the time of the expiration of the
certified home health aide's certification, the department may extend
the expiration of the certified home health aide's certification for
60 days.  This provision shall expire August 1, 2001.
1736.7.  (a) The state department may request and maintain
employment information for home health aides.
   (b) Within five working days of receipt of a criminal record or
information from the Department of Justice pursuant to Section
1736.6, the state department shall notify the licensee and applicant
of any criminal convictions.
   (c) The state department shall conduct a feasibility study to
assess the additional technology requirements necessary to include
previous and current employment information on its registry and to
make that information available to potential employers.  The state
department shall report to the Legislature by July 1, 2000, as to the
results of the study.
1737.  Any license revoked pursuant to this chapter may be
reinstated pursuant to the provisions of Section 11522 of the
Government Code.
1737.5.  Any licensee may, with the approval of the state
department, surrender his license for suspension or cancellation by
the state department. Any license suspended or canceled pursuant to
this section may be reinstated by the state department on receipt of
an application showing compliance with the requirements of Section
1728.
1738.  The provisions of this chapter do not apply to any home
health agency conducted by and for the adherents of any well
recognized church or religious denomination for the purpose of
providing facilities for the care or treatment of the sick who depend
upon prayer or spiritual means for healing in the practice of the
religion of such church or denomination.
1739.  Any person who violates any of the provisions of this chapter
or of the rules and regulations promulgated under this chapter is
guilty of a misdemeanor and upon conviction thereof shall be punished
by a fine not to exceed one thousand dollars ($1,000) or by
imprisonment in the county jail for a period not to exceed 180 days
or by both such fine and imprisonment.
1740.  The director may bring an action to enjoin the violation or
threatened violation of Section 1726 in the superior court in and for
the county in which the violation occurred or is about to occur.
Any proceeding under the provisions of this section shall conform to
the requirements of Chapter 3 (commencing with Section 525) of Title
7 of Part 2 of the Code of Civil Procedure, except that the director
shall not be required to allege facts necessary to show or tending to
show lack of adequate remedy at law or to show or tending to show
irreparable damage or loss.
1741.  Any officer, employee, or agent of the state department may
enter and inspect any building, premises, record or file of a
licensee at any reasonable time to secure compliance with, or to
prevent a violation of, any provision of this chapter.
1742.  The district attorney of every county shall, upon application
by the state department or its authorized representative, institute
and conduct the prosecution of any action for violation within his
county or any provisions of this chapter.