BILL NUMBER: AB 731 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Gallagher
FEBRUARY 25, 2015
An act to amend Sections 4115, 4120, 4201, 7590.2, 8538, 12518,
19556, 19599, 19605.7, 25350, 25503.6, and 25608 of, to amend and
renumber Sections 1626.5, 7588.2, and 17550.42 of, to repeal Sections
125.3, 1917.2, 4945, 5082.5, 5095, 7000.6, 17530.6, and 18897.8 of,
and to repeal the heading of Article 3.5 (commencing with Section
316) of Chapter 4 of Division 1 of, the Business and Professions
Code, to amend Sections 56.36, 3486, 5910, and 5915 of, to repeal
Sections 1936.5, 2923.55, 2924.19, 2924.20, and 2934a of, and to
repeal Title 17 (commencing with Section 3272) of Part 4 of Division
3 of, the Civil Code, to amend Section 398, 629, 1277, and 2030.010
of, to repeal Section 116.222 of, to repeal the heading of Article 5
(commencing with Section 142) of Chapter 6 of Title 1 of Part 1 of,
and to repeal the heading of Chapter 1 (commencing with Section 156)
of Title 2 of Part 1 of, the Code of Civil Procedure, to amend
Section 9321.1 of, and to amend the heading of Part 6 (commencing
with Section 3601) of Division 3 of, the Commercial Code, to amend
Sections 5047, 25620, 31116, 31121, and 31158 of, and to amend and
renumber Section 12637 of, the Corporations Code, to amend Sections
1313, 2575, 2577, 8261, 8273.1, 8363.1, 8450, 8483.55, 8490.1, 9004,
17199.4, 17592.74, 32282, 35035, 35735.1, 41020, 42127, 42238.15,
42800, 44252, 44277, 44932, 44939, 44940, 44944, 44944.05, 44944.3,
46116, 47605, 47605.1, 47605.6, 47614.5, 47651, 48003, 48297, 48321,
48900.9, 49452.9, 51747.3, 52064.5, 52852, 66281.7, 67386, 69437,
70022, 70037, 76030, 78261.5, 82542, 87782, 87784.5, 88207.5, 89005,
89295, 89500.7, 89770, 92611.7, 92675, 94143, 94145.5, and 94880 of,
to amend and renumber Sections 38047.5, 38047.6, 39672, 41207.3, and
66261.5 of, to amend and renumber the heading of Article 7
(commencing with Section 66080) of Chapter 2 of Part 40 of Division 5
of Title 3 of, to amend and renumber the heading of Chapter 11
(commencing with Section 19900) of Part 11 of Division 1 of Title 1
of, to repeal Sections 8350.5 and 41851.1 of, to repeal the heading
of Article 2 (commencing with Section 12210) of Chapter 2 of Part 8
of Division 1 of Title 1 of, to repeal the heading of Article 1
(commencing with Section 32200) of Chapter 2 of Part 19 of Division 1
of Title 1 of, to repeal the heading of Article 7 (commencing with
Section 33390) of Chapter 3 of Part 20 of Division 2 of Title 2 of,
to repeal the headings of Article 3 (commencing with Section 46330)
and Article 4 (commencing with Section 46340) of Chapter 3 of Part 26
of Division 4 of Title 2 of, to repeal the heading of Article 2
(commencing with Section 48810) of Chapter 5 of Part 27 of Division 4
of Title 2 of, to repeal the heading of Article 8 (commencing with
Section 54750) of Chapter 9 of Part 29 of Division 4 of Title 2 of,
to repeal the heading of Article 7 (commencing with Section 68090) of
Chapter 1 of Part 41 of Division 5 of Title 3 of, to repeal the
heading of Article 3 (commencing with Section 72632) of Chapter 6 of
Part 45 of Division 7 of Title 3 of, to repeal the heading of Article
8 (commencing with Section 78310) of Chapter 2 of Part 48 of
Division 7 of Title 3 of, to repeal the heading of Article 3
(commencing with Section 78440) of Chapter 3 of Part 48 of Division 7
of Title 3 of, to repeal the heading of Article 4 (commencing with
Section 82360) of Chapter 7 of Part 49 of Division 7 of Title 3 of,
to repeal the heading of Article 1 (commencing with Section 84300) of
Chapter 3 of Part 50 of Division 7 of Title 3 of, to repeal the
heading of Article 2 (commencing with Section 85210) of Chapter 8 of
Part 50 of Division 7 of Title 3 of, to repeal the heading of Chapter
3 (commencing with Section 37400) of Part 22 of Division 3 of Title
2 of, to repeal the heading of Chapter 14 (commencing with Section
52980) of Part 28 of Division 4 of Title 2 of, to repeal the heading
of Chapter 8.5 (commencing with Section 56867) of Part 30 of Division
4 of Title 2 of, to repeal the heading of Chapter 4 (commencing with
Section 78600) of Part 48 of Division 7 of Title 3 of, to repeal
Chapter 17 (commencing with Section 11600) of Part 7 of Division 1 of
Title 1 of, and to repeal and amend Section 32289 of, the Education
Code, to amend Sections 2150, 2157, and 8040 of the Elections Code,
to amend Sections 6203, 6301, 7613.5, 8712, 8811, and 8908 of, to
amend and renumber Section 3201 of, to repeal Sections 3690 and 4051
of, and to repeal the heading of Article 3 (commencing with Section
3780) of Chapter 7 of Part 1 of Division 9 of, the Family Code, to
amend Sections 12201, 17201, 22066, 22101, 23005, and 32208 of, to
amend and renumber Section 23015 of, to repeal Section 24058 of, to
repeal the headings of Article 1 (commencing with Section 32700) and
Article 2 (commencing with Section 32710) of Chapter 6 of Division
15.5 of, and to repeal the heading of Chapter 8 (commencing with
Section 50601) of Division 20 of, the Financial Code, to amend
Sections 1652, 1653, 1654, 1745.2, and 12002 of the Fish and Game
Code, to amend Sections 6045, 6047.9, 12996, 12999.5, 13186.5, 19227,
and 78579 of, to amend and renumber the heading of Article 5
(commencing with Section 491) of Chapter 3 of Part 1 of Division 1
of, and to repeal Sections 55462 and 77103 of, the Food and
Agricultural Code, to amend Sections 6254, 6276.22, 6700, 8753.6,
11146.2, 13956, 15155, 15814.22, 16183, 17581.6, 18720.45, 53398.52,
53398.75, 56378, 65352.5, 65583.2, 65995.7, 75070, 75521, 82015, and
95014 of, to amend and renumber Sections 13994, 13994.1, 13994.2,
13994.3, 13994.4, 13994.5, 13994.6, 13994.7, 13994.8, 13994.9,
13994.10, 13994.11, 13994.12, 14670.2, 22960.51, 31685.96, 53216.8,
and 65080.1 of, to amend and renumber the heading of Chapter 14
(commencing with Section 5970) of Division 6 of Title 1, to amend and
renumber Article 6 (commencing with Section 12099) of Chapter 1.6 of
Part 2 of Division 3 of Title 2, to amend and renumber Article 18
(commencing with Section 14717) of Chapter 2 of Part 5.5 of Division
3 of Title 2 of, to repeal Sections 4420.5, 12804, 13312, 14254.5,
14829.2, 19995.5, and 43009 of, to repeal the heading of Article 8.5
(commencing with Section 8601) of Chapter 7 of Division 1 of Title 2
of, to repeal the heading of Article 8 (commencing with Section
11351) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of, to
repeal the heading of Article 1 (commencing with Section 11370) of
Chapter 4 of Part 1 of Division 3 of Title 2 of, to repeal the
heading of Article 7 (commencing with Section 13968) of Chapter 5 of
Part 4 of Division 3 of Title 2 of, to repeal the heading of Article
2 (commencing with Section 72054) of Chapter 8 of Title 8 of, to
repeal the heading of Article 4 (commencing with Section 72150) of
Chapter 8 of Title 8 of, to repeal the heading of Chapter 3
(commencing with Section 980) of Part 5 of Division 3.6 of Title 1
of, to repeal the heading of Chapter 4 (commencing with Section
14730) of Part 5.5 of Division 3 of Title 2 of, to repeal the heading
of Chapter 5.5 (commencing with Section 19994.20) of Part 2.6 of
Division 5 of Title 2 of, to repeal the heading of Chapter 10
(commencing with Section 95030) of Title 14 of, and to repeal Article
12 (commencing with Section 16429.30) of Chapter 2 of Part 1 of
Division 4 of Title 2 of, the Government Code, amend Sections 678.3,
1159.2, and 6087 of, and to repeal Section 1159.1 of, the Harbors and
Navigation Code, to amend Sections 442.5, 1347.5, 1357.504, 1358.18,
1367.004, 1367.035, 1367.25, 1368.05, 1389.4, 1389.5, 1389.7,
1399.836, 1399.855, 1502, 1522, 1534, 1546.1, 1546.2, 1562, 1567.62,
1567.69, 1568.07, 1569.335, 1569.481, 1569.482, 1569.525, 1569.682,
1597.58, 1635.1, 1796.17, 1796.23, 1796.25, 1796.26, 1796.29,
1796.34, 1796.37, 1796.38, 1796.41, 1796.44, 1796.45, 4730.65, 16500,
25163.3, 25262, 25507.2, 33492.78, 34177, 39945, 42301.16, 50561,
51505, 101661, 101850, 101853, 101853.1, 101855, 101855.1, 102430,
111825, 115880, 119316, 120393, 121025, 123223, 124995, 125125,
125130, 125160, 125175, 125190, 125191, 130060, and 136000 of, to
amend the heading of Chapter 2 (commencing with Section 104145) of
Part 1 of Division 103 of, to amend the heading of Part 8 (commencing
with Section 125700) of Division 106 of, to amend and renumber
Sections 1339.9, 1531.2, 1568.0823, 4766.5, 13143.5, 25997, 25997.1,
and 120155 of, to amend and renumber the heading of Chapter 3
(commencing with Section 16500) of Division 12.5 of, to amend and
renumber the heading of Article 5.5 (commencing with Section 25159)
of Chapter 6.5 of Division 20 of, to amend and renumber the heading
of Article 4 (commencing with Section 128454) of Chapter 5 of Part 3
of Division 107 of, to repeal Sections 1317.5, 1367.20, 1371.36,
1371.37, 1371.38, 1371.39, 8650.5, 44246, 44525.5, 44525.7, and
116283 of, to repeal the heading of Article 2.6 (commencing with
Section 1528) of Chapter 3 of Division 2 of, to repeal the heading of
Article 3 (commencing with Section 11140) of Chapter 3 of Division
10 of, to repeal the heading of Article 2 (commencing with Section
11760.5) of Chapter 1 of Part 2 of Division 10.5 of, to repeal the
heading of Article 6 (commencing with Section 11780) of Chapter 2 of
Part 2 of Division 10.5 of, to repeal the heading of Article 8
(commencing with Section 25299.80) of Chapter 6.75 of Division 20 of,
to repeal the heading of Article 12 (commencing with Section
25299.97) of Chapter 6.75 of Division 20 of, to repeal the heading of
Article 5 (commencing with Section 101150) of Chapter 2 of Part 3 of
Division 101 of, to repeal the heading of Chapter 3 (commencing with
Section 101000) of Part 2 of Division 101 of, to repeal the heading
of Chapter 4 (commencing with Section 101500) of Part 3 of Division
101 of, to repeal Division 10.10 (commencing with Section 11999.30)
of, to repeal Chapter 6 (commencing with Section 101860) of Part 4 of
Division 101 of, to repeal Chapter 4 (commencing with Section
128200) of Part 3 of Division 107 of, and to repeal and amend
Sections 25299.97 and 116612 of, the Health and Safety Code, to amend
Sections 926.1, 926.2, 1215.8, 10112.26, 10112.35, 10123.196,
10192.18, 10753.06.5, and 12880.4 of, to amend and renumber Section
10123.21 of, and to repeal the heading of Chapter 17 (commencing with
Section 12693.99) of Part 6.2 of Division 2 of, the Insurance Code,
to amend Sections 1019, 1311.5, 1741.1, 5406, 6319, 6404.5, 6625, and
7873 of the Labor Code, to amend Sections 19.8, 132.5, 264.2, 295.2,
308, 602, 626.9, 814, 830.14, 1191.15, 2905, 3016, 3043, 3063.1,
3440, 4501, 4852.08, 4852.11, 4852.12, 4852.14, 4852.18, 13510.5,
18115, 18150, 18155, 18175, 27210, and 30625 of, to amend and
renumber Sections 300.2 and 13980 of, to amend and renumber the
heading of Chapter 5a (commencing with Section 852) of Title 3 of
Part 2 of, to repeal Section 11105.5 of, and to repeal the heading of
Title 6.7 (commencing with Section 13990) of Part 4 of, the Penal
Code, to r
LEGISLATIVE COUNSEL'S DIGEST
AB 731, as introduced, Gallagher. Maintenance of the codes.
Existing law directs the Legislative Counsel to advise the
Legislature from time to time as to legislation necessary to maintain
the codes.
This bill would make nonsubstantive changes in various provisions
of law to effectuate the recommendations made by the Legislative
Counsel to the Legislature.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 125.3 of the Business and Professions Code, as
added by Section 1 of Chapter 1059 of the Statutes of 1992, is
repealed.
125.3. (a) Except as otherwise provided by law, in any order
issued in resolution of a disciplinary proceeding before any board
within the department or before the Osteopathic Medical Board, upon
request of the entity bringing the proceeding may request the
administrative law judge to direct a licentiate found to have
committed a violation or violations of the licensing act to pay a sum
not to exceed the reasonable costs of the investigation and
enforcement of the case.
(b) In the case of a disciplined licentiate that is a corporation
or a partnership, the order may be made against the licensed
corporate entity or licensed partnership.
(c) A certified copy of the actual costs, or a good faith estimate
of costs where actual costs are not available, signed by the entity
bringing the proceeding or its designated representative shall be
prima facie evidence of reasonable costs of investigation and
prosecution of the case. The costs shall include the amount of
investigative and enforcement costs up to the date of the hearing,
including, but not limited to, charges imposed by the Attorney
General.
(d) The administrative law judge shall make a proposed finding of
the amount of reasonable costs of investigation and prosecution of
the case when requested pursuant to subdivision (a). The finding of
the administrative law judge with regard to costs shall not be
reviewable by the board to increase the cost award. The board may
reduce or eliminate the cost award, or remand to the administrative
law judge where the proposed decision fails to make a finding on
costs requested pursuant to subdivision (a).
(e) Where an order for recovery of costs is made and timely
payment is not made as directed in the board's decision, the board
may enforce the order for repayment in any appropriate court. This
right of enforcement shall be in addition to any other rights the
board may have as to any licentiate to pay costs.
(f) In any action for recovery of costs, proof of the board's
decision shall be conclusive proof of the validity of the order of
payment and the terms for payment.
(g) (1) Except as provided in paragraph (2), the board shall not
renew or reinstate the license of any licentiate who has failed to
pay all of the costs ordered under this section.
(2) Notwithstanding paragraph (1), the board may, in its
discretion, conditionally renew or reinstate for a maximum of one
year the license of any licentiate who demonstrates financial
hardship and who enters into a formal agreement with the board to
reimburse the board within that one-year period for the unpaid costs.
(h) All costs recovered under this section shall be considered a
reimbursement for costs incurred and shall be deposited in the fund
of the board recovering the costs to be available upon appropriation
by the Legislature.
(i) Nothing in this section shall preclude a board from including
the recovery of the costs of investigation and enforcement of a case
in any stipulated settlement.
(j) This section does not apply to any board if a specific
statutory provision in that board's licensing act provides for
recovery of costs in an administrative disciplinary proceeding.
SEC. 2. The heading of Article 3.5 (commencing with Section 316)
of Chapter 4 of Division 1 of the Business and Professions Code is
repealed.
Article 3.5. Consumer Advisory Council
SEC. 3. Section 1626.5 of the Business and Professions Code, as
added by Section 6 of Chapter 655 of the Statutes of 1999, is amended
and renumbered to read:
1626.5. 1626.1. In addition to the
exemptions set forth in Section 1626, the operations by bona fide
students of registered dental assisting, registered dental assisting
in extended functions, and registered dental hygiene in extended
functions in the clinical departments or the laboratory of an
educational program or school approved by the board, including
operations by unlicensed students while engaged in clinical
externship programs that have been approved by an approved
educational program or school, and that are under the general
programmatic and academic supervision of that educational program or
school, are exempt from the operation of this chapter.
SEC. 4. Section 1917.2 of the Business and Professions Code is
repealed.
1917.2. (a) The committee shall license as a registered dental
hygienist a third- or fourth-year dental student who is in good
standing at an accredited California dental school and who satisfies
the following requirements:
(1) Satisfactorily performs on a clinical examination and an
examination in California law and ethics as prescribed by the
committee.
(2) Satisfactorily completes a national written dental hygiene
examination approved by the committee.
(b) A dental student who is granted a registered dental hygienist
license pursuant to this section may only practice in a dental
practice that serves patients who are insured under Denti-Cal, the
Healthy Families Program, or other government programs, or a dental
practice that has a sliding scale fee system based on income.
(c) Upon receipt of a license to practice dentistry pursuant to
Section 1634, a registered dental hygienist license issued pursuant
to this subdivision is automatically revoked.
(d) The dental hygienist license is granted for two years upon
passage of the dental hygiene examination, without the ability for
renewal.
(e) Notwithstanding subdivision (d), if a dental student fails to
remain in good standing at an accredited California dental school, or
fails to graduate from the dental program, a registered dental
hygienist license issued pursuant to this section shall be revoked.
The student shall be responsible for submitting appropriate verifying
documentation to the committee.
(f) The provisions of this section shall be reviewed pursuant to
Division 1.2 (commencing with Section 473). However, the review shall
be limited to the fiscal feasibility and impact on the committee.
(g) This section shall become inoperative as of January 1, 2014.
SEC. 5. Section 4115 of the Business and Professions Code is
amended to read:
4115. (a) A pharmacy technician may perform packaging,
manipulative, repetitive, or other nondiscretionary tasks,
tasks only while assisting, and while under the
direct supervision and control of of, a
pharmacist. The pharmacist shall be responsible for the duties
performed under his or her supervision by a technician.
(b) This section does not authorize the performance of any tasks
specified in subdivision (a) by a pharmacy technician without a
pharmacist on duty.
(c) This section does not authorize a pharmacy technician to
perform any act requiring the exercise of professional judgment by a
pharmacist.
(d) The board shall adopt regulations to specify tasks pursuant to
subdivision (a) that a pharmacy technician may perform under the
supervision of a pharmacist. Any pharmacy that employs a pharmacy
technician shall do so in conformity with the regulations adopted by
the board.
(e) No A person shall not
act as a pharmacy technician without first being licensed by the
board as a pharmacy technician.
(f) (1) A pharmacy with only one pharmacist shall have no more
than one pharmacy technician performing the tasks specified in
subdivision (a). The ratio of pharmacy technicians performing the
tasks specified in subdivision (a) to any additional pharmacist shall
not exceed 2:1, except that this ratio shall not apply to personnel
performing clerical functions pursuant to Section 4116 or 4117. This
ratio is applicable to all practice settings, except for an inpatient
of a licensed health facility, a patient of a licensed home health
agency, as specified in paragraph (2), an inmate of a correctional
facility of the Department of Corrections and Rehabilitation, and for
a person receiving treatment in a facility operated by the State
Department of State Hospitals, the State Department of Developmental
Services, or the Department of Veterans Affairs.
(2) The board may adopt regulations establishing the ratio of
pharmacy technicians performing the tasks specified in subdivision
(a) to pharmacists applicable to the filling of prescriptions of an
inpatient of a licensed health facility and for a patient of a
licensed home health agency. Any ratio established by the board
pursuant to this subdivision shall allow, at a minimum, at least one
pharmacy technician for a single pharmacist in a pharmacy and two
pharmacy technicians for each additional pharmacist, except that this
ratio shall not apply to personnel performing clerical functions
pursuant to Section 4116 or 4117.
(3) A pharmacist scheduled to supervise a second pharmacy
technician may refuse to supervise a second pharmacy technician if
the pharmacist determines, in the exercise of his or her professional
judgment, that permitting the second pharmacy technician to be on
duty would interfere with the effective performance of the pharmacist'
s responsibilities under this chapter. A pharmacist assigned to
supervise a second pharmacy technician shall notify the pharmacist in
charge in writing of his or her determination, specifying the
circumstances of concern with respect to the pharmacy or the pharmacy
technician that have led to the determination, within a reasonable
period, but not to exceed 24 hours, after the posting of the relevant
schedule. No An entity employing a
pharmacist may shall not discharge,
discipline, or otherwise discriminate against any pharmacist in the
terms and conditions of employment for exercising or attempting to
exercise in good faith the right established pursuant to this
paragraph.
(g) Notwithstanding subdivisions (a) and (b), the board shall by
regulation establish conditions to permit the temporary absence of a
pharmacist for breaks and lunch periods pursuant to Section 512 of
the Labor Code and the orders of the Industrial Welfare Commission
without closing the pharmacy. During these temporary absences, a
pharmacy technician may, at the discretion of the pharmacist, remain
in the pharmacy but may only perform nondiscretionary tasks. The
pharmacist shall be responsible for a pharmacy technician and shall
review any task performed by a pharmacy technician during the
pharmacist's temporary absence. Nothing in this
This subdivision shall not be construed to
authorize a pharmacist to supervise pharmacy technicians in greater
ratios than those described in subdivision (f).
(h) The pharmacist on duty shall be directly responsible for the
conduct of a pharmacy technician supervised by that pharmacist.
(i) In a health care facility licensed under subdivision (a) of
Section 1250 of the Health and Safety Code, a pharmacy technician's
duties may include any of the following:
(1) Packaging emergency supplies for use in the health care
facility and the hospital's emergency medical system or as authorized
under Section 4119.
(2) Sealing emergency containers for use in the health care
facility.
(3) Performing monthly checks of the drug supplies stored
throughout the health care facility. Irregularities shall be reported
within 24 hours to the pharmacist in charge and the director or
chief executive officer of the health care facility in accordance
with the health care facility's policies and procedures.
SEC. 6. Section 4120 of the Business and Professions Code is
amended to read:
4120. (a) A nonresident pharmacy shall not sell or distribute
dangerous drugs or dangerous devices in this state through any person
or media media, other than a
wholesaler or third-party logistics provider who has obtained a
license pursuant to this chapter or through a selling or distribution
outlet that is licensed as a wholesaler or third-party logistics
provider pursuant to this chapter chapter,
without registering as a nonresident pharmacy.
(b) Applications for a nonresident pharmacy registration shall be
made on a form furnished by the board. The board may require any
information as the board deems reasonably
necessary to carry out the purposes of this section.
(c) The Legislature, by enacting this section, does not intend a
license issued to any nonresident pharmacy pursuant to this section
to change or affect the tax liability imposed by Chapter 3
(commencing with Section 23501) of Part 11 of Division 2 of the
Revenue and Taxation Code on any nonresident pharmacy.
(d) The Legislature, by enacting this section, does not intend a
license issued to any nonresident pharmacy pursuant to this section
to serve as any evidence that the nonresident pharmacy is doing
business within this state.
SEC. 7. Section 4201 of the Business and Professions Code is
amended to read:
4201. (a) Each application to conduct a pharmacy, wholesaler,
third-party logistics provider, or veterinary food-animal drug
retailer, retailer shall be made on a
form furnished by the board, board and
shall state the name, address, usual occupation, and professional
qualifications, if any, of the applicant. If the applicant is other
than a natural person, the application shall state the information as
to each person beneficially interested therein.
(b) As used in this section, and subject to subdivision (c), the
term "person beneficially interested" means and includes:
(1) If the applicant is a partnership or other unincorporated
association, each partner or member.
(2) If the applicant is a corporation, each of its officers,
directors, and stockholders, provided that no
a natural person shall not be deemed to be
beneficially interested in a nonprofit corporation.
(3) If the applicant is a limited liability company, each officer,
manager, or member.
(c) If the applicant is a partnership or other unincorporated
association, a limited liability company, or a corporation, and the
number of partners, members, or stockholders, as the case may be,
exceeds five, the application shall so state, and shall further state
the information required by subdivision (a) as to each of the five
partners, members, or stockholders who own the five largest interests
in the applicant entity. Upon request by the executive officer, the
applicant shall furnish the board with the information required by
subdivision (a) as to partners, members, or stockholders not named in
the application, or shall refer the board to an appropriate source
of that information.
(d) The application shall contain a statement to the effect that
the applicant has not been convicted of a felony and has not violated
any of the provisions of this chapter. If the applicant cannot make
this statement, the application shall contain a statement of the
violation, if any, or reasons which will prevent the applicant from
being able to comply with the requirements with respect to the
statement.
(e) Upon the approval of the application by the board and payment
of the fee required by this chapter for each pharmacy, wholesaler,
third-party logistics provider, or veterinary food-animal drug
retailer, the executive officer of the board shall issue a license to
conduct a pharmacy, wholesaler, third-party logistics provider, or
veterinary food-animal drug retailer,
retailer if all of the provisions of this chapter have been
complied with.
(f) Notwithstanding any other law, the pharmacy license shall
authorize the holder to conduct a pharmacy. The license shall be
renewed annually and shall not be transferable.
(g) Notwithstanding any other law, the wholesaler license shall
authorize the holder to wholesale dangerous drugs and dangerous
devices. The license shall be renewed annually and shall not be
transferable.
(h) Notwithstanding any other law, the third-party logistics
provider license shall authorize the holder to provide or coordinate
warehousing, distribution, or other similar services of dangerous
drugs and dangerous devices. The license shall be renewed annually
and shall not be transferable.
(i) Notwithstanding any other law, the veterinary food-animal drug
retailer license shall authorize the holder to conduct a veterinary
food-animal drug retailer and to sell and dispense veterinary
food-animal drugs as defined in Section 4042.
(j) For licenses referred to in subdivisions (f), (g), (h), and
(i), any change in the proposed beneficial ownership interest shall
be reported to the board within 30 days thereafter upon a form to be
furnished by the board.
SEC. 8. Section 4945 of the Business and Professions Code, as
amended by Section 15 of Chapter 983 of the Statutes of 1991, is
repealed.
4945. (a) The committee shall establish standards for continuing
education for acupuncturists.
(b) The committee shall require each acupuncturist to complete 15
hours of continuing education every year as a condition for renewal
of his or her certificate. A provider of continuing education shall
apply to the committee for approval to offer continuing education
courses for credit toward this requirement on a form developed by the
committee, shall pay a fee covering the cost of approval and for the
monitoring of the provider by the committee and shall set forth the
following information on the application:
(1) Course content.
(2) Test criteria.
(3) Hours of continuing education credit requested for the course.
(4) Experience and training of instructors.
(5) Other information as required by the committee.
(6) That interpreters or bilingual instruction will be made
available, when necessary.
(c) Licensees residing out of state or out of the country shall
comply with the continuing education requirements.
(d) Providers of continuing education shall be monitored by the
committee as determined by the committee.
(e) If the committee determines that any acupuncturist has not
obtained the required number of hours of continuing education, it may
renew the acupuncturist's license and require that the deficient
hours of continuing education be made up during the following renewal
period in addition to the current continuing education required for
that period. If any acupuncturist fails to make up the deficient
hours and complete the current requirement of hours of continuing
education during the subsequent renewal period, then his or her
license to practice acupuncture shall not be renewed until all the
required hours are completed and documented to the committee.
(f) This section shall remain in effect only until January 1,
1996, and shall have no force or effect on or after that date, unless
a later enacted statute, which is enacted before January 1, 1996,
deletes or extends that date.
SEC. 9. Section 5082.5 of the Business and Professions Code, as
added by Section 10 of Chapter 704 of the Statutes of 2001, is
repealed.
5082.5. The board may give credit to a candidate who has passed
all or part of the examination in another state or territory, if the
members of the board determine that the standards under which the
examination was held are as high as the standards established for
examination in this chapter.
SEC. 10. Section 5095 of the Business and Professions Code, as
added by Section 20 of Chapter 704 of the Statutes of 2001, is
repealed.
5095. (a) To be authorized to sign reports on attest engagements,
a licensee shall complete a minimum of 500 hours of experience,
satisfactory to the board, in attest services.
(b) To be qualifying under this section, attest experience shall
have been performed in accordance with applicable professional
standards. Experience in public accounting shall be completed under
the supervision or in the employ of a person licensed or otherwise
having comparable authority under the laws of any state or country to
engage in the practice of public accountancy and provide attest
services, and this experience shall be verified. Experience in
private or governmental accounting or auditing shall be completed
under the supervision of an individual licensed by a state to engage
in the practice of public accountancy and perform attest services,
and this experience shall be verified. An applicant may be required
to present work papers or other evidence substantiating that the
applicant has met the requirements of this section and applicable
regulations.
(c) An individual who qualified for licensure by meeting the
requirements of Section 5083 shall be deemed to have satisfied the
requirements of this section.
(d) The board shall adopt regulations to implement this section,
including, but not limited to, a procedure for applicants under
Section 5092 or Section 5093 to qualify under this section.
SEC. 11. Section 7000.6 of the Business and Professions Code, as
added by Section 27 of Chapter 107 of the Statutes of 2002, is
repealed.
7000.6. Protection of the public shall be the highest priority
for the Contractors' State License Board in exercising its licensing,
regulatory, and disciplinary functions. Whenever the protection of
the public is inconsistent with other interests sought to be
promoted, the protection of the public shall be paramount.
SEC. 12. Section 7588.2 of the Business and Professions Code, as
added by Section 3 of Chapter 689 of the Statutes of 2002, is amended
and renumbered to read:
7588.2. 7588.6. (a) A peace officer
of this state or a political subdivision thereof who engages in
off-duty employment solely and exclusively as a security guard or
security officer, and who is required to be registered as a security
guard or security officer pursuant to this chapter, shall only be
subject to the fees required by subdivision (h) of Section 7588.
(b) A peace officer shall also be subject to the fees required by
paragraphs (1) and (2) of subdivision (i) of Section 7588 if the
peace officer carries or uses a firearm as part of the off-duty
employment and has not received approval of his or her primary
employer, as defined in paragraph (2) of subdivision (i) of Section
7583.9, to carry a firearm while working as a security guard or
security officer, and has not submitted verification of that approval
to the bureau pursuant to subdivision (i) of Section 7583.9.
SEC. 13. Section 7590.2 of the Business and Professions Code is
amended to read:
7590.2. (a) An "alarm company operator" means a person who, for
any consideration whatsoever, engages in business or accepts
employment to install, maintain, alter, sell on premises, monitor, or
service alarm systems or who responds to alarm systems except for
any alarm agent. "Alarm company operator," includes any entity that
is retained by a licensed alarm company operator, a customer, or any
other person or entity, to monitor one or more alarm systems, whether
or not the entity performs any other duties within the definition of
an alarm company operator. The provisions of this chapter, to the
extent that they can be made applicable, shall be applicable to the
duties and functions performed in monitoring alarm systems.
(b) A person licensed as an alarm company operator may
shall not conduct any investigation or
investigations except those that are incidental to personal injury,
or the theft, loss, embezzlement, misappropriation, or concealment of
any property, or any other thing enumerated in this section, which
he or she has been hired or engaged to protect.
(c) A person who is licensed, certified, or registered pursuant to
this chapter is exempt from locksmithing requirements, pursuant to
subdivision (e) of Section 6980.12, if the duties performed that
constitute locksmithing are performed in combination with the
installation, maintenance, moving, repairing, replacing, servicing,
or reconfiguration of an alarm system, as defined in subdivision (n)
of Section 7590.1, and limited to work on electronic locks or access
control devices that are controlled by an alarm system control
device, including the removal of existing hardware.
SEC. 14. Section 8538 of the Business and Professions Code is
amended to read:
8538. (a) A registered structural pest control company shall
provide the owner, or owner's agent, and tenant of the premises for
which the work is to be done with clear written notice which contains
the following statements and information using words with common and
everyday meaning:
(1) The pest to be controlled.
(2) The pesticide or pesticides proposed to be used,
used and the active ingredient or ingredients.
(3) "State law requires that you be given the following
information: CAUTION--PESTICIDES ARE TOXIC CHEMICALS. Structural Pest
Control Companies are registered and regulated by the Structural
Pest Control Board, and apply pesticides which are registered and
approved for use by the California Department of
Pesticide Regulation and the United States Environmental Protection
Agency. Registration is granted when the state finds that, based on
existing scientific evidence, there are no appreciable risks if
proper use conditions are followed or that the risks are outweighed
by the benefits. The degree of risk depends upon the degree of
exposure, so exposure should be minimized.
"If within 24 hours following application you experience symptoms
similar to common seasonal illness comparable to the flu, contact
your physician or poison
control center (telephone number) and your pest control company
immediately." (This statement shall be modified to include any other
symptoms of overexposure which are not typical of influenza.)
"For further information, contact any of the following: Your Pest
Control Company (telephone number); for Health Questions--the County
Health Department (telephone number); for Application
Information--the County Agricultural Commissioner (telephone number),
and for Regulatory Information--the Structural Pest Control Board
(telephone number and address)."
(4) If a contract for periodic pest control has been executed, the
frequency with which the treatment is to be done.
(b) In the case of Branch 1 applications, the notice prescribed by
subdivision (a) shall be provided at least 48 hours prior to
application unless fumigation follows inspection by less than 48
hours.
In the case of Branch 2 or Branch 3 registered company
applications, the notice prescribed by subdivision (a) shall be
provided no later than prior to application.
In either case, the notice shall be given to the owner, or owner's
agent, and tenant, if there is a tenant, in at least one of the
following ways:
(1) First-class or electronic mail, if an electronic
mailing mail address has been provided.
(2) Posting in a conspicuous place on the real property.
(3) Personal delivery.
If the building is commercial or industrial, a notice shall be
posted in a conspicuous place, unless the owner or owner's agent
objects, in addition to any other notification required by this
section.
The notice shall only be required to be provided at the time of
the initial treatment if a contract for periodic service has been
executed. If the pesticide to be used is changed, another notice
shall be required to be provided in the manner previously set forth
herein.
(c) Any person or licensee who, or registered company which,
violates any provision of this section is guilty of a misdemeanor
and is punishable as set forth in Section 8553.
SEC. 15. Section 12518 of the Business and Professions Code is
amended to read:
12518. A water submeter submitted to a sealer by an owner, user,
or operator for inspection and testing before its initial
installation that is found to be incorrect, as defined in
subdivision (d) of Section 12500, shall be marked with the
words, words "Out of Order," in
accordance with Section 12506, and shall be returned to a service
agent only if both of the following conditions are met:
(a) The water submeter has no signs of intentional tampering by
which to facilitate fraud.
(b) The water submeter shall is not
be placed into service in California.
SEC. 16. Section 17530.6 of the Business and Professions Code is
repealed.
17530.6. (a) Any person, including an individual, firm,
corporation, association, partnership, or joint venture, or any
employee or agent thereof, shall dispose of any of the information
described in Section 17530.5 in a manner including, but not limited
to, burning, shredding, electronic deleting, or other appropriate
means, so that the identity of the taxpayer may not be determined
from the disposed information alone or in combination with other
publicly available information. A violation of this section
constitutes a misdemeanor.
(b) This section shall not become operative if Assembly Bill 2246
of the 1999-2000 Regular Session is enacted and becomes effective on
or before January 1, 2001.
SEC. 17. Section 17550.42 of the Business and Professions Code, as
added by Section 11 of Chapter 196 of the Statutes of 2003, is
amended and renumbered to read:
17550.42. 17550.42.5. (a) Within 30
days of the close of the fiscal year or other reasonable period
established by the board of directors, the Travel Consumer
Restitution Corporation shall make publicly available a statement of
the following information concerning the most recently concluded
fiscal year:
(1) The number of claims and approximate dollar amount of the
claims received.
(2) The total number of claims and total dollar amount of claims
paid.
(3) The approximate number and dollar amount of claims denied or
abandoned.
(4) The dollar balance in the restitution fund.
(5) The amount of assessments received from participants and the
operating and administrative costs and expenses of the corporation.
(6) The number of new participants and the amount of assessments
received from them.
(b) The Travel Consumer Restitution Corporation shall make
publicly available within 15 days of the board of directors'
approval, or other reasonable period established by the board of
directors, the following information:
(1) The approved minutes of meetings of the board of directors.
(2) The approved estimated annual operational budget projecting
the costs of operations and administration for the succeeding fiscal
year, excluding the amount to be paid for claims.
(3) The approved bylaws, as amended, of the Travel Consumer
Restitution Corporation.
(c) Information may be made publicly available as required by this
section by disseminating the information on an Internet Web site or
providing the information by electronic mail to any person who has
requested the information and provided a valid electronic mail
address.
SEC. 18. Section 18897.8 of the Business and Professions Code, as
added by Section 2 of Chapter 857 of the Statutes of 1996, is
repealed.
18897.8. (a) Any professional athlete, or any student athlete, or
any elementary or secondary school, college, university, or other
educational institution, or any league, conference, association, or
federation of the preceding educational institutions, or any other
person may bring a civil action for recovery of damages from an
athlete agent, if that professional athlete, that student athlete,
that institution, any member of that league, conference, association,
or federation, or that other person is adversely affected by the
acts of the athlete agent or of the athlete agent's representative or
employee in violation of this chapter. A student athlete is presumed
to be adversely affected by the acts of an athlete agent,
representative or employee in violation of this chapter if, because
of those acts, the student athlete is suspended or disqualified from
participation in one or more interscholastic or intercollegiate
sports events by or pursuant to the rules of a state or national
federation or association for the promotion and regulation of
interscholastic or intercollegiate sports, or suffers financial
damage, or suffers both suspension or disqualification and financial
damage. An educational institution is presumed to be adversely
affected by the acts of an athlete agent or of an athlete agent's
representative or employee in violation of this chapter if, because
of those acts, the educational institution, or one or more student
athletes admitted to or enrolled in the educational institution, is
suspended or disqualified from participation in one or more
interscholastic or intercollegiate athletic events by or pursuant to
the rules of a state or national federation or association for the
promotion and regulation of interscholastic or intercollegiate sports
events by or pursuant to the rules of a state or national federation
or association for the promotion and regulation of interscholastic
or intercollegiate sports, or suffers financial damage, or suffers
both suspension or disqualification and financial damage.
(b) A plaintiff that prevails in a civil action brought under this
section may recover actual damages, or fifty thousand dollars
($50,000), whichever is higher; punitive damages; court costs; and
reasonable attorney's fees. An athlete agent found liable under this
section is also subject to forfeiture of any right of repayment for
anything of benefit or value provided to a student athlete, and shall
refund any consideration paid to that athlete agent by or on behalf
of the student athlete.
(c) It is the intent of the Legislature in enacting this section
to encourage enforcement of this chapter through private civil
actions.
SEC. 19. Section 19556 of the Business and Professions Code is
amended to read:
19556. (a) The distribution shall be made by the distributing
agent to beneficiaries qualified under this article. For purposes of
this article, a beneficiary shall be all of the following:
(1) A nonprofit corporation or organization entitled by law to
receive a distribution made by a distributing agent.
(2) Exempt or entitled to an exemption from taxes measured by
income imposed by this state and the United States.
(3) Engaged in charitable, benevolent, civic, religious,
educational, or veterans' work similar to that of agencies recognized
by an organized community chest in the State of California, except
that the funds so distributed may be used by the beneficiary for
capital expenditures.
(4) Approved by the board.
(b) At least 30 percent of the distribution shall be made to
charities associated with the horse racing industry. In addition to
this 30 percent of the distribution, another 5 percent of the
distribution shall be paid to a welfare fund described in subdivision
(b) of Section 19641 and another 5 percent of the distribution shall
be paid to a nonprofit corporation, the primary purpose of which is
to assist horsemen and backstretch personnel who are being affected
adversely as a result of alcohol or substance abuse. No
A beneficiary otherwise qualified under this
section to receive charity day net proceeds shall not be
excluded on the basis that the beneficiary provides charitable
benefits to persons connected with the care, training, and running of
racehorses, except that this type of beneficiary shall
make an accounting to the board within one calendar year of the date
of receipt of any distribution.
(c) (1) In addition to the distribution pursuant to subdivision
(b), a separate 20 percent of the distribution shall be made to a
nonprofit corporation or trust, the directors or trustees of which
shall serve without compensation except for reimbursement for
reasonable expenses, and that has as its sole purpose the
accumulation of endowment funds, the income on
of which shall be distributed to qualified disabled
jockeys.
(2) To receive a distribution under this subdivision, a nonprofit
corporation or trust must shall
establish objective qualifications for disabled jockeys,
jockeys and provide an annual accounting and
report to the board on its activities indicating compliance with the
requirements of this subdivision.
(3) The nonprofit corporation or trust shall, in an amount
proportional to the contributions received pursuant to this
subdivision as a percentage of the total contributions received by
the nonprofit corporation or trust, give preference in
assisting qualified disabled jockeys to the following:
who meet either of the following criteria:
(A) Jockeys who were disabled while participating in the racing or
training of horses at licensed racing associations or approved
training facilities in California.
(B) Jockeys licensed by the board who were disabled while
participating in the racing or training of horses in a state other
than California.
(d) When the nonprofit corporation or trust described in
subdivision (c) has received distributions in an amount equal to two
million dollars ($2,000,000), the distribution mandated by
subdivision (c) shall cease.
SEC. 20. Section 19599 of the Business and Professions Code is
amended to read:
19599. An association or fair may offer any form of parimutuel
wagering, as defined by regulations adopted by the board, or as
defined by Chapter 4, Pari-Mutuel Wagering, Model Rules of Racing, as
published by the Association of Racing Commissioners International.
The board may prohibit any form of parimutuel wagering if it
determines that the proposed wagering would compromise the honesty
and integrity of racing in the state. Each racing association or fair
shall include the types of conventional exotic
conventional, exotic, and other wagering it proposes to
offer on its application to conduct a horse racing meeting.
SEC. 21. Section 19605.7 of the Business and Professions Code is
amended to read:
19605.7. The total percentage deducted from wagers at satellite
wagering facilities in the northern zone shall be the same as the
deductions for wagers at the racetrack where the racing meeting is
being conducted and shall be distributed as set forth in this
section. Amounts deducted under this section shall be distributed as
follows:
(a) (1) For thoroughbred meetings, 1.3 percent of the amount
handled by the satellite wagering facility on conventional and exotic
wagers shall be distributed to the racing association for payment to
the state as a license fee, 2 percent shall be distributed to the
satellite wagering facility as a commission for the right to do
business, business as a franchise,
and this commission is but not for the
use of any real property, 0.54 percent shall be deposited with the
official registering agency pursuant to subdivision (a) of Section
19617.2 and shall thereafter be distributed in accordance with
subdivisions (b), (c) (c), and (d) of
Section 19617.2, 0.033 percent shall be distributed to the Center for
Equine Health, and 0.067 percent shall be distributed to the
California Animal Health and Food Safety Laboratory, School of
Veterinary Medicine, University of California at Davis. It is the
intent of the Legislature that the 0.033 percent of funds distributed
to the Center for Equine Health shall supplement, and not supplant,
other funding sources.
(2) (A) In addition to the distributions specified in paragraph
(1), for thoroughbred meetings, an amount not to exceed 4 percent of
the amount handled by the satellite wagering facility on conventional
and exotic wagers shall be distributed to an organization described
in Section 19608.2 with the mutual consent of the racing association,
the organization representing the horsemen participating in the
meeting, and the board from January 1, 2010, until December 31, 2016.
However, the amount shall not be no
less than that specified in subparagraph (B), and any amount greater
than the amount specified in subparagraph (B) shall be approved by
the board for no more than 12 months at a time, and only upon a
determination by the board that the greater amount is in the economic
interest of thoroughbred racing.
(B) Commencing January 1, 2017, an amount not to exceed the amount
of actual operating expenses, as determined by the board, or 2.5
percent of the amount handled by the satellite wagering facility on
conventional and exotic wagers, whichever is less, shall be
distributed to an organization described in Section 19608.2.
(C) A request to the board for a distribution pursuant to
subparagraph (A) shall be accompanied by a report detailing all
receipts and expenditures over the two prior fiscal years of the
funds affected by the request.
(D) The racing association whose request pursuant to subparagraph
(A) has been approved by the board shall provide subsequent quarterly
reports of receipts and expenditures of the affected funds if
requested by the board.
(b) For harness, quarter horse, Appaloosa, Arabian, or mixed breed
meetings, 0.4 percent of the amount handled by the satellite
wagering facility on conventional and exotic wagers shall be
distributed to the racing association for payment to the state as a
license fee, for fair meetings, 1 percent of the amount handled by
the satellite wagering facility on conventional and exotic wagers
shall be distributed to the fair association for payment to the state
as a license fee, 2 percent shall be distributed to the satellite
wagering facility as a commission for the right to do
business, business as a franchise, and
this commission is but not for the use of any
real property, and 6 percent of the amount handled by the satellite
wagering facility or the amount of actual operating expenses, as
determined by the board, whichever is less, shall be distributed to
an organization described in Section 19608.2. In addition, in the
case of quarter horses, 0.4 percent shall be deposited with the
official registering agency pursuant to subdivision (b) of Section
19617.7 and shall thereafter be distributed in accordance with
subdivisions (c), (d), and (e) of Section 19617.7; in the case of
Appaloosas, 0.4 percent shall be deposited with the official
registering agency pursuant to subdivision (b) of Section 19617.9 and
shall thereafter be distributed in accordance with subdivisions (c),
(d), and (e) of Section 19617.9; in the case of Arabians, 0.4
percent shall be held by the association to be deposited with the
official registering agency pursuant to Section 19617.8, and shall
thereafter be distributed in accordance with Section 19617.8; in the
case of standardbreds, 0.4 percent shall be distributed for the
California Standardbred Sires Stakes Program pursuant to Section
19619; in the case of thoroughbreds, 0.48 percent shall be deposited
with the official registering agency pursuant to subdivision (a) of
Section 19617.2 and shall thereafter be distributed in accordance
with subdivisions (b), (c), and (d) of Section 19617.2; 0.033 percent
shall be distributed to the Center for Equine Health; and 0.067
percent shall be distributed to the California Animal Health and Food
Safety Laboratory, School of Veterinary Medicine, University of
California at Davis. It is the intent of the Legislature that the
0.033 percent of funds distributed to the Center for Equine Health
shall supplement, and not supplant, other funding sources.
(c) In addition to the distributions specified in subdivisions (a)
and (b), for mixed breed meetings, 1 percent of the total amount
handled by each satellite wagering facility shall be distributed to
an organization described in Section 19608.2 for promotion of the
program at satellite wagering facilities. For harness meetings, 0.5
percent of the total amount handled by each satellite wagering
facility shall be distributed to an organization described in Section
19608.2 for the promotion of the program at satellite wagering
facilities, and 0.5 percent of the total amount handled by each
satellite wagering facility shall be distributed according to a
written agreement for each race meeting between the licensed racing
association and the organization representing the horsemen
participating in the meeting. If, with respect to harness meetings,
there are funds unexpended from this 1 percent, these funds may be
expended for other purposes with the consent of the horsemen and the
racing association to benefit the horsemen, or the racing
association, or both, pursuant to their agreement. For quarter horse
meetings, 0.5 percent of the total amount handled by each satellite
wagering facility on races run in California shall be distributed to
an organization described in Section 19608.2 for the promotion of the
program at satellite wagering facilities, 0.5 percent of the total
amount handled by each satellite wagering facility on out-of-state
and out-of-country imported races shall be distributed to the
official quarter horse registering agency for the purposes of Section
19617.75, and 0.5 percent of the total amount handled by each
satellite wagering facility on all races shall be distributed
according to a written agreement for each race meeting between the
licensed racing association and the organization representing the
horsemen participating in the meeting.
(d) Additionally, for thoroughbred, harness, quarter horse, mixed
breed, and fair meetings, 0.33 percent of the total amount handled by
each satellite wagering facility shall be paid to the city or county
in which the satellite wagering facility is located pursuant to
Section 19610.3 or 19610.4.
(e) Notwithstanding any other law, a racing association is
responsible for the payment of the state license fee as required by
this section.
SEC. 22. Section 25350 of the Business and Professions Code is
amended to read:
25350. The department may seize the following alcoholic
beverages:
(a) Alcoholic beverages manufactured or produced in this State by
any person other than licensed manufacturer or wine grower,
regardless of where found.
(b) Beer and wine upon the sale of which the excise tax imposed by
Part 14 (commencing with Section 32001) of Division 2 of
the Revenue and Taxation Code has not been paid, regardless of where
found.
(c) Distilled spirits except (1) distilled spirits located upon
premises for which licenses authorizing the sale of the distilled
spirits have been issued; (2) distilled spirits consigned to and in
the course of transportation to a licensee holding licenses
authorizing the sale of the distilled spirits or for delivery without
this State; (3) distilled spirits upon the sale of which the excise
tax imposed by Part 14 (commencing with Section 32001) of
Division 2 of the Revenue and Taxation Code has been paid; (4)
alcohol or distilled spirits in the possession of a person who has
lawfully purchased it for use in the trades, professions, or
industries and not for beverage use.
(d) Any alcoholic beverage possessed, kept, stored, or owned with
the intent to sell it without a license in violation of this
division.
(e) Notwithstanding any other provision of this section, any
alcoholic beverage acquired, exchanged, purchased, sold, delivered,
or possessed in violation of Sections 23104.2, 23104.3, 23394, 23402,
or 24879, or Chapter 10 (commencing with Section 24749), 11
(commencing with Section 24850), or Chapter 12
(commencing with Section 25000) of this division,
25000), except that seizures under this subdivision shall
be limited to the actual package or case of alcoholic beverage
acquired, exchanged, purchased, sold, delivered, or possessed in
violation of the foregoing provisions. Any seizure under this
subdivision shall not exceed one hundred dollars ($100) of alcoholic
beverages at retail price.
SEC. 23. Section 25503.6 of the Business and Professions Code is
amended to read:
25503.6. (a) Notwithstanding any other provision of this chapter,
a beer manufacturer, the holder of a winegrower's license, a
distilled spirits rectifier, a distilled spirits manufacturer, or
distilled spirits manufacturer's agent may purchase advertising space
and time from, or on behalf of, an on-sale retail licensee subject
to all of the following conditions:
(1) The on-sale licensee is the owner, manager, agent of the
owner, assignee of the owner's advertising rights, or the major
tenant of the owner of any of the following:
(A) An outdoor stadium or a fully enclosed arena with a fixed
seating capacity in excess of 10,000 seats located in Sacramento
County or Alameda County.
(B) A fully enclosed arena with a fixed seating capacity in excess
of 18,000 seats located in Orange County or Los Angeles County.
(C) An outdoor stadium or fully enclosed arena with a fixed
seating capacity in excess of 8,500 seats located in Kern County.
(D) An exposition park of not less than 50 acres that includes an
outdoor stadium with a fixed seating capacity in excess of 8,000
seats and a fully enclosed arena with an attendance capacity in
excess of 4,500 people, located in San Bernardino County.
(E) An outdoor stadium with a fixed seating capacity in excess of
10,000 seats located in Yolo County.
(F) An outdoor stadium and a fully enclosed arena with fixed
seating capacities in excess of 10,000 seats located in Fresno
County.
(G) An athletic and entertainment complex of not less than 50
acres that includes within its boundaries an outdoor stadium with a
fixed seating capacity of at least 8,000 seats and a second outdoor
stadium with a fixed seating capacity of at least 3,500 seats located
within Riverside County.
(H) An outdoor stadium with a fixed seating capacity in excess of
1,500 seats located in Tulare County.
(I) A motorsports entertainment complex of not less than 50 acres
that includes within its boundaries an outdoor speedway with a fixed
seating capacity of at least 50,000 seats, located within San
Bernardino County.
(J) An exposition park, owned or operated by a bona fide nonprofit
organization, of not less than 400 acres with facilities including a
grandstand with a seating capacity of at least 8,000 people, at
least one exhibition hall greater than 100,000 square feet, and at
least four exhibition halls, each greater than 30,000 square feet,
located in the City of Pomona or the City of La Verne in Los Angeles
County.
(K) An outdoor soccer stadium with a fixed seating capacity of at
least 25,000 seats, an outdoor tennis stadium with a fixed capacity
of at least 7,000 seats, an outdoor track and field facility with a
fixed seating capacity of at least 7,000 seats, and an indoor
velodrome with a fixed seating capacity of at least 2,000 seats, all
located within a sports and athletic complex built before January 1,
2005, within the City of Carson in Los Angeles County.
(L) An outdoor professional sports facility with a fixed seating
capacity of at least 4,200 seats located within San Joaquin County.
(M) A fully enclosed arena with a fixed seating capacity in excess
of 13,000 seats in the City of Inglewood.
(N) (i) An outdoor stadium with a fixed seating capacity of at
least 68,000 seats located in the City of Santa Clara.
(ii) A beer manufacturer, the holder of a winegrower's license, a
distilled spirits rectifier, a distilled spirits manufacturer, or
distilled spirits manufacturer's agent may purchase advertising space
and time from, or on behalf of, a major tenant of an outdoor stadium
described in clause (i), provided the major tenant does not hold a
retail license, and the advertising may include the placement of
advertising in an on-sale licensed premises operated at the outdoor
stadium.
(2) The outdoor stadium or fully enclosed arena described in
paragraph (1) is not owned by a community college district.
(3) The advertising
space or time is purchased only in connection with the events to be
held on the premises of the exposition park, stadium, or arena owned
by the on-sale licensee. With respect to an exposition park as
described in subparagraph (J) of paragraph (1) that includes at least
one hotel, the advertising space or time shall not be displayed on
or in any hotel located in the exposition park, or purchased in
connection with the operation of any hotel located in the exposition
park.
(4) The on-sale licensee serves other brands of beer distributed
by a competing beer wholesaler in addition to the brand manufactured
or marketed by the beer manufacturer, other brands of wine
distributed by a competing wine wholesaler in addition to the brand
produced by the winegrower, and other brands of distilled spirits
distributed by a competing distilled spirits wholesaler in addition
to the brand manufactured or marketed by the distilled spirits
rectifier, the distilled spirits manufacturer
manufacturer, or the distilled spirits manufacturer's agent
that purchased the advertising space or time.
(b) Any purchase of advertising space or time pursuant to
subdivision (a) shall be conducted pursuant to a written contract
entered into by the beer manufacturer, the holder of the winegrower's
license, the distilled spirits rectifier, the distilled spirits
manufacturer, or the distilled spirits manufacturer's agent and the
on-sale licensee, or with respect to clause (ii) of subparagraph (N)
of paragraph (1) of subdivision (a), the major tenant of the outdoor
stadium.
(c) Any beer manufacturer or holder of a winegrower's license, any
distilled spirits rectifier, any distilled spirits manufacturer, or
any distilled spirits manufacturer's agent who, through coercion or
other illegal means, induces, directly or indirectly, a holder of a
wholesaler's license to fulfill all or part of those contractual
obligations entered into pursuant to subdivision (a) or (b) shall be
guilty of a misdemeanor and shall be punished by imprisonment in the
county jail not exceeding six months, or by a fine in an amount equal
to the entire value of the advertising space, time, or costs
involved in the contract, whichever is greater, plus ten thousand
dollars ($10,000), or by both imprisonment and fine. The person shall
also be subject to license revocation pursuant to Section 24200.
(d) Any on-sale retail licensee, as described in subdivision (a),
who, directly or indirectly, solicits or coerces a holder of a
wholesaler's license to solicit a beer manufacturer, a holder of a
winegrower's license, a distilled spirits rectifier, a distilled
spirits manufacturer, or a distilled spirits manufacturer's agent to
purchase advertising space or time pursuant to subdivision (a) or (b)
shall be guilty of a misdemeanor and shall be punished by
imprisonment in the county jail not exceeding six months, or by a
fine in an amount equal to the entire value of the advertising space
or time involved in the contract, whichever is greater, plus ten
thousand dollars ($10,000), or by both imprisonment and fine. The
person shall also be subject to license revocation pursuant to
Section 24200.
(e) For the purposes of this section, "beer manufacturer" includes
any holder of a beer manufacturer's license, any holder of an
out-of-state beer manufacturer's certificate, or any holder of a beer
and wine importer's general license.
SEC. 24. Section 25608 of the Business and Professions Code is
amended to read:
25608. (a) Every person who possesses, consumes, sells, gives, or
delivers to any other person, any another
person an alcoholic beverage in or on any
a public schoolhouse or any of the
grounds of the schoolhouse, is guilty of a misdemeanor. This section
does not, however, make it unlawful for any a
person to acquire, possess, or use any
an alcoholic beverage in or on any a
public schoolhouse, or on any the
grounds of the schoolhouse, if any of the following applies:
(1) The alcoholic beverage possessed, consumed, or sold, pursuant
to a license obtained under this division, is wine that is produced
by a bonded winery owned or operated as part of an instructional
program in viticulture and enology.
(2) The alcoholic beverage is acquired, possessed, or used in
connection with a course of instruction given at the school and the
person has been authorized to acquire, possess, or use it by the
governing body or other administrative head of the school.
(3) The public schoolhouse is surplus school property and the
grounds of the schoolhouse are leased to a lessee that is a general
law city with a population of less than 50,000, or the public
schoolhouse is surplus school property and the grounds of the
schoolhouse are located in an unincorporated area and are leased to a
lessee that is a civic organization, and the property is to be used
for community center purposes and no public school education is to be
conducted on the property by either the lessor or the lessee and the
property is not being used by persons under the age of 21 years for
recreational purposes at any time during which alcoholic beverages
are being sold or consumed on the premises.
(4) The alcoholic beverages are acquired, possessed, or used
during events at a college-owned or college-operated veterans stadium
with a capacity of over 12,000 people, located in a county with a
population of over 6,000,000 people. As used in this paragraph,
"events" mean football games sponsored by a college, other than a
public community college, or other events sponsored by noncollege
groups.
(5) The alcoholic beverages are acquired, possessed, or used
during an event not sponsored by any college at a performing arts
facility built on property owned by a community college district and
leased to a nonprofit organization that is a public benefit
corporation formed under Part 2 (commencing with Section 5110) of
Division 2 of Title 1 of the Corporations Code. As used in this
paragraph, "performing arts facility" means an auditorium with more
than 300 permanent seats.
(6) The alcoholic beverage is wine for sacramental or other
religious purposes and is used only during authorized religious
services held on or before January 1, 1995.
(7) The alcoholic beverages are acquired, possessed, or used
during an event at a community center owned by a community services
district or a city and the event is not held at a time when students
are attending a public school-sponsored activity at the center.
(8) The alcoholic beverage is wine that is acquired, possessed, or
used during an event sponsored by a community college district or an
organization operated for the benefit of the community college
district where the college district maintains both an instructional
program in viticulture on no less than five acres of land owned by
the district and an instructional program in enology, which includes
sales and marketing.
(9) The alcoholic beverage is acquired, possessed, or used at a
professional minor league baseball game conducted at the stadium of a
community college located in a county with a population of less than
250,000 inhabitants, and the baseball game is conducted pursuant to
a contract between the community college district and a professional
sports organization.
(10) The alcoholic beverages are acquired, possessed, or used
during events at a college-owned or college-operated stadium or other
facility. As used in this paragraph, "events" means fundraisers held
to benefit a nonprofit corporation that has obtained a license
pursuant to this division for the event. "Events" does not include
football games or other athletic contests sponsored by any college or
public community college. This paragraph shall
does not apply to any public education facility in which
any grade from kindergarten to grade 12, inclusive, is schooled.
(11) The alcoholic beverages are possessed, consumed, or sold,
pursuant to a license, permit, or authorization obtained under this
division, for an event held at an overnight retreat facility owned
and operated by a county office of education or a school district at
times when pupils are not on the grounds.
(12) The grounds of the public schoolhouse on which the alcoholic
beverage is acquired, possessed, used, or consumed is property that
has been developed and is used for residential facilities or housing
that is offered for rent, lease, or sale exclusively to faculty or
staff of a public school or community college.
(13) The grounds of a public schoolhouse on which the alcoholic
beverage is acquired, possessed, used, or consumed is property of a
community college that is leased, licensed, or otherwise provided for
use as a water conservation demonstration garden and community
passive recreation resource by a joint powers agency comprised of
public agencies, including the community college, and the event at
which the alcoholic beverage is acquired, possessed, used, or
consumed is conducted pursuant to a written policy adopted by the
governing body of the joint powers agency and no public funds are
used for the purchase or provision of the alcoholic beverage.
(14) The alcoholic beverage is beer or wine acquired, possessed,
used, sold, or consumed only in connection with a course of
instruction, sponsored dinner, or meal demonstration given as part of
a culinary arts program at a campus of a California community
college and the person has been authorized to acquire, possess, use,
sell, or consume the beer or wine by the governing body or other
administrative head of the school.
(15) The alcoholic beverages are possessed, consumed, or sold,
pursuant to a license or permit obtained under this division for
special events held at the facilities of a public community college
during the special event. As used in this paragraph, "special event"
means events that are held with the permission of the governing board
of the community college district that are festivals, shows, private
parties, concerts, theatrical productions, and other events held on
the premises of the public community college and for which the
principal attendees are members of the general public or invited
guests and not students of the public community college.
(16) The alcoholic beverages are acquired, possessed, or used
during an event at a community college-owned facility in which any
grade from kindergarten to grade 12, inclusive, is schooled, if the
event is held at a time when students in any grades from kindergarten
to grade 12, inclusive, are not present at the facility. As used in
this paragraph, "events" include fundraisers held to benefit a
nonprofit corporation that has obtained a license pursuant to this
division for the event.
(17) The alcoholic beverages are acquired, possessed, used, or
consumed pursuant to a license or permit obtained under this division
for special events held at facilities owned and operated by an
educational agency, a county office of education, superintendent of
schools, school district, or community college district at a time
when pupils are not on the grounds. As used in this paragraph,
"facilities" includes, include, but are
not limited to, office complexes, conference centers, or retreat
facilities.
(b) Any person convicted of a violation of this section shall, in
addition to the penalty imposed for the misdemeanor, be barred from
having or receiving any privilege of the use of public school
property which that is accorded by
Article 2 (commencing with Section 82537) of Chapter 8 of Part 49 of
Division 7 of Title 3 the Education Code.
SEC. 25. Section 56.36 of the Civil Code is amended to read:
56.36. (a) Any A violation of the
provisions of this part that results in economic loss or personal
injury to a patient is punishable as a misdemeanor.
(b) In addition to any other remedies available at law,
any an individual may bring an action against
any a person or entity who has
negligently released confidential information or records concerning
him or her in violation of this part, for either or both of the
following:
(1) Except as provided in subdivision (e), nominal damages of one
thousand dollars ($1,000). In order to recover under this paragraph,
it shall is not be
necessary that the plaintiff suffered or was threatened with actual
damages.
(2) The amount of actual damages, if any, sustained by the
patient.
(c) (1) In addition, any a person or
entity that negligently discloses medical information in violation
of the provisions of this part shall also be liable, irrespective of
the amount of damages suffered by the patient as a result of that
violation, for an administrative fine or civil penalty not to exceed
two thousand five hundred dollars ($2,500) per violation.
(2) (A) Any A person or entity,
other than a licensed health care professional, who knowingly and
willfully obtains, discloses, or uses medical information in
violation of this part shall be liable for an administrative fine or
civil penalty not to exceed twenty-five thousand dollars ($25,000)
per violation.
(B) Any A licensed health care
professional, professional who
knowingly and willfully obtains, discloses, or uses medical
information in violation of this part shall be liable on a first
violation, violation for an
administrative fine or civil penalty not to exceed two thousand five
hundred dollars ($2,500) per violation, or on a
second violation for an administrative fine or civil penalty not to
exceed ten thousand dollars ($10,000) per violation, or on a third
and subsequent violation for an administrative fine or civil penalty
not to exceed twenty-five thousand dollars ($25,000) per violation.
Nothing in this This subdivision shall
not be construed to limit the liability of a health care
service plan, a contractor, or a provider of health care that is not
a licensed health care professional for any a
violation of this part.
(3) (A) Any A person or entity,
other than a licensed health care professional, who knowingly or
willfully obtains or uses medical information in violation of this
part for the purpose of financial gain shall be liable for an
administrative fine or civil penalty not to exceed two hundred fifty
thousand dollars ($250,000) per violation and shall also be subject
to disgorgement of any proceeds or other consideration obtained as a
result of the violation.
(B) Any A licensed health care
professional, professional who
knowingly and willfully obtains, discloses, or uses medical
information in violation of this part for financial gain shall be
liable on a first violation, violation
for an administrative fine or civil penalty not to exceed five
thousand dollars ($5,000) per violation, or on a
second violation for an administrative fine or civil penalty not to
exceed twenty-five thousand dollars ($25,000) per violation, or on a
third and subsequent violation for an administrative fine or civil
penalty not to exceed two hundred fifty thousand dollars ($250,000)
per violation and shall also be subject to disgorgement of any
proceeds or other consideration obtained as a result of the
violation. Nothing in this This
subdivision shall not be construed to limit the liability
of a health care service plan, a contractor, or a provider of health
care that is not a licensed health care professional for any
violation of this part.
(4) Nothing in this This subdivision
shall not be construed as authorizing an administrative
fine or civil penalty under both paragraphs (2) and (3) for the same
violation.
(5) Any A person or entity who is
not permitted to receive medical information pursuant to this part
and who knowingly and willfully obtains, discloses, or uses medical
information without written authorization from the patient shall be
liable for a civil penalty not to exceed two hundred fifty thousand
dollars ($250,000) per violation.
(d) In assessing the amount of an administrative fine or civil
penalty pursuant to subdivision (c), the State Department of Public
Health, licensing agency, or certifying board or court shall consider
any one or more of the relevant circumstances
presented by any of the parties to the case including, but not
limited to, the following:
(1) Whether the defendant has made a reasonable, good faith
attempt to comply with this part.
(2) The nature and seriousness of the misconduct.
(3) The harm to the patient, enrollee, or subscriber.
(4) The number of violations.
(5) The persistence of the misconduct.
(6) The length of time over which the misconduct occurred.
(7) The willfulness of the defendant's misconduct.
(8) The defendant's assets, liabilities, and net worth.
(e) (1) In an action brought by an individual pursuant to
subdivision (b) on or after January 1, 2013, in which the defendant
establishes the affirmative defense in paragraph (2), the court shall
award any actual damages and reasonable attorney's fees and costs,
but may shall not award nominal damages
for a violation of this part.
(2) The defendant is entitled to an affirmative defense if all of
the following are established, subject to the equitable
considerations in paragraph (3):
(A) The defendant is a covered entity or business associate, as
defined in Section 160.103 of Title 45 of the Code of Federal
Regulations, in effect as of January 1, 2012.
(B) The defendant has complied with any obligations to notify all
persons entitled to receive notice regarding the release of the
information or records.
(C) The release of confidential information or records was solely
to another covered entity or business associate.
(D) The release of confidential information or records was not an
incident of medical identity theft. For purposes of this
subparagraph, "medical identity theft" means the use of an individual'
s personal information, as defined in Section 1798.80, without the
individual's knowledge or consent, to obtain medical goods or
services, or to submit false claims for medical services.
(E) The defendant took appropriate preventive actions to protect
the confidential information or records against release consistent
with the defendant's obligations under this part or other applicable
state law and the Health Insurance Portability and Accountability Act
of 1996 (Public Law 104-191) (HIPAA) and all HIPAA Administrative
Simplification Regulations in effect on January 1, 2012, contained in
Parts 160, 162, and 164 of Title 45 of the Code of Federal
Regulations Regulations, and Part 2 of Title 42
of the Code of Federal Regulations, including, but not limited
to: to, all of the following:
(i) Developing and implementing security policies and procedures.
(ii) Designating a security official who is responsible for
developing and implementing its security policies and procedures,
including educating and training the workforce.
(iii) Encrypting the information or records, and protecting
against the release or use of the encryption key and passwords, or
transmitting the information or records in a manner designed to
provide equal or greater protections against improper disclosures.
(F) The defendant took reasonable and appropriate corrective
action after the release of the confidential information or records,
and the covered entity or business associate that received the
confidential information or records destroyed or returned the
confidential information or records in the most expedient time
possible and without unreasonable delay, consistent with any measures
necessary to determine the scope of the breach and restore the
reasonable integrity of the data system. A court may consider this
subparagraph to be established if the defendant shows in detail that
the covered entity or business associate could not destroy or return
the confidential information or records because of the technology
utilized.
(G) The covered entity or business associate that received the
confidential information or records, or any of its agents,
independent contractors, or employees, regardless of the scope of the
employee's employment, did not retain, use, or release the
information or records.
(H) After the release of the confidential information or records,
the defendant took reasonable and appropriate action to prevent a
future similar release of confidential information or records.
(I) The defendant has not previously established an affirmative
defense pursuant to this subdivision, or the court determines, in its
discretion, that application of the affirmative defense is
compelling and consistent with the purposes of this section to
promote reasonable conduct in light of all the facts.
(3) (A) In determining whether the affirmative defense may be
established pursuant to paragraph (2), the court shall consider the
equity of the situation, including, but not limited to, (i) whether
the defendant has previously violated this part, regardless of
whether an action has previously been brought, and (ii) the nature of
the prior violation.
(B) To the extent the court allows discovery to determine whether
there has been any other violation of this part that the court will
consider in balancing the equities, the defendant shall not provide
any medical information, as defined in Section 56.05. The court, in
its discretion, may enter a protective order prohibiting the further
use of any personal information, as defined in Section 1798.80, about
the individual whose medical information may have been disclosed in
a prior violation.
(4) In an action under this subdivision in which the defendant
establishes the affirmative defense pursuant to paragraph (2), a
plaintiff shall be entitled to recover reasonable attorney's fees and
costs without regard to an award of actual or nominal damages or the
imposition of administrative fines or civil penalties.
(5) In an action brought by an individual pursuant to subdivision
(b) on or after January 1, 2013, in which the defendant establishes
the affirmative defense pursuant to paragraph (2), a defendant shall
not be liable for more than one judgment on the merits under this
subdivision for releases of confidential information or records
arising out of the same event, transaction, or occurrence.
(f) (1) The civil penalty pursuant to subdivision (c) shall be
assessed and recovered in a civil action brought in the name of the
people of the State of California in any court of competent
jurisdiction by any of the following:
(A) The Attorney General.
(B) Any A district attorney.
(C) Any A county counsel authorized
by agreement with the district attorney in actions involving
violation of a county ordinance.
(D) Any A city attorney of a city.
(E) Any A city attorney of a city
and county having a population in excess of 750,000, with the consent
of the district attorney.
(F) A city prosecutor in any a city
having a full-time city prosecutor or, with the consent of the
district attorney, by a city attorney in any
a city and county.
(G) The State Public Health Officer, or his or her designee, may
recommend that any a person described
in subparagraphs (A) to (F), inclusive, bring a civil action under
this section.
(2) If the action is brought by the Attorney General, one-half of
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered, and one-half to the General Fund. If
the action is brought by a district attorney or county counsel, the
penalty collected shall be paid to the treasurer of the county in
which the judgment was entered. Except as provided in paragraph (3),
if the action is brought by a city attorney or city prosecutor,
one-half of the penalty collected shall be paid to the treasurer of
the city in which the judgment was entered and one-half to the
treasurer of the county in which the judgment was entered.
(3) If the action is brought by a city attorney of a city and
county, the entire amount of the penalty collected shall be paid to
the treasurer of the city and county in which the judgment was
entered.
(4) Nothing in this This section
shall not be construed as authorizing both an
administrative fine and civil penalty for the same violation.
(5) Imposition of a fine or penalty provided for in this section
shall not preclude imposition of any other
sanctions or remedies authorized by law.
(6) Administrative fines or penalties issued pursuant to Section
1280.15 of the Health and Safety Code shall offset any other
administrative fine or civil penalty imposed under this section for
the same violation.
(g) For purposes of this section, "knowing" and "willful" shall
have the same meanings as in Section 7 of the Penal Code.
(h) No A person who discloses
protected medical information in accordance with the provisions of
this part shall be is not subject to
the penalty provisions of this part.
SEC. 26. Section 1936.5 of the Civil Code, as added by Section 1
of Chapter 406 of the Statutes of 2012, is repealed.
1936.5. A "rental company" as defined in paragraph (1) of
subdivision (a) of Section 1936 is not subject to the requirements of
Section 14608 of the Vehicle Code if the rental is subject to the
terms of a membership agreement that allows the renter to gain
physical access to a car without a key through use of a code, use of
a key card, or by other means that allow the car to be accessed at a
remote location, or at a business location of the rental company
outside of that location's regular hours of operation.
SEC. 27. Section 2923.55 of the Civil Code, as amended by Section
14 of Chapter 76 of the Statutes of 2013, is repealed.
2923.55. (a) A mortgage servicer, mortgagee, trustee,
beneficiary, or authorized agent may not record a notice of default
pursuant to Section 2924 until all of the following:
(1) The mortgage servicer has satisfied the requirements of
paragraph (1) of subdivision (b).
(2) Either 30 days after initial contact is made as required by
paragraph (2) of subdivision (b) or 30 days after satisfying the due
diligence requirements as described in subdivision (f).
(3) The mortgage servicer complies with subdivision (c) of Section
2923.6, if the borrower has provided a complete application as
defined in subdivision (h) of Section 2923.6.
(b) (1) As specified in subdivision (a), a mortgage servicer shall
send the following information in writing to
the borrower:
(A) A statement that if the borrower is a servicemember or a
dependent of a servicemember, he or she may be entitled to certain
protections under the federal Servicemembers Civil Relief Act (50
U.S.C. Appen. Sec. 501 et seq.) regarding the servicemember's
interest rate and the risk of foreclosure, and counseling for covered
servicemembers that is available at agencies such as Military
OneSource and Armed Forces Legal Assistance.
(B) A statement that the borrower may request the following:
(i) A copy of the borrower's promissory note or other evidence of
indebtedness.
(ii) A copy of the borrower's deed of trust or mortgage.
(iii) A copy of any assignment, if applicable, of the borrower's
mortgage or deed of trust required to demonstrate the right of the
mortgage servicer to foreclose.
(iv) A copy of the borrower's payment history since the borrower
was last less than 60 days past due.
(2) A mortgage servicer shall contact the borrower in person or by
telephone in order to assess the borrower's financial situation and
explore options for the borrower to avoid foreclosure. During the
initial contact, the mortgage servicer shall advise the borrower that
he or she has the right to request a subsequent meeting and, if
requested, the mortgage servicer shall schedule the meeting to occur
within 14 days. The assessment of the borrower's financial situation
and discussion of options may occur during the first contact, or at
the subsequent meeting scheduled for that purpose. In either case,
the borrower shall be provided the toll-free telephone number made
available by the United States Department of Housing and Urban
Development (HUD) to find a HUD-certified housing counseling agency.
Any meeting may occur telephonically.
(c) A notice of default recorded pursuant to Section 2924 shall
include a declaration that the mortgage servicer has contacted the
borrower, has tried with due diligence to contact the borrower as
required by this section, or that no contact was required because the
individual did not meet the definition of "borrower" pursuant to
subdivision (c) of Section 2920.5.
(d) A mortgage servicer's loss mitigation personnel may
participate by telephone during any contact required by this section.
(e) A borrower may designate, with consent given in writing, a
HUD-certified housing counseling agency, attorney, or other adviser
to discuss with the mortgage servicer, on the borrower's behalf, the
borrower's financial situation and options for the borrower to avoid
foreclosure. That contact made at the direction of the borrower shall
satisfy the contact requirements of paragraph (2) of subdivision
(b). Any foreclosure prevention alternative offered at the meeting by
the mortgage servicer is subject to approval by the borrower.
(f) A notice of default may be recorded pursuant to Section 2924
when a mortgage servicer has not contacted a borrower as required by
paragraph (2) of subdivision (b), provided that the failure to
contact the borrower occurred despite the due diligence of the
mortgage servicer. For purposes of this section, "due diligence"
shall require and mean all of the following:
(1) A mortgage servicer shall first attempt to contact a borrower
by sending a first-class letter that includes the toll-free telephone
number made available by HUD to find a HUD-certified housing
counseling agency.
(2) (A) After the letter has been sent, the mortgage servicer
shall attempt to contact the borrower by telephone at least three
times at different hours and on different days. Telephone calls shall
be made to the primary telephone number on file.
(B) A mortgage servicer may attempt to contact a borrower using an
automated system to dial borrowers, provided that, if the telephone
call is answered, the call is connected to a live representative of
the mortgage servicer.
(C) A mortgage servicer satisfies the telephone contact
requirements of this paragraph if it determines, after attempting
contact pursuant to this paragraph, that the borrower's primary
telephone number and secondary telephone number or numbers on file,
if any, have been disconnected.
(3) If the borrower does not respond within two weeks after the
telephone call requirements of paragraph (2) have been satisfied, the
mortgage servicer shall then send a certified letter, with return
receipt requested, that includes the toll-free telephone number made
available by HUD to find a HUD-certified housing counseling agency.
(4) The mortgage servicer shall provide a means for the borrower
to contact it in a timely manner, including a toll-free telephone
number that will provide access to a live representative during
business hours.
(5) The mortgage servicer has posted a prominent link on the
homepage of its Internet Web site, if any, to the following
information:
(A) Options that may be available to borrowers who are unable to
afford their mortgage payments and who wish to avoid foreclosure, and
instructions to borrowers advising them on steps to take to explore
those options.
(B) A list of financial documents borrowers should collect and be
prepared to present to the mortgage servicer when discussing options
for avoiding foreclosure.
(C) A toll-free telephone number for borrowers who wish to discuss
options for avoiding foreclosure with their mortgage servicer.
(D) The toll-free telephone number made available by HUD to find a
HUD-certified housing counseling agency.
(g) This section shall not apply to entities described in
subdivision (b) of Section 2924.18.
(h) This section shall apply only to mortgages or deeds of trust
described in Section 2924.15.
(i) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 28. Section 2924.19 of the Civil Code, as amended by Section
10 of Chapter 401 of the Statutes of 2014, is repealed.
2924.19. (a) (1) If a trustee's deed upon sale has not been
recorded, a borrower may bring an action for injunctive relief to
enjoin a material violation of Section 2923.5, 2924.17, or 2924.18.
(2) An injunction shall remain in place and any trustee's sale
shall be enjoined until the court determines that the mortgage
servicer, mortgagee, beneficiary, or authorized agent has corrected
and remedied the violation or violations giving rise to the action
for injunctive relief. An enjoined entity may move to dissolve an
injunction based on a showing that the material violation has been
corrected and remedied.
(b) After a trustee's deed upon sale has been recorded, a mortgage
servicer, mortgagee, beneficiary, or authorized agent shall be
liable to a borrower for actual economic damages pursuant to Section
3281, resulting from a material violation of Section 2923.5, 2924.17,
or 2924.18 by that mortgage servicer, mortgagee, beneficiary, or
authorized agent where the violation was not corrected and remedied
prior to the recordation of the trustee's deed upon sale. If the
court finds that the material violation was intentional or reckless,
or resulted from willful misconduct by a mortgage servicer,
mortgagee, beneficiary, or authorized agent, the court may award the
borrower the greater of treble actual damages or statutory damages of
fifty thousand dollars ($50,000).
(c) A mortgage servicer, mortgagee, beneficiary, or authorized
agent shall not be liable for any violation that it has corrected and
remedied prior to the recordation of the trustee's deed upon sale,
or that has been corrected and remedied by third parties working on
its behalf prior to the recordation of the trustee's deed upon sale.
(d) A violation of Section 2923.5, 2924.17, or 2924.18 by a person
licensed by the Department of Business Oversight or the Bureau of
Real Estate shall be deemed to be a violation of that person's
licensing law.
(e) A violation of this article shall not affect the validity of a
sale in favor of a bona fide purchaser and any of its encumbrancers
for value without notice.
(f) A third-party encumbrancer shall not be relieved of liability
resulting from violations of Section 2923.5, 2924.17, or 2924.18,
committed by that third-party encumbrancer, that occurred prior to
the sale of the subject property to the bona fide purchaser.
(g) The rights, remedies, and procedures provided by this section
are in addition to and independent of any other rights, remedies, or
procedures under any other law. Nothing in this section shall be
construed to alter, limit, or negate any other rights, remedies, or
procedures provided by law.
(h) A court may award a prevailing borrower reasonable attorney's
fees and costs in an action brought pursuant to this section. A
borrower shall be deemed to have prevailed for purposes of this
subdivision if the borrower obtained injunctive relief or damages
pursuant to this section.
(i) This section shall apply only to entities described in
subdivision (b) of Section 2924.18.
(j) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 29. Section 2924.20 of the Civil Code, as amended by Section
12 of Chapter 401 of the Statutes of 2014, is repealed.
2924.20. Consistent with their general regulatory authority, and
notwithstanding subdivisions (b) and (c) of Section 2924.18, the
Department of Business Oversight and the Bureau of Real Estate may
adopt regulations applicable to any entity or person under their
respective jurisdictions that are necessary to carry out the purposes
of the act that added this section. A violation of the regulations
adopted pursuant to this section shall only be enforceable by the
regulatory agency.
SEC. 30. Section 2934a of the Civil Code, as amended by Section 1
of Chapter 839 of the Statutes of 1996, is repealed.
2934a. (a) (1) The trustee under a trust deed upon real property
or an estate for years therein given to secure an obligation to pay
money and conferring no other duties upon the trustee than those
which are incidental to the exercise of the power of sale therein
conferred, may be substituted by the recording in the county in which
the property is located of a substitution executed and acknowledged
by: (A) all of the beneficiaries under the trust deed, or their
successors in interest, and the substitution shall be effective
notwithstanding any contrary provision in any trust deed executed on
or after January 1, 1968; or (B) the holders of more than 50 percent
of the record beneficial interest of a series of notes secured by the
same real property or of undivided interests in a note secured by
real property equivalent to a series transaction, exclusive of any
notes or interests of a licensed real estate broker that is the
issuer or servicer of the notes or interests or of any affiliate of
that licensed real estate broker.
(2) A substitution executed pursuant to subparagraph (B) of
paragraph (1) is not effective unless all the parties signing the
substitution sign, under penalty of perjury, a separate written
document stating the following:
(A) The substitution has been signed pursuant to subparagraph (B)
of paragraph (1).
(B) None of the undersigned is a licensed real estate broker or an
affiliate of the broker that is the issuer or servicer of the
obligation secured by the deed of trust.
(C) The undersigned together hold more than 50 percent of the
record beneficial interest of a series of notes secured by the same
real property or of undivided interests in a note secured by real
property equivalent to a series transaction.
(D) Notice of the substitution was sent by certified mail, postage
prepaid, with return receipt requested to each holder of an interest
in the obligation secured by the deed of trust who has not joined in
the execution of the substitution or the separate document.
The separate document shall be attached to the substitution and be
recorded in the office of the county recorder of each county in
which the real property described in the deed of trust is located.
Once the document required by this paragraph is recorded, it shall
constitute conclusive evidence of compliance with the requirements of
this paragraph in favor of substituted trustees acting pursuant to
this section, subsequent assignees of the obligation secured by the
deed of trust, and subsequent bona fide purchasers or encumbrancers
for value of the real property described therein.
(3) For purposes of this section, "affiliate of the licensed real
estate broker" includes any person as defined in Section 25013 of the
Corporations Code that is controlled by, or is under common control
with, or who controls, a licensed real estate broker. "Control" means
the possession, direct or indirect, of the power to direct or cause
the direction of management and policies.
(4) The substitution shall contain the date of recordation of the
trust deed, the name of the trustor, the book and page or instrument
number where the trust deed is recorded, and the name of the new
trustee. From the time the substitution is filed for record, the new
trustee shall succeed to all the powers, duties, authority, and title
granted and delegated to the trustee named in the deed of trust. A
substitution may be accomplished, with respect to multiple deeds of
trust which are recorded in the same county in which the substitution
is being recorded and which all have the same trustee and
beneficiary or beneficiaries, by recording a single document,
complying with the requirements of this section, substituting
trustees for all those deeds of trust.
(b) If the substitution is effected after a notice of default has
been recorded but prior to the recording of the notice of sale, the
beneficiary or beneficiaries shall cause a copy of the substitution
to be mailed, prior to the recording thereof, in the manner provided
in Section 2924b, to the trustee then of record and to all persons to
whom a copy of the notice of default would be required to be mailed
by the provisions of Section 2924b. An affidavit shall be attached to
the substitution that notice has been given to those persons and in
the manner required by this subdivision.
(c) Notwithstanding any provision of this section or any provision
in any deed of trust, unless a new notice of sale containing the
name, street address, and telephone number of the substituted trustee
is given pursuant to Section 2924f, any sale conducted by the
substituted trustee shall be void.
(d) This section shall remain in effect only until January 1,
1998, and shall have no force or effect after that date, unless a
later enacted statute, which is enacted before January 1, 1998,
deletes or extends that date.
SEC. 31. Title 17 (commencing with Section 3272) of Part 4 of
Division 3 of the Civil Code, as added by Section 2 of Chapter 698 of
the Statutes of 1999, is repealed.
SEC. 32. Section 3486 of the Civil Code is amended to read:
3486. (a) To abate the nuisance caused by illegal conduct
involving a controlled substance purpose on real property, the city
prosecutor or city attorney may file, in the name of the people, an
action for unlawful detainer against any person who is in violation
of the nuisance or illegal purpose provisions of subdivision 4 of
Section 1161 of the Code of Civil Procedure, with respect to that
controlled substance purpose. In filing this action, which shall be
based upon an arrest report by a law enforcement agency, reporting an
offense committed on the property and documented by the observations
of a police officer, the city prosecutor or city attorney shall use
the procedures set forth in Chapter 4 (commencing with Section 1159)
of Title 3 of Part 3 of the Code of Civil Procedure, except that in
cases filed under this section, the following also shall apply:
(1) (A) Prior to filing an action pursuant to this section, the
city prosecutor or city attorney shall give 30 calendar days' written
notice to the owner, requiring the owner to file an action for the
removal of the person who is in violation of the nuisance or illegal
purpose provisions of subdivision 4 of Section 1161 of the Code of
Civil Procedure with respect to a controlled substance purpose.
(B) This notice shall include sufficient documentation
establishing a violation of the nuisance or illegal purpose
provisions of subdivision 4 of Section 1161 of the Code of Civil
Procedure and an advisement to the owner of the assignment provision
contained in subparagraph (D). The notice shall be served upon the
owner and the tenant in accordance with subdivision (e).
(C) The notice to the tenant shall, in at least 14-point bold
type, meet the following requirements:
(i) The notice shall contain the following language:
"(Date)
(Name of tenant)
(Address of tenant)
Re: Civil Code Section 3486
Dear (name of tenant):
This letter is to inform you that an eviction action may soon be
filed in court against you for suspected drug activity. According to
state law, Civil Code Section 3486 provides for eviction of persons
engaging in such conduct, as described below.
(Name of police department) records indicate that you, (name of
arrestee), were arrested on (date) for violations of (list
violations) on (address of property).
A letter has been sent to the property owner(s) advising of your
arrest and the requirements of state law, as well as the landlord's
option to assign the unlawful detainer action to the (name of city
attorney or prosecutor's office).
A list of legal assistance providers is provided below. Please
note, this list is not exclusive and is provided for your information
only; the (name of city attorney or prosecutor's office) does not
endorse or recommend any of the listed agencies.
Sincerely,
(Name of deputy city attorney or city prosecutor)
Deputy City (Attorney or Prosecutor)
Notice to Tenant: This notice is not a notice of eviction. You
should call (name of the city attorney or prosecutor pursuing the
action) at (telephone number) or a legal assistance provider to stop
the eviction action if any of the following is applicable:
(1) You are not the person named in this notice.
(2) The person named in the notice does not live with you.
(3) The person named in the notice has permanently moved.
(4) You do not know the person named in the notice.
(5) You want to request that only the person involved in the
nuisance be evicted, allowing the other residents to stay.
(6) You have any other legal defense or legal reason to stop the
eviction action.
A list of legal assistance providers is attached to this notice.
Some provide free legal assistance if you are eligible."
(ii) The notice shall be provided to the tenant in English and, as
translated, in all of the languages identified in subdivision (a) of
Section 1632 of the Civil Code.
(D) The owner shall, within 30 calendar days of the mailing of the
written notice, either provide the city prosecutor or city attorney
with all relevant information pertaining to the unlawful detainer
case, or provide a written explanation setting forth any
safety-related reasons for noncompliance, and an assignment to the
city prosecutor or city attorney of the right to bring an unlawful
detainer action against the tenant.
(E) The assignment shall be on a form provided by the city
prosecutor or city attorney and may contain a provision for costs of
investigation, discovery, and reasonable attorney's fees, in an
amount not to exceed six hundred dollars ($600). An owner shall only
be required to pay the costs or fees upon acceptance of the
assignment and the filing of the action for unlawful detainer by the
city prosecutor or city attorney.
(F) If the city prosecutor or city attorney accepts the assignment
of the right of the owner to bring the unlawful detainer action, the
owner shall retain all other rights and duties, including the
handling of the tenant's personal property, following issuance of the
writ of possession and its delivery to and execution by the
appropriate agency.
(2) Upon the failure of the owner to file an action pursuant to
this section, or to respond to the city prosecutor or city attorney
as provided in paragraph (1), or having filed an action, if the owner
fails to prosecute it diligently and in good faith, the city
prosecutor or city attorney may file and prosecute the action, and
join the owner as a defendant in the action. This action shall have
precedence over any similar proceeding thereafter brought by the
owner, or to one previously brought by the owner and not prosecuted
diligently and in good faith. Service of the summons and complaint
upon the defendant owner shall be in accordance with Sections 415.10,
415.20, 415.30, 415.40, and 415.50 of the Code of Civil Procedure.
(3) If a jury or court finds the defendant tenant guilty of
unlawful detainer in a case filed pursuant to paragraph (2), the city
prosecutor or city attorney may be awarded costs, including the
costs of investigation and discovery and reasonable attorney's fees.
These costs shall be assessed against the defendant owner, to whom
notice was directed pursuant to paragraph (1), and once an abstract
of judgment is recorded, it shall constitute a lien on the subject
real property.
(4) Nothing in this section shall This
section does not prevent a local governing body from
adopting and enforcing laws, consistent with this article, relating
to drug abatement. Where If local laws
duplicate or supplement this section, this section shall be construed
as providing alternative remedies and not preempting the field.
(5) Nothing in this section shall This
section does not prevent a tenant from receiving relief against
a forfeiture of a lease pursuant to Section 1179 of the Code of
Civil Procedure.
(b) In any proceeding brought under this section, the court may,
upon a showing of good cause, issue a partial eviction ordering the
removal of any person, including, but not limited to, members of the
tenant's household if the court finds that the person has engaged in
the activities described in subdivision (a). Persons removed pursuant
to this section may be permanently barred from returning to or
reentering any portion of the entire premises. The court may further
order as an express condition of the tenancy that the remaining
tenants shall not give permission to or invite any person who has
been removed pursuant to this subdivision to return to or reenter any
portion of the entire premises.
(c) For the purposes of this section, "controlled substance
purpose" means the manufacture, cultivation, importation into the
state, transportation, possession, possession for sale, sale,
furnishing, administering, or giving away, or providing a place to
use or fortification of a place involving, cocaine, phencyclidine,
heroin, methamphetamine, or any other controlled substance, in a
violation of subdivision (a) of Section 11350, Section 11351,
11351.5, 11352, or 11359, subdivision (a) of Section 11360, or
Section 11366, 11366.6, 11377, 11378, 11378.5, 11379, 11379.5,
11379.6, or 11383 of the Health and Safety Code.
(d) Notwithstanding subdivision (b) of Section 68097.2 of the
Government Code, a public entity may waive all or part of the costs
incurred in furnishing the testimony of a peace officer in an
unlawful detainer action brought pursuant to this section.
(e) The notice and documentation described in paragraph (1) of
subdivision (a) shall be given in writing and may be given either by
personal delivery or by deposit in the United States mail in a sealed
envelope, postage prepaid, addressed to the owner at the address
known to the public entity giving the notice, or as shown on the last
equalized assessment roll, if not known. Separate notice of not less
than 30 calendar days and documentation shall be provided to the
tenant in accordance with this subdivision. Service by mail shall be
deemed to be completed at the time of deposit in the United States
mail. Proof of giving the notice may be made by a declaration signed
under penalty of perjury by any employee of the public entity which
shows service in conformity with this section.
(f) In an unlawful detainer
action filed pursuant to this section, the court shall make one of
the following orders:
(1) If the grounds for an eviction have not been established
pursuant to this section, the court shall dismiss, without prejudice,
the unlawful detainer action.
(2) If the grounds for an eviction have been established pursuant
to this section, the court shall do either of the following:
(A) Order that the tenant and all occupants be immediately evicted
from the property.
(B) Dismiss the unlawful detainer action with or without prejudice
or stay execution of an eviction order for a reasonable length of
time if the tenant establishes by clear and convincing evidence that
the immediate eviction would pose an extreme hardship to the tenant
and that this hardship outweighs the health, safety, or welfare of
the neighbors or surrounding community. However, the court
may shall not find an extreme hardship solely on
the basis on of an economic hardship
or the financial inability of the tenant to pay for and secure other
housing or lodging accommodations.
(3) If the grounds for a partial eviction have been established
pursuant to subdivision (b), the court shall order that those persons
be immediately removed and barred from the property, but the court
may shall not order the tenancy be
terminated.
(g) This section shall apply applies
only in the County of Los Angeles to any a
court having jurisdiction over unlawful detainer cases
involving real property situated in the City of Los Angeles.
(h) This section shall become operative on January 1, 2014, only
if the City of Los Angeles has regularly reported to the California
Research Bureau as required by this section as it read during the
period from January 1, 2010, to January 1, 2014, inclusive. For
purposes of this section, the City of Los Angeles shall be deemed to
have complied with this reporting requirement if the 2013 report to
the Legislature by the California Research Bureau indicates that the
City of Los Angeles has regularly reported to the bureau.
SEC. 33. Section 5910 of the Civil Code is amended to read:
5910. A fair, reasonable, and expeditious dispute resolution
procedure shall shall, at a
minimum minimum, satisfy all of the following
requirements:
(a) The procedure may be invoked by either party to the dispute. A
request invoking the procedure shall be in writing.
(b) The procedure shall provide for prompt deadlines. The
procedure shall state the maximum time for the association to act on
a request invoking the procedure.
(c) If the procedure is invoked by a member, the association shall
participate in the procedure.
(d) If the procedure is invoked by the association, the member may
elect not to participate in the procedure. If the member
participates but the dispute is resolved other than by agreement of
the member, the member shall have a right of appeal to the board.
(e) A written resolution, signed by both parties, of a dispute
pursuant to the procedure that is not in conflict with the law or the
governing documents binds the association and is judicially
enforceable. A written agreement, signed by both parties, reached
pursuant to the procedure that is not in conflict with the law or the
governing documents binds the parties and is judicially enforceable.
(f) The procedure shall provide a means by which the member and
the association may explain their positions. The member and
association may be assisted by an attorney or another person in
explaining their positions at their own cost.
(g) A member of the association shall not be charged a fee to
participate in the process.
SEC. 34. Section 5915 of the Civil Code is amended to read:
5915. (a) This section applies to an association that does not
otherwise provide a fair, reasonable, and expeditious dispute
resolution procedure. The procedure provided in this section is fair,
reasonable, and expeditious, expeditious
within the meaning of this article.
(b) Either party to a dispute within the scope of this article may
invoke the following procedure:
(1) The party may request the other party to meet and confer in an
effort to resolve the dispute. The request shall be in writing.
(2) A member of an association may refuse a request to meet and
confer. The association may shall not
refuse a request to meet and confer.
(3) The board shall designate a director to meet and confer.
(4) The parties shall meet promptly at a mutually convenient time
and place, explain their positions to each other, and confer in good
faith in an effort to resolve the dispute. The parties may be
assisted by an attorney or another person at their own cost when
conferring.
(5) A resolution of the dispute agreed to by the parties shall be
memorialized in writing and signed by the parties, including the
board designee on behalf of the association.
(c) A written agreement reached under this section binds the
parties and is judicially enforceable if it is signed by both parties
and both of the following conditions are satisfied:
(1) The agreement is not in conflict with law or the governing
documents of the common interest development or association.
(2) The agreement is either consistent with the authority granted
by the board to its designee or the agreement is ratified by the
board.
(d) A member shall not be charged a fee to participate in the
process.
SEC. 35. Section 116.222 of the Code of Civil Procedure, as added
by Section 3 of Chapter 600 of the Statutes of 2005, is repealed.
116.222. If the action is to enforce the payment of a debt, the
statement of calculation of liability shall separately state the
original debt, each payment credited to the debt, each fee and charge
added to the debt, each payment credited against those fees and
charges, all other debits or charges to the account, and an
explanation of the nature of those fees, charges, debits, and all
other credits to the debt, by source and amount.
SEC. 36. The heading of Article 5 (commencing with Section 142) of
Chapter 6 of Title 1 of Part 1 of the Code of Civil Procedure is
repealed.
Article 5. Provisions Respecting Places of Holding Courts
SEC. 37. The heading of Chapter 1 (commencing with Section 156) of
Title 2 of Part 1 of the Code of Civil Procedure is repealed.
CHAPTER 1. JUDICIAL OFFICERS IN GENERAL
SEC. 38. Section 398 of the Code of Civil Procedure is amended to
read:
398. If, for any cause, specified in subdivisions 2, 3
and 4 of section 397, the court orders the transfer of an action or
proceeding, it must (a) If a
court orders the transfer of an action or proceeding for a cause
specified in subdivisions (b), (c), and (d) of Section 397, the
action or proceeding shall be transferred to a court having
jurisdiction of the subject matter of the action which the
parties may agree upon, upon agreement of the
parties by stipulation in writing, or made
in open court and entered in the minutes or
docket; or, if they docket. If the parties do
not so agree, then the action or proceeding
shall be transferred to the nearest or most accessible
court, court where the like objection or cause
for making the order does not exist.
If
(b) If an action or proceeding is
commenced in a court, court other than
one designated as a proper court for the trial thereof by the
provisions of this title, and the same be is
ordered transferred for that reason, it must
the action or proceeding shall be transferred to
any such a proper court which the
parties may agree upon by stipulation in writing, or made in open
court and entered in the minutes or docket; if upon
agreement of the parties by stipulation in writing, or in open court
and entered in the minutes or docket. If the parties do not so
agree, then to any such the action or
proceeding shall be transferred to a proper court in the county
in which the action or proceeding was commenced which the defendant
may designate, designate or, if there
be is no such proper
court in such that county, to
any such a proper court, in a proper county,
designated by the defendant; if the parties do not so agree,
and defendant. If the defendant does not
so designate the court,
court as herein provided, or where if
the court orders the transfer of an action on its own motion as
provided in this title, the action or proceeding shall be
transferred to such the proper
court as determined by the court in which the action or
proceeding is pending may determine. pending.
The
(c) The designation of the court
by the defendant , herein as provided
for, for in subdivision (b), may be
made in the notice of motion for change of venue or in open
court, court and entered in the minutes or
docket, docket at the time the order
for transfer is made.
SEC. 39. Section 629 of the Code of Civil Procedure is amended to
read:
629. (a) The court, before the expiration of its power to rule on
a motion for a new trial, either of its own motion, after five days'
notice, or on motion of a party against whom a verdict has been
rendered, shall render judgment in favor of the aggrieved party
notwithstanding the verdict whenever a motion for a directed verdict
for the aggrieved party should have been granted had a previous
motion been made.
(b) A motion for judgment notwithstanding the verdict shall be
made within the period specified by Section 659 for the filing and
service of a notice of intention to move for a new trial. The moving,
opposing, and reply briefs and any accompanying documents shall be
filed and served within the periods specified by Section
659a 659a, and the hearing on the motion shall
be set in the same manner as the hearing on a motion for new trial
under Section 660. The making of a motion for judgment
notwithstanding the verdict shall not extend the time within which a
party may file and serve notice of intention to move for a new trial.
The court shall not rule upon the motion for judgment
notwithstanding the verdict until the expiration of the time within
which a motion for a new trial must be served and filed, and if a
motion for a new trial has been filed with the court by the aggrieved
party, the court shall rule upon both motions at the same time. The
power of the court to rule on a motion for judgment notwithstanding
the verdict shall not extend beyond the last date upon which it has
the power to rule on a motion for a new trial. If a motion for
judgment notwithstanding the verdict is not determined before that
date, the effect shall be a denial of that motion without further
order of the court.
(c) If the motion for judgment notwithstanding the verdict is
denied and if a new trial is denied, the appellate court shall,
when if it appears that the motion for
judgment notwithstanding the verdict should have been granted, order
judgment to be so entered on appeal from the judgment or from the
order denying the motion for judgment notwithstanding the verdict.
(d) If a new trial is granted to the party moving for judgment
notwithstanding the verdict, and the motion for judgment
notwithstanding the verdict is denied, the order denying the motion
for judgment notwithstanding the verdict shall nevertheless be
reviewable on appeal from that order by the aggrieved party. If the
court grants the motion for judgment notwithstanding the verdict or
of its own motion directs the entry of judgment notwithstanding the
verdict and likewise grants the motion for a new trial, the order
granting the new trial shall be effective only if, on appeal, the
judgment notwithstanding the verdict is reversed, and the order
granting a new trial is not appealed from or, if appealed from, is
affirmed.
SEC. 40. Section 1277 of the Code of Civil Procedure is amended to
read:
1277. (a) (1) If a proceeding for a change of name is commenced
by the filing of a petition, except as provided in subdivisions (b),
(c), and (e), the court shall thereupon make an order reciting the
filing of the petition, the name of the person by whom it is filed,
and the name proposed. The order shall direct all persons interested
in the matter to appear before the court at a time and place
specified, which shall be not less than 6 weeks nor more than 12
weeks from the time of making the order, unless the court orders a
different time, to show cause why the application for change of name
should not be granted. The order shall direct all persons interested
in the matter to make known any objection that they may have to the
granting of the petition for change of name by filing a written
objection, which includes the reasons for the objection, with the
court at least two court days before the matter is scheduled to be
heard and by appearing in court at the hearing to show cause why the
petition for change of name should not be granted. The order shall
state that, if no written objection is timely filed, the court may
grant the petition without a hearing. If the petition seeks to
conform the petitioner's name to his or her gender identity and no
objection is timely filed, the court shall grant the petition without
a hearing.
(2) A copy of the order to show cause shall be published pursuant
to Section 6064 of the Government Code in a newspaper of general
circulation to be designated in the order published in the county. If
no a newspaper of general circulation
is not published in the county, a copy of the order to
show cause shall be posted by the clerk of the court in three of the
most public places in the county in which the court is located, for a
like period. Proof shall be made to the satisfaction of the court of
this publication or posting, posting
at the time of the hearing of the application.
(3) Four weekly publications shall be sufficient publication of
the order to show cause. If the order is published in a daily
newspaper, publication once a week for four successive weeks shall be
sufficient.
(4) If a petition has been filed for a minor by a parent and the
other parent, if living, does not join in consenting thereto, the
petitioner shall cause, not less than 30 days prior to
before the hearing, to be served notice of the
time and place of the hearing or a copy of the order to show cause on
the other parent pursuant to Section 413.10, 414.10, 415.10, or
415.40. If notice of the hearing cannot reasonably be accomplished
pursuant to Section 415.10 or 415.40, the court may order that notice
be given in a manner that the court determines is reasonably
calculated to give actual notice to the nonconsenting parent. In that
case, if the court determines that notice by publication is
reasonably calculated to give actual notice to the nonconsenting
parent, the court may determine that publication of the order to show
cause pursuant to this subdivision is sufficient notice to the
nonconsenting parent.
(5) If the petition for a change of name is sought in order to
conform the petitioner's name to his or her gender identity, the
action for a change of name is exempt from the requirement for
publication of the order to show cause under this subdivision.
(b) (1) If the petition for a change of name alleges a reason or
circumstance described in paragraph (2), and the petitioner has
established that he or she is an active participant in the address
confidentiality program created pursuant to Chapter 3.1 (commencing
with Section 6205) of Division 7 of Title 1 of the Government Code,
and that the name he or she is seeking to acquire is on file with the
Secretary of State, the action for a change of name is exempt from
the requirement for publication of the order to show cause under
subdivision (a), and the petition and the order of the court shall,
in lieu of reciting the proposed name, indicate that the proposed
name is confidential and is on file with the Secretary of State
pursuant to the provisions of the address confidentiality program.
(2) The procedure described in paragraph (1) applies to petitions
alleging any of the following reasons or circumstances:
(A) To avoid domestic violence, as defined in Section 6211 of the
Family Code.
(B) To avoid stalking, as defined in Section 646.9 of the Penal
Code.
(C) The petitioner is, or is filing on behalf of, a victim of
sexual assault, as defined in Section 1036.2 of the Evidence Code.
(3) For any petition under this subdivision, the current legal
name of the petitioner shall be kept confidential by the court and
shall not be published or posted in the court's calendars, indexes,
or register of actions, as required by Article 7 (commencing with
Section 69840) of Chapter 5 of Title 8 of the Government Code, or by
any means or in any public forum, including a hardcopy or an
electronic copy, or any other type of public media or display.
(4) Notwithstanding paragraph (3), the court may, at the request
of the petitioner, issue an order reciting the name of the petitioner
at the time of the filing of the petition and the new legal name of
the petitioner as a result of the court's granting of the petition.
(5) A petitioner may request that the court file the petition and
any other papers associated with the proceeding under seal. The court
may consider the request at the same time as the petition for name
change, and may grant the request in any case in which the court
finds that all of the following factors apply:
(A) There exists an overriding interest that overcomes the right
of public access to the record.
(B) The overriding interest supports sealing the record.
(C) A substantial probability exists that the overriding interest
will be prejudiced if the record is not sealed.
(D) The proposed order to seal the records is narrowly tailored.
(E) No less restrictive means exist to achieve the overriding
interest.
(c) A proceeding for a change of name for a witness participating
in the state Witness Protection Relocation
and Assistance Program established by Title 7.5 (commencing
with Section 14020) of Part 4 of the Penal Code who has been approved
for the change of name by the program is exempt from the requirement
for publication of the order to show cause under subdivision (a).
(d) If an application for change of name is brought as part of an
action under the Uniform Parentage Act (Part 3 (commencing with
Section 7600) of Division 12 of the Family Code), whether as part of
a petition or cross-complaint or as a separate order to show cause in
a pending action thereunder, service of the application shall be
made upon all other parties to the action in a like manner as
prescribed for the service of a summons, as set forth in Article 3
(commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2.
Upon the setting of a hearing on the issue, notice of the hearing
shall be given to all parties in the action in a like manner and
within the time limits prescribed generally for the type of hearing
(whether trial or order to show cause) at which the issue of the
change of name is to be decided.
(e) If a guardian files a petition to change the name of his or
her minor ward pursuant to Section 1276:
(1) The guardian shall provide notice of the hearing to any living
parent of the minor by personal service at least 30 days
prior to before the hearing.
(2) If either or both parents are deceased or cannot be located,
the guardian shall cause, not less than 30 days prior to
before the hearing, to be served a notice of the
time and place of the hearing or a copy of the order to show cause
on the child's grandparents, if living, pursuant to Section 413.10,
414.10, 415.10, or 415.40.
(f) This section shall become operative on July 1, 2014.
SEC. 41. Section 2030.010 of the Code of Civil Procedure is
amended to read:
2030.010. (a) Any party may obtain discovery within the scope
delimited by Chapters Chapter 2
(commencing with Section 2017.010) and 3 (commencing with
Section 2017.710), 2017.010), and subject to the
restrictions set forth in Chapter 5 (commencing with Section
2019.010), by propounding to any other party to the action written
interrogatories to be answered under oath.
(b) An interrogatory may relate to whether another party is making
a certain contention, or to the facts, witnesses, and writings on
which a contention is based. An interrogatory is not objectionable
because an answer to it involves an opinion or contention that
relates to fact or the application of law to fact, or would be based
on information obtained or legal theories developed in anticipation
of litigation or in preparation for trial.
SEC. 42. Section 9321.1 of the Commercial Code is amended to read:
9321.1. A licensee of nonexclusive rights in a motion picture
that is produced pursuant to one or more collective bargaining
agreements governed by the laws of the United States takes its
nonexclusive license in such that motion
picture subject to any perfected security interest securing the
obligation to pay residuals as set forth in the applicable collective
bargaining agreement and arising from exploitation under
such the license. The terms "motion picture" and
"residuals" have the meaning ascribed to such
those terms under the applicable collective bargaining
agreements.
SEC. 43. The heading of Part 6 (commencing with Section 3601) of
Division 3 of the Commercial Code is amended to read:
PART 6. Chapter 6.] Discharge and Payment
CHAPTER 6. DISCHARGE AND PAYMENT
SEC. 44. Section 5047 of the Corporations Code is amended to read:
5047. Except where as otherwise
expressly provided, "directors" means natural persons, designated in
the articles or bylaws or elected by the incorporators, and their
successors and natural persons designated, elected
elected, or appointed by any other name or title to act
as members of the governing body of the corporation. If the articles
or bylaws designate that a natural person is a director or a member
of the governing body of the corporation by reason of occupying a
specified position within the corporation or outside the corporation,
without limiting that person's right to vote as a member of the
governing body, that person shall be a director for all purposes and
shall have the same rights and obligations, including voting rights,
as the other directors. A person who does not have authority to vote
as a member of the governing body of the corporation, is not a
director as that term is used in this division regardless of title.
SEC. 45. Section 12637 of the Corporations Code, as added by
Section 54 of Chapter 589 of the Statutes of 1996, is amended and
renumbered to read:
12637. 12638. (a) A corporation in
the process of winding up may dispose of the known claims against it
by following the procedure described in this section.
(b) The written notice to known creditors and claimants required
by subdivision (c) of Section 12633 shall comply with all of the
following requirements:
(1) Describe any information that must be included in a claim.
(2) Provide a mailing address where a claim may be sent.
(3) State the deadline, which may shall
not be fewer than 120 days from the effective date of the
written notice, by which the corporation must receive the claim.
(4) State that the claim will be barred if not received by the
deadline.
(c) A claim against the corporation is barred if any of the
following occur:
(1) A claimant who has been given the written notice under
subdivision (b) does not deliver the claim to the corporation by the
deadline.
(2) A claimant whose claim was rejected by the corporation does
not commence a proceeding to enforce the claim within 90 days from
the effective date of the rejection notice.
(d) For purposes of this section , "claim" does not
include a contingent liability or a claim based on an event occurring
after the effective date of dissolution.
SEC. 46. Section 25620 of the Corporations Code is amended to
read:
25620. (a) Notwithstanding any other law, the commissioner may by
rule or order prescribe circumstances under which to accept
electronic records or electronic signatures. This section
shall does not require the commissioner to
accept electronic records or electronic signatures.
(b) For purposes of this section, the following terms have the
following meanings:
(1) "Electronic record" means a record created, generated, sent,
communicated, received, or stored by electronic means. "Electronic
record" also includes, but is not limited to, all of the following:
(A) An application, amendment, supplement, and exhibit, filed for
any qualification, registration, order, permit, certificate, license,
consent, or other authority.
(B) A financial statement, reports,
report, or advertising.
(C) An order, permit, certificate, license, consent, or other
authority.
(D) A notice of public hearing, accusation, and statement of
issues in connection with any application, qualification,
registration, order, permit, certificate, license, consent, or other
authority.
(E) A proposed decision of a hearing officer and a decision of the
commissioner.
(F) The transcripts of a hearing.
(G) A release, newsletter, interpretive opinion, determination, or
specific ruling.
(H) Correspondence between a party and the commissioner directly
relating to any document listed in subparagraphs (A) to (G),
inclusive.
(2) "Electronic signature" means an electronic sound, symbol, or
process attached to or logically associated with an electronic record
and executed or adopted by a person with the intent to sign the
electronic record.
(c) The Legislature finds and declares that the Department of
Business Oversight has continuously implemented methods to accept
records filed electronically, including broker-dealer and investment
adviser applications, and is encouraged to continue to expand its use
of electronic filings to the extent feasible, as budget, resources,
and equipment are made available to accomplish that goal.
SEC. 47. Section 31116 of the Corporations Code is amended to
read:
31116. (a) Except as provided in subdivision (b), if no stop
order under Section 31115 is in effect under this law, registration
of the offer of franchises automatically becomes
effective at 12 o'clock noon,
p.m., California time, of the 30th business day
after the filing of a complete application for registration or the
last preeffective amendment thereto, or at such
an earlier time as that the
commissioner determines.
(b) With respect to any application for registration or the last
amendment thereto filed between January 1, 1971, and March 15, 1971,
if no stop order under Section 31115 is in effect under this law,
registration becomes effective on April 15, 1971; with respect to any
application filed after March 15, 1971 and before May 10, 1971, if
no stop order under Section 31115 is in effect under this law,
registration becomes effective on June 1, 1971, or the 15th business
day after the filing, whichever is the later, or at such
an earlier time as that
the commissioner determines.
(c) For purposes of this section, "complete application" means an
application that contains the appropriate filing fee, Uniform
Franchise Disclosure Document, and all additional exhibits, including
financial statements in conformity with regulations of the
commissioner. "Preeffective amendment" means an amendment to an
application that is filed before the effective date of the
registration of the sale of franchises.
SEC. 48. Section 31121 of the Corporations Code is amended to
read:
31121. (a) The registration may be renewed for additional periods
of one year each, unless the commissioner by rule or order specifies
a different period, by submitting to the commissioner a renewal
application before the expiration of the registration. If no stop
order or other order under Section 31115 is in effect under this law,
registration of the offer of the franchises automatically becomes
renewed effective at 12 o'clock noon, p.m.,
California time, of the 30th business day after the filing of a
complete application for registration or the last preeffective
amendment or at such an earlier time
as that the commissioner determines.
(b) For purposes of this section, "complete application" means an
application that contains the appropriate filing fee, Uniform
Franchise Disclosure Document, and all additional exhibits, including
financial statements in conformity with regulations of the
commissioner. "Preeffective amendment" means an amendment to an
application that is filed before the effective date of the
registration of the sale of franchises.
SEC. 49. Section 31158 of the Corporations Code is amended to
read:
31158. (a) Notwithstanding any other law, the commissioner may by
rule or order prescribe circumstances under which to accept
electronic records or electronic signatures. This section
shall does not require the commissioner to accept
electronic records or electronic signatures.
(b) For purposes of this section, the following terms have the
following meanings:
(1) "Electronic record" means an initial registration application,
registration renewal statement, preeffective amendment,
posteffective amendment, or material modification and any other
record created, generated, sent, communicated, received, or stored by
electronic means. "Electronic record" also includes, but is not
limited to, all of the following:
(A) An application, amendment, supplement, and exhibit, filed for
any registration, order, license, consent, or other authority.
(B) A financial statement, reports,
report, or advertising.
(C) An order, license, consent, or other authority.
(D) A notice of public hearing, accusation, and statement of
issues in connection with any application, registration, order,
license, consent, or other authority.
(E) A proposed decision of a hearing officer and a decision of the
commissioner.
(F) The transcripts of a hearing.
(G) A release, newsletter, interpretive opinion, determination, or
specific ruling.
(H) Correspondence between a party and the commissioner directly
relating to any document listed in subparagraphs (A) to (G),
inclusive.
(2) "Electronic signature" means an electronic sound, symbol, or
process attached to or logically associated with an electronic record
and executed or adopted by a person with the intent to sign the
electronic record.
(c) The Legislature finds and declares that the Department of
Business Oversight has continuously implemented methods to accept
records filed electronically, including broker-dealer and investment
adviser applications, and is encouraged to continue to expand its use
of electronic filings to the extent feasible, as budget, resources,
and equipment are made available to accomplish that goal.
SEC. 50. Section 1313 of the Education Code is amended to read:
1313. Each county employee whose status is changed by this
article, and who is in employment and a member of a county retirement
system other than one provided by contract with the State
Public Employees' Retirement System on the date
of such the change, shall become
eligible for membership in the State Public
Employees' Retirement System in accordance with the
State Public Employees' Retirement Law with
respect to his or her employment thereafter, and shall be
subject to the reciprocal benefits provided by said systems;
provided, that such the employee may
elect to continue in membership of such the
county retirement system with respect to such
his or her employment thereafter, in which event
the same appropriations and transfers of funds shall be made to the
retirement fund of the county system for such
the employee as those required of the county under the county
retirement law, and such these amounts
shall be legal charges against the county school service fund. The
election authorized by this section shall be made no later than the
date preceding the date upon which his status is changed in
accordance with procedures to be established by the board of
supervisors, which shall allow at least 30 days to make the election.
The election once made may shall not
be rescinded. An employee who does not elect to continue membership
in the county system shall be deemed to have discontinued county
employment for purposes of the county system at the close of the day
preceding the date upon which his status changes.
SEC. 51. Section 2575 of the Education Code is amended to read:
2575. (a) Commencing with the 2013-14 fiscal year and for each
fiscal year thereafter, the Superintendent shall calculate a base
entitlement for the transition to the county local control funding
formula for each county superintendent of schools based on the sum of
the amounts computed pursuant to paragraphs (1) to (3), inclusive,
as adjusted pursuant to paragraph (4):
(1) Revenue limits in the 2012-13 fiscal year pursuant to Article
3 (commencing with Section 2550) of Chapter 12, as that article read
on January 1, 2013, adjusted only for changes in average daily
attendance claimed by the county superintendent of schools for pupils
identified in clauses (i), (ii), and (iii) of subparagraph (A) of
paragraph (4) of subdivision (c) of Section 2574 and for pupils
attending juvenile court schools. For purposes of this paragraph, the
calculation of an amount per unit of average daily attendance for
pupils attending juvenile court schools shall be considered final for
purposes of this section as of the annual apportionment for the
2012-13 fiscal year, as calculated for purposes of the certification
required on or before February 20, 2014, pursuant to Sections 41332
and 41339. All other average daily attendance claimed by the county
superintendent of schools and any other average daily attendance used
for purposes of calculating revenue limits pursuant to Article 3
(commencing with Section 2550) of Chapter 12, as that article read on
January 1, 2013, shall be considered final for purposes of this
section as of the annual apportionment for the 2012-13 fiscal year,
as calculated for purposes of the certification required on or before
February 20, 2014, pursuant to Sections 41332 and 41339.
(2) The sum of all of the following:
(A) The amount of funding received from appropriations contained
in Section 2.00 of the Budget Act of 2012, as adjusted by Section
12.42, in the following items: 6110-104-0001, 6110-105-0001,
6110-107-0001, 6110-108-0001, 6110-111-0001, 6110-124-0001,
6110-128-0001, 6110-137-0001, 6110-144-0001, 6110-156-0001,
6110-181-0001, 6110-188-0001, 6110-189-0001, 6110-190-0001,
6110-193-0001, 6110-195-0001, 6110-198-0001, 6110-204-0001,
6110-208-0001, 6110-209-0001, 6110-211-0001, 6110-212-0001,
6110-227-0001, 6110-228-0001, 6110-232-0001, 6110-240-0001,
6110-242-0001, 6110-243-0001, 6110-244-0001, 6110-245-0001,
6110-246-0001, 6110-247-0001, 6110-248-0001, 6110-260-0001,
6110-265-0001, 6110-266-0001, 6110-267-0001, 6110-268-0001, and
6360-101-0001, 2012-13 fiscal year funding for the Class Size
Reduction Program pursuant to Chapter 6.10 (commencing with Section
52120) of Part 28 of Division 4 of Title 2, as that chapter read on
January 1, 2013, and 2012-13 fiscal year funding for pupils enrolled
in community day schools who are mandatorily expelled pursuant to
subdivision (d) of Section 48915. For purposes of this subparagraph,
the 2012-13 fiscal year appropriations described in this subparagraph
shall be considered final as of the annual apportionment for the
2012-13 fiscal year, as calculated for purposes of the certification
required on or before February 20, 2014, pursuant to Sections 41332
and 41339.
(B) The amount of local revenues used to support a regional
occupational center or program established and maintained by a county
superintendent of schools pursuant to Section 52301.
(3) For the 2014-15 fiscal year and for each fiscal year
thereafter, the sum of the amounts apportioned to the county
superintendent of schools pursuant to subdivision (f) in all prior
years.
(4) The revenue limit amount determined pursuant to paragraph (1)
shall be increased by the difference determined by subtracting the
amount provided per unit of average daily attendance in paragraph (1)
for pupils attending a school that is eligible for funding pursuant
to paragraph (2) of subdivision (b) of Section 42285 from the amount
of funding that was provided to eligible schools in the 2012-13
fiscal year pursuant to Sections 42284 and 42238.146, as those
sections read on January 1, 2013.
(b) The Superintendent shall annually compute a county local
control funding formula transition adjustment for each county
superintendent of schools as follows:
(1) Subtract the amount computed pursuant to subdivision (a) from
the amount computed pursuant to subdivision (e) of Section 2574. A
difference of less than zero shall be deemed to be zero.
(2) Divide the difference for each county superintendent of
schools calculated pursuant to paragraph (1) by the total sum of the
differences for all county superintendents of schools calculated
pursuant to paragraph (1).
(3) Multiply the proportion calculated for each county
superintendent of schools pursuant to paragraph (2) by the amount of
funding specifically appropriated for purposes of subdivision (f).
The amount calculated shall not exceed the difference for the county
superintendent of schools calculated pursuant to paragraph (1).
(c) The Superintendent shall subtract from the amount calculated
pursuant to subdivision (a) the sum of each of the following:
(1) Local property tax revenues received pursuant to Section 2573
in the then current fiscal year.
(2) Any amounts that the county superintendent of schools was
required to maintain as restricted and not available for expenditure
in the 1978-79 fiscal year as specified in the second paragraph of
subdivision (c) of Section 6 of Chapter 292 of the Statutes of 1978,
as amended by Chapter 51 of the Statutes of 1979.
(3) The amount received pursuant to subparagraph (C) of paragraph
(3) of subdivision (a) of Section 33607.5 of the Health and Safety
Code that is considered property taxes pursuant to that section.
(4) The amount, if any, received pursuant to Sections 34177,
34179.5, 34179.6, 34183, and 34188 of the Health and Safety Code.
(5) The amount, if any, received pursuant to subparagraph (B) of
paragraph (3) of subdivision (e) of Section 36 of Article XIII of the
California Constitution.
(d) The Superintendent shall subtract from the amount computed
pursuant to subdivision (e) of Section 2574 the sum of the amounts
computed pursuant to paragraphs (1) to (5), inclusive, of subdivision
(c).
(e) The Superintendent shall annually apportion to each county
superintendent of schools the amount calculated pursuant to
subdivision (c) unless the amount computed pursuant to subdivision
(c) is negative. If the amount computed is negative, except as
provided in subdivision (f), an amount of property tax of the county
superintendent of schools equal to the negative amount shall be
deemed restricted and not available for expenditure during the fiscal
year. In the following fiscal year, that amount, excluding any
amount of funds used for purposes of subdivision (f), shall be
considered restricted local property tax revenue for purposes of
subdivision (a) of Section 2578. State aid shall not be apportioned
to the county superintendent of schools pursuant to this subdivision
if the amount computed pursuant to subdivision (c) is negative.
(f) (1) The Superintendent shall apportion, from an appropriation
specifically made for this purpose, the amount computed pursuant to
subdivision (b), or, if the amount computed pursuant to subdivision
(c) is negative, the sum of the amounts computed pursuant to
subdivisions (b) and (c) if the sum if is
greater than zero.
(2) The Superintendent shall apportion any portion of the
appropriation made for purposes of paragraph (1) that is not
apportioned pursuant to paragraph (1) pursuant to the following
calculation:
(A) Add the amount calculated pursuant to subdivision (b) to the
amount computed pursuant to subdivision (a) for a county
superintendent of schools.
(B) Subtract the amount computed pursuant to subparagraph (A) from
the amount computed pursuant to subdivision (e) of Section 2574 for
the county superintendent of schools.
(C) Divide the difference for the county superintendent of schools
computed pursuant to subparagraph (B) by the sum of the differences
for all county superintendents of schools computed pursuant to
subparagraph (B).
(D) Multiply the proportion computed pursuant to subparagraph (C)
by the unapportioned balance in the appropriation. That product shall
be the county superintendent of schools' proportion of total need.
(E) Apportion to each county superintendent of schools the amount
calculated pursuant to subparagraph (D), or if subdivision (c) is
negative, apportion the sums of subdivisions (b) and (c) and
subparagraph (D) of this subdivision if the sum is greater than zero.
(F) The Superintendent shall repeat the computation made pursuant
to this paragraph, accounting for any additional amounts apportioned
after each computation, until the appropriation made for purposes of
paragraph (1) is fully apportioned.
(G) The total amount apportioned pursuant to this subdivision to a
county superintendent of schools shall not exceed the difference for
the county superintendent of schools calculated pursuant to
paragraph (1) of subdivision (b).
(H) For purposes of this paragraph, the proportion of need that is
funded from any appropriation made specifically for purposes of this
subdivision in the then current fiscal year shall be considered
fixed as of the second principal apportionment for that fiscal year.
Adjustments to a county superintendent of schools' total need
computed pursuant to subparagraph (D) after the second principal
apportionment for the then current fiscal year shall be funded based
on the fixed proportion of need that is funded for that fiscal year
pursuant to this subdivision, and shall be continuously appropriated
pursuant to Section 14002.
(g) (1) For a county superintendent of schools for whom, in the
2013-14 fiscal year, the amount computed pursuant to subdivision (c)
is less than the amount computed pursuant to subdivision (d), in the
first fiscal year following the fiscal year in which the sum of the
apportionments computed pursuant to subdivisions (e) and (f) is equal
to, or greater than, the amount computed pursuant to subdivision (d)
of this section, the Superintendent shall apportion to the county
superintendent of schools the amount computed in subdivision (d) in
that fiscal year and each fiscal year thereafter instead of the
amounts computed pursuant to subdivisions (e) and (f).
(2) For a county superintendent of schools for whom, in the
2013-14 fiscal year, the amount computed pursuant to subdivision (c)
is greater than the amount computed pursuant to subdivision (d), in
the first fiscal year in which the amount computed pursuant to
subdivision (c) would be less than the amount computed pursuant to
subdivision (d), the Superintendent shall apportion to the county
superintendent of schools the amount computed in subdivision (d) in
that fiscal year and each fiscal year thereafter instead of the
amounts computed pursuant to subdivisions (e) and (f).
(3) In each fiscal year, the Superintendent shall determine the
percentage of county superintendents of schools that are apportioned
funding that is less than the amount computed pursuant to subdivision
(d), as of the second principal apportionment of the fiscal year. If
the percentage is less than 10 percent, the Superintendent shall
apportion to those county superintendents of schools funding equal to
the amount computed in subdivision (d) in that fiscal year and for
each fiscal year thereafter instead of the amounts calculated
pursuant to subdivisions (e) and (f).
(4) Commencing with the first fiscal year after the apportionments
in paragraph (3) are made, the adjustments in paragraph (4) of
subdivision (a) of Section 2574 and subparagraph (B) of paragraph (1)
of subdivision (c) of Section 2574 shall be made only if an
appropriation for those purposes is included in the annual Budget
Act.
(5) If the calculation pursuant to subdivision (d) is negative and
the Superintendent apportions to a county superintendent of schools
the amount computed pursuant to subdivision (d) pursuant to paragraph
(1), (2), or (3) of this subdivision, an amount of property tax of
the county superintendent of schools equal to the negative amount
shall be deemed restricted and not available for expenditure during
that fiscal year. In the following fiscal year the restricted amount
shall be considered restricted local property tax revenue for
purposes of subdivision (a) of Section 2578.
(h) Commencing with the 2013-14 fiscal year, the Superintendent
shall apportion to a county superintendent of schools an amount of
state aid, including any amount apportioned pursuant to subdivisions
(f) and (g), that is no not less than
the amount calculated in subparagraph (A) of paragraph (2) of
subdivision (a).
(i) (1) For the 2013-14 and 2014-15 fiscal years only, a county
superintendent of schools who, in the 2012-13 fiscal year, from any
of the funding sources identified in paragraph (1) or (2) of
subdivision (a), received funds on behalf of, or provided funds to, a
regional occupational center or program joint powers agency
established in accordance with Article 1 (commencing with Section
6500) of Chapter 5 of Division 7 of Title 1 of the Government Code
for purposes of providing instruction to pupils enrolled in grades 9
to 12, inclusive, shall not redirect that funding for another purpose
unless otherwise authorized by law or pursuant to an agreement
between the regional occupational center or program joint powers
agency and the contracting county superintendent of schools.
(2) For the 2013-14 and 2014-15 fiscal years only, if a regional
occupational center or program joint powers agency established in
accordance with Article 1 (commencing with Section 6500) of Chapter 5
of Division 7 of Title 1 of the Government Code for purposes of
providing instruction to pupils enrolled in grades 9 to 12,
inclusive, received, in the 2012-13 fiscal year, an apportionment of
funds directly from any of the funding sources identified in
subparagraph (A) of paragraph (2) of subdivision (a), the
Superintendent shall apportion that same amount to the regional
occupational center or program joint powers agency.
(j) For the 2013-14 and 2014-15 fiscal years only, a county
superintendent of schools who, in the 2012-13 fiscal year, from any
of the funding sources identified in paragraph (1) or (2) of
subdivision (a), received funds on behalf of, or provided funds to, a
home-to-school transportation joint powers agency established in
accordance with Article 1 (commencing with Section 6500) of Chapter 5
of Division 7 of Title 1 of the Government Code for purposes of
providing pupil transportation shall not redirect that funding for
another purpose unless otherwise authorized by law or pursuant to an
agreement between the home-to-school transportation joint powers
agency and the contracting county superintendent of schools.
(k) (1) In addition to subdivision (j), of the funds a county
superintendent of schools receives for home-to-school transportation
programs, the county superintendent of schools shall expend, pursuant
to Article 2 (commencing with Section 39820) of Chapter 1 of Part
23.5 of Division 3 of Title 2, Article 10 (commencing with Section
41850) of Chapter 5 of Part 24 of Division 3 of Title 2, and the
Small School District Transportation program, as set forth in Article
4.5 (commencing with Section 42290) of Chapter 7 of Part 24 of
Division 3 of Title 2, no less for those programs than the amount of
funds the county superintendent of schools expended for
home-to-school transportation in the 2012-13 fiscal year.
(2) For the 2013-14 and 2014-15 fiscal years only, if a
home-to-school transportation joint powers agency established in
accordance with Article 1 (commencing with Section 6500) of Chapter 5
of Division 7 of Title 1 of the Government Code for purposes of
providing pupil transportation received, in the 2012-13 fiscal year,
an apportionment of funds directly from the Superintendent from any
of the funding sources identified in subparagraph (A) of paragraph
(2) of subdivision (a), the Superintendent shall apportion that same
amount to the home-to-school transportation joint powers agency.
(3) For the 2013-14 and 2014-15 fiscal years only, of the funds a
county superintendent of schools receives for purposes of regional
occupational centers or programs, or adult education, the county
superintendent of schools shall expend no less for each of those
programs than the amount of funds the county superintendent of
schools expended for purposes of regional occupational centers or
programs, or adult education, respectively, in the 2012-13 fiscal
year. For purposes of this paragraph, a county superintendent of
schools may include expenditures made by a school district within the
county for purposes of regional occupational centers or programs so
long as the total amount of expenditures made by the school districts
and the county superintendent of schools equals or exceeds the total
amount required to be expended for purposes of regional occupational
centers or programs pursuant to this paragraph and paragraph (7) of
subdivision (a) of Section 42238.03.
(l) The funds apportioned pursuant to this section and Section
2574 shall be available to implement the activities required pursuant
to Article 4.5 (commencing with Section 52060) of Chapter 6.1 of
Part 28 of Division 4 of Title 2.
SEC. 52. Section 2577 of the Education Code is amended to read:
2577. Notwithstanding any other law, revenue limit funding for
county superintendents of schools for the 2012-13 fiscal year and
prior fiscal years shall continue to be adjusted pursuant to Article
3 (commencing with Section 2550) of Chapter 12, as that
section article read on January 1, 2013.
SEC. 53. Section 8261 of the Education Code is amended to read:
8261. (a) The Superintendent shall adopt rules and regulations
pursuant to this chapter. The rules and regulations shall include,
but not be limited to, provisions which that
do all of the following:
(1) Provide clear guidelines for the selection of agencies when
child development contracts are let, including, but not limited to,
specification that any agency headquartered in the proposed service
area on January 1, 1985, will be given priority for a new contract in
that area, unless the department makes a written determination that
(A) the agency is not able to deliver the level of services specified
in the request for proposal, or (B) the department has notified the
agency that it is not in compliance with the terms of its contract.
(2) Provide for a contract monitoring system to ensure that
agencies expend funds received pursuant to this chapter in accordance
with the provisions of their contracts.
(3) Specify adequate standards of agency performance.
(4) Establish reporting requirements for service reports,
including provisions for varying the frequency with which these
reports are to be submitted on the basis of agency performance.
(5) Specify standards for withholding payments to agencies that
fail to submit required fiscal reports.
(6) Set forth standards for department site visits to contracting
agencies, including, but not limited to, specification as to the
purpose of the visits, the personnel that will perform these visits,
and the frequency of these visits which shall be as frequently as
staff and budget resources permit. By September 1 of each year, the
department shall report to the Senate Education, Senate Health and
Human Services, Assembly Education, and Assembly Human Services
Committees on the number of visits conducted during the previous
fiscal year pursuant to this paragraph.
(7) Authorize the department to develop a process that requires
every contracting agency to recompete for continued funding no less
frequently than every five years.
(b) The Superintendent shall consult with the State Department of
Social Services with respect to rules and regulations adopted
relative to the disbursal of federal funds under Title XX of the
federal Social Security Act.
(c) For purposes of expediting the implementation of state or
federal legislation to expand child care services, the Superintendent
may waive (1) the regulations regarding the point qualifications
for, and the process and scoring of, interviews of contract
applicants pursuant to Section 18002 of Title 5 of the California
Code of Regulations, or (2) the time limitations
for scheduling and notification of appeal
hearings and their results pursuant to Section 18003 of Title 5 of
the California Code of Regulations. The Superintendent shall ensure
that the appeal hearings provided for in Section 18003 of Title 5 of
the California Code of Regulations are conducted in a timely manner.
(d) (1) Child care and development programs operated under
contract from funds made available pursuant to the federal Child Care
and Development Fund, shall be administered according to
Division Chapter 19 (commencing with Section
17906) of Chapter Division 1 of Title 5
of the California Code of Regulations, unless provisions of these
regulations conflict with federal regulations. If state and federal
regulations conflict, the federal regulations shall apply unless a
waiver of federal regulations is authorized.
(2) For purposes of this section, "Child Care and Development Fund"
has the same meaning as in Section 98.2 of Title 45 of the Code of
Federal Regulations.
SEC. 54. Section 8273.1 of the Education Code is amended to read:
8273.1. (a) Families receiving services pursuant to subparagraph
(B) of paragraph (1) of subdivision (b) of Section 8263 may be exempt
from family fees for up to three months.
(b) Families receiving services pursuant to subparagraph (C) of
paragraph (1) of subdivision (b) of Section 8263 may be exempt from
family fees for up to 12 months.
(c) The cumulative period of time of exemption from
family fees for families receiving services pursuant to paragraph (1)
of subdivision (b) of Section 8263 shall not exceed 12 months.
(d) Notwithstanding any other law, a family receiving CalWORKs
cash aid shall not be charged a family fee.
(e) Notwithstanding any other law, commencing with the 2014-15
fiscal year, family fees shall not be assessed for the part-day
California preschool program to income eligible families whose
children are enrolled in that program pursuant to Article 7
(commencing with Section 8235).
SEC. 55. Section 8350.5 of the Education Code, as added by Section
3 of Chapter 329 of the Statutes of 1998, is repealed.
8350.5. Current CalWORKs recipients are eligible for all child
care services under this article as long as they continue to receive
aid under Chapter 2 (commencing with Section 11200) of Part 3 of
Division 9 of the Welfare and Institutions Code, or any successor
program. Family size and income, for purposes of calculating family
fees, shall be determined pursuant to Section 8263.
SEC. 56. Section 8363.1 of the Education Code is amended to read:
8363.1. (a) On or before, before
July 1, 2016, the Commission on Teacher Credentialing shall review,
and update if appropriate, the requirements for the issuance and
renewal of permits authorizing service in the care, development, and
instruction of children in child care and development programs and
permits authorizing supervision of a child care and development
program.
(b) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
SEC. 57. Section 8450 of the Education Code is amended to read:
8450. (a) All child development contractors are encouraged to
develop and maintain a reserve within the child development fund,
derived from earned but unexpended funds. Child development
contractors may retain all earned funds. For purposes of this
section, "earned funds" are those for which the required number of
eligible service units have been provided.
(b) (1) Earned funds shall not be expended for activities
proscribed by Section 8406.7. Earned but unexpended funds shall
remain in the contractor's reserve account within the child
development fund and shall be expended only by direct service child
development programs that are funded under contract with the
department.
(2) (A) Commencing July 1, 2011, a contractor may retain a reserve
fund balance, separate from the reserve fund retained pursuant to
subdivision (c) or (d), equal to 5 percent of the sum of the maximum
reimbursable amounts of all contracts to which the contractor is a
party, or two thousand dollars ($2,000), whichever is greater. This
paragraph subparagraph applies to
direct service child development contracting agencies that are funded
under contract with the department and are not a California state
preschool program contracting agency.
(B) A California state preschool program contracting agency may
retain a reserve fund balance, separate from the reserve fund
retained pursuant to subdivision (c) or (d), equal to 15 percent of
the sum of the maximum reimbursable amounts of all contracts to which
the contractor is a party, or two thousand dollars ($2,000),
whichever is greater. Of the 15 percent retained, 10 percent shall
solely be used for purposes of professional development for
California state preschool program instructional staff. This
paragraph subparagraph applies to California
state preschool program contracting agencies that are funded under
contract with the department.
(c) Notwithstanding subdivisions (a) and (b), a contractor may
retain a reserve fund balance for a resource and referral program,
separate from the balance retained pursuant to subdivision (b) or
(d), not to exceed 3 percent of the contract amount. Funds from this
reserve account may be expended only by resource and referral
programs that are funded under contract with the department.
(d) Notwithstanding subdivisions (a) and (b), a contractor may
retain a reserve fund balance for alternative payment model and
certificate child care contracts, separate from the reserve fund
retained pursuant to subdivisions (b) and (c). Funds from this
reserve account may be expended only by alternative payment model and
certificate child care programs that are funded under contract with
the department. The reserve amount allowed by this section
subdivision may not exceed either of the
following, whichever is greater:
(1) Two percent of the sum of the parts of each contract to which
that contractor is a party that is allowed for administration
pursuant to Section 8276.7 and that is allowed for supportive
services pursuant to the provisions of the contract.
(2) One thousand dollars ($1,000).
(e) Each contractor's audit shall identify any funds earned by the
contractor for each contract through the provision of contracted
services in excess of funds expended.
(f) Any interest earned on reserve funds shall be included in the
fund balance of the reserve. This reserve fund shall be maintained in
an interest-bearing account.
(g) Moneys in a contractor's reserve fund may be used only for
expenses that are reasonable and necessary costs as defined in
subdivision (n) of Section 8208.
(h) Any reserve fund balance in excess of the amount authorized
pursuant to subdivisions (b), (c), and (d) shall be returned to the
department pursuant to procedures established by the department.
(i) Upon termination of all child development contracts between a
contractor and the department, all moneys in a contractor's reserve
fund shall be returned to the department pursuant to procedures
established by the department.
(j) Expenditures from, additions to, and balances in, the reserve
fund shall be included in the contracting agency's annual financial
statements and audit.
SEC. 58. Section 8483.55 of the Education Code is amended to read:
8483.55. (a) From the funds appropriated pursuant to subdivision
(b) of Section 8483.5, the department may spend 1.5 percent to cover
evaluation costs and to provide training and support to ensure
quality program implementation, development, and sustainability and
may pay its costs of awarding and monitoring grants.
(b) Beginning with the 2006-07 fiscal year, 1.5 percent of the
funds appropriated pursuant to this article shall be available to the
department for purposes of providing technical assistance,
evaluation, and training services, and for providing local assistance
funds to support program improvement and technical assistance.
(1) The department shall provide directly, or contract for,
technical assistance for new programs and any program that is not
meeting attendance or performance goals, or both, and requests that
assistance. The department shall allocate an appropriate level of
technical assistance funds to the regional system of support to
support program startup within 45 days after grant awards to
programs.
(2) (A) Training and support shall include, but is not limited to,
the development and distribution of voluntary guidelines for
physical activity programs established pursuant to paragraph
(2) (1) of subdivision (c) of Section 8482.3,
that expand the learning opportunities of the schoolday.
(B) The department shall distribute these voluntary guidelines for
physical activity programs on or before July 1, 2009.
(c) The department shall contract for an independent statewide
evaluation of the effectiveness of programs funded pursuant to this
article to be prepared and submitted to the Legislature. The
evaluation shall include a comparison of outcomes for participating
pupils and similarly situated pupils who did not participate in the
program. A report shall be submitted to the Governor and the
Legislature on or before October 1, 2011, providing data that
includes, but is not limited to, all of the following:
(1) Data collected pursuant to Section 8484.
(2) Data adopted through the process outlined in subdivision (b)
of Section 8421.5 and subdivision (g) of Section 8482.4.
(3) Number and type of sites and grantees participating in the
program.
(4) Pupil program attendance, as reported semiannually, and pupil
schoolday attendance, as reported annually.
(5) Pupil program participation rates.
(6) Quality of program drawing on the research of the Academy of
Sciences on critical features of programs that support healthy youth
development.
(7) The participation rates of local educational agencies.
(8) Local partnerships.
(9) The academic performance of participating pupils in English
language arts and mathematics, as measured by the results of the
Standardized Testing and Reporting (STAR) Program established
pursuant to Section 60640.
(d) A final report shall be submitted to the Governor and the
Legislature on or before December 1, 2011. The final report shall
include, but not be limited to, all of the following:
(1) Updated data on the measures specified in subdivision (b),
including, but not limited to, changes in those measures.
(2) The prevalence and frequency of activities included in funded
programs.
SEC. 59. Section 8490.1 of the Education Code is amended to read:
8490.1. For purposes of this article, the following definitions
shall apply:
(a) "After school program" means the After School
Education and Safety Program (ASES), the 21st Century High
School After School Safety and Enrichment for Teens (High School
ASSETs) program, and other qualified out-of-school time programs that
serve schoolage children outside of regular school hours, including
before school and on weekends.
(b) "DASH recognition program" means the Distinguished After
School Health Recognition Program enacted
established pursuant to this article.
(c) "Program attendee" means a person enrolled in an after school
program.
(d) "Screen time" means time spent viewing or working on
television, videos, computers, and hand-held devices, with or without
Internet access.
SEC. 60. Section 9004 of the Education Code is amended to read:
9004. The State Department of Education
department shall select grant recipients from the northern,
southern, and central regions of the state and from urban, rural, and
suburban areas, so that the recipients are broadly
representatives representative of the state.
SEC. 61. Chapter 17 (commencing with Section 11600) of Part 7 of
Division 1 of Title 1 of the Education Code is repealed.
SEC. 62. The heading of Article 2 (commencing with Section 12210)
of Chapter 2 of Part 8 of Division 1 of Title 1 of the Education Code
is repealed.
Article 2. Administration of Federal Funds by Chancellor
SEC. 63. Section 17199.4 of the Education Code is amended to read:
17199.4. (a) Notwithstanding any other law, any participating
party, in connection with securing financing or refinancing of
projects, or working capital pursuant to this chapter, may, in
accordance with this section, elect to provide for funding, in whole
or in part, one or more of the following:
(1) Payments on authority bonds.
(2) Payments under credit enhancement or liquidity support
agreements in connection with authority bonds.
(3) Amounts pledged or assigned under one or more pledges or
assignments to pay authority bonds or obligations under these credit
enhancement or liquidity support agreements.
(4) Payments to fund reserves available to pay any of the payments
described in paragraphs (1), (2), and (3), exclusively until paid.
(5) Fees and charges contemplated by the instruments of the
authority, trustees, tender agents, remarketing agents, credit
enhancement and liquidity support providers, and service providers.
(6) Any other costs necessary or incidental to any financing or
refinancing conducted under this chapter.
(b) The payments made pursuant to subdivision (a) may be in
connection with a financing or refinancing benefiting the
participating party itself, one or more other participating parties,
or any combination thereof.
(c) To participate under this section, the participating party
shall do all of the following:
(1) Elect to participate by an action of its governing board taken
in compliance with the rules of that board.
(2) Provide written notice to the Controller, no later than the
date of the issuance of the bonds or 60 days before the next payment,
whichever is later, of all of the following:
(A) Its election to participate.
(B) A schedule of the payments subject to that election.
(C) The payee or payees of those payments, or the trustee or agent
on their behalf to receive those payments.
(i)
(D) (i) Payment delivery
instructions, which may be by wire transfer or other method approved
by the Controller.
(ii) If the method of payment delivery is wire transfer, the
participating party shall complete and submit the appropriate
authorization form as prescribed by the Controller.
(d) The participating party may amend, supplement, or restate the
notice required pursuant to paragraph (2) of subdivision (c) for any
reason, including, but not necessarily limited to, providing for new
or increased payments. The participating party shall certify in the
notice and in any amendment, supplement, or restatement of the notice
that each and every payment reflected in the schedule is a payment
described in subdivision (a) and the amounts scheduled do not exceed
the actual or reasonably estimated payment obligations to be funded
pursuant to this section. The participating party shall also
represent in the notice that it is not submitting the notice for the
purpose of accelerating a participating party's receipt of its
apportionments. Nothing in this section prohibits transfer by the
recipient of an apportionment under this section to the participating
party submitting the notice of the excess apportionment above the
amount needed to fund actual payments where the excess resulted from
erroneous estimation of scheduled payments or otherwise.
(e) Upon receipt of the notice required by paragraph (2) of
subdivision (c), the Controller shall make an apportionment to the
indicated recipient on the date, or during the period, shown in the
schedule in accordance with the following:
(1) If the participating party requests transfers in full as
scheduled, in the amount of the scheduled transfer or such lesser
amount as is available from the sources indicated in subdivision (f).
(2) If the participating party does not request transfers in full
as scheduled, in the amount of the anticipated deficiency for the
purpose of making the required payment indicated in a written request
of the participating party to the Controller and in the amount of
the actual shortfall in payment indicated in a written request of the
recipient or the participating party to the Controller or
the whatever lesser amount that
is available from the sources indicated in subdivision (f).
(3) To the extent funds available for an apportionment are
insufficient to pay the amount set forth in a schedule in any period,
the Controller shall, if and as requested in the notice, reschedule
the payment of all or a portion of the deficiency to a subsequent
period.
(4) In making apportionments under this section, the Controller
may rely conclusively and without liability on any notice or request
delivered under this section, including any notice of request
delivered prior to before
enactment of the act that adds this paragraph. The Controller may
make, but is not obligated to make, apportionments not reflected on a
notice or on an amended, supplemented, or restated notice delivered
under this section that the Controller receives less than 20 days
prior to before when the apportionment
would otherwise be required.
(f) The Controller shall make an apportionment under this section
only from moneys designated for apportionment to the participating
party delivering the notice, and only from one or both of the
following:
(1) Any funding apportioned for purposes of revenue limits or the
local control funding formula pursuant to Section 42238.02, as
implemented by Section 42238.03, to a school district or county
office of education without regard to the specific funding source of
the apportionment.
(2) Any funding apportioned for purposes of the charter school
block grant or the local control funding formula pursuant to Section
42238.02, as implemented by Section 42238.03, to a charter school
without regard to the specific funding source of the apportionment.
(g) (1) The amount apportioned for a participating party pursuant
to this section shall be deemed to be an allocation to the
participating party, and shall be included in the computation of
allocation, limit, entitlement, or apportionment for the
participating party.
(2) The participating party and its creditors do not have a claim
to funds apportioned or anticipated to be apportioned by the
Controller pursuant to this section.
(h) (1) The authority may require participation under this section
under the terms of any financing or refinancing under this chapter
to provide for one or more of the payments described in paragraphs
(1), (2), (3), and (4) of subdivision (a). The authority may impose
limits on new participation under this section. The authority may
require participating parties to apply to the authority for
participation. If the authority limits participation under this
section, the authority shall consider each of the following
priorities in making participation available:
(A) First priority shall be given to participating parties that
apply for funding for instructional classroom space under this
chapter.
(B) Second priority shall be given to participating parties that
apply for funding of modernization of instructional classroom space
under this chapter.
(C) Third priority shall be given to participating parties that
apply for funding under this chapter for any other eligible costs, as
defined in Section 17173.
(2) The authority shall prioritize applications at appropriate
intervals.
(3) A school district electing to participate under this section
that has applied for revenue bond moneys for purposes of joint
venture school facilities construction projects, pursuant to Article
5 (commencing with Section 17060) of Chapter 12, shall not be subject
to the priorities set forth in paragraph (1).
(i) This section shall not be construed to make the State of
California liable for any payments within the meaning of Section 1 of
Article XVI of the California Constitution.
(j) A school district that has a qualified or negative
certification pursuant to Section 42131, or a county office of
education that has a qualified or negative certification pursuant to
Section 1240, may not participate under this section.
(k) This section does not obligate the State of California to make
available the sources of apportionment under subdivision (f) in any
amount or at any time or, except as provided in this section, to fund
any payment described in this section. The addition of this
subdivision is intended solely to clarify existing law.
SEC. 64. Section 17592.74 of the Education Code is amended to
read:
17592.74. Notwithstanding any other law, the funds provided to
school districts from the School Facilities Emergency Repair Account
pursuant to this article for the purpose of emergency repair grants
shall not be deposited into a school district deferred maintenance
fund for purposes established pursuant to
described in Section 17582.
SEC. 65. The heading of Chapter 11 (commencing with Section 19900)
of Part 11 of Division 1 of Title 1 of the Education Code, as
enacted by Chapter 1010 of the Statutes of 1976, is amended and
renumbered to read:
CHAPTER 11. 10.5. MISCELLANEOUS
PROVISIONS
SEC. 66. The heading of Article 1 (commencing with Section 32200)
of Chapter 2 of Part 19 of Division 1 of Title 1 of the Education
Code is repealed.
Article 1. Fire Drills
SEC. 67. Section 32282 of the Education Code is amended to read:
32282. (a) The comprehensive school safety plan shall include,
but not be limited to, both of the following:
(1) Assessing the current status of school crime committed on
school campuses and at school-related functions.
(2) Identifying appropriate strategies and programs that will
provide or maintain a high level of school safety and address the
school's procedures for complying with existing laws related to
school safety, which shall include the development of all of the
following:
(A) Child abuse reporting procedures consistent with Article 2.5
(commencing with Section 11164) of Chapter 2 of Title 1 of Part 4 of
the Penal Code.
(B) Disaster procedures, routine and emergency, including
adaptations for pupils with disabilities in accordance with the
federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101
et seq.). The disaster procedures shall also include, but not be
limited to, both of the following:
(i) Establishing an earthquake emergency procedure system in every
public school building having an occupant capacity of 50 or more
pupils or more than one classroom. A school district or county office
of education may work with the Office of Emergency Services and the
Alfred E. Alquist Seismic Safety Commission to develop and
establish the earthquake emergency procedure system. The system
shall include, but not be limited to, all of the following:
(I) A school building disaster plan, ready for implementation at
any time, for maintaining the safety and care of pupils and staff.
(II) A drop procedure whereby each pupil and staff member takes
cover under a table or desk, dropping to his or her knees, with the
head protected by the arms, and the back to the windows. A drop
procedure practice shall be held at least once each school quarter in
elementary schools and at least once a semester in secondary
schools.
(III) Protective measures to be taken before, during, and
following an earthquake.
(IV) A program to ensure that pupils and both the certificated and
classified staff are aware of, and properly trained in, the
earthquake emergency procedure system.
(ii) Establishing a procedure to allow a public agency, including
the American Red Cross, to use school buildings, grounds, and
equipment for mass care and welfare shelters during disasters or
other emergencies affecting the public health and welfare. The school
district or county office of education shall cooperate with the
public agency in furnishing and maintaining the services as the
school district or county office of education may deem necessary to
meet the needs of the community.
(C) Policies pursuant to subdivision (d) of Section 48915 for
pupils who committed an act listed in subdivision (c) of Section
48915 and other school-designated serious acts which would lead to
suspension, expulsion, or mandatory expulsion recommendations
pursuant to Article 1 (commencing with Section 48900) of Chapter 6 of
Part 27 of Division 4 of Title 2.
(D) Procedures to notify teachers of dangerous pupils pursuant to
Section 49079.
(E) A discrimination and harassment policy consistent with the
prohibition against discrimination contained in Chapter 2 (commencing
with Section 200) of Part 1.
(F) The provisions of any schoolwide dress code, pursuant to
Section 35183, that prohibits pupils from wearing "gang-related
apparel," if the school has adopted that type of a dress code. For
those purposes, the comprehensive school safety plan shall define
"gang-related apparel." The definition shall be limited to apparel
that, if worn or displayed on a school campus, reasonably could be
determined to threaten the health and safety of the school
environment. Any A schoolwide dress
code established pursuant to this section and Section 35183 shall be
enforced on the school campus and at any school-sponsored activity by
the principal of the school or the person designated by the
principal. For purposes of this paragraph, "gang-related apparel"
shall not be considered a protected form of speech pursuant to
Section 48950.
(G) Procedures for safe ingress and egress of pupils, parents, and
school employees to and from school.
(H) A safe and orderly environment conducive to learning at the
school.
(I) The rules and procedures on school discipline adopted pursuant
to Sections 35291 and 35291.5.
(b) It is the intent of the Legislature that schools develop
comprehensive school safety plans using existing resources, including
the materials and services of the partnership, pursuant to this
chapter. It is also the intent of the Legislature that schools use
the handbook developed and distributed by the School/Law Enforcement
Partnership Program entitled "Safe Schools: A Planning Guide for
Action" in conjunction with developing their plan for school safety.
(c) Each schoolsite council or school safety planning
committee committee, in developing and updating
a comprehensive school safety plan plan,
shall, where
practical, consult, cooperate, and coordinate with other schoolsite
councils or school safety planning committees.
(d) The comprehensive school safety plan may be evaluated and
amended, as needed, by the school safety planning committee, but
shall be evaluated at least once a year, to ensure that the
comprehensive school safety plan is properly implemented. An updated
file of all safety-related plans and materials shall be readily
available for inspection by the public.
(e) As comprehensive school safety plans are reviewed and updated,
the Legislature encourages all plans, to the extent that resources
are available, to include policies and procedures aimed at the
prevention of bullying.
(f) The comprehensive school safety plan, as written and updated
by the schoolsite council or school safety planning committee, shall
be submitted for approval under pursuant to
subdivision (a) of Section 32288.
SEC. 68. Section 32289 of the Education Code, as added by Section
1 of Chapter 272 of the Statutes of 2004, is repealed.
32289. A complaint of noncompliance with the school safety
planning requirements of Title IV of the federal No Child Left Behind
Act of 2001, 20 U.S.C. Sec. 7114(d)(7), may be filed with the
department under the Uniform Complaint Procedures as set forth in
Chapter 5.1 (commencing with Section 4600) of Title 5 of the
California Code of Regulations.
SEC. 69. Section 32289 of the Education Code, as added by Section
29 of Chapter 896 of the Statutes of 2004, is amended to read:
32289. A complaint of noncompliance with the school safety
planning requirements of Title IV of the federal No Child Left Behind
Act of 2001 (20 U.S.C. Sec. 7114 (d)(7)) may be filed with the
department under the Uniform Complaint Procedures as set forth in
Chapter 5.1 (commencing with Sections Section
4600) of Title 5 of the California Code of Regulations.
SEC. 70. The heading of Article 7 (commencing with Section 33390)
of Chapter 3 of Part 20 of Division 2 of Title 2 of the Education
Code is repealed.
Article 7. California Maritime Academy
SEC. 71. Section 35035 of the Education Code is amended to read:
35035. The superintendent of each school district shall, in
addition to other powers and duties granted to or imposed upon him or
her:
(a) Be the chief executive officer of the governing board of the
school district.
(b) Except in a school district where the governing board has
appointed or designated an employee other than the superintendent, or
a deputy, or assistant superintendent, to prepare and submit a
budget, prepare and submit to the governing board of the school
district, at the time it may direct, the budget of the school
district for the next ensuing school year, and revise and take other
action in connection with the budget as the governing board of the
school district may desire.
(c) Be responsible for the preparation and submission to the
governing board of the school district, at the time the governing
board may direct, the local control and accountability plan of the
school district for the subsequent school year, and revise and take
other action in connection with the local control and accountability
plan as the governing board of the school district may desire.
(d) Except in a school district where the governing board has
appointed or designated an employee other than the superintendent, or
a deputy, or assistant superintendent, ensure that the local control
and accountability plan is implemented.
(e) Subject to the approval of the governing board of the school
district, assign all employees of school the
school district employed in positions requiring certification
qualifications, qualifications to the
positions in which they are to serve. This power to assign includes
the power to transfer a teacher from one school to another school at
which the teacher is certificated to serve within the school district
when the superintendent concludes that the transfer is in the best
interest of the school district.
(f) Upon adoption, adoption by the
school district board, board of a
school district policy concerning transfers of teachers from one
school to another school within the school district, have authority
to transfer teachers consistent with that policy.
(g) Determine that each employee of the school district in a
position requiring certification qualifications has a valid
certificated document registered as required by law authorizing him
or her to serve in the position to which he or she is assigned.
(h) Enter into contracts for and on behalf of the school district
pursuant to Section 17604.
(i) Submit financial and budgetary reports to the governing board
of the school district as required by Section 42130.
SEC. 72. Section 35735.1 of the Education Code is amended to read:
35735.1. (a) The local control funding formula allocation per
unit of average daily attendance for newly organized school districts
shall be equal to the total of the amount of the local control
funding formula allocation pursuant to Section 42238.02, as
implemented by Section 42238.03, per unit of average daily attendance
of the affected school districts computed pursuant to the
computations set forth below. The following computations shall be
made to determine the local control funding formula allocation
pursuant to Section 42238.02, as implemented by Section 42238.03, per
unit of average daily attendance for the newly
organized school districts:
(1) Based on the current information available for each affected
school district for the second principal apportionment period for the
fiscal year before the fiscal year in which the reorganization is to
become effective, multiply the local control funding formula
allocation pursuant to Section 42238.02, as implemented by Section
42238.03, per unit of average daily attendance for that school
district by the number of units of average daily attendance for that
school district that the county superintendent of schools determines
will be included in the proposed school district.
(2) Add the amounts calculated pursuant to paragraph (1) and
divide that sum by the number of units of average daily attendance in
the newly organized school districts.
(b) The amount determined pursuant to subdivision (a) shall be the
local control funding formula allocation pursuant to Section
42238.02, as implemented by Section 42238.03, per unit of average
daily attendance for the newly organized school
districts.
(c) The average daily attendance of a newly organized school
district, for purposes of Sections 42238.02 and 42238.03, shall be
the average daily attendance that is attributable to the area
reorganized for the fiscal year before the fiscal year in which the
new school district becomes effective for all purposes.
(d) Notwithstanding this section, commencing with the 2013-14
fiscal year, a newly reorganized school district shall receive
state-aid funding pursuant to paragraph (3) of subdivision (b) of
Section 42238.03 or the total combined per pupil funding amount
received by each school district pursuant to paragraphs (1) and (2)
of subdivision (a) of Section 42238.03 for the fiscal year before the
fiscal year in which the new school district becomes effective for
all purposes, whichever is greater.
(e) Notwithstanding any other law, this section shall not be
subject to waiver by the state board pursuant to Section 33050 or by
the Superintendent.
(f) Upon a determination that all school districts or charter
schools equal or exceed the local control funding formula target
computed pursuant to Section 42238.02 as determined by the
calculation of a zero difference pursuant to paragraph (1) of
subdivision (b) of Section 42238.03, for all school districts and
charter schools, this section shall not apply and the
newly reorganized school district
districts shall receive an allocation equal to the amount
calculated under Section 42238.02 in that fiscal year and future
fiscal years.
SEC. 73. The heading of Chapter 3 (commencing with Section 37400)
of Part 22 of Division 3 of Title 2 of the Education Code is
repealed.
CHAPTER 3. YEAR-ROUND SCHOOL OPERATION
SEC. 74. Section 38047.5 of the Education Code is amended and
renumbered to read:
38047.5. 39831.1. The
State Board of Education state board shall adopt
regulations to require a passenger in a schoolbus equipped with
passenger restraint systems in accordance with Section 27316 of the
Vehicle Code to use a passenger restraint system so that the
passenger is properly restrained by that system.
SEC. 75. Section 38047.6 of the Education Code is amended and
renumbered to read:
38047.6. 39831.2. The
State Board of Education state board shall adopt
regulations to require a passenger in a school pupil activity bus
equipped with passenger restraint systems in accordance with Section
27316.5 of the Vehicle Code to use a passenger restraint system so
that the passenger is properly restrained by that system.
SEC. 76. Section 39672 of the Education Code is amended and
renumbered to read:
39672. 38001.6. (a)
Every school peace officer first employed by a K-12 public
school district before July 1, 1999, shall, in order to retain his or
her employment, fulfill both of the following conditions:
(a)
(1) The employee shall submit to the school
district one copy of his or her fingerprints on forms prescribed by
the Department of Justice. The Department of Justice shall forward
this copy to the United States Federal Bureau of Investigation.
(b)
(2) The employee shall be determined to be a person who
is not prohibited from employment by a school district pursuant to
Sections 44237 and 45122.1, and, if the employee is required to carry
a firearm, shall be determined by the Department of Justice to be a
person who is not prohibited from possessing a firearm.
The
(b) The Department of Justice may
participate in the National Instant Criminal Background Check System
(NICS) in lieu of submitting fingerprints to the United States
Federal Bureau of Investigation in order to meet the requirements of
this section relating to firearms.
SEC. 77. Section 41020 of the Education Code is amended to read:
41020. (a) It is the intent of the Legislature to encourage sound
fiscal management practices among local educational agencies for the
most efficient and effective use of public funds for the education
of children in California by strengthening fiscal accountability at
the school district, county, and state levels.
(b) (1) Not later than the first day of May of each fiscal year,
each county superintendent of schools shall provide for an audit of
all funds under his or her jurisdiction and control and the governing
board of each local educational agency shall either provide for an
audit of the books and accounts of the local educational agency,
including an audit of income and expenditures by source of funds, or
make arrangements with the county superintendent of schools having
jurisdiction over the local educational agency to provide for that
auditing.
(2) A contract to perform the audit of a local educational agency
that has a disapproved budget or has received a negative
certification on any budget or interim financial report during the
current fiscal year or either of the two preceding fiscal years, or
for which the county superintendent of schools has otherwise
determined that a lack of going concern exists, is not valid unless
approved by the responsible county superintendent of schools and the
governing board.
(3) If the governing board of a local educational agency has not
provided for an audit of the books and accounts of the local
educational agency by April 1, the county superintendent of schools
having jurisdiction over the local educational agency shall provide
for the audit of each local educational agency.
(4) An audit conducted pursuant to this section shall comply fully
with the Government Auditing Standards issued by the Comptroller
General of the United States.
(5) For purposes of this section, "local educational agency" does
not include community colleges.
(c) Each audit conducted in accordance with this section shall
include all funds of the local educational agency, including the
student body and cafeteria funds and accounts and any other funds
under the control or jurisdiction of the local educational agency.
Each audit shall also include an audit of pupil attendance
procedures. Each audit shall include a determination of whether funds
were expended pursuant to a local control and accountability plan or
an approved annual update to a local control and accountability plan
pursuant to Article 4.5 (commencing with Section 52060) of Chapter
6.1 of Part 28 of Division 4.
(d) All audit reports for each fiscal year shall be developed and
reported using a format established by the Controller after
consultation with the Superintendent and the Director of Finance.
(e) (1) The cost of the audits provided for by the county
superintendent of schools shall be paid from the county school
service fund and the county superintendent of schools shall transfer
the pro rata share of the cost chargeable to each school district
from school district funds.
(2) The cost of the audit provided for by a governing board of a
local educational agency shall be paid from local educational agency
funds. The audit of the funds under the jurisdiction and control of
the county superintendent of schools shall be paid from the county
school service fund.
(f) (1) The audits shall be made by a certified public accountant
or a public accountant, licensed by the California Board of
Accountancy, and selected by the local educational agency, as
applicable, from a directory of certified public accountants and
public accountants deemed by the Controller as qualified to conduct
audits of local educational agencies, which shall be published by the
Controller not later than December 31 of each year.
(2) Commencing with the 2003-04 fiscal year and except as provided
in subdivision (d) of Section 41320.1, it is unlawful for a public
accounting firm to provide audit services to a local educational
agency if the lead audit partner, or coordinating audit partner,
having primary responsibility for the audit, or the audit partner
responsible for reviewing the audit, has performed audit services for
that local educational agency in each of the six previous fiscal
years. The Education Audits Appeal Panel may waive this requirement
if the panel finds that no otherwise eligible auditor is available to
perform the audit.
(3) It is the intent of the Legislature that, notwithstanding
paragraph (2), the rotation within public accounting firms conform to
provisions of the federal Sarbanes-Oxley Act of 2002 (Public Law
107-204; 15 U.S.C. Sec. 7201 et seq.), and upon release of the report
required by the act of the Comptroller General of the United States
addressing the mandatory rotation of registered public accounting
firms, the Legislature intends to reconsider the provisions of
paragraph (2). In determining which certified public accountants and
public accountants shall be included in the directory, the Controller
shall use the following criteria:
(A) The certified public accountants or public accountants shall
be in good standing as certified by the Board of Accountancy.
(B) The certified public accountants or public accountants, as a
result of a quality control review conducted by the Controller
pursuant to Section 14504.2, shall not have been found to have
conducted an audit in a manner constituting noncompliance with
subdivision (a) of Section 14503.
(g) (1) The auditor's report shall include each of the following:
(A) A statement that the audit was conducted pursuant to standards
and procedures developed in accordance with Chapter 3 (commencing
with Section 14500) of Part 9 of Division 1 of Title 1.
(B) A summary of audit exceptions and management improvement
recommendations.
(C) Each audit of a local educational agency shall include an
evaluation by the auditor on whether there is substantial doubt about
the ability of the local educational agency to continue as a going
concern for a reasonable period of time. This evaluation shall be
based on the Statement on Auditing Standards (SAS) No. 59, as issued
by the AICPA regarding disclosure requirements relating to the
ability of the entity to continue as a going concern.
(2) To the extent possible, a description of correction or plan of
correction shall be incorporated in the audit report, describing the
specific actions that are planned to be taken, or that have been
taken, to correct the problem identified by the auditor. The
descriptions of specific actions to be taken or that have been taken
shall not solely consist of general comments such as "will implement,"
"accepted the recommendation," or "will discuss at a later date."
(h) Not later than December 15, a report of each local educational
agency audit for the preceding fiscal year shall be filed with the
county superintendent of schools of the county in which the local
educational agency is located, the department, and the Controller.
The Superintendent shall make any adjustments necessary in future
apportionments of all state funds, to correct any audit exceptions
revealed by those audit reports.
(i) (1) Commencing with the 2002-03 audit of local educational
agencies pursuant to this section and subdivision (d) of Section
41320.1, each county superintendent of schools shall be responsible
for reviewing the audit exceptions contained in an audit of a local
educational agency under his or her jurisdiction related to
attendance, inventory of equipment, internal control, and any
miscellaneous items, and determining whether the exceptions have been
either corrected or an acceptable plan of correction has been
developed.
(2) Commencing with the 2004-05 audit of local educational
agencies pursuant to this section and subdivision (d) of Section
41320.1, each county superintendent of schools shall include in the
review of audit exceptions performed pursuant to this subdivision
those audit exceptions related to use of instructional materials
program funds, teacher misassignments pursuant to Section 44258.9,
information reported on the school accountability report card
required pursuant to Section 33126 and shall determine whether the
exceptions are either corrected or an acceptable plan of correction
has been developed.
(j) Upon submission of the final audit report to the governing
board of each local educational agency and subsequent receipt of the
audit by the county superintendent of schools having jurisdiction
over the local educational agency, the county office of education
shall do all of the following:
(1) Review audit exceptions related to attendance, inventory of
equipment, internal control, and other miscellaneous exceptions.
Attendance exceptions or issues shall include, but not be limited to,
those related to local control funding formula allocations pursuant
to Section 42238.02, as implemented by Section 42238.03, and
independent study.
(2) If a description of the correction or plan of correction has
not been provided as part of the audit required by this section,
then the county superintendent of schools shall
notify the local educational agency and request the governing board
of the local educational agency to provide to the county
superintendent of schools a description of the corrections or plan of
correction by March 15.
(3) Review the description of correction or plan of correction and
determine its adequacy. If the description of the correction or plan
of correction is not adequate, the county superintendent of schools
shall require the local educational agency to resubmit that portion
of its response that is inadequate.
(k) Each county superintendent of schools shall certify to the
Superintendent and the Controller, not later than May 15, that his or
her staff has reviewed all audits of local educational agencies
under his or her jurisdiction for the prior fiscal year, that all
exceptions that the county superintendent was required to review were
reviewed, and that all of those exceptions, except as otherwise
noted in the certification, have been corrected by the local
educational agency or that an acceptable plan of correction has been
submitted to the county superintendent of schools. In addition, the
county superintendent shall identify, by local educational agency,
any attendance-related audit exception or exceptions involving state
funds, and require the local educational agency to which the audit
exceptions were directed to submit appropriate reporting forms for
processing by the Superintendent.
( l ) In the audit of a local educational agency for a
subsequent year, the auditor shall review the correction or plan or
plans of correction submitted by the local educational agency to
determine if the exceptions have been resolved. If not, the auditor
shall immediately notify the appropriate county office of education
and the department and restate the exception in the audit report.
After receiving that notification, the department shall either
consult with the local educational agency to resolve the exception or
require the county superintendent of schools to follow up with the
local educational agency.
(m) (1) The Superintendent shall be is
responsible for ensuring that local educational agencies have
either corrected or developed plans of correction for any one or more
of the following:
(A) All federal and state compliance audit exceptions identified
in the audit.
(B) Any exceptions Exceptions that
the county superintendent of schools certifies as of May
15 have not been corrected.
(C) Any repeat Repeat audit
exceptions that are not assigned to a county superintendent of
schools to correct.
(2) In addition, the Superintendent shall be
is responsible for ensuring that county superintendents of
schools and each county board of education that serves as the
governing board of a local educational agency either correct all
audit exceptions identified in the audits of county superintendents
of schools and of the local educational agencies for which the county
boards of education serve as the governing boards or develop
acceptable plans of correction for those exceptions.
(3) The Superintendent shall report annually to the Controller on
his or her actions to ensure that school districts, county
superintendents of schools, and each county board of education that
serves as the governing board of a school district have either
corrected or developed plans of correction for any of the exceptions
noted pursuant to paragraph (1).
(n) To facilitate correction of the exceptions identified by the
audits issued pursuant to this section, commencing with
2002-03 audits pursuant to this section, the Controller
shall require auditors to categorize audit exceptions in each audit
report in a manner that will make it clear to both the county
superintendent of schools and the Superintendent which exceptions
they are responsible for ensuring the correction of by a local
educational agency. In addition, the Controller annually shall select
a sampling of county superintendents of schools and perform a
followup of the audit resolution process of those county
superintendents of schools and report the results of that followup to
the Superintendent and the county superintendents of schools that
were reviewed.
(o) County superintendents of schools shall adjust subsequent
local property tax requirements to correct audit exceptions relating
to local educational agency tax rates and tax revenues.
(p) If a governing board or county superintendent of schools fails
or is unable to make satisfactory arrangements for the audit
pursuant to this section, the Controller shall make arrangements for
the audit and the cost of the audit shall be paid from local
educational agency funds or the county school service fund, as the
case may be.
(q) Audits of regional occupational centers and programs are
subject to the provisions of this section.
(r) This section does not authorize examination of, or reports on,
the curriculum used or provided for in any local educational agency.
(s) Notwithstanding any other provision of law,
a nonauditing, management, or other consulting service to be
provided to a local educational agency by a certified public
accounting firm while the certified public accounting firm is
performing an audit of the agency pursuant to this section must be in
accord with Government Accounting Standards, Amendment No. 3, as
published by the United States General Accounting Office.
SEC. 78. Section 41207.3 of the Education Code, as added by
Section 11 of Chapter 12 of the Third Extraordinary Session of the
Statutes of 2009, is amended and renumbered to read:
41207.3. 41207.25. (a) If the
Superintendent and the Director of Finance jointly determine that,
for the 2008-09 fiscal year, the state has applied moneys for the
support of school districts and community college districts in an
amount that exceeds the minimum amount required for that fiscal year
pursuant to Section 8 of Article XVI of the California Constitution,
the excess, up to one billion one hundred million five hundred ninety
thousand dollars ($1,100,590,000), shall be deemed, as of June 30 of
that fiscal year, a payment in satisfaction of the outstanding
balance of the minimum funding obligation under that section for the
2002-03 and 2003-04 fiscal years in accordance with the following:
(1) The first four hundred eighty-three million sixteen thousand
dollars ($483,016,000) in payment of the outstanding balance of the
minimum funding obligation for the 2002-03 fiscal year.
(2) The next six hundred seventeen million five hundred
seventy-four thousand dollars ($617,574,000) in payment of the
outstanding balance of the minimum funding obligation for the 2003-04
fiscal year.
(b) For purposes of this section, the outstanding balance of the
minimum funding obligation to school districts and community college
districts pursuant to Section 8 of Article XVI of the California
Constitution for a fiscal year is the amount, if any, by which the
amount required to be applied by the state for the support of school
districts and community college districts pursuant to Section 8 of
Article XVI of the California Constitution, including any maintenance
factor that should have been allocated in that fiscal year pursuant
to subdivision (e) of Section 8 of Article XVI,
XVI of the California
Constitution, exceeds the amount applied by the state for the
support of school districts and community college districts for that
fiscal year.
(c) The amounts allocated pursuant to this section shall be
deemed, for purposes of Section 8 of Article XVI of the California
Constitution, to be appropriations made and allocated in the fiscal
year in which the deficiencies resulting in the outstanding balance
were incurred. When the amount determined to be owed for each such
fiscal year is fully allocated pursuant to this subdivision, the data
used in the computations made under this section with regard to the
total amount owed by the state for the support of school districts
and community college districts pursuant to Section 8 of Article XVI
of the California Constitution for that fiscal year, including as
much of the maintenance factor for that fiscal year determined
pursuant to subdivision (d) of Section 8 of Article XVI of the
California Constitution as has been allocated as required by
subdivision (e) of Section 8 of Article XVI of the California
Constitution by virtue of the allocations made under this
section, shall be deemed certified for purposes of Section 41206.
(d) The amount described in subdivision (a) shall be deemed a
payment in full satisfaction of the amounts owed pursuant to Section
41207.
SEC. 79. Section 41851.1 of the Education Code, as added by
Section 11 of Chapter 82 of the Statutes of 1989, is repealed.
41851.1. (a) For the 1989-90 fiscal year, from Section A of the
State School Fund, the Superintendent of Public Instruction shall
apportion to each school district or county superintendent of
schools, as appropriate, an amount computed pursuant to this section.
School districts and county superintendents of schools that provide
transportation services by means of a joint powers agreement, a
cooperative pupil transportation program, or a consortium shall
receive transportation allowances pursuant to this section.
(b) For the 1989-90 fiscal year, each school district, joint
powers agency, cooperative pupil transportation program, or
consortium shall receive a transportation apportionment equal to the
greater of the following:
(1) Sixty-five percent of the prior year's approved transportation
costs.
(2) The prior year's transportation allowance.
(c) For the 1989-90 fiscal year, each county office of education
shall receive a transportation apportionment equal to the greater of
the following:
(1) Eighty percent of the prior year's approved transportation
costs.
(2) The prior year's transportation allowance.
(d) In the event that funds appropriated for the purposes of this
section are not sufficient to fully fund the formula established by
that section, the amounts apportioned shall be reduced on a
proportionate basis.
SEC. 80. Section 42127 of the Education Code is amended to read:
42127. (a) On or before July 1 of each year, the governing board
of each school district shall accomplish the following:
(1) Hold a public hearing conducted in accordance with Section
42103 on the budget to be adopted for the subsequent fiscal year. The
budget to be adopted shall be prepared in accordance with Section
42126. The agenda for that hearing shall be posted at least 72 hours
before the public hearing and shall include the location where the
budget will be available for public inspection.
(2) (A) Adopt a budget. Not later than five days after that
adoption or by July 1, whichever occurs first, the governing board of
the school district shall file that budget with the county
superintendent of schools. The budget and supporting data shall be
maintained and made available for public review. If the governing
board of the school district does not want all or a portion of the
property tax requirement levied for the purpose of making payments
for the interest and redemption charges on indebtedness as described
in paragraph (1) or (2) of subdivision (b) of Section 1 of Article
XIII A of the California Constitution, the budget shall include a
statement of the amount or portion for which a levy shall not be
made. For the 2014-15 fiscal year and each fiscal year thereafter,
the governing board of the school district shall not adopt a budget
before the governing board of the school district adopts a local
control and accountability plan, if an existing local control and
accountability plan or annual update to a local control and
accountability plan is not effective for the budget year. The
governing board of a school district shall not adopt a budget that
does not include the expenditures necessary to implement the local
control and accountability plan or the annual update to a local
control and accountability plan that is effective for the budget
year.
(B) Commencing with budgets the budget
adopted for the 2015-16 fiscal year, the governing board of a
school district that proposes to adopt a budget, or revise a budget
pursuant to subdivision (e), that includes a combined assigned and
unassigned ending fund balance in excess of the minimum recommended
reserve for economic uncertainties adopted by the state board
pursuant to subdivision (a) of Section 33128, shall, at the public
hearing held pursuant to paragraph (1), provide all of the following
for public review and discussion:
(i) The minimum recommended reserve for economic uncertainties for
each fiscal year identified in the budget.
(ii) The combined assigned and unassigned ending fund balances
that are in excess of the minimum recommended reserve for economic
uncertainties for each fiscal year identified in the budget.
(iii) A statement of reasons that substantiates the need for an
assigned and unassigned ending fund balance that is in excess of the
minimum recommended reserve for economic uncertainties for each
fiscal year that the school district identifies an assigned and
unassigned ending fund balance that is in excess of the minimum
recommended reserve for economic uncertainties, as identified
pursuant to clause (ii).
(C) The governing board of a school district shall include the
information required pursuant to subparagraph (B) in its budgetary
submission each time it files an adopted or revised budget with the
county superintendent of schools. The information required pursuant
to subparagraph (B) shall be maintained and made available for public
review.
(b) The county superintendent of schools may accept changes in any
statement included in the budget, pursuant to subdivision (a), of
the amount or portion for which a property tax levy shall not be
made. The county superintendent of schools or the county auditor
shall compute the actual amounts to be levied on the property tax
rolls of the school district for purposes that exceed apportionments
to the school district pursuant to Chapter 6 (commencing with Section
95) of Part 0.5 of Division 1 of the Revenue and Taxation Code.
Each The school district shall provide
all data needed by the county superintendent of schools or the county
auditor to compute the amounts. On or before August 15, the county
superintendent of schools shall transmit the amounts computed to the
county auditor who shall compute the tax rates necessary to produce
the amounts. On or before September 1, the county auditor shall
submit the rate computed to the county board of
supervisors for adoption.
(c) The county superintendent of schools shall do all of the
following:
(1) Examine the adopted budget to determine whether it complies
with the standards and criteria adopted by the state board pursuant
to Section 33127 for application to final local educational agency
budgets. The county superintendent of schools shall identify, if
necessary, technical corrections that are required to be made to
bring the budget into compliance with those standards and criteria.
(2) Determine whether the adopted budget will allow the school
district to meet its financial obligations during the fiscal year and
is consistent with a financial plan that will enable the school
district to satisfy its multiyear financial commitments. In addition
to his or her own analysis of the budget of each
the school district, the county superintendent of schools
shall review and consider studies, reports, evaluations, or audits of
the school district that were commissioned by the school district,
the county superintendent of schools, the Superintendent, and state
control agencies and that contain evidence that the school district
is showing fiscal distress under the standards and criteria adopted
in Section 33127 33127, or that contain
a finding by an external reviewer that more than 3 of the 15 most
common predictors of a school district needing intervention, as
determined by the County Office Fiscal Crisis and Management
Assistance Team, are present. The county superintendent of schools
shall either conditionally approve or disapprove a budget that does
not provide adequate assurance that the school district will meet its
current and future obligations and resolve any problems identified
in studies, reports, evaluations, or audits described in this
paragraph.
(3) Determine whether the adopted budget includes the expenditures
necessary to implement the local control and accountability plan or
annual update to the local control and accountability plan approved
by the county superintendent of schools.
(4) Determine whether the adopted budget includes a combined
assigned and unassigned ending fund balance that exceeds the minimum
recommended reserve for economic uncertainties. If the adopted budget
includes a combined assigned and unassigned ending fund balance that
exceeds the minimum recommended reserve for economic uncertainties,
the county superintendent of schools shall verify that the school
district complied with the requirements of subparagraphs (B) and (C)
of paragraph (2) of subdivision (a).
(d) (1) On or before August 15, the county superintendent of
schools shall approve, conditionally approve, or disapprove the
adopted budget for each school district. For the 2014-15 fiscal year
and each fiscal year thereafter, the county superintendent of schools
shall disapprove a budget if the county superintendent of schools
determines that the budget does not include the expenditures
necessary to implement a local control and accountability plan or an
annual update to the local control and accountability plan approved
by the county superintendent of schools. If the governing board of a
school district does not submit a budget to the county superintendent
of schools, the county superintendent of schools shall develop, at
school district expense, a budget for that school district by
September 15 and transmit that budget to the governing board of the
school district. The budget prepared by the county superintendent of
schools shall be deemed adopted, unless the county superintendent of
schools approves any modifications made by the governing board of the
school district. The budget prepared by the county superintendent of
schools shall also comply with the requirements of subparagraph (B)
of paragraph (2) of subdivision (a). The approved budget shall be
used as a guide for the school district's priorities. The
Superintendent shall review and certify the budget approved by the
county. county superintendent of schools.
If, pursuant to the review conducted pursuant to subdivision
(c), the county superintendent of schools determines that the adopted
budget for a school district does not satisfy paragraph (1), (2),
(3), or (4) of that subdivision, he or she shall conditionally
approve or disapprove the budget and, not later than August 15,
transmit to the governing board of the school district, in writing,
his or her recommendations regarding revision of the budget and the
reasons for those recommendations, including, but not limited to, the
amounts of any budget adjustments needed before he or she can
approve that budget. The county superintendent of schools may assign
a fiscal adviser to assist the school district to develop a budget in
compliance with those revisions. In addition, the county
superintendent of schools may appoint a committee to examine and
comment on the superintendent's review and recommendations, subject
to the requirement that the committee report its findings to the
county superintendent of schools no later than August 20.
(2) Notwithstanding any other provision of this article, for the
2014-15 fiscal year and each fiscal year thereafter, the budget shall
not be adopted or approved by the county superintendent of schools
before a local control and accountability plan or update to an
existing local control and accountability plan for the budget year is
approved.
(3) If the adopted budget of a school district is conditionally
approved or disapproved pursuant to paragraph (1), on or before
September 8, the governing board of the school district, in
conjunction with the county superintendent of schools, shall review
and respond to the recommendations of the county superintendent of
schools at a regular meeting of the governing board of the school
district. The response shall include any revisions to the adopted
budget and other proposed actions to be taken, if any, as a result of
those recommendations.
(e) On or before September 22, the county superintendent of
schools shall provide a list to the Superintendent identifying all
school districts for which budgets may be disapproved.
(f) (1) The county superintendent of schools shall examine the
revised budget as provided in paragraph (3) of subdivision (d) to
determine whether it (A) complies with the standards and criteria
adopted by the state board pursuant to Section 33127 for application
to final local educational agency budgets, (B) allows the school
district to meet its financial obligations during the fiscal year,
(C) satisfies all conditions established by the county superintendent
of schools in the case of a conditionally approved budget, (D) is
consistent with a financial plan that will enable the school district
to satisfy its multiyear financial commitments, and (E)
complies with the requirements of subparagraph (B) of paragraph (2)
of subdivision (a), and, not later than October 8, shall
approve or disapprove the revised budget, and (E) whether
the revised budget complies with the requirements of subparagraph (B)
of paragraph (2) of subdivision (a). budget. If
the county superintendent of schools disapproves the budget, he or
she shall call for the formation of a budget review committee
pursuant to Section 42127.1, unless the governing board of the school
district and the county superintendent of schools agree to waive the
requirement that a budget review committee be formed and the
department approves the waiver after determining that a budget review
committee is not necessary. Upon the grant of a waiver, the county
superintendent of schools immediately has the authority and
responsibility provided in Section 42127.3. Upon approving a waiver
of the budget review committee, the department shall ensure that a
balanced budget is adopted for the school district by November 30. If
no a budget is not adopted
by November 30, the Superintendent may adopt a budget for the school
district. The Superintendent shall report to the Legislature and the
Director of Finance by December 10 if any school district, including
a school district that has received a waiver of the budget review
committee process, does not have an adopted budget by November 30.
This report shall include the reasons why a budget has not been
adopted by the deadline, the steps being taken to finalize budget
adoption, the date the adopted budget is anticipated, and whether the
Superintendent has or will exercise his or her authority to adopt a
budget for the school district.
(2) Notwithstanding any other law, for the 2014-15 fiscal year and
each fiscal year thereafter, if the county superintendent of schools
disapproves the budget for the sole reason that the county
superintendent of schools has not approved a local control and
accountability plan or an annual update to the local control and
accountability plan filed by the governing board of the school
district pursuant to Section 52070, the county superintendent of
schools shall not call for the formation of a budget review committee
pursuant to Section 42127.1.
(g) Not later than October 8, the county superintendent of schools
shall submit a report to the Superintendent identifying all school
districts for which budgets have been disapproved or budget review
committees waived. The report shall include a copy of the written
response transmitted to each of those school districts pursuant to
paragraph (1) of subdivision (d).
(h) Not later than 45 days after the Governor signs the annual
Budget Act, the school district shall make available for public
review any revisions in revenues and expenditures that it has made to
its budget to reflect the funding made available by that Budget Act.
(i) Any A school district for which
the county board of education serves as the governing board of the
school district is not subject to subdivisions (c) to (h), inclusive,
but is governed instead by the budget procedures set forth in
Section 1622.
SEC. 81. Section 42238.15 of the Education Code is amended to
read:
42238.15. (a) Notwithstanding any other law, and in lieu of any
inflation or cost-of-living adjustment otherwise authorized for
any of the programs enumerated in subdivision (b),
state funding for the programs enumerated in subdivision (b) shall
be increased annually by the product of the following:
(1) The sum of 1.0 plus the percentage change determined under
paragraph (2) of subdivision (d) of Section 42238.02.
(2) The sum of 1.0 plus the percentage of increase, from the prior
fiscal year to the current fiscal year, in each of the workload
factors described in subdivision (b).
(b) The programs for which annual state funding increases are
determined under this section, and the factors used to measure
workload for each of those programs, are as follows:
(1) Special education programs and services, as
with workload measured by the regular second principal
apportionment average daily attendance for kindergarten and grades 1
to 12, inclusive.
(2) Child care and development programs, and preschool programs,
as with workload measured by the state
population of children up to and including four years of age.
(c) Notwithstanding any other law, child care and development
programs shall not receive a cost-of-living adjustment in the
2012-13, 2013-14, and 2014-15 fiscal years.
SEC. 82. Section 42800 of the Education Code is amended to read:
42800. (a) The governing board of a school district may, with the
consent of the county superintendent of schools, establish a
revolving cash fund for the use of the chief accounting officer of
the school district, by adopting a resolution setting forth the
necessity for the revolving cash fund, the officer for whom and the
purposes for which the revolving cash fund shall be available, and
the amount of the fund. The purposes for which the revolving cash
fund shall be available shall include the purposes specified in
Section 45167. Three certified copies of the resolution shall be
transmitted to the county superintendent of schools. If he or
she approves the establishment of the fund, the county
superintendent of schools shall endorse his or her
consent on the resolution and return one copy to the governing
body board of the school district, and
transmit one copy to the county auditor.
(b) The maximum amount allowed for revolving cash funds
established pursuant to subdivision (a) shall be the lesser of:
(1) Two percent of the school district's estimated
expenditures for the current fiscal year, or
(2) A dollar amount limit of seventy-five thousand dollars
($75,000) for any elementary school or high school district and one
hundred fifty thousand dollars ($150,000) for any unified school
district for fiscal year 1990-91. The dollar amount limit for each
school district shall, through the 2012-13 fiscal year, be increased
annually by the percentage increase in the school district'
s revenue limit established by Section 42238, as that section read on
January 1, 2013. The dollar amount limit for each school district
shall thereafter be increased annually by the percentage increase in
the school district's local control funding formula allocation
established pursuant to Section 42238.02, as implemented pursuant to
Section 42238.03.
SEC. 83. Section 44252 of the Education Code is amended to read:
44252. (a) (1) The commission shall establish standards and
procedures for the initial issuance and renewal of credentials.
(2) (A) The commission shall require an initial or renewal
applicant who submits an initial or renewal application for
his or her credential online, as part of the application
process, to read and attest by electronic signature a statement that
the applicant for the credential understands the duties imposed on a
holder of a teaching credential or a services credential pursuant to
the Child Abuse and Neglect Reporting Act (Article 2.5 (commencing
with Section 11164) of Chapter 2 of Title 1 of Part 4 of the Penal
Code), including, but not limited to, the duty of a holder of a
teaching credential or a services credential to report to any police
department, sheriff's department, county probation department
authorized to receive reports, or county welfare department, whenever
he or she, in his or her professional capacity or within the scope
of his or her employment, has knowledge of or observes a child whom
the holder of a teaching credential or a services credential knows or
reasonably suspects has been the victim of child abuse or neglect.
(B) The commission shall require an initial applicant who submits
an application in paper form, as part of the application process, to
read and attest by signature a statement that the applicant
understands the duties imposed on a holder of a teaching credential
or a services credential pursuant to the Child Abuse and Neglect
Reporting Act (Article 2.5 (commencing with Section 11164) of Chapter
2 of Title 1 of Part 4 of the Penal Code), including, but not
limited to, the duty of a holder of a teaching credential or a
services credential to report to any police department, sheriff's
department, county probation department authorized to receive
reports, or county welfare department, whenever he or she, in his or
her professional capacity or within the scope of his or her
employment, has knowledge of or observes a child whom the holder of a
teaching credential or a services credential knows or reasonably
suspects has been the victim of child abuse or neglect.
(C) The statement described in subparagraphs (A) and (B) shall be
substantially in the following form:
"As a documentholder authorized to work with children, it is part
of my professional and ethical duty to report every instance of child
abuse or neglect known or suspected to have occurred to a child with
whom I have professional contact.
I understand that I must report immediately, or as soon as
practicably possible, by telephone to a law enforcement agency or a
child protective agency, and will send a written report and any
evidence relating to the incident within 36 hours of becoming aware
of the abuse or neglect of the child.
I understand that reporting the information regarding a case of
possible child abuse or neglect to an employer, supervisor, school
principal, school counselor, coworker, or other person is not a
substitute for making a mandated report to a law enforcement agency
or a child protective agency.
I understand that the reporting duties are individual and no
supervisor or administrator may impede or inhibit my reporting
duties.
I understand that once I submit a report, I am not required to
disclose my identity to my employer.
I understand that my failure to report an instance of suspected
child abuse or neglect as required by the Child Abuse and Neglect
Reporting Act under Section 11166 of the Penal Code is a misdemeanor
punishable by up to six months in jail or by a fine of one thousand
dollars ($1,000), or by both that imprisonment and fine.
I acknowledge and certify that as a documentholder, I will fulfill
all the duties required of a mandated reporter."
(b) The commission shall not issue initially a credential, permit,
certificate, or renewal of an emergency credential to a person to
serve in the public schools unless the person has demonstrated
proficiency in basic reading, writing, and mathematics skills in the
English language as provided in Section 44252.5 or 44252.7. The
commission shall exempt the following persons from the basic skills
proficiency test requirement:
(1) A person credentialed solely for the purpose of teaching
adults in an apprenticeship program.
(2) An applicant for an adult education designated subject
credential for other than an academic subject.
(3) A person credentialed in another state who is an applicant for
employment in a school district in this state who has passed a basic
skills proficiency examination administered by the state where the
person is credentialed.
(4) A person credentialed in another state who is an applicant for
employment in a school district in this state who has passed a basic
skills proficiency examination that has been developed and
administered by the school district offering that person employment,
by cooperating school districts, or by the appropriate county office
of education. School districts administering a basic skills
proficiency examination under this paragraph shall comply with the
requirements of subdivision (h) of Section 44830. The applicant shall
be granted a nonrenewable credential, valid for not longer than one
year, pending fulfillment of the basic skills proficiency requirement
pursuant to Section 44252.5.
(5) An applicant for a child care center permit or a permit
authorizing service in a development center for the
handicapped, so long as handicapped if the
holder of the permit is not required to have a baccalaureate degree.
(6) The holder of a credential, permit, or certificate to teach,
other than an emergency permit, who seeks an additional authorization
to teach.
(7) An applicant for a credential to provide service in the health
profession.
(8) An applicant who achieves scores on the
writing, reading, and mathematics sections of the College Board SAT
Reasoning Test, the enhanced ACT Test, or the California State
University Early Assessment Program that are sufficient to waive the
English placement test and the entry level mathematics examination
administered by the California State University.
(9) An applicant for an eminence credential to be issued pursuant
to Section 44262.
(c) (1) The Superintendent shall adopt an appropriate state test
to measure proficiency in these basic skills. In adopting the test,
the Superintendent shall seek assistance from the commission and an
advisory board. A majority of the members of the advisory board shall
be classroom teachers. The advisory board also shall include
representatives of school boards, school administrators, parents, and
postsecondary educational institutions.
(2) The Superintendent shall adopt a normed test that the
Superintendent determines will sufficiently test basic skills for
purposes of this section.
(3) The Superintendent, in conjunction with the commission and
approved teacher training institutions, shall take steps necessary to
ensure the effective implementation of this section.
(d) This section does not require the holders of, or applicants
for, a designated subjects special subjects credential to pass the
state basic skills proficiency test unless the requirements for the
specific credential required the possession of a baccalaureate
degree. The governing board of a school district, or the governing
board of a consortium of school districts, or the governing board
involved in a joint powers agreement, which employs a holder of a
designated subjects special subjects credential, shall establish its
own basic skills proficiency criteria for the holders of these
credentials and shall arrange for those individuals to be assessed.
The basic skills proficiency criteria established by the governing
board shall be at least equivalent to the test required by the
district, or in the case of a consortium or a joint powers agreement,
by any of the participating districts, for graduation from high
school. The governing board or boards may charge a fee to individuals
being tested to cover the costs of the test, including the costs of
developing, administering, and grading the test.
(e) The commission shall compile data regarding the rate of
passing the state basic skills proficiency test by persons who have
been trained in various institutions of higher education. The data
shall be available to members of the public, including to persons who
intend to enroll in teacher education programs.
(f) (1) Each applicant to an approved credential program, unless
exempted by subdivision (b), shall take the state basic skills
proficiency test in order to provide both the prospective applicant
and the program with information regarding the proficiency level of
the applicant. Test results shall be forwarded to each California
postsecondary educational institution to which the applicant has
applied. The program shall use test results to ensure that, upon
admission, each applicant receives appropriate academic assistance
necessary to pass the state basic skills proficiency test. Persons
residing outside the state shall take the test no later than the
second available administration following their enrollment in a
credential program.
(2) It is the intent of the Legislature that applicants for
admission to teacher preparation programs not be denied admission on
the basis of state basic skills proficiency test results.
SEC. 84. Section 44277 of the Education Code is amended to read:
44277. (a) The Legislature recognizes that effective professional
growth must continue to occur throughout the careers of all
teachers, in order that teachers remain informed of changes in
pedagogy, subject matter, and pupil needs. In enacting this section,
it is the intent of the Legislature to encourage teachers to engage
in an individual program of professional growth that extends their
content knowledge and teaching skills and for school districts to
establish professional growth programs that give individual teachers
a wide range of options to pursue as well as significant roles in
determining the course of their professional growth.
(b) An individual program of professional growth may consist of
activities that are aligned with the California Standards for the
Teaching Profession that contribute to competence, performance, or
effectiveness in the profession of education and the classroom
assignments of the teacher. Acceptable activities may include, among
other acceptable activities, the completion of courses offered by
regionally accredited colleges and universities, including
instructor-led interactive courses delivered through online
technologies; participation in professional conferences, workshops,
teacher center programs, staff development programs, or a California
Reading Professional Development Program
Institute program operated pursuant to Article 2 (commencing
with Section 99220) of Chapter 5 of Part 65; service as a mentor
teacher; participation in school curriculum development projects;
participation in systematic programs of observation and analysis of
teaching; service in a leadership role in a professional
organization; and participation in educational research or innovation
efforts. Employing agencies and the bargaining agents of employees
may negotiate to agree on the terms of programs of professional
growth within their jurisdictions, provided that the agreements shall
be consistent with this section.
(c) An individual program of professional growth may include a
basic course in cardiopulmonary resuscitation, which includes
training in the subdiaphragmatic abdominal thrust (also known as the
"Heimlich maneuver") and meets or exceeds the standards established
by the American Heart Association or the American Red Cross for
courses in that subject or minimum standards for training programs
established by the Emergency Medical Services Authority. An
individual program of professional growth may also include a course
in first aid that meets or exceeds the standards established by the
American Red Cross for courses in that subject or minimum standards
for training programs established by the Emergency Medical Services
Authority.
(d) (1) If a local educational agency offers a program of
professional growth for teachers, administrators, paraprofessional
educators, or other classified employees involved in the direct
instruction of pupils, the local educational agency shall evaluate
professional learning based on all of the following criteria, and the
local educational agency is encouraged to choose professional
learning that meets any of the following criteria:
(A) Helps attract, grow, and retain effective educators.
(B) Is a part of every educator's experience in order to
accelerate instructional improvement and support pupil learning.
(C) Is based on needs assessment of educators and tied to
supporting pupil learning.
(D) Emphasizes the importance of meeting the needs of all pupils.
(E) Is grounded in a description of effective practice, as
articulated in the California Standards for the Teaching Profession.
(F) Affords educators opportunities to engage with others to
develop their craft, including, but not limited to, opportunities to
increase their content knowledge.
(G) Ensures educators have adequate time to learn about, practice,
reflect, adjust, critique, and share what educators need to ensure
that all pupils, especially high-needs pupils, develop knowledge and
lifelong learning skills that will help the pupils to be successful.
(H) Recognizes and utilizes expert teacher and leader
teaching and leadership skills.
(I) Attends to collective growth needs as well as educators'
individual growth needs.
(J) Contributes to a positive, collaborative, and supportive adult
learning environment.
(K) Contributes to cycles of inquiry and improvement.
(L) Is not limited to a single instance, but supports educators
through multiple iterations or engagements.
(M) Is based on a coherent and focused plan.
(2) Professional learning activities may also include
collaboration time for teachers to develop new instructional lessons,
to select or develop common formative assessments, to analyze pupil
data, for mentoring projects for new teachers, or for extra support
for teachers to improve practice. Appropriate professional learning
may be part of a coherent plan that combines school activities within
the school, including, but not limited to, lesson study or
coteaching, and external learning opportunities that meet all of the
following criteria:
(A) Are related to the academic subjects taught.
(B) Provide time to meet and work with other teachers.
(C) Support instruction and pupil learning to improve instruction
in a manner that is consistent with academic content standards.
(e) For purposes of this section, "local educational agency" means
a school district, county office of education, or charter school.
SEC. 85. Section 44932 of the Education Code is amended to read:
44932. (a) A permanent employee shall not be dismissed except for
one or more of the following causes:
(1) Immoral conduct cond uct,
including, but not limited to, egregious misconduct. For
the purposes of this chapter, "egregious
misconduct" is defined exclusively as immoral conduct that is the
basis for an offense described in Section 44010 or 44011 of this
code, or in Sections 11165.2 to 11165.6, inclusive, of the Penal
Code.
(2) Unprofessional conduct.
(3) Commission, aiding, or advocating the commission of acts of
criminal syndicalism, as prohibited by Chapter 188 of the Statutes of
1919, or in any amendment to that chapter.
(4) Dishonesty.
(5) Unsatisfactory performance.
(6) Evident unfitness for service.
(7) Physical or mental condition unfitting him or her to instruct
or associate with children.
(8) Persistent violation of or refusal to obey the school laws of
the state or reasonable regulations prescribed for the government of
the public schools by the state board or by the governing board of
the school district employing him or her.
(9) Conviction of a felony or of any crime involving moral
turpitude.
(10) Violation of Section 51530 or conduct specified in Section
1028 of the Government Code, added by Chapter 1418 of the Statutes of
1947.
(11) Alcoholism or other drug abuse that makes the employee unfit
to instruct or associate with children.
(b) The governing board of a school district may suspend without
pay for a specific period of time on grounds of unprofessional
conduct a permanent certificated employee or, in a school district
with an average daily attendance of less than 250 pupils, a
probationary employee, pursuant to the procedures specified in
Sections 44933, 44934, 44934.1, 44935, 44936, 44937, 44943, and
44944. This authorization shall does not
apply to a school district that has adopted a collective bargaining
agreement pursuant to subdivision (b) of Section 3543.2 of the
Government Code.
SEC. 86. Section 44939 of the Education Code is amended to read:
44939. (a) This section shall apply
applies only to dismissal or suspension proceedings initiated
pursuant to Section 44934.
(b) Upon the filing of written charges, duly signed and verified
by the person filing them with the governing board of a school
district, or upon a written statement of charges formulated by the
governing board of a school district, charging a permanent employee
of the school district with immoral conduct, conviction of a felony
or of any crime involving moral turpitude, with incompetency due to
mental disability, with willful refusal to perform regular
assignments without reasonable cause, as prescribed by reasonable
rules and regulations of the employing school district, or with
violation of Section 51530, the governing board of the school
district may, if it deems that action necessary, immediately suspend
the employee from his or her duties and give notice to him or her of
his or her suspension, and that 30 days after service of the notice
of dismissal, he or she will be dismissed, unless he or she demands a
hearing.
(c) (1) An employee who has been placed on suspension pursuant to
this section may serve and file with the Office of Administrative
Hearings a motion for immediate reversal of suspension. Review of a
motion filed pursuant to this section shall be limited to a
determination as to whether the facts as alleged in the statement of
charges, if true, are sufficient to constitute a basis for immediate
suspension under this section. The motion shall include a memorandum
of points and authorities setting forth law and argument supporting
the employee's contention that the statement of charges does not set
forth a sufficient basis for immediate suspension.
(2) The motion shall be served upon the governing board of the
school district and filed with the Office of Administrative Hearings
within 30 days after service upon the employee of the initial
pleading in the matter. The governing board of the school district
shall have has the right to serve and
file a written response to the motion before or at the time of
hearing.
(3) The hearing on the motion for immediate reversal of suspension
shall be held no later than 30 days after the motion is filed with
the Office of Administrative Hearings.
(4) The administrative law judge shall, no later than 15 days
after the hearing, issue an order denying or granting the motion. The
order shall be in writing, and a copy of the order shall be served
by the Office of Administrative Hearings upon the parties. The grant
or denial of the motion shall be without prejudice to consideration
by the Commission on Professional Competence
Competence, based upon the full evidentiary record before it,
of the validity of the grounds for dismissal. The ruling shall not be
considered by the commission in determining the validity of the
grounds for dismissal, and shall not have any bearing on the
commission's determination regarding the grounds for dismissal.
(5) An order granting a motion for immediate reversal of
suspension shall become effective within five days of service of the
order. The school district shall make the employee whole for any lost
wages, benefits, and compensation within 14 days after service of an
order granting the motion.
(6) A motion made pursuant to this section shall be the exclusive
means of obtaining interlocutory review of suspension pending
dismissal. The grant or denial of the motion shall
is not be subject to interlocutory
judicial review.
(d) A motion for immediate reversal of suspension pursuant to this
section shall have no bearing on does not
affect the authority of a governing board of a school district
to determine the physical placement and assignment of an employee who
is suspended or placed on administrative leave during the review of
the motion or while dismissal charges are pending.
SEC. 87. Section 44940 of the Education Code is amended to read:
44940. (a) For purposes of this section, "charged with a
mandatory leave of absence offense" is defined to mean charged by
complaint, information, or indictment filed in a court of competent
jurisdiction with the commission of any sex offense as defined in
Section 44010, with a violation or attempted violation of Section 187
of the Penal Code, or with the commission of any offense involving
aiding or abetting the unlawful sale, use, or exchange to minors of
controlled substances listed in Schedule I, II, or III, as contained
in Sections 11054, 11055, and 11056 of the Health and Safety Code.
(b) For purposes of this section, "charged with an optional leave
of absence offense" is defined to mean a charge by complaint,
information, or indictment filed in a court of competent jurisdiction
with the commission of any controlled substance offense as defined
in Section 44011 or 87011, 87011 of this
code, or Sections 11357 to 11361, inclusive, or Section 11363,
11364, or 11370.1 of the Health and Safety Code, insofar as these
sections relate to any controlled substances except marijuana,
mescaline, peyote, or tetrahydrocannabinols.
(c) For purposes of this section and Section 44940.5, the term
"school district" includes county offices of education.
(d) (1) If a certificated employee of a school district is charged
with a mandatory leave of absence offense, as defined in subdivision
(a), upon being informed that a charge has been filed, the governing
board of the school district shall immediately place the employee on
compulsory leave of absence. The duration of the leave of absence
shall be until a time not more than 10 days after the date of entry
of the judgment in the proceedings. No later than 10 days after
receipt of the complaint, information, or indictment described by
subdivision (a), the school district shall forward a copy to the
Commission on Teacher Credentialing.
(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by a school
district, the Commission on Teacher Credentialing shall automatically
suspend the employee's teaching or service credential. The duration
of the suspension shall be until a time not more than 10 days after
the date of entry of the judgment in the proceedings.
(e) (1) If a certificated employee of a school district is charged
with an optional leave of absence offense as defined in subdivision
(b), the governing board of the school district may immediately place
the employee upon compulsory leave in accordance with the procedure
in this section and Section 44940.5. If any certificated employee is
charged with an offense deemed to fall into both the mandatory and
the optional leave of absence categories, as defined in subdivisions
(a) and (b), that offense shall be treated as a mandatory leave of
absence offense for purposes of this section. No later than 10 days
after receipt of the complaint, information, or indictment described
by subdivision (a), the school district shall forward a copy to the
Commission on Teacher Credentialing.
(2) Upon receiving a copy of a complaint, information, or
indictment described in subdivision (a) and forwarded by a school
district, the Commission on Teacher Credentialing shall automatically
suspend the employee's teaching or service credential. The duration
of the suspension shall be until a time not more than 10 days after
the date of entry of the judgment in the proceedings.
SEC. 88. Section 44944 of the Education Code is amended to read:
44944. (a) This section shall apply
applies only to dismissal or suspension proceedings initiated
pursuant to Section 44934.
(b) (1) (A) In a dismissal or suspension proceeding initiated
pursuant to Section 44934, if a hearing is requested by the employee,
the hearing shall be commenced within six months from the date of
the employee's demand for a hearing. A continuance shall not extend
the date for the commencement of the hearing more than six months
from the date of the employee's request for a hearing, except for
extraordinary circumstances, as determined by the administrative law
judge. If extraordinary circumstances are found that extend the date
for the commencement of the hearing, the deadline for concluding the
hearing and closing the record pursuant to this subdivision shall be
extended for a period of time equal to the continuance. The hearing
date shall be established after consultation with the employee and
the governing board of the school district, or their representatives,
except that if the parties are not able to reach an agreement on a
date, the Office of Administrative Hearings shall unilaterally set a
date in compliance with this section. The hearing shall be completed
by a closing of the record within seven months of the date of the
employee's demand for a hearing. A continuance shall not extend the
date for the close of the record more than seven months from the date
of the employee's request for a hearing, except for good cause, as
determined by the administrative law judge.
(B) Where If substantial progress
has been made in completing the previously scheduled days of the
hearing within the seven-month period but the hearing cannot be
completed, for good cause shown, within the seven-month period, the
period for completing the hearing may be extended by the presiding
administrative law judge. If the administrative law judge grants a
continuance under this subparagraph, he or she shall establish a
reasonable timetable for the completion of the hearing and the
closing of the record. The hearing shall be initiated and conducted,
and a decision made, in accordance with Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code, and the Commission on Professional Competence shall have all of
the power granted to an agency pursuant to that chapter, except as
described in this article.
(2) (A) A witness shall not be permitted to testify at the hearing
except upon oath or affirmation. No testimony
Testimony shall not be given or evidence
shall not be introduced relating to matters that occurred more
than four years before the date of the filing of the notice, except
allegations of an act described in Section 44010 of this code or
Sections 11165.2 to 11165.6, inclusive, of the Penal Code.
(B) Evidence of records regularly kept by the governing board of
the school district concerning the employee may be introduced, but no
decision relating to the dismissal or suspension of an employee
shall be made based on charges or evidence of any nature relating to
matters occurring more than four years before the filing of the
notice, except allegations of an act described in Section 44010 of
this code or Sections 11165.2 to 11165.6, inclusive, of the Penal
Code.
(c) (1) The hearing provided for in this section shall be
conducted by a Commission on Professional Competence, unless the
parties submit a statement in writing to the Office of Administrative
Hearings, indicating that both parties waive the right to convene a
Commission on Professional Competence and stipulate to having the
hearing conducted by a single administrative law judge. If the
parties elect to waive a hearing before the Commission on
Professional Competence, the hearing shall be initiated and
conducted, and a decision made, in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code, and the administrative law judge conducting the
hearing shall have all the powers granted to a Commission on
Professional Competence pursuant to that chapter, except as described
in this article.
(2) If the parties elect not to waive a hearing before a
Commission on Professional Competence, one member of the commission
shall be selected by the employee, one member shall be selected by
the governing board of the school district, and one member shall be
an administrative law judge of the Office of Administrative Hearings
who shall be chairperson and a voting member of the commission and
shall be responsible for assuring that the legal rights of the
parties are protected at the hearing.
(3) The governing board of the school district and the employee
shall select Commission on Professional Competence members no later
than 45 days before the date set for hearing, and shall serve notice
of their selection upon all other parties and upon the Office of
Administrative Hearings. Failure to meet this deadline shall
constitute a waiver of the right to selection, and the county board
of education or its specific designee shall immediately make the
selection. If the county board of education is also the governing
board of the school district or has by statute been granted the
powers of a governing board, the selection shall be made by the
Superintendent, who shall be reimbursed by the school district for
all costs incident to the selection.
(4) Any party who believes that a selected Commission on
Professional Competence member is not qualified may file an
objection, including a statement describing the basis for the
objection, with the Office of Administrative Hearings and serve the
objection and statement upon all other parties within 10 days of the
date that the notice of selection is filed. Within seven days after
the filing of any objection, the administrative law judge assigned to
the matter shall rule on the objection or convene a teleconference
with the parties for argument.
(5) (A) The member selected by the governing board of the school
district and the member selected by the employee shall not be related
to the employee and shall not be employees of the school district
initiating the dismissal or suspension. Each member shall hold a
currently valid credential and have at least three years' experience
within the past 10 years in the discipline of the employee.
(B) For purposes of this paragraph, the following terms have the
following meanings:
(i) For an employee subject to dismissal whose most recent
teaching assignment is in kindergarten or any of the grades 1 to 6,
inclusive, "discipline" means a teaching assignment in kindergarten
or any of the grades 1 to 6, inclusive.
(ii) For an employee subject to dismissal whose most recent
assignment requires an education specialist credential or a services
credential, "discipline" means an assignment that requires an
education specialist credential or a services credential,
respectively.
(iii) For an employee subject to dismissal whose most recent
teaching assignment is in any of the grades 7 to 12, inclusive,
"discipline" means a teaching assignment in any of grades 7 to 12,
inclusive, in the same area of study, as that term is used in Section
51220, as the most recent teaching assignment of the employee
subject to dismissal.
(d) (1) The decision of the Commission on Professional Competence
shall be made by a majority vote, and the commission shall prepare a
written decision containing findings of fact, determinations of
issues, and a disposition that shall be, solely, one of the
following:
(A) That the employee should be dismissed.
(B) That the employee should be suspended for a specific period of
time without pay.
(C) That the employee should not be dismissed or suspended.
(2) The decision of the Commission on Professional Competence that
the employee should not be dismissed or suspended shall not be based
on nonsubstantive procedural errors committed by the school district
or governing board of the school district unless the errors
are prejudicial
errors.
(3) The Commission on Professional Competence shall not have the
power to dispose of the charge of dismissal by imposing probation or
other alternative sanctions. The imposition of suspension pursuant to
subparagraph (B) of paragraph (1) shall be available only in a
suspension proceeding authorized pursuant to subdivision (b) of
Section 44932 or Section 44933.
(4) The decision of the Commission on Professional Competence
shall be deemed to be the final decision of the governing board of
the school district.
(5) The governing board of the school district may adopt from time
to time rules and procedures not inconsistent with this section as
may be necessary to effectuate this section.
(6) The governing board of the school district and the employee
shall have the right to be represented by counsel.
(e) (1) If the member selected by the governing board of the
school district or the member selected by the employee is employed by
any school district in this state, the member shall, during any
service on a Commission on Professional Competence, continue to
receive salary, fringe benefits, accumulated sick leave, and other
leaves and benefits from the school district in which the member is
employed, but shall not receive no
additional compensation or honorariums for service on the commission.
(2) If the member selected is a retired employee, the member shall
receive pay at the daily substitute teacher rate in the school
district that is a party to the hearing. Service on a Commission on
Professional Competence shall not be credited toward retirement
benefits.
(3) If service on a Commission on Professional Competence occurs
during summer recess or vacation periods, the member shall receive
compensation proportionate to that received during the current or
immediately preceding contract period from the member's employing
school district, whichever amount is greater.
(f) (1) If the Commission on Professional Competence determines
that the employee should be dismissed or suspended, the governing
board of the school district and the state shall share equally the
expenses of the hearing, including the cost of the administrative law
judge. The state shall pay any costs incurred under paragraphs (2)
and (3) of subdivision (e), the reasonable expenses, as determined by
the administrative law judge, of the member selected by the
governing board of the school district and the member selected by the
employee, including, but not limited to, payments or obligations
incurred for travel, meals, and lodging, and the cost of the
substitute or substitutes, if any, for the member selected by the
governing board of the school district and the member selected by the
employee. The Controller shall pay all claims submitted pursuant to
this paragraph from the General Fund, and may prescribe reasonable
rules, regulations, and forms for the submission of the claims. The
employee and the governing board of the school district shall pay
their own attorney's fees.
(2) If the Commission on Professional Competence determines that
the employee should not be dismissed or suspended, the governing
board of the school district shall pay the expenses of the hearing,
including the cost of the administrative law judge, any costs
incurred under paragraphs (2) and (3) of subdivision (e), the
reasonable expenses, as determined by the administrative law judge,
of the member selected by the governing board of the school district
and the member selected by the employee, including, but not limited
to, payments or obligations incurred for travel, meals, and lodging,
the cost of the substitute or substitutes, if any, for the member
selected by the governing board of the school district and the member
selected by the employee, and reasonable attorney's fees incurred by
the employee.
(3) As used in this section, "reasonable expenses" shall not be
deemed "compensation" within the meaning of subdivision (e).
(4) If either the governing board of the school district or the
employee petitions a court of competent jurisdiction for review of
the decision of the Commission on Professional Competence
Competence, the payment of expenses to members
of the commission required by this subdivision shall not be stayed.
(5) If the decision of the Commission on Professional Competence
is reversed or vacated by a court of competent jurisdiction, either
the state, having paid the commission members' expenses, shall be
entitled to reimbursement from the governing board of the school
district for those expenses, or the governing board of the school
district, having paid the expenses, shall be entitled to
reimbursement from the state. If either the governing board of the
school district or the employee petitions a court of competent
jurisdiction for review of the decision to overturn the
administrative law judge's decision, the payment of the expenses of
the hearing, including the cost of the administrative law judge
required by this paragraph, shall be stayed until no further appeal
is sought, or all appeals are exhausted.
(g) The hearing provided for in this section shall be conducted in
a place selected by agreement among the members of the Commission on
Professional Competence. In the absence of agreement, the place
shall be selected by the administrative law judge.
SEC. 89. Section 44944.05 of the Education Code is amended to
read:
44944.05. (a) In a dismissal or suspension proceeding initiated
pursuant to Section 44934, in lieu of written discovery required
pursuant to Section 11507.6 of the Government Code, the parties shall
make disclosures as described in this section. This section
shall does not apply to dismissal or suspension
proceedings initiated pursuant to Section 44934.1.
(b) (1) An initial disclosure shall comply with the following
requirements:
(A) A party shall, without awaiting a discovery request, provide
to the other parties both of the following:
(i) The name and, if known, the address and telephone number of
each individual likely to have discoverable information, along with
the subjects of information relating to the allegations made in the
charges and the parties' claims and defenses, unless the use would be
solely for impeachment purposes.
(ii) A copy of all documents, electronically stored information,
and tangible items that the disclosing party has in its possession,
custody, or control relating to the allegations made in the charges
and the parties' claims or defenses, unless the use would be solely
for impeachment.
(B) The school district and the employee shall make their initial
disclosures within 45 days of the date of the employee's demand for a
hearing.
(C) A party shall make its initial disclosures based on the
information then reasonably available to it. A party is not excused
from making its disclosures because it has not fully investigated the
case or because it challenges the sufficiency of another party's
disclosures. A party's failure to make initial disclosures within the
deadlines set forth in this section shall preclude the party from
introducing witnesses or evidence not disclosed at the hearing,
unless the party shows good cause for its failure to timely disclose.
(D) A party has an obligation to promptly supplement its initial
disclosures as new information or evidence becomes known or
available. Supplemental disclosures shall be made as soon as
possible, and no later than 60 days before the date of commencement
of the hearing. A party's failure to make supplemental disclosures
promptly upon discovery or availability of new information or
evidence shall preclude the party from introducing witnesses or
evidence not disclosed at the hearing, unless the party shows good
cause for its failure to timely disclose.
(2) The disclosure of expert testimony shall comply with the
following requirements:
(A) A party shall also disclose to the other parties the
identities of any expert witnesses whose testimony it may use at the
hearing.
(B) The disclosure specified in subparagraph (A) shall be
accompanied by a summary of the witness' expected testimony,
including a description of the facts and data considered by the
witness; a description of the witness' qualifications, including a
list of all publications authored in the previous 10 years; a list of
all other cases in which, during the previous four years, the
witness testified as an expert at a hearing or by deposition; and a
statement of the compensation to be paid to the expert witness.
(C) Expert witness disclosures shall be made no later than 60 days
before the date of commencement of the hearing. A party's failure to
make full and timely expert witness disclosures shall preclude the
party's use of the expert witness' testimony or evidence at the
hearing.
(3) Prehearing disclosures shall comply with the following
requirements:
(A) In addition to the disclosures required in paragraphs (1) and
(2), a party shall provide to the other parties the following
information about the evidence that it may present at the hearing:
(i) The name, and, if not previously provided, the address and
telephone number of each witness, separately identifying those the
party expects to present and those it may call if the need arises.
(ii) An identification of each exhibit, separately identifying
those items the party expects to offer and those it may offer if the
need arises.
(B) Prehearing disclosures shall be made at least 30 days before
the hearing.
(i) Within 14 days after prehearing disclosures are made, a party
shall file and serve any objections, along with the grounds for each
objection, to the admissibility of evidence.
(ii) These objections shall be decided on the first day of
the hearing, or at a prehearing conference conducted pursuant
to Section 11511.5 of the Government Code. Documents and individuals
not timely disclosed without good cause shall be precluded from
admission at the hearing.
(c) In addition to the disclosures required by subdivision (a),
the parties may obtain discovery by oral deposition in California, in
accordance with Sections 2025.010 to 2025.620, inclusive, of the
Code of Civil Procedure, except as described in this article. The
school district may take the depositions of the employee and no more
than four other witnesses, and the employee may take depositions of
no more than five witnesses. Each witness deposition is limited to
seven hours. An administrative law judge may allow the parties to
conduct additional depositions only upon a showing of good cause. If
a motion to conduct additional depositions is granted by the
administrative law judge, the employee shall be given a meaningful
opportunity to respond to new evidence introduced as a result of the
additional depositions. An order granting a motion for additional
depositions shall not constitute an extraordinary circumstance or
good cause for purposes of extending the deadlines set forth in
paragraph (1) of subdivision (b) of Section 44944.
(d) If the right to disclosures or oral depositions is denied by
either the employee or the governing board, the exclusive right of a
party seeking an order compelling production of discovery shall be
pursuant to Section 11507.7 of the Government Code. If a party seeks
protection from unreasonable or oppressive discovery demands, the
exclusive right of a party seeking an order for protection shall be
pursuant to Section 11450.30 of the Government Code.
SEC. 90. Section 44944.3 of the Education Code is amended to read:
44944.3. At a hearing conducted pursuant to Section 44944 or
44944.1, the administrative law judge, before admitting any testimony
or evidence concerning an individual pupil, shall determine whether
the introduction of the testimony or evidence at an open hearing
would violate any provision of Article 5 (commencing with Section
49073) of Chapter 6.5 of Part 27 of Division 4, relating to privacy
of pupil records. If the administrative law judge, in his or her
discretion, determines that any of those provisions would be
violated, he or she shall order that the hearing, or any portion
thereof of the hearing at which the
testimony or evidence would be produced, be conducted in executive
session.
SEC. 91. Section 46116 of the Education Code is amended to read:
46116. (a) No later than July 1, 2017, the Superintendent shall
provide the Legislature with an evaluation of kindergarten program
implementation in the state, including part-day and full-day
kindergarten programs. The evaluation shall include recommended best
practices for providing full-day kindergarten programs.
(b) The evaluation shall include a sample of local educational
agencies' full day full-day and
part-day kindergarten programs from across the state. It is the
intent of the Legislature that this sample be representative of the
diversity of the state, and shall include both urban and rural and
small and large local educational agencies within school districts.
(c) The report required pursuant to this section shall be
submitted in compliance with Section 9795 of the Government Code.
(d) This section shall not become operative until the Legislature
makes an appropriation for these purposes in the annual Budget Act or
in any other statute.
(e) This section shall become inoperative on July 1, 2017, and, as
of January 1, 2018, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2018, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 92. The heading of Article 3 (commencing with Section 46330)
of Chapter 3 of Part 26 of Division 4 of Title 2 of the Education
Code is repealed.
Article 3. High Schools
SEC. 93. The heading of Article 4 (commencing with Section 46340)
of Chapter 3 of Part 26 of Division 4 of Title 2 of the Education
Code is repealed.
Article 4. Opportunity Schools
SEC. 94. Section 47605 of the Education Code is amended to read:
47605. (a) (1) Except as set forth in paragraph (2), a petition
for the establishment of a charter school within a school district
may be circulated by one or more persons seeking to establish the
charter school. A petition for the establishment of a charter school
shall identify a single charter school that will operate within the
geographic boundaries of that school district. A charter school may
propose to operate at multiple sites within the school
district, as long as district if each location
is identified in the charter school petition. The petition may be
submitted to the governing board of the school district for review
after either of the following conditions is met:
(A) The petition is signed by a number of parents or legal
guardians of pupils that is equivalent to at least one-half of the
number of pupils that the charter school estimates will enroll in the
school for its first year of operation.
(B) The petition is signed by a number of teachers that is
equivalent to at least one-half of the number of teachers that the
charter school estimates will be employed at the school during its
first year of operation.
(2) A petition that proposes to convert an existing public school
to a charter school that would not be eligible for a loan pursuant to
subdivision (b) (c) of Section 41365
may be circulated by one or more persons seeking to establish the
charter school. The petition may be submitted to the governing board
of the school district for review after the petition is signed by not
less than 50 percent of the permanent status teachers currently
employed at the public school to be converted.
(3) A petition shall include a prominent statement that a
signature on the petition means that the parent or legal guardian is
meaningfully interested in having his or her child or ward attend the
charter school, or in the case of a teacher's signature, means that
the teacher is meaningfully interested in teaching at the charter
school. The proposed charter shall be attached to the petition.
(4) After receiving approval of its petition, a charter school
that proposes to establish operations at one or more additional sites
shall request a material revision to its charter and shall notify
the authority that granted its charter of those additional locations.
The authority that granted its charter shall consider whether to
approve those additional locations at an open, public meeting. If the
additional locations are approved, they shall be a material revision
to the charter school's charter.
(5) A charter school that is unable to locate within the
jurisdiction of the chartering school district may establish one site
outside the boundaries of the school district, but within the county
in which that school district is located, if the school district
within the jurisdiction of which the charter school proposes to
operate is notified in advance of the charter petition approval, the
county superintendent of schools and the Superintendent are notified
of the location of the charter school before it commences operations,
and either of the following circumstances exists:
(A) The school has attempted to locate a single site or facility
to house the entire program, but a site or facility is unavailable in
the area in which the school chooses to locate.
(B) The site is needed for temporary use during a construction or
expansion project.
(6) Commencing January 1, 2003, a petition to establish a charter
school may not be approved to serve pupils in a grade level that is
not served by the school district of the governing board considering
the petition, unless the petition proposes to serve pupils in all of
the grade levels served by that school district.
(b) No later than 30 days after receiving a petition, in
accordance with subdivision (a), the governing board of the school
district shall hold a public hearing on the provisions of the
charter, at which time the governing board of the school district
shall consider the level of support for the petition by teachers
employed by the school district, other employees of the
school district, and parents. Following review of the
petition and the public hearing, the governing board of the school
district shall either grant or deny the charter within 60 days of
receipt of the petition, provided, however, that the date may be
extended by an additional 30 days if both parties agree to the
extension. In reviewing petitions for the establishment of charter
schools pursuant to this section, the chartering authority shall be
guided by the intent of the Legislature that charter schools are and
should become an integral part of the California educational system
and that the establishment of charter schools should be
encouraged. The governing board of the school district shall grant a
charter for the operation of a school under this part if it is
satisfied that granting the charter is consistent with sound
educational practice. The governing board of the school district
shall not deny a petition for the establishment of a charter school
unless it makes written factual findings, specific to the particular
petition, setting forth specific facts to support one or more of the
following findings:
(1) The charter school presents an unsound educational program for
the pupils to be enrolled in the charter school.
(2) The petitioners are demonstrably unlikely to successfully
implement the program set forth in the petition.
(3) The petition does not contain the number of signatures
required by subdivision (a).
(4) The petition does not contain an affirmation of each of the
conditions described in subdivision (d).
(5) The petition does not contain reasonably comprehensive
descriptions of all of the following:
(A) (i) A description of the The
educational program of the charter school, designed, among
other things, to identify those whom the charter school
is attempting to educate, what it means to be an "educated person" in
the 21st century, and how learning best occurs. The goals identified
in that program shall include the objective of enabling pupils to
become self-motivated, competent, and lifelong learners.
(ii) A description, The annual goals
for the charter school, of annual goals,
school for all pupils and for each subgroup of pupils
identified pursuant to Section 52052, to be achieved in the state
priorities, as described in subdivision (d) of Section 52060, that
apply for the grade levels served, or the nature of the program
operated, by the charter school, and specific annual actions to
achieve those goals. A charter petition may identify additional
school priorities, the goals for the school priorities, and the
specific annual actions to achieve those goals.
(iii) If the proposed charter school will serve high
school pupils, a description of the manner in
which the charter school will inform parents about the
transferability of courses to other public high schools and the
eligibility of courses to meet college entrance requirements. Courses
offered by the charter school that are accredited by the Western
Association of Schools and Colleges may be considered transferable
and courses approved by the University of California or the
California State University as creditable under the "A" to "G"
admissions criteria may be considered to meet college entrance
requirements.
(B) The measurable pupil outcomes identified for use by the
charter school. "Pupil outcomes," for purposes of this part, means
the extent to which all pupils of the school demonstrate that they
have attained the skills, knowledge, and attitudes specified as goals
in the school's educational program. Pupil outcomes shall include
outcomes that address increases in pupil academic achievement both
schoolwide and for all groups of pupils served by the charter school,
as that term is defined in subparagraph (B) of paragraph (3) of
subdivision (a) of Section 47607. The pupil outcomes shall align with
the state priorities, as described in subdivision (d) of Section
52060, that apply for the grade levels served, or the nature of the
program operated, by the charter school.
(C) The method by which pupil progress in meeting those pupil
outcomes is to be measured. To the extent practicable, the method for
measuring pupil outcomes for state priorities shall be consistent
with the way information is reported on a school accountability
report card.
(D) The governance structure of the charter school,
including, but not limited to, the process to be followed by the
charter school to ensure parental involvement.
(E) The qualifications to be met by individuals to be employed by
the charter school.
(F) The procedures that the charter school will follow
to ensure the health and safety of pupils and staff. These procedures
shall include the requirement that each employee of the charter
school furnish the school it
with a criminal record summary as described in Section 44237.
(G) The means by which the school will achieve a racial and ethnic
balance among its pupils that is reflective of the general
population residing within the territorial jurisdiction of the school
district to which the charter petition is submitted.
(H) Admission requirements, if applicable.
(I) The manner in which annual, independent financial audits shall
be conducted, which shall employ generally accepted accounting
principles, and the manner in which audit exceptions and deficiencies
shall be resolved to the satisfaction of the chartering authority.
(J) The procedures by which pupils can be suspended or expelled.
(K) The manner by which staff members of the charter schools will
be covered by the State Teachers' Retirement System, the Public
Employees' Retirement System, or federal social security.
(L) The public school attendance alternatives for pupils residing
within the school district who choose not to attend charter schools.
(M) A description of the The rights
of any an employee of the school
district upon leaving the employment of the school district to work
in a charter school, and of any rights of return to the school
district after employment at a charter school.
(N) The procedures to be followed by the charter school and the
entity granting the charter to resolve disputes relating to
provisions of the charter.
(O) A declaration whether or not the charter school shall be
deemed the exclusive public school employer of the employees of the
charter school for purposes of Chapter 10.7 (commencing with Section
3540) of Division 4 of Title 1 of the Government Code.
(P) A description of the
(O) The procedures to be used if
the charter school closes. The procedures shall ensure a final audit
of the cha rter school to determine the
disposition of all assets and liabilities of the charter school,
including plans for disposing of any net assets and for the
maintenance and transfer of pupil records.
(6) The petition does not contain a declaration of whether or not
the charter school shall be deemed the exclusive public employer of
the employees of the charter school for purposes of Chapter 10.7
(commencing with Section 3540) of Division 4 of Title 1 of the
Government Code.
(c) (1) Charter schools shall meet all statewide standards and
conduct the pupil assessments required pursuant to Sections 60605 and
60851 and any other statewide standards authorized in statute or
pupil assessments applicable to pupils in noncharter public schools.
(2) Charter schools shall, on a regular basis, consult with their
parents, legal guardians, and teachers regarding the charter
school's educational programs.
(d) (1) In addition to any other requirement imposed under this
part, a charter school shall be nonsectarian in its programs,
admission policies, employment practices, and all other operations,
shall not charge tuition, and shall not discriminate against
any a pupil on the basis of the characteristics
listed in Section 220. Except as provided in paragraph (2), admission
to a charter school shall not be determined according to the place
of residence of the pupil, or of his or her parent or legal guardian,
within this state, except that an existing public school converting
partially or entirely to a charter school under this part shall adopt
and maintain a policy giving admission preference to pupils who
reside within the former attendance area of that public school.
(2) (A) A charter school shall admit all pupils who wish to attend
the school.
(B) If the number of pupils who
wish to attend the charter school exceeds the school's capacity,
attendance, except for existing pupils of the charter school, shall
be determined by a public random drawing. Preference shall be
extended to pupils currently attending the charter school and pupils
who reside in the district except as provided for in Section 47614.5.
Other preferences may be permitted by the chartering authority on an
individual school basis and only if consistent with the law.
(C) In the event of a drawing, the chartering authority shall make
reasonable efforts to accommodate the growth of the charter school
and in no event shall not take any
action to impede the charter school from expanding enrollment to meet
pupil demand.
(3) If a pupil is expelled or leaves the charter school without
graduating or completing the school year for any reason, the charter
school shall notify the superintendent of the school district of the
pupil's last known address within 30 days, and shall, upon request,
provide that school district with a copy of the cumulative record of
the pupil, including a transcript of grades or report card, and
health information. This paragraph applies only to pupils subject to
compulsory full-time education pursuant to Section 48200.
(e) The governing board of a school district shall not require
any an employee of the school district
to be employed in a charter school.
(f) The governing board of a school district shall not require
any a pupil enrolled in the school
district to attend a charter school.
(g) The governing board of a school district shall require that
the petitioner or petitioners provide information regarding the
proposed operation and potential effects of the charter
school, including, but not limited to, the facilities to be used by
the school, the manner in which administrative services of the school
are to be provided, and potential civil liability effects, if any,
upon the school and upon the school district. The description of the
facilities to be used by the charter school shall specify where the
school intends to locate. The petitioner or petitioners shall also be
required to provide financial statements that include a proposed
first-year operational budget, including startup costs, and cashflow
and financial projections for the first three years of operation.
(h) In reviewing petitions for the establishment of charter
schools within the school district, the governing board of the school
district shall give preference to petitions that demonstrate the
capability to provide comprehensive learning experiences to pupils
identified by the petitioner or petitioners as academically low
achieving pursuant to the standards established by the department
under Section 54032, as it that section
read before July 19, 2006.
(i) Upon the approval of the petition by the governing board of
the school district, the petitioner or petitioners shall provide
written notice of that approval, including a copy of the petition, to
the applicable county superintendent of schools, the department, and
the state board.
(j) (1) If the governing board of a school district denies a
petition, the petitioner may elect to submit the petition for the
establishment of a charter school to the county board of education.
The county board of education shall review the petition pursuant to
subdivision (b). If the petitioner elects to submit a petition for
establishment of a charter school to the county board of education
and the county board of education denies the petition, the petitioner
may file a petition for establishment of a charter school with the
state board, and the state board may approve the petition, in
accordance with subdivision (b). A charter school that receives
approval of its petition from a county board of education or from the
state board on appeal shall be subject to the same requirements
concerning geographic location to which it would otherwise be subject
if it received approval from the entity to which it originally
submitted its petition. A charter petition that is submitted to
either a county board of education or to the state board shall meet
all otherwise applicable petition requirements, including the
identification of the proposed site or sites where the charter school
will operate.
(2) In assuming its role as a chartering agency, the state board
shall develop criteria to be used for the review and approval of
charter school petitions presented to the state board. The criteria
shall address all elements required for charter approval, as
identified in subdivision (b) (b), and
shall define "reasonably comprehensive" as used in paragraph (5) of
subdivision (b) in a way that is consistent with the intent of this
part. Upon satisfactory completion of the criteria, the state board
shall adopt the criteria on or before June 30, 2001.
(3) A charter school for which a charter is granted by either the
county board of education or the state board based on an appeal
pursuant to this subdivision shall qualify fully as a charter school
for all funding and other purposes of this part.
(4) If either the county board of education or the state board
fails to act on a petition within 120 days of receipt, the decision
of the governing board of the school district to deny a petition
shall, thereafter, shall be subject to
judicial review.
(5) The state board shall adopt regulations implementing this
subdivision.
(6) Upon the approval of the petition by the county board of
education, the petitioner or petitioners shall provide written notice
of that approval, including a copy of the petition to the department
and the state board.
(k) (1) The state board may, by mutual agreement, designate its
supervisorial and oversight responsibilities for a charter school
approved by the state board to any local educational agency in the
county in which the charter school is located or to the governing
board of the school district that first denied the petition.
(2) The designated local educational agency shall have all
monitoring and supervising authority of a chartering agency,
including, but not limited to, powers and duties set forth in Section
47607, except the power of revocation, which shall remain with the
state board.
(3) A charter school that is granted its charter through an appeal
to the state board and elects to seek renewal of its charter shall,
before expiration of the charter, submit its petition for renewal to
the governing board of the school district that initially denied the
charter. If the governing board of the school district denies the
charter school's petition for renewal, the school may
petition the state board for renewal of its charter.
( l ) Teachers in charter schools shall hold a
Commission on Teacher Credentialing certificate, permit, or other
document equivalent to that which a teacher in other public schools
would be required to hold. These documents shall be maintained on
file at the charter school and are subject to periodic inspection by
the chartering authority. It is the intent of the Legislature that
charter schools be given flexibility with regard to noncore,
noncollege preparatory courses.
(m) A charter school shall transmit a copy of its annual,
independent financial audit report for the preceding fiscal year, as
described in subparagraph (I) of paragraph (5) of subdivision (b), to
its chartering entity, the Controller, the county superintendent of
schools of the county in which the charter school is sited, unless
the county board of education of the county in which the charter
school is sited is the chartering entity, and the department by
December 15 of each year. This subdivision does not apply if the
audit of the charter school is encompassed in the audit of the
chartering entity pursuant to Section 41020.
SEC. 95. Section 47605.1 of the Education Code is amended to read:
47605.1. (a) (1) Notwithstanding any other law, a charter school
that is granted a charter from the governing board of a school
district or county office of education after July 1, 2002, and
commences providing educational services to pupils on or after July
1, 2002, shall locate in accordance with the geographic and site
limitations of this part.
(2) Notwithstanding any other law, a charter school that is
granted a charter by the state board after July 1, 2002, and
commences providing educational services to pupils on or after July
1, 2002, based on the denial of a petition by the governing board of
a school district or county board of education, as described in
paragraphs (1) and (2) of subdivision (j) of Section 47605, may
locate only within the geographic boundaries of the chartering entity
that initially denied the petition for the charter.
(3) A charter school that receives approval of its charter from a
governing board of a school district, a county office of education,
or the state board before July 1, 2002, but does not commence
operations until after January 1, 2003, shall be subject to the
geographic limitations of the part, in accordance with subdivision
(e).
(b) Nothing in this This section is
not intended to affect the admission requirements
contained in subdivision (d) of Section 47605.
(c) Notwithstanding any other law, a charter school may establish
a resource center, meeting space, or other satellite facility located
in a county adjacent to that in which the charter school is
authorized if the following conditions are met:
(1) The facility is used exclusively for the educational support
of pupils who are enrolled in nonclassroom-based independent study of
the charter school.
(2) The charter school provides its primary educational services
in, and a majority of the pupils it serves are residents of, the
county in which the charter school is authorized.
(d) Notwithstanding subdivision (a) or subdivision (a) of Section
47605, a charter school that is unable to locate within the
geographic boundaries of the chartering school district may establish
one site outside the boundaries of the school district, but within
the county within which that school district is located, if the
school district where in which the
charter school proposes to operate is notified in advance of the
charter petition approval, the county superintendent of schools is
notified of the location of the charter school before it commences
operations, and either of the following circumstances exist:
(1) The school has attempted to locate a single site or facility
to house the entire program , but such a facility or site
is unavailable in the area in which the school chooses to locate.
(2) The site is needed for temporary use during a construction or
expansion project.
(e) (1) For a charter school that was granted approval of its
charter before July 1, 2002, and provided educational services to
pupils before July 1, 2002, this section shall
only apply applies to any
new educational services or schoolsites established or
acquired by the charter school on or after July 1, 2002.
(2) For a charter school that was granted approval of its charter
before July 1, 2002, but did not provide educational services to
pupils before July 1, 2002, this section shall
only apply applies upon the expiration
of a charter that is in existence on January 1, 2003.
(3) Notwithstanding other implementation timelines in this
section, by June 30, 2005, or upon the expiration of a charter that
is in existence on January 1, 2003, whichever is later, all charter
schools shall be required to comply with this section for schoolsites
at which education services are provided to pupils before or after
July 1, 2002, regardless of whether the charter school initially
received approval of its charter school petition before July 1, 2002.
To achieve compliance with this section, a charter school shall be
required to receive approval of a charter petition in accordance with
this section and Section 47605.
(4) Nothing in this This section is
not intended to affect the authority of a governmental
entity to revoke a charter that is granted on or before the effective
date of this section.
(f) A charter school that submits its petition directly to a
county board of education, as authorized by Sections 47605.5 or
47605.6, may establish charter school operations only within the
geographical boundaries of the county in which that county board of
education has jurisdiction.
(g) Notwithstanding any other law, the jurisdictional limitations
set forth in this section do not apply to a charter school that
provides instruction exclusively in partnership with any of the
following:
(1) The federal Workforce Investment Act of 1998 (29 U.S.C. Sec.
2801 et seq.).
(2) Federally affiliated Youth Build programs.
(3) Federal job corps training or instruction provided pursuant to
a memorandum of understanding with the federal provider.
(4) The California Conservation Corps or local conservation corps
certified by the California Conservation Corps pursuant to Sections
14507.5 or 14406 of the Public Resources Code.
(5) Instruction provided to juvenile court school pupils pursuant
to subdivision (b) of Section 42238.18 or pursuant to Section 1981
for individuals who are placed in a residential facility.
SEC. 96. Section 47605.6 of the Education Code is amended to read:
47605.6. (a) (1) In addition to the authority provided by Section
47605.5, a county board of education may also approve a petition for
the operation of a charter school that operates at one or more sites
within the geographic boundaries of the county and that provides
instructional services that are not generally provided by a county
office of education. A county board of education may approve a
countywide charter only if it finds, in addition to the other
requirements of this section, that the educational services to be
provided by the charter school will offer services to a pupil
population that will benefit from those services and that cannot be
served as well by a charter school that operates in only one school
district in the county. A petition for the establishment of a
countywide charter school pursuant to this subdivision may be
circulated throughout the county by any one or more persons seeking
to establish the charter school. The petition may be submitted to the
county board of education for review after either of the following
conditions is met:
(A) The petition is signed by a number of parents or guardians of
pupils residing within the county that is equivalent to at least
one-half of the number of pupils that the charter school estimates
will enroll in the school for its first year of operation and each of
the school districts where the charter school petitioner proposes to
operate a facility has received at least 30 days' notice of the
petitioner's intent to operate a school pursuant to this section.
(B) The petition is signed by a number of teachers that is
equivalent to at least one-half of the number of teachers that the
charter school estimates will be employed at the school during its
first year of operation and each of the school districts where the
charter school petitioner proposes to operate a facility has received
at least 30 days' notice of the petitioner's intent to operate a
school pursuant to this section.
(2) An existing public school may shall
not be converted to a charter school in accordance with this
section.
(3) After receiving approval of its petition, a charter school
that proposes to establish operations at additional sites within the
geographic boundaries of the county board of education shall notify
the school districts where those sites will be located. The charter
school shall also request a material revision of its charter by the
county board of education that approved its charter and the county
board of education shall consider whether to approve those additional
locations at an open, public meeting, held no sooner than 30 days
following notification of the school districts where the sites will
be located. If approved, the location of the approved sites shall be
a material revision of the school's approved charter.
(4) A petition shall include a prominent statement indicating that
a signature on the petition means that the parent or guardian is
meaningfully interested in having his or her child or ward attend the
charter school, or in the case of a teacher's signature, means that
the teacher is meaningfully interested in teaching at the charter
school. The proposed charter shall be attached to the petition.
(b) No later than 60 days after receiving a petition, in
accordance with subdivision (a), the county board of education shall
hold a public hearing on the provisions of the charter, at which time
the county board of education shall consider the level of support
for the petition by teachers, parents or guardians, and the school
districts where the charter school petitioner proposes to place
school facilities. Following review of the petition and the public
hearing, the county board of education shall either grant or deny the
charter within 90 days of receipt of the petition. However, this
date may be extended by an additional 30 days if both parties agree
to the extension. A county board of education may impose any
additional requirements beyond those required by this section that it
considers necessary for the sound operation of a countywide charter
school. A county board of education may grant a charter for the
operation of a school under this part only if the board
it is satisfied that granting the charter is
consistent with sound educational practice and that the charter
school has reasonable justification for why it could not be
established by petition to a school district pursuant to Section
47605. The county board of education shall deny a petition for the
establishment of a charter school if the board
it finds one or more of the following:
(1) The charter school presents an unsound educational program for
the pupils to be enrolled in the charter school.
(2) The petitioners are demonstrably unlikely to successfully
implement the program set forth in the petition.
(3) The petition does not contain the number of signatures
required by subdivision (a).
(4) The petition does not contain an affirmation of each of the
conditions described in subdivision (d).
(5) The petition does not contain reasonably comprehensive
descriptions of all of the following:
(A) (i) A description of the The
educational program of the charter school,
designed, among other things, to identify those pupils whom the
charter school is attempting to educate, what it means to be an
"educated person" in the 21st century, and how learning best occurs.
The goals identified in that program shall include the objective of
enabling pupils to become self-motivated, competent, and lifelong
learners.
(ii) A description, The annual goals
for the charter school, of annual goals,
school for all pupils and for each subgroup of pupils
identified pursuant to Section 52052, to be achieved in the state
priorities, as described in subdivision (d) of Section 52060, that
apply for the grade levels served, or the nature of the program
operated, by the charter school, and specific annual actions to
achieve those goals. A charter petition may identify additional
school priorities, the goals for the school priorities, and the
specific annual actions to achieve those goals.
(iii) If the proposed charter school will enroll high school
pupils, a description of the manner in which the
charter school will inform parents regarding the transferability of
courses to other public high schools. Courses offered by the charter
school that are accredited by the Western Association of Schools and
Colleges may be considered to be transferable to other public high
schools.
(iv) If the proposed charter school will enroll high school
pupils, information as to the manner in which the charter school will
inform parents as to whether each individual course offered by the
charter school meets college entrance requirements. Courses approved
by the University of California or the California State University as
satisfying their prerequisites for admission may be considered as
meeting college entrance requirements for purposes of this clause.
(B) The measurable pupil outcomes identified for use by the
charter school. "Pupil outcomes," for purposes of this part, means
the extent to which all pupils of the school demonstrate that they
have attained the skills, knowledge, and aptitudes specified as goals
in the school's educational program. Pupil outcomes shall include
outcomes that address increases in pupil academic achievement both
schoolwide and for all groups of pupils served by the charter school,
as that term is defined in subparagraph (B) of paragraph (3) of
subdivision (a) of Section 47607. The pupil outcomes shall align with
the state priorities, as described in subdivision (d) of Section
52060, that apply for the grade levels served, or the nature of the
program operated, by the charter school.
(C) The method by which pupil progress in meeting those pupil
outcomes is to be measured. To the extent practicable, the method for
measuring pupil outcomes for state priorities shall be consistent
with the way information is reported on a school accountability
report card.
(D) The location of each charter school facility that the
petitioner proposes to operate.
(E) The governance structure of the charter school,
including, but not limited to, the process to be followed by the
charter school to ensure parental involvement.
(F) The qualifications to be met by individuals to be employed by
the charter school.
(G) The procedures that the charter school will follow
to ensure the health and safety of pupils and staff. These procedures
shall include the requirement that each employee of the charter
school furnish the school it
with a criminal record summary as described in Section 44237.
(H) The means by which the charter school will achieve
a racial and ethnic balance among its pupils that is reflective of
the general population residing within the territorial jurisdiction
of the school district to which the charter petition is submitted.
(I) The manner in which annual, independent, financial audits
shall be conducted, in accordance with regulations established by the
state board, and the manner in which audit exceptions and
deficiencies shall be resolved.
(J) The procedures by which pupils can be suspended or expelled.
(K) The manner by which staff members of the charter
schools school will be covered by the State
Teachers' Retirement System, the Public Employees' Retirement System,
or federal social security.
(L) The procedures to be followed by the charter school and the
county board of education to resolve disputes relating to provisions
of the charter.
(M) A declaration whether or not the charter school shall be
deemed the exclusive public school employer of the employees of the
charter school for purposes of the Educational Employment Relations
Act (Chapter 10.7 (commencing with Section 3540) of Division 4 of
Title 1 of the Government Code).
(N)
(M) Admission requirements of the charter school, if
applicable.
(O)
(N) The public school attendance alternatives for
pupils residing within the county who choose not to attend the
charter school.
(P) A description of the
(O) The rights of an employee of
the county office of education, upon leaving the employment of the
county office of education, to be employed by the charter school, and
a description of any rights of return to the
county office of education that an employee may have upon leaving the
employ of the charter school.
(Q) A description of the
(P) The procedures to be used if
the charter school closes. The procedures shall ensure a final audit
of the school to determine the disposition of all assets and
liabilities of the charter school, including plans for disposing of
any net assets and for the maintenance and transfer of public
records.
(6) A declaration of whether or not the charter school shall be
deemed the exclusive public school employer of the employees of the
charter school for purposes of the Educational Employment Relations
Act (Chapter 10.7 (commencing with Section 3540) of Division 4 of
Title 1 of the Government Code).
(6)
(7) Any other basis that the county board of education
finds justifies the denial of the petition.
(c) A county board of education that approves a petition for the
operation of a countywide charter may, as a condition of charter
approval, enter into an agreement with a third party, at the expense
of the charter school, to oversee, monitor, and report to the county
board of education on the operations of the charter school. The
county board of education may prescribe the aspects of the charter
school's operations to be monitored by the third party and may
prescribe appropriate requirements regarding the reporting of
information concerning the operations of the charter school to the
county board of education.
(d) (1) Charter schools shall meet all statewide standards and
conduct the pupil assessments required pursuant to Section 60605 and
any other statewide standards authorized in statute or pupil
assessments applicable to pupils in noncharter public schools.
(2) Charter schools shall on a regular basis consult with their
parents and teachers regarding the charter school's
educational programs.
(e) (1) In addition to any other requirement imposed under this
part, a charter school shall be nonsectarian in its programs,
admission policies, employment practices, and all other operations,
shall not charge tuition, and shall not discriminate against any
pupil on the basis of ethnicity, national origin, gender, gender
identity, gender expression, or disability. Except as provided in
paragraph (2), admission to a charter school shall not be determined
according to the place of residence of the pupil, or of his or her
parent or guardian, within this state.
(2) (A) A charter school shall admit all pupils who wish to attend
the charter school.
(B) If the number of pupils who wish to attend the charter school
exceeds the school's capacity, attendance, except for existing pupils
of the charter school, shall be determined by a public random
drawing. Preference shall be extended to pupils currently attending
the charter school and pupils who reside in the county
except as provided for in Section
47614.5. Other preferences may be permitted by the chartering
authority on an individual school basis and only if consistent with
the law.
(C) In the event of a drawing, the county board of education shall
make reasonable efforts to accommodate the growth of the charter
school and in no event shall take any action to impede the charter
school from expanding enrollment to meet pupil demand.
(f) The county board of education shall not require any
an employee of the county or a school district
to be employed in a charter school.
(g) The county board of education shall not require any
a pupil enrolled in a county program to attend a
charter school.
(h) The county board of education shall require that the
petitioner or petitioners provide information regarding the proposed
operation and potential effects of the charter school,
including, but not limited to, the facilities to be used by the
charter school, the manner in which administrative services of
the charter school are to be provided, and potential civil
liability effects, if any, upon the charter school, any
school district where the charter school may operate, and upon the
county board of education. The petitioner or petitioners shall also
be required to provide financial statements that include a proposed
first-year operational budget, including startup costs, and cashflow
and financial projections for the first three years of operation.
(i) In reviewing petitions for the establishment of charter
schools within the county, the county board of education shall give
preference to petitions that demonstrate the capability to provide
comprehensive learning experiences to pupils identified by the
petitioner or petitioners as academically low achieving pursuant to
the standards established by the department under Section 54032, as
it that section read before July 19,
2006.
(j) Upon the approval of the petition by the county board of
education, the petitioner or petitioners shall provide written notice
of that approval, including a copy of the petition, to the school
districts within the county, the Superintendent, and to the state
board.
(k) If a county board of education denies a petition, the
petitioner may not elect to submit the petition for the establishment
of the charter school to the state board.
(l) Teachers in charter schools shall be required to hold a
Commission on Teacher Credentialing certificate, permit, or other
document equivalent to that which a teacher in other public schools
would be required to hold. These documents shall be maintained on
file at the charter school and shall be subject to periodic
inspection by the chartering authority.
(m) A charter school shall transmit a copy of its annual,
independent, financial audit report for the preceding fiscal year, as
described in subparagraph (I) of paragraph (5) of subdivision (b),
to the county office of education, the Controller, and the department
by December 15 of each year. This subdivision shall
does not apply if the audit of the charter
school is encompassed in the audit of the chartering entity pursuant
to Section 41020.
SEC. 97. Section 47614.5 of the Education Code is amended to read:
47614.5. (a) The Charter School Facility Grant Program is hereby
established, and shall be administered by the California School
Finance Authority. The grant program is intended to provide
assistance with facilities rent and lease costs for pupils in charter
schools.
(b) Subject to the annual Budget Act, eligible charter schools
shall receive an amount of up to, but not more than, seven hundred
fifty dollars ($750) per unit of average daily attendance, as
certified at the second principal apportionment, to provide an amount
of up to, but not more than, 75 percent of the annual facilities
rent and lease costs for the charter school. In any fiscal year, if
the funds appropriated for purposes of this section by the annual
Budget Act are insufficient to fully fund the approved
amounts amounts, the California School Finance Authority
shall apportion the available funds on a pro rata basis.
(c) For purposes of this section, the California School Finance
Authority shall do all of the following:
(1) Inform charter schools of the grant program.
(2) Upon application by a charter school, determine eligibility,
based on the geographic location of the charter schoolsite, pupil
eligibility for free or reduced-price meals, and a preference in
admissions, as appropriate. Eligibility for funding shall not be
limited to the grade level or levels served by the school whose
attendance area is used to determine eligibility. A charter
schoolsite is eligible for funding pursuant to this section if the
charter schoolsite meets either any of
the following conditions:
(A) The charter schoolsite is physically located in the attendance
area of a public elementary school in which 70 percent or more of
the pupil enrollment is eligible for free or reduced-price meals and
the charter schoolsite gives a preference in admissions to pupils who
are currently enrolled in that public elementary school and to
pupils who reside in the elementary school attendance area where the
charter schoolsite is located.
(B) Seventy percent or more of the pupil enrollment at the charter
schoolsite is eligible for free or reduced-price meals.
(C) In any year in which additional funds remain after state and
federal funds have been allocated to applicants that meet the
eligibility criteria in subparagraph (A) or (B), the California
School Finance Authority shall expand eligibility to additional
charter schools that are eligible pursuant to subparagraph (B) by
reducing the free and reduced-price meals threshold one
1 percentage point at a time, but in no case
below 60 percent.
(3) Inform charter schools of their grant eligibility.
(4) Make apportionments to a charter school for eligible
expenditures according to the following schedule:
(A) An initial apportionment by August 31 of each fiscal year or
30 days after enactment of the annual Budget Act, whichever is later,
provided the charter school has submitted a timely application for
funding, as determined by the California School Finance Authority.
The initial apportionment shall be 50 percent of the charter school's
estimated annual entitlement as determined by this section.
(B) A second apportionment by March 1 of each fiscal year. This
apportionment shall be 75 percent of the charter school's estimated
annual entitlement, as adjusted for any revisions in cost,
enrollment, and other data relevant to computing the charter school's
annual entitlement, less any funding already apportioned to the
charter school.
(C) A third apportionment within 30 days of the end of each fiscal
year or 30 days after receiving the data and documentation needed to
compute the charter school's total annual entitlement, whichever is
later. This apportionment shall be the charter school's total annual
entitlement less any funding already apportioned to the charter
school.
(D) Notwithstanding subparagraph (A), the initial apportionment in
the 2013-14 fiscal year shall be made by October 15, 2013, or 105
days after enactment of the Budget Act of 2013, whichever is later.
(d) For purposes of this section:
(1) The California School Finance Authority shall use prior year
data on pupil eligibility for free or reduced-price meals for the
charter schoolsite and prior year rent or lease costs provided by
charter schools to determine eligibility for the grant program until
current year data and actual rent or lease costs become known or
until June 30 of each fiscal year.
(2) If prior year rent or lease costs are unavailable, and the
current year lease and rent costs are not immediately available, the
California School Finance Authority shall use rent or lease cost
estimates provided by the charter school.
(3) The California School Finance Authority shall verify that the
grant amount awarded to each charter school is consistent with
eligibility requirements as specified in this section and in
regulations adopted by the authority. If it is determined by the
California School Finance Authority that a charter school did not
receive the proper grant award amount, either the charter school
shall transfer funds back to the authority as necessary within 60
days of being notified by the authority, or the authority shall
provide an additional apportionment as necessary to the charter
school within 60 days of notifying the charter school, subject to the
availability of funds.
(e) Funds appropriated for purposes of this section shall not be
apportioned for any of the following:
(1) Units of average daily attendance generated through
nonclassroom-based instruction as defined by paragraph (2) of
subdivision (e) of Section 47612.5 or that does not comply with
conditions or limitations set forth in regulations adopted by the
state board California School Finance
Authority pursuant to this section.
(2) Charter schools occupying existing school district or county
office of education facilities, except that charter schools shall be
eligible for the portions of their facilities that are not existing
school district or county office of education facilities.
(3) Charter schools receiving reasonably equivalent facilities
from their chartering authorities pursuant to Section 47614, except
that charter schools shall be eligible for the portions of their
facilities that are not reasonably equivalent facilities received
from their chartering authorities.
(f) Funds appropriated for purposes of this section shall be used
for costs associated with facilities rents and leases, consistent
with the definitions used in the California School Accounting Manual
or regulations adopted by the California School Finance Authority.
These funds also may be used for costs, including, but not limited
to, costs associated with remodeling buildings, deferred maintenance,
initially installing or extending service systems and other built-in
equipment, and improving sites.
(g) If an existing charter school located in an elementary
attendance area in which less than 50 percent of pupil enrollment is
eligible for free or reduced-price meals relocates to an attendance
area identified in paragraph (2) of subdivision (c), admissions
preference shall be given to pupils who reside in the elementary
school attendance area into which the charter school is relocating.
(h) The California School Finance Authority annually shall report
to the department and the Director of Finance, and post information
on its Internet Web site, regarding the use of funds that have been
made available during the fiscal year to each charter school pursuant
to the grant program.
(i) The California School Finance Authority shall
annually shall allocate the facilities grants to
eligible charter schools according to the schedule in paragraph (4)
of subdivision (c) for the current school year rent and lease costs.
However, the California School Finance Authority shall first use the
funding appropriated for this program to reimburse eligible charter
schools for unreimbursed rent or lease costs for the prior school
year.
(j) It is the intent of the Legislature that the funding level for
the Charter School Facility Grant Program for the 2012-13 fiscal
year be considered the base level of funding for subsequent fiscal
years.
(k) The Controller shall include instructions appropriate to the
enforcement of this section in the audit guide required by
subdivision (a) of Section 14502.1.
(l) The California School Finance Authority, effective with the
2013-14 fiscal year, shall be considered the senior creditor for
purposes of satisfying audit findings pursuant to the audit
instructions to be developed pursuant to subdivision (k).
(m) The California School Finance Authority may adopt regulations
to implement this section. Any regulations adopted pursuant to this
section may be adopted as emergency regulations in accordance with
the Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of the Title 2 of the
Government Code). The adoption of these regulations shall be deemed
to be an emergency and necessary for the immediate preservation of
the public peace, health and safety, or general welfare.
(n) Notwithstanding any other law, a charter school shall be
subject, with regard to this section, to audit conducted pursuant to
Section 41020.
SEC. 98. Section 47651 of the Education Code is amended to read:
47651. (a) A charter school may receive the state aid portion of
the charter school's total local control funding formula allocation
pursuant to Section 42238.02, as implemented by Section 42238.03,
directly or through the local educational agency that either grants
its charter or was designated by the state board.
(1) In the case of a charter school that elects to receive its
funding directly, the warrant shall be drawn in favor of the county
superintendent of schools of the county in which the local
educational agency that granted the charter
charter, or was designated by the state board as the oversight
agency pursuant to paragraph (1) of subdivision (k) of Section
47605 47605, is located, for deposit to
the appropriate funds or accounts of the charter school in the
county treasury. The county superintendent of schools is authorized
to establish appropriate funds or accounts in the county treasury for
each charter school.
(2) In the case of a charter school that does not elect to receive
its funding directly pursuant to this section, the warrant shall be
drawn in favor of the county superintendent of schools of the county
in which the local educational agency that granted the charter is
located or was designated the oversight agency by the state board
pursuant to paragraph (1) of subdivision (k) of Section 47605, for
deposit to the appropriate funds or accounts of the local educational
agency.
(3) In the case of a charter school, the charter of which was
granted by the state board, but for which the state board has not
delegated oversight responsibilities pursuant to paragraph (1) of
subdivision (k) of Section 47605, the warrant shall be drawn in favor
of the county superintendent of schools in the county where the
local educational agency is located that initially denied the charter
that was later granted by the state board. The county superintendent
of schools is authorized to establish appropriate funds or accounts
in the county treasury for each charter school.
(b) On or before June 1 of each year, a charter school electing to
receive its funding directly shall so notify the county
superintendent of schools of the county in which the local
educational agency that granted the charter is located or, in the
case of charters for which the state board has designated an
oversight agency pursuant to paragraph (1) of subdivision (k) of
Section 47605, the county superintendent of schools of the county in
which the designated oversight agency is located. An election to
receive funding directly shall apply applies
to all funding that the charter school is eligible to receive
including, but not limited to, the local control funding formula
allocation pursuant to Section 42238.02, as implemented by Section
42238.03, other state and federal categorical aid, and lottery funds.
SEC. 99. Section 48003 of the Education Code is amended to read:
48003. Commencing with the 2015-16 school year, a local
educational agency shall provide an annual report to the
State Department of Education department that
contains information on the type of kindergarten program offered by
the local educational agency, including part-day, full-day, or both,
in a manner determined by the department.
SEC. 100. Section 48297 of the Education Code is amended to read:
48297. (a) (1) A state or local agency conducting a
truancy-related mediation or prosecuting a pupil or a pupil's parent
or legal guardian pursuant to Article 5 (commencing with Section
48260), this article, Section 48454, Section 270.1 or 272 of the
Penal Code, or Section 601 of the Welfare and Institutions Code, as
applicable, shall provide, using the most cost-effective method
possible, including, but not limited to, by electronic mail
email or telephone, the school district, school
attendance review board, county superintendent of schools, probation
department, or any other agency that referred a truancy-related
mediation, criminal complaint, or petition with the outcome of each
referral. For purposes of this section, "outcome" means the imposed
conditions or terms placed on a pupil or a pupil's parent or legal
guardian and the acts or actions taken by a state or local
authority agency with respect to a
truancy-related mediation, prosecution, criminal complaint, or
petition.
(2) This subdivision shall apply applies
to, but is not limited to, the referrals referenced in Article
5 (commencing with Section 48260), this article, Section 48454,
Sections 270.1 and 272 of the Penal Code, and Sections 601, 601.2,
and 601.3 of the Welfare and Institutions Code.
(b) It is the intent of the Legislature to determine the best
evidence-based practices to reduce truancy. Nothing in this
This section is not intended to
encourage additional referrals, complaints, petitions, or
prosecutions, or to encourage more serious sanctions for pupils.
SEC. 101. Section 48321 of the Education Code is amended to read:
48321. (a) (1) A county school attendance review board may be
established in each county. The county school attendance review board
may accept referrals or requests for hearing services from one or
more school districts within its jurisdiction,
jurisdiction pursuant to subdivision (f). A county school
attendance review board may be operated through a consortium or
partnership of a county with one or more school districts or between
two or more counties.
(2) A county school attendance review board, if established, shall
include, but need not be limited to, all of the following:
(A) A parent.
(B) A representative of school districts.
(C) A representative of the county probation department.
(D) A representative of the county welfare department.
(E) A representative of the county superintendent of schools.
(F) A representative of law enforcement agencies.
(G) A representative of community-based youth service centers.
(H) A representative of school guidance personnel.
(I) A representative of child welfare and attendance personnel.
(J) A representative of school or county health care personnel.
(K) A representative of school, county, or community mental health
personnel.
(L) A representative of the county district attorney's office. If
more than one county is represented in a county school attendance
review board, a representative from each county's district attorney's
office may be included.
(M) A representative of the county public defender's office. If
more than one county is represented in a county school attendance
review board, a representative from each county's public defender's
office may be included.
(3) Notwithstanding paragraph (2), for purposes of conducting
hearings, the chairperson of the county school attendance review
board is authorized to determine the members needed at a hearing,
based on the needs of the pupil, in order to address attendance or
behavioral problems.
(4) The school district representatives on the county school
attendance review board shall be nominated by the governing boards of
school districts and shall be appointed by the county superintendent
of schools. All other persons and group representatives shall be
appointed by the county board of education.
(5) (A) If a county school attendance review board exists, the
county superintendent of schools shall, at the beginning of each
school year, convene a meeting of the county school attendance review
board for purposes of adopting plans to promote interagency and
community cooperation and to reduce the duplication of services
provided to youth who have serious school attendance and behavior
problems.
(B) Notwithstanding subparagraph (A), for purposes of conducting
hearings, a county school attendance review board may meet as needed.
(b) (1) Local school attendance review boards may include, but
need not be limited to, all of the following:
(A) A parent.
(B) A representative of school districts.
(C) A representative of the county probation department.
(D) A representative of the county welfare department.
(E) A representative of the county superintendent of schools.
(F) A representative of law enforcement agencies.
(G) A representative of community-based youth service centers.
(H) A representative of school guidance personnel.
(I) A representative of child welfare and attendance personnel.
(J) A representative of school or county health care personnel.
(K) A representative of school, county, or community mental health
personnel.
(L) A representative of the county district attorney's office. If
more than one county is represented in a local school attendance
review board, a representative from each county's district attorney's
office may be included.
(M) A representative of the county public defender's office. If
more than one county is represented in a county school attendance
review board, a representative from each county's public defender's
office may be included.
(2) Other persons or group representatives shall be appointed by
the county board of education.
(c) A county school attendance review board may elect, pursuant to
regulations adopted pursuant to Section 48324, one member as
chairperson with responsibility for coordinating services of the
county school attendance review board.
(d) A county school attendance review board may provide for the
establishment of local school attendance review boards in any number
as shall be necessary to carry out the intent of this article.
(e) In any county in which there is no county school attendance
review board , a school district the
governing board of a school district may elect to
establish a local school attendance review board, which shall operate
in the same manner and have the same authority as a county school
attendance review board.
(f) A county school attendance review board may provide guidance
to local school attendance review boards.
(g) If the county school attendance review board determines that
the needs of pupils, as defined in this article, can best be served
by a single board, the county school attendance review board may then
serve as the school attendance review board for all pupils in the
county, or, upon the request of any school district in the county,
the county school attendance review board may serve as the school
attendance review board for pupils of that school district.
(h) Nothing in this This article is
not intended to prohibit an agreement on the part of
counties to provide these services on a regional basis.
SEC. 102. The heading of Article 2 (commencing with Section 48810)
of Chapter 5 of Part 27 of Division 4 of Title 2 of the Education
Code is repealed.
Article 2. Vocational Education Classes
SEC. 103. Section 48900.9 of the Education Code is amended to
read:
48900.9. (a) The superintendent of a school district, the
principal of a school, or the principal's designee may refer a victim
of, witness to, or other pupil affected by, an act of bullying, as
defined in paragraph (1) of subdivision (r) of Section 48900,
committed on or after January 1, 2015, to the school counselor,
school psychologist, social worker, child welfare attendance
personnel, school nurse, or other school support service personnel
for case management, counseling, and participation in a restorative
justice program, as appropriate.
(b) A student pupil who has engaged
in an act of bullying, as defined in paragraph (1) of subdivision (r)
of Section 48900, may also be referred to the school counselor,
school psychologist, social worker, child welfare attendance
personnel, or other school support service personnel for case
management and counseling, or for participation in a restorative
justice program, pursuant to Section 48900.5.
SEC. 104. Section 49452.9 of the Education Code is amended to
read:
49452.9. (a) For purposes of the 2015-16, 2016-17, and 2017-18
school years, a public school, including a charter school, shall add
an informational item to its enrollment forms, or amend an existing
enrollment form form, in order to
provide the parent or legal guardian information about health care
coverage options and enrollment assistance.
(b) To satisfy the requirements of subdivision (a), a school may
do either of the following:
(1) Use a template developed pursuant to subdivision (d).
(2) Develop an informational item or amend an existing enrollment
form to provide information about health care coverage options and
enrollment assistance.
(c) A school may include a factsheet with its enrollment forms
explaining basic information about affordable health care coverage
options for children and families.
(d) (1) The State Department of Education
department shall develop a standardized template for both of
the following:
(A) The informational item or amendment required by subdivision
(a).
(B) The factsheet described in subdivision (c).
(2) The department shall make any templates developed pursuant to
this subdivision available on its Internet Web site on or before
August 1, 2015, and shall, upon request, provide written copies of
the template to a school district.
(e) A school district shall not discriminate against a pupil who
does not have health care coverage or use any information relating to
a pupil's health care coverage or interest in learning about health
care coverage in any manner that would bring harm to the pupil or the
pupil's family.
(f) This section shall remain in effect only until January 1,
2019, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2019, deletes or extends
that date.
SEC. 105. Section 51747.3 of the Education Code, as amended by
Section 1 of Chapter 807 of the Statutes of 2014, is amended to read:
51747.3. (a) Notwithstanding any other law, a local educational
agency, including, but not limited to, a charter school, may
shall not claim state funding for the
independent study of a pupil, whether characterized as home study or
otherwise, if the local educational agency has provided
any funds or other thing of value to the
pupil or his or her parent or guardian that the local educational
agency does not provide to pupils who attend regular classes or to
their parents or guardians. A charter school may
shall not claim state funding for the independent study of
a pupil, whether characterized as home study or otherwise, if the
charter school has provided any funds or other thing of value to the
pupil or his or her parent or guardian that a school district could
not legally provide to a similarly situated pupil of the school
district, district or to his or her
parent or guardian.
(b) (1) Notwithstanding paragraph (1) of subdivision (d) of
Section 47605 or any other law, and except as specified in paragraph
(2), community school and independent study average daily attendance
shall be claimed by school districts, county superintendents of
schools, and charter schools only for pupils who are residents of the
county in which the apportionment claim is reported, or who are
residents of a county immediately adjacent to the county in which the
apportionment claim is reported.
(2) In addition to claiming independent study average daily
attendance pursuant to paragraph (1), a virtual or online charter
school may also claim independent study average daily attendance for
a pupil who is enrolled in the school and moves to a residence
located outside of the geographical
geographic boundaries of the virtual or online charter school.
The virtual or online charter school may claim independent study
average daily attendance for the pupil under this paragraph only for
the duration of the course or courses in which the pupil is enrolled
or until the end of the school year, whichever occurs first.
(c) The Superintendent shall not apportion funds for reported
average daily attendance, through full-time independent study, of
pupils who are enrolled in school pursuant to subdivision (b) of
Section 48204.
(d) In conformity with Provisions 25 and 28 of Item 6110-101-001
of Section 2.00 of the Budget Act of 1992, this section is applicable
to average daily attendance reported for apportionment purposes
beginning July 1, 1992. The provisions of this section are not
subject to waiver by the state board, by the Superintendent, or under
any provision of Part 26.8 (commencing with Section 47600).
(e) For purposes of this section, "virtual or online charter
school" means a charter school in which at least 80 percent of
teaching and pupil interaction occurs via the Internet.
(f) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 106. Section 52064.5 of the Education Code is amended to
read:
52064.5. (a) On or before October 1, 2015, the state board shall
adopt evaluation rubrics for all of the following purposes:
(1) To assist a school district, county office of education, or
charter school in evaluating its strengths, weaknesses, and areas
that require improvement.
(2) To assist a county superintendent of schools in identifying
school districts and charter schools in need of technical assistance
pursuant to Section 52071 or 47607.3, as applicable, and the specific
priorities upon which the technical assistance should be focused.
(3) To assist the Superintendent in identifying school districts
for which intervention pursuant to Section 52072 is warranted.
(b) The evaluation rubrics shall reflect a holistic,
multidimensional assessment of school district and individual
schoolsite performance and shall include all of the state priorities
described in subdivision (d) of Section 52060.
(c) As part of the evaluation rubrics, the state board shall adopt
standards for school district and individual schoolsite performance
and expectation expectations for
improvement in regard to each of the state priorities described in
subdivision (d) of Section 52060.
SEC. 107. Section 52852 of the Education Code is amended to read:
52852. (a) A schoolsite council shall be
established at each school which that
participates in school-based program coordination. The
schoolsite council shall be composed of the principal and
representatives of: teachers selected by teachers at the school;
other school personnel selected by other school personnel at the
school; parents of pupils attending the school selected by
such the parents; and, in secondary schools,
pupils selected by pupils attending the school.
At
(b) (1) At
the elementary level the level, the
schoolsite council shall be constituted to ensure parity
between (a) (A) the principal,
classroom teachers teachers, and other
school personnel; and (b) (B) parents
or other community members selected by parents.
At
(2) At the secondary
level the level, the schoolsite council shall be
constituted to ensure parity between (a) (A)
the principal, classroom teachers
teachers, and other school personnel; and (b)
(B) an equal numbers
number of parents, or other community members selected by
parents, and pupils.
At
(3) At both the elementary and
secondary levels, classroom teachers shall comprise the majority of
persons represented under category (a).
subparagraph (A) of paragraphs (1) and (2).
Existing
(c) Existing schoolwide advisory
groups or school support groups may be utilized as the schoolsite
council if those groups conform to this section.
The Superintendent of Public Instruction shall
(d) The Superintendent shall
provide several examples of selection and replacement procedures that
may be considered by schoolsite councils.
An
(e) An employee of a school who
is also a parent or guardian of a pupil who attends a school other
than the school of the parent's or guardian's employment,
employment is not disqualified by virtue of this
employment from serving as a parent representative on the schoolsite
council established for the school that his or her child or ward
attends.
SEC. 108. The heading of Chapter 14 (commencing with Section
52980) of Part 28 of Division 4 of Title 2 of the Education Code is
repealed.
CHAPTER 14. PILOT PROJECTS IN APPLIED ACADEMIC AREAS AND
PROGRAMS
SEC. 109. The heading of Article 8 (commencing with Section 54750)
of Chapter 9 of Part 29 of Division 4 of Title 2 of the Education
Code is repealed.
Article 8. College Admissions Test Preparation Pilot Projects
SEC. 110. The heading of Chapter 8.5 (commencing with Section
56867) of Part 30 of Division 4 of Title 2 of the Education Code is
repealed.
CHAPTER 8.5. SPECIAL EDUCATION AT THE YOUTH AUTHORITY
SEC. 111. The heading of Article 7 (commencing with Section 66080)
of Chapter 2 of Part 40 of Division 5 of Title 3 of the Education
Code, as added by Section 2 of Chapter 200 of the Statutes of 1995,
is amended and renumbered to read:
Article 7. 8. English
Proficiency in Higher Education
SEC. 112. Section 66261.5 of the Education Code, as added by
Section 38 of Chapter 569 of the Statutes of 2007, is amended and
renumbered to read:
66261.5. 66261.3. "Nationality"
includes citizenship, country of origin, and national origin.
SEC. 113. Section 66281.7 of the Education Code is amended to
read:
66281.7. (a) It is the policy of the State of California,
pursuant to Section 66251, that all persons, regardless of their sex,
should enjoy freedom from discrimination of any kind, including, but
not limited to, pregnancy discrimination as described in Title IX of
the Education Amendments of 1972 (20 U.S.C. Sec. 1681, et seq.), in
the postsecondary educational institutions of the state.
(b) Each of the following requirements shall be
applicable apply to postsecondary educational
institutions in this state:
(1) A postsecondary educational institution, including the
faculty, staff, or other employees of the institution, shall not
require a graduate student to take a leave of absence, withdraw from
the graduate program, or limit his or her graduate studies solely due
to pregnancy or pregnancy-related issues.
(2) A postsecondary educational institution, including the
faculty, staff, or other employees of the institution, shall
reasonably accommodate pregnant graduate students so they may
complete their graduate courses of study and research. Reasonable
accommodation within the meaning of this subdivision may include, but
is not necessarily limited to, allowances for the pregnant student's
health and safety, such as allowing the student to maintain a safe
distance from hazardous substances, allowing the student to make up
tests and assignments that are missed for pregnancy-related reasons,
or allowing a the student to take a
leave of absence. Reasonable accommodation shall include the excusing
of absences that are medically necessary, as required under Title
IX.
(3) A graduate student who chooses to take a leave of absence
because she is pregnant or has recently given birth shall be allowed
a period consistent with the policies of the postsecondary
educational institution, or a period of 12 additional months,
whichever period is longer, to prepare for and take preliminary and
qualifying examinations and an extension of at least 12 months toward
normative time to degree while in candidacy for a graduate degree,
unless a longer extension is medically necessary.
(4) A graduate student who is not the birth parent and who chooses
to take a leave of absence because of the birth of his or her child
shall be allowed a period consistent with the policies of the
postsecondary educational institution, or a period of one month,
whichever period is longer, to prepare for and take preliminary and
qualifying examinations, and an extension of at least one month
toward normative time to degree while in candidacy for a graduate
degree, unless a longer period or extension is medically necessary to
care for his or her partner or their child.
(5) An enrolled graduate student in good academic standing who
chooses to take a leave of absence because she is pregnant or has
recently given birth shall return to her program in good academic
standing following a leave period consistent with the policies of the
postsecondary educational institution or of up to one academic year,
whichever period is longer, subject to the reasonable administrative
requirements of the institution, unless there is a medical reason
for a longer absence, in which case her standing in the graduate
program shall be maintained during that period of absence.
(6) An enrolled graduate student in good academic standing who is
not the birth parent and who chooses to take a leave of absence
because of the birth of his or her child shall return to his or her
program in good academic standing following a leave period consistent
with the policies of the postsecondary educational institution, or
of up to one month, whichever period is longer, subject to the
reasonable administrative requirements of the institution.
(c) Each postsecondary educational institution shall have a
written policy for graduate students on pregnancy discrimination and
procedures for addressing pregnancy discrimination complaints under
Title IX or this section. A copy of this policy shall be made
available to faculty, staff, and employees in their required
training. This policy shall be made available to all graduate
students attending orientation sessions at a postsecondary
educational institution.
SEC. 114. Section 67386 of the Education Code is amended to read:
67386. (a) In order to receive state funds for student financial
assistance, the governing board of each community college district,
the Trustees of the California State University, the Regents of the
University of California, and the governing boards of independent
postsecondary institutions shall adopt a policy concerning sexual
assault, domestic violence, dating violence, and stalking, as defined
in the federal Higher Education Act of 1965 (20 U.S.C. Sec.
1092(f)) 1092(f)), involving a student, both on
and off campus. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of
whether consent was given by both parties to sexual activity.
"Affirmative consent" means affirmative, conscious, and voluntary
agreement to engage in sexual activity. It is the responsibility of
each person involved in the sexual activity to ensure that he or she
has the affirmative consent of the other or others to engage in the
sexual activity. Lack of protest or resistance does not mean consent,
nor does silence mean consent. Affirmative consent must be ongoing
throughout a sexual activity and can be revoked at any time. The
existence of a dating relationship between the persons involved, or
the fact of past sexual relations between them, should never by
itself be assumed to be an indicator of consent.
(2) A policy that, in the evaluation of complaints in any
disciplinary process, it shall not be a valid excuse to alleged lack
of affirmative consent that the accused believed that the complainant
consented to the sexual activity under either of the following
circumstances:
(A) The accused's belief in affirmative consent arose from the
intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the
circumstances known to the accused at the time, to ascertain whether
the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the
elements of the complaint against the accused have been demonstrated
is the preponderance of the evidence.
(4) A policy that, in the evaluation of complaints in the
disciplinary process, it shall not be a valid excuse that the accused
believed that the complainant affirmatively consented to the sexual
activity if the accused knew or reasonably should have known that the
complainant was unable to consent to the sexual activity under any
of the following circumstances:
(A) The complainant was asleep or unconscious.
(B) The complainant was incapacitated due to the influence of
drugs, alcohol, or medication, so that the complainant could not
understand the fact, nature, or extent of the sexual activity.
(C) The complainant was unable to communicate due to a mental or
physical condition.
(b) In order to receive state funds for student financial
assistance, the governing board of each community college district,
the Trustees of the California State University, the Regents of the
University of California, and the governing boards of independent
postsecondary institutions shall adopt detailed and victim-centered
policies and protocols regarding sexual assault, domestic violence,
dating violence, and stalking involving a student that comport with
best practices and current professional standards. At a minimum, the
policies and protocols shall cover all of the following:
(1) A policy statement on how the institution will provide
appropriate protections for the privacy of individuals involved,
including confidentiality.
(2) Initial response by the institution's personnel to a report of
an incident, including requirements specific to assisting the
victim, providing information in writing about the importance of
preserving evidence, and the identification and location of
witnesses.
(3) Response to stranger and nonstranger sexual assault.
(4) The preliminary victim interview, including the development of
a victim interview protocol, and a comprehensive followup victim
interview, as appropriate.
(5) Contacting and interviewing the accused.
(6) Seeking the identification and location of witnesses.
(7) Providing written notification to the victim about the
availability of, and contact information for, on- and off-campus
resources and services, and coordination with law enforcement, as
appropriate.
(8) Participation of victim advocates and other supporting people.
(9) Investigating allegations that alcohol or drugs were involved
in the incident.
(10) Providing that an individual who participates as a
complainant or witness in an investigation of sexual assault,
domestic violence, dating violence, or stalking will not be subject
to disciplinary sanctions for a violation of the institution's
student conduct policy at or near the time of the incident, unless
the institution determines that the violation was egregious,
including, but not limited to, an action that places the health or
safety of any other person at risk or involves plagiarism, cheating,
or academic dishonesty.
(11) The role of the institutional staff supervision.
(12) A comprehensive, trauma-informed training program for campus
officials involved in investigating and adjudicating sexual assault,
domestic violence, dating violence, and stalking cases.
(13) Procedures for confidential reporting by victims and third
parties.
(c) In order to receive state funds for student financial
assistance, the governing board of each community college district,
the Trustees of the California State University, the Regents of the
University of California, and the governing boards of independent
postsecondary institutions shall, to the extent feasible, enter into
memoranda of understanding, agreements, or collaborative partnerships
with existing on-campus and community-based organizations, including
rape crisis centers, to refer students for assistance or make
services available to students, including counseling, health, mental
health, victim advocacy, and legal assistance, and including
resources for the accused.
(d) In order to receive state funds for student financial
assistance, the governing board of each community college district,
the Trustees of the California State University, the Regents of the
University of California, and the governing boards of independent
postsecondary institutions shall implement comprehensive prevention
and outreach programs addressing sexual violence, domestic violence,
dating violence, and stalking. A comprehensive prevention program
shall include a range of prevention strategies, including, but not
limited to, empowerment programming for victim prevention, awareness
raising campaigns, primary prevention, bystander intervention, and
risk reduction. Outreach programs shall be provided to make students
aware of the institution's policy on sexual assault, domestic
violence, dating violence, and stalking. At a minimum, an outreach
program shall include a process for contacting and informing the
student body, campus organizations, athletic programs, and student
groups about the institution's overall sexual assault policy, the
practical implications of an affirmative consent standard, and the
rights and responsibilities of students under the policy.
(e) Outreach programming shall be included as part of every
incoming student's orientation.
SEC. 115. The heading of Article 7 (commencing with Section 68090)
of Chapter 1 of Part 41 of Division 5 of Title 3 of the Education
Code is repealed.
Article 7. Rules and Regulations
SEC. 116. Section 69437 of the Education Code is amended to read:
69437. (a) Commencing with the 2001-02 academic year, and each
academic year thereafter, there shall be established the Competitive
Cal Grant A and B award program for students who did not receive a
Cal Grant A or B entitlement award pursuant to Article 2 (commencing
with Section 69434), Article 3 (commencing with Section 69435), or
Article 4 (commencing with Section 69436). Awards made under this
section are not entitlements. The submission of an application by a
student under this section shall does
not entitle that student to an award. The selection of students under
this article shall be determined pursuant to subdivision (c) and
other relevant criteria established by the commission.
(b) A total of 22,500 Cal Grant A and B awards shall be granted
annually under this article on a competitive basis for applicants who
meet the general eligibility criteria established in Article 1
(commencing with Section 69430) and the priorities established by the
commission pursuant to subdivision (c).
(1) Fifty percent of the awards referenced in this subdivision are
available to all students, including California community college
students, who meet the financial need and academic requirements
established pursuant to this article. A student enrolling at a
qualifying baccalaureate degree granting institution shall apply by
the March 2 deadline. A California community college student is
eligible to apply at the March 2 or the September 2 deadline.
(2) Fifty percent of the awards referenced in this subdivision are
reserved for students who will be enrolled at a California community
college. The commission shall establish a second application
deadline of September 2 for community college students to apply for
these awards effective with the fall term or semester of the 2001-02
academic year.
(3) If any awards are not distributed pursuant to paragraphs (1)
and (2) upon initial allocation of the awards under this article, the
commission shall make awards to as many eligible students as
possible, beginning with the students with the lowest expected family
contribution and highest academic merit, consistent with the
criteria adopted by the commission pursuant to subdivision (c), as
practicable without exceeding an annual cumulative total of 22,500
awards.
(c) (1) On or before February 1, 2001, acting pursuant to a public
hearing process that is consistent with the Bagley-Keene Open
Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1
of Part 1 of Division 3 of Title 2 of the Government Code), the
commission shall establish selection criteria for Cal Grant A and B
awards under the competitive program that give special consideration
to disadvantaged students, taking into consideration those financial,
educational, cultural, language, home, community, environmental, and
other conditions that hamper a student's access to, and ability to
persist in, postsecondary education programs.
(2) Additional consideration shall be given to each
both of the following:
(A) Students who graduated from high school or its equivalent
prior to the 2000-01 academic year. This subparagraph shall not be
applicable after the 2004-05 academic year.
(B)
(A) Students pursuing Cal Grant B awards who
reestablish their grade point averages.
(C)
(B) Students who did not receive awards pursuant to
Article 2 (commencing with Section 69434), Article 3 (commencing with
Section 69435), or Article 4 (commencing with Section 69436).
(d) All other students who meet the eligibility requirements
pursuant to Article 1 (commencing with Section 69430) are eligible to
compete for an award pursuant to this article.
SEC. 117. Section 70022 of the Education Code is amended to read:
70022. (a) (1) Subject to an available and sufficient
appropriation, commencing with the 2014-15 academic year, an
undergraduate student enrolled in the California State University or
the University of California who meets the requirements of paragraph
(2) is eligible for a scholarship award as described in that
paragraph.
(2) Each academic year, except as provided in paragraphs (3) and
(4), a student shall receive a scholarship award in an amount that,
combined with other federal, state, or institutionally administered
student grants or fee waivers received by an eligible student, is up
to 40 percent of the amount charged to that student in that academic
year for mandatory systemwide tuition and fees, if all of the
following requirements are met:
(A) The student's annual household income does not exceed one
hundred fifty thousand dollars ($150,000). For purposes of this
article, annual household income shall be calculated in a manner that
is consistent with the requirements applicable to the
Ortiz-Pacheco-Poochigian-Vasconcellos Cal Grant Program (Chapter 1.7
(commencing with Section 69430)) and Section 69506.
(B) The student satisfies the eligibility requirements for a Cal
Grant award pursuant to Section 69433.9, except that a student who is
exempt from nonresident tuition under Section 68130.5 shall not be
required to satisfy the requirements of subdivision (a) of Section
69433.9.
(C) The student is exempt from paying nonresident tuition.
(D) The student completes and submits a Free Application for
Federal Student Aid (FAFSA) application. The FAFSA must be submitted
or postmarked by no later than March 2. If the student is not able to
complete a FAFSA application, the student may satisfy this
subparagraph by submitting an application determined by the
commission to be equivalent to the FAFSA application for purposes of
this article by March 2.
(E) The student makes a timely application or applications for all
other federal, state, or institutionally administered grants or fee
waivers for which the student is eligible.
(F) The student maintains satisfactory academic progress in a
manner that is consistent with the requirements applicable to the
Ortiz-Pacheco-Poochigian-Vasconcellos Cal Grant Program pursuant to
subdivision (m) of Section 69432.7.
(G) The student is pursuing his or her first undergraduate
baccalaureate degree or has completed a baccalaureate degree and has
been admitted to, and is enrolled in, a program of professional
teacher preparation at an institution approved by the California
Commission on Teacher Credentialing.
(H) The student is enrolled at least part time.
(3) (A) The percentage specified in paragraph (2) shall be
reduced by 0.6-percent increments per one thousand dollars ($1,000)
of annual household income in excess of one hundred thousand dollars
($100,000), to a minimum 10 percent of mandatory systemwide tuition
and fees for an academic year, provided that no scholarship award
shall be provided to a student with an annual household income
exceeding one hundred fifty thousand dollars ($150,000). This
reduction shall be in addition to any reduction required by
subdivision (e) of Section 70023.
(B) Notwithstanding subparagraph (A), for any student who
qualifies for a scholarship award of at least one dollar ($1), the
minimum annual scholarship amount for full-time enrollment is ninety
dollars ($90).
(4) For the 2014-15, 2015-16, and 2016-17 academic years, the
maximum amount of a student's scholarship award shall be 35 percent,
50 percent, and 75 percent, respectively, of the total scholarship
award amount that the student would otherwise
be eligible to receive.
(b) In order for students enrolled in their respective segments to
remain eligible to receive a scholarship award under this article,
the University of California and the California State University
shall not supplant their respective institutional need-based grants
with the funds provided for scholarships under this article, and
shall maintain their funding amounts at a level that, at a minimum,
is equal to the level maintained for undergraduate students during
the 2013-14 academic year.
(c) The University of California and the California State
University shall report on the implementation of this article as part
of the report made pursuant to Section 66021.1.
(d) A Middle Class Scholarship Program award authorized pursuant
to this article shall be defined as a full-time equivalent grant. An
award to a part-time student shall be a fraction of a full-time
grant, as determined by the proportionate amount charged for
systemwide tuition and fees. A part-time student shall not be
discriminated against in the selection of Middle Class Scholarship
Program awards. For purposes of this section, "full-time
student" and "part-time student" "full-time" and
"part-time " have the same meaning as specified in
subdivision (f) of Section 69432.7.
SEC. 118. Section 70037 of the Education Code is amended to read:
70037. (a) The Trustees of the California State University and
the Regents of the University of California shall adopt regulations
providing for the withholding of institutional services from
students a student or former students
student who have has
been notified in writing at the student's or former student's
last known address that he or she is in default on a loan or loans
under the DREAM Program.
(b) (1) The regulations adopted pursuant to subdivision (a) shall
provide that the services withheld may be provided during a period
when the facts are in dispute or when the student or former student
demonstrates to either the Trustees of the California State
University or the Regents of the University of California, as
applicable, that reasonable progress has been made to repay the loan
or that there exists a reasonable justification for the delay as
determined by the institution. The regulations shall specify the
services to be withheld from the student, which may include, but are
not limited to, the following:
(A) The provision of grades.
(B) The provision of transcripts.
(C) The provision of diplomas.
(2) The services withheld pursuant to paragraph (1) shall not
include the withholding of registration privileges.
(c) "Default," for purposes of this section, means the failure of
a borrower to make an installment payment when due, or to meet other
terms of the promissory note under circumstances where
in which the institution holding the loan finds
it reasonable to conclude that the borrower no longer intends to
honor the obligation to repay, provided that this failure persists
for 180 days for a loan repayable in monthly installments, or 240
days for a loan repayable in less frequent installments.
(d) This section shall does not
impose any requirement upon the University of California unless the
Regents of the University of California, by resolution, makes this
section applicable.
SEC. 119. The heading of Article 3 (commencing with Section 72632)
of Chapter 6 of Part 45 of Division 7 of Title 3 of the Education
Code is repealed.
Article 3. Promoting Education
SEC. 120. Section 76030 of the Education Code is amended to read:
76030. (a) Consistent with requirements of due process of law,
with this article, and with the rules of student conduct adopted by
the governing board under Section 66300, the governing board, the
president of a community college or the president's designee, or an
instructor shall suspend a student for good cause. In addition, the
governing board is authorized to expel a student for good cause when
other means of correction fail to bring about proper conduct, or when
the presence of the student causes a continuing danger to the
physical safety of the student or others. The suspension or expulsion
of a student shall be accompanied by a hearing conducted pursuant to
the requirements of Section 66017.
(b) (1) Notwithstanding any other law, if good cause for
the issuance of an order, order
requested by a community college district,
district to protect a campus of a community college
district, district or any person
regularly present on a campus of that district,
district is issued upon a finding of good cause
by a court against a student of that community college district, and
the order prevents that student from attending classes
and maintaining his or her academic standing, the community college
district may require the student to apply for reinstatement after the
expiration of that order. If the district requires the student to
apply for reinstatement, it shall do so before the expiration of the
protective order. If a student applies for reinstatement under this
paragraph, a review with respect to the application shall be
conducted. This review, at a minimum, shall include consideration of
all of the following issues:
(A) The gravity of the offense.
(B) Evidence of subsequent offenses, if any.
(C) The likelihood that the student would cause substantial
disruption if he or she is reinstated.
(2) The governing board of the community college district, or the
person to whom authority is delegated pursuant to subdivision (f) of
Section 76038, shall take one of the following actions after
conducting a review under paragraph (1):
(A) Deny reinstatement.
(B) Permit reinstatement.
(C) Permit conditional reinstatement,
reinstatement and specify the conditions under which
reinstatement will be permitted.
SEC. 121. Section 78261.5 of the Education Code is amended to
read:
78261.5. (a) A community college registered nursing program that
determines that the number of applicants to that program exceeds its
capacity may admit students in accordance with any of the following
procedures:
(1) Administration of a multicriteria screening process, as
authorized by Section 78261.3, in a manner that is consistent with
the standards set forth in subdivision (b).
(2) A random selection process.
(3) A blended combination of random selection and a multicriteria
screening process.
(b) A community college registered nursing program that elects, on
or after January 1, 2008, to use a multicriteria screening process
to evaluate applicants pursuant to this article shall apply those
measures in accordance with all of the following:
(1) The criteria applied in a multicriteria screening process
under this article shall include, but shall not necessarily be
limited to, all of the following:
(A) Academic degrees or diplomas, or relevant certificates, held
by an applicant.
(B) Grade-point average in relevant coursework.
(C) Any relevant work or volunteer experience.
(D) Life experiences or special circumstances of an applicant,
including, but not necessarily limited to, the following experiences
or circumstances:
(i) Disabilities.
(ii) Low family income.
(iii) First generation of family to attend college.
(iv) Need to work.
(v) Disadvantaged social or educational environment.
(vi) Difficult personal and family situations or circumstances.
(vii) Refugee or veteran status.
(E) Proficiency or advanced level coursework in languages other
than English. Credit for languages other than English shall be
received for languages that are identified by the chancellor as
high-frequency languages, as based on census data. These languages
may include, but are not necessarily limited to, any of the
following:
(i) American Sign Language.
(ii) Arabic.
(iii) Chinese, including its various dialects.
(iv) Farsi.
(v) Russian.
(vi) Spanish.
(vii) Tagalog.
(viii) The various languages of the Indian subcontinent and
Southeast Asia.
(2) Additional criteria, such as a personal interview, a personal
statement, letter of recommendation, or the number of repetitions of
prerequisite classes, or other criteria, as approved by the
chancellor, may be used, but are not required.
(3) A community college registered nursing program using a
multicriteria screening process under this article may use an
approved diagnostic assessment tool, in accordance with Section
78261.3, before, during, or after the multicriteria screening
process.
(4) As used in this section:
(A) "Disabilities" has the same meaning as used in Section 2626 of
the Unemployment Insurance Code.
(B) "Disadvantaged social or educational environment" includes,
but is not necessarily limited to, the status of a student who has
participated in Extended Opportunity Programs and Services (EOPS).
(C) "Grade-point average" refers to the same fixed set of required
prerequisite courses that all applicants to the nursing program
administering the multicriteria screening process are required to
complete.
(D) "Low family income" shall be measured by a community college
registered nursing program in terms of a student's eligibility for,
or receipt of, financial aid under a program that may include, but is
not necessarily limited to, a fee waiver from the board of governors
under Section 76300, the Cal Grant Program under Chapter 1.7
(commencing with Section 69430) of Part 42 of Division 5, the federal
Pell Grant program, or CalWORKs.
(E) "Need to work" means that the student is working at least part
time while completing academic work that is a prerequisite for
admission to the nursing program.
(5) A community college registered nursing program that uses a
multicriteria screening process pursuant to this article shall report
its nursing program admissions policies to the chancellor annually,
in writing. The admissions policies reported under this paragraph
shall include the weight given to any criteria used by the program,
and shall include demographic information relating to both the
persons admitted to the program and the persons of that group who
successfully completed that program.
(c) The chancellor is encouraged to develop, and make available to
community college registered nursing programs by July 1, 2008, a
model admissions process based on this section.
(d) (1) The chancellor shall submit a report on or before March 1,
2015, and on or before each March 1 thereafter, to the Legislature
and the Governor that examines and includes, but is not necessarily
limited to, both of the following:
(A) The participation, retention, and completion rates in
community college registered nursing programs of students admitted
through a multicriteria screening process, as described in
Section 78261.5, this section, disaggregated by
the age, gender, ethnicity, and the language spoken at the home of
those students.
(B) Information on the annual impact, if any, the Seymour-Campbell
Student Success Act had on the matriculation services for students
admitted through the multicriteria screening process, as described in
Section 78261.5. this section.
(2) The chancellor shall submit the annual report required in
paragraph (1) in conjunction with its annual report on associate
degree nursing programs required by subdivision (h) of Section 78261.
(e) This section shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.
SEC. 122. The heading of Article 8 (commencing with Section 78310)
of Chapter 2 of Part 48 of Division 7 of Title 3 of the Education
Code is repealed.
Article 8. Independent Study
SEC. 123. The heading of Article 3 (commencing with Section 78440)
of Chapter 3 of Part 48 of Division 7 of Title 3 of the Education
Code is repealed.
Article 3. Education of Handicapped
SEC. 124. The heading of Chapter 4 (commencing with Section 78600)
of Part 48 of Division 7 of Title 3 of the Education Code is
repealed.
CHAPTER 4. PROGRAMS FOR HANDICAPPED STUDENTS
SEC. 125. The heading of Article 4 (commencing with Section 82360)
of Chapter 7 of Part 49 of Division 7 of Title 3 of the Education
Code is repealed.
Article 4. Cafeterias--Establishment
SEC. 126. Section 82542 of the Education Code, as amended by
Section 1 of Chapter 233 of the Statutes of 2014, is amended to read:
82542. (a) Except as provided in subdivision (b), the governing
board of a community college district shall grant without charge the
use of any college facilities or grounds under its control, pursuant
to the requirements of this article, when an alternative location is
not available, to nonprofit organizations and clubs and associations
organized for general character building or welfare purposes, such
as:
(1) Student clubs and organizations.
(2) Fundraising entertainments or meetings where admission fees
charged or contributions solicited are expended for the welfare of
the students of the district.
(3) Parent-teachers' associations.
(4) School-community advisory councils.
(5) Camp Fire Girls, Girl Scout troops, and Boy Scout troops.
(6) Senior citizens' organizations.
(7) Other public agencies.
(8) Organizations, clubs, or associations organized for cultural
activities and general character building or welfare purposes, such
as folk and square dancing.
(9) Groups organized for the purpose specified in subdivision (k).
(b) The governing board may charge those organizations and
activities listed in subdivision (a) an amount not to exceed the
following:
(1) The cost of opening and closing the facilities, if no college
employees would otherwise be available to perform that function as a
part of their normal duties.
(2) The cost of a college employee's presence during the
organization's use of the facilities, if the governing board
determines that the supervision is needed, and if that employee would
not otherwise be present as part of his or her normal duties.
(3) The cost of janitorial services, if the services are
necessary, and would not have otherwise been performed as part of the
janitor's normal duties.
(4) The cost of utilities directly attributable to the
organization's use of the facilities.
(c) The governing board may charge an amount not to exceed its
direct costs or not to exceed fair rental value of college facilities
and grounds under its control, and pursuant to the requirements of
this article, for activities other than those specified in
subdivision (a). A governing board that decides to levy these charges
shall first adopt a policy specifying which activities shall be
charged an amount not to exceed direct costs and which activities
shall be charged an amount not to exceed fair rental value.
(d) (1) As used in this section, "direct costs" to the district
for the use of college facilities or grounds includes all of the
following:
(A) The share of the costs of supplies, utilities, janitorial
services, services of any other district employees, and salaries paid
to community college district employees to operate and maintain
college facilities or grounds that is proportional to the
organization's use of the college facilities and grounds of the
district under this section.
(B) The share of the costs for maintenance, repair, restoration,
and refurbishment, proportional to the use of the college facilities
or grounds by the organization using the college facilities or
grounds under this section. For purposes of this subparagraph,
"college facilities" shall be limited to only nonclassroom space, and
"grounds" shall include, but not be limited to, playing fields,
athletic fields, track and field venues, tennis courts, and outdoor
basketball courts.
(2) The share of the costs for maintenance, repair, restoration,
and refurbishment shall not apply to either of the following:
(A) Classroom-based programs that operate after school hours,
including, but not limited to, after school programs, tutoring
programs, or child care programs.
(B) Organizations retained by the college or community college
district to provide instruction or instructional activities to
students during school hours.
(3) Funds collected pursuant to this subdivision shall be
deposited into a special fund that shall only be used for purposes of
this section.
(e) By December 31, 2015, the Chancellor of the California
Community Colleges shall develop, and the Board of Governors of the
California Community Colleges shall adopt, regulations to be used by
a governing board of a community college district in
determining the proportionate share and the specific allowable costs
that a community college district may include as direct costs for the
use of its college facilities or grounds.
(f) As used in this section, "fair rental value" means the direct
costs to the district, plus the amortized costs of the college
facilities or grounds used for the duration of the activity
authorized.
(g) The governing board of a community college district that
authorizes the use of college facilities or grounds for the purpose
specified in subdivision (h) shall charge the church or religious
denomination an amount at least equal to the fair rental value of the
facilities or grounds.
(h) The governing board of a community college district may grant
the use of college facilities or grounds to any church or religious
organization for the conduct of religious services for temporary
periods where the church or organization has no suitable meeting
place for the conduct of these services upon the terms and conditions
as the board deems proper, and subject to the limitations,
requirements, and restrictions set forth in this article. The
governing board shall charge the church or religious organization
using the property for the conduct of religious services a fee as
specified in subdivision (g).
(i) For entertainment or a meeting where an admission fee is
charged or a contribution is solicited and the net receipts of the
admission fees or contributions are not expended for the welfare of
the students of the district or for charitable purposes, a charge
equal to fair rental value shall be levied for the use of the college
facilities, property, and grounds, as determined by the governing
board of the district.
(j) The governing board may permit the use, without charge, by
organizations, clubs, or associations organized for senior citizens
and for cultural activities and general character building or welfare
purposes, when membership dues or contributions solely for the
support of the organization, club, or association, or the advancement
of its cultural, character building
building, or welfare work, are accepted.
(k) The governing board of a community college district may grant
the use of college facilities, grounds, and equipment to public
agencies, including the American Red Cross, for mass care and welfare
shelters during disasters or other emergencies affecting the public
health and welfare, and may cooperate with these agencies in
furnishing and maintaining services deemed by the governing board to
be necessary to meet the needs of the community.
(l) This section shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.
SEC. 127. Section 82542 of the Education Code, as added by Section
2 of Chapter 233 of the Statutes of 2014, is amended to read:
82542. (a) Except as provided in subdivision (b), the governing
board of a community college district shall grant without charge the
use of any college facilities or grounds under its control, pursuant
to the requirements of this article, when an alternative location is
not available, to nonprofit organizations and clubs and associations
organized for general character building or welfare purposes, such
as:
(1) Student clubs and organizations.
(2) Fundraising entertainments or meetings where admission fees
charged or contributions solicited are expended for the welfare of
the students of the district.
(3) Parent-teachers' associations.
(4) School-community advisory councils.
(5) Camp Fire Girls, Girl Scout troops, and Boy Scout troops.
(6) Senior citizens' organizations.
(7) Other public agencies.
(8) Organizations, clubs, or associations organized for cultural
activities and general character building or welfare purposes, such
as folk and square dancing.
(9) Groups organized for the purpose specified in subdivision (g).
(b) The governing board may charge those organizations and
activities listed in subdivision (a) an amount not to exceed the
following:
(1) The cost of opening and closing the facilities, if no college
employees would otherwise be available to perform that function as a
part of their normal duties.
(2) The cost of a college employee's presence during the
organization's use of the facilities, if the governing board
determines that the supervision is needed, and if that employee would
not otherwise be present as part of his or her normal duties.
(3) The cost of janitorial services, if the services are
necessary, and would not have otherwise been performed as part of the
janitor's normal duties.
(4) The cost of utilities directly attributable to the
organization's use of the facilities.
(c) The governing board may charge an amount not to exceed its
direct costs or not to exceed fair rental value of college facilities
and grounds under its control, and pursuant to the requirements of
this article, for activities other than those specified in
subdivision (a). A governing board that decides to levy these charges
shall first adopt a policy specifying which activities shall be
charged an amount not to exceed direct costs and which activities
shall be charged an amount not to exceed fair rental value.
(1) As used in this section, "direct costs" to the district for
the use of college facilities or grounds means those costs of
supplies, utilities, janitorial services, services of any other
district employees, and salaries paid community college district
employees necessitated by the organization's use of the college
facilities and grounds of the district.
(2) As used in this section, "fair rental value" means the direct
costs to the district, plus the amortized costs of the college
facilities or grounds used for the duration of the activity
authorized.
(d) The governing board of a community college district that
authorizes the use of college facilities or grounds for the purpose
specified in subdivision (e) shall charge the church or religious
denomination an amount at least equal to the fair rental value of the
facilities or grounds.
(e) The governing board of a community college district may grant
the use of college facilities or grounds to any church or religious
organization for the conduct of religious services for temporary
periods where the church or organization has no suitable meeting
place for the conduct of these services upon the terms and conditions
as the board deems proper, and subject to the limitations,
requirements, and restrictions set forth in this article. The
governing board shall charge the church or religious organization
using the property for the conduct of religious services a fee as
specified in subdivision (d).
(f) For entertainment or a meeting where an admission fee is
charged or a contribution is solicited and the net receipts of the
admission fees or contributions are not expended for the welfare of
the students of the district or for charitable purposes, a charge
shall be made for the use of the college facilities, property, and
grounds, which charge shall not be less than the fair rental value
for the use of the college facilities, property, and grounds, as
determined by the governing board of the district.
(g) The governing board may permit the use, without charge, by
organizations, clubs, or associations organized for senior citizens
and for cultural activities and general character building or welfare
purposes, when membership dues or contributions solely for the
support of the organization, club, or association, or the advancement
of its cultural, character building
building, or welfare work, are accepted.
(h) The governing board of a community college district may grant
the use of college facilities, grounds, and equipment to public
agencies, including the American Red Cross, for mass care and welfare
shelters during disasters or other emergencies affecting the public
health and welfare, and may cooperate with these agencies in
furnishing and maintaining services deemed by the governing board to
be necessary to meet the needs of the community.
(i) This section is operative on and after January 1, 2020.
SEC. 128. The heading of Article 1 (commencing with Section 84300)
of Chapter 3 of Part 50 of Division 7 of Title 3 of the Education
Code is repealed.
Article 1. Maintenance, Disbursements and Sources
SEC. 129. The heading of Article 2 (commencing with Section 85210)
of Chapter 8 of Part 50 of Division 7 of Title 3 of the Education
Code is repealed.
Article 2. Appropriation of Excess Income
SEC. 130. Section 87782 of the Education Code is amended to read:
87782. (a) An academic employee of a community college district
who has been an employee of that district for a period of one school
year or more shall have transferred with him or her to a second
district the total amount of leave of absence for illness or injury
to which he or she is entitled under Section 87781 in any of the
following circumstances:
(1) The person accepts an academic position in a school district
or community college district at any time during the second or any
succeeding school year of his or her employment with the first
district.
(2) The person, within the three school years succeeding the
school year in which the employment in the first district is
terminated, signifies acceptance of his or her election or employment
in an academic position in another district.
(3) The person, prior to the expiration of a period greater than
three years during which the employee's reemployment rights are in
effect under a local bargaining agreement in the first district,
signifies acceptance of his or her election or employment in an
academic position in another district.
(b) The board of governors shall adopt rules and regulations
prescribing the manner in which the first district shall certify to
the second district the
total amount of leave of absence for illness or injury to be
transferred. No governing board shall adopt any policy or rule,
written or unwritten, which that
requires any employee transferring to its district to waive any part
or all of the leave of absence which that
he or she may be entitled to have transferred in accordance
with this section.
SEC. 131. Section 87784.5 of the Education Code is amended to
read:
87784.5. (a) An academic employee may take up to 30 days of leave
in a school year, less than any days of leave
authorized pursuant to Sections 87781.5 and 87784, in either of the
following circumstances:
(1) A biological parent may use leave pursuant to this section
within the first year of his or her infant's birth.
(2) A nonbiological parent may use leave pursuant to this section
within the first year of legally adopting a child.
(b) If the provisions of this section are in conflict with the
terms of a collective bargaining agreement in effect before January
1, 2015, the provisions of this section shall
do not apply to the public employer and public employees
subject to that agreement until the expiration or renewal of the
agreement.
SEC. 132. Section 88207.5 of the Education Code is amended to
read:
88207.5. (a) A contract or regular employee may use up to 30 days
of leave in a school year, less than any days of
leave authorized pursuant to Section 88207, in either of the
following circumstances:
(1) A biological parent may use leave pursuant to this section
within the first year of his or her infant's birth.
(2) A nonbiological parent may use leave pursuant to this section
within the first year of legally adopting a child.
(b) If the provisions of this section are in conflict with the
terms of a collective bargaining agreement in effect before January
1, 2015, the provisions of this section shall
do not apply to the public employer and public employees
subject to that agreement until the expiration or renewal of the
agreement.
SEC. 133. Section 89005 of the Education Code is amended to read:
89005. All references in any law or regulation
to the "California State Colleges," to the "California State
University and Colleges," or to "state colleges" shall be deemed to
refer to the California State University and to the system of
institutions of higher education which that
comprises the California State Univerity
University as authorized in Section 89001. The term "campus"
shall mean any of the institutions included within the California
State University specified in Section 89001.
SEC. 134. Section 89295 of the Education Code is amended to read:
89295. (a) For purposes of this section, the following terms are
defined as follows:
(1) The "four-year graduation rate" means the percentage of a
cohort of undergraduate students who entered the university as
freshmen at any campus and graduated from any campus within four
years.
(2) The "six-year graduation rate" means the percentage of a
cohort of undergraduate students who entered the university as
freshmen at any campus and graduated from any campus within six
years.
(3) The "two-year transfer graduation rate" means the percentage
of a cohort of undergraduate students who entered the university at
any campus as junior-level transfer students from the California
Community Colleges and graduated from any campus within two years.
(4) The "three-year transfer graduation rate" means the percentage
of a cohort of undergraduate students who entered the university
at any campus as junior-level transfer students from the
California Community Colleges at any campus and
graduated from any campus within three years.
(5) The "four-year transfer graduation rate" means the percentage
of a cohort of undergraduate students who entered the university
at any campus as junior-level transfer students from the
California Community Colleges at any campus and
graduated from any campus within four years.
(6) "Low-income student" means an undergraduate student who has an
expected family contribution, as defined in subdivision (g) of
Section 69432.7, at any time during the student's matriculation at
the institution that would qualify the student to receive a federal
Pell Grant. The calculation of a student's expected family
contribution shall be based on the Free Application for Federal
Student Aid (FAFSA) application or an application determined by the
California Student Aid Commission to be equivalent
to the FAFSA application submitted by that applicant.
(b) Commencing with the 2013-14 academic year, the California
State University shall report, by March 15 of each year, on the
following performance measures for the preceding academic year, to
inform budget and policy decisions and promote the effective and
efficient use of available resources:
(1) The number of California Community College transfer students
enrolled and the percentage of California Community College transfer
students as a proportion of the total number of undergraduate
students enrolled.
(2) The number of new California Community College transfer
students enrolled and the percentage of new California Community
College transfer students as a proportion of the total number of new
undergraduate students enrolled.
(3) The number of low-income students enrolled and the percentage
of low-income students as a proportion of the total number of
undergraduate students enrolled.
(4) The number of new low-income students enrolled and the
percentage of new low-income students as a proportion of
the total number of new undergraduate students enrolled.
(5) The four-year graduation rate for students who entered the
university four years prior and, separately, for low-income students
in that cohort.
(6) The four-year and six-year graduation rates for students who
entered the university six years prior and, separately, for
low-income students in that cohort.
(7) The two-year transfer graduation rate for students who entered
the university two years prior and, separately, for low-income
students in that cohort.
(8) The two-year and three-year transfer graduation rates for
students who entered the university three years prior and,
separately, for low-income students in that cohort.
(9) The two-year, three-year, and four-year transfer graduation
rates for students who entered the university four years prior and,
separately, for low-income students in that cohort.
(10) The number of degree completions annually, in total and for
the following categories:
(A) Freshman entrants.
(B) California Community College transfer students.
(C) Graduate students.
(D) Low-income students.
(11) The percentage of freshman entrants who have earned
sufficient course credits by the end of their first year of
enrollment to indicate that they will graduate within four years.
(12) The percentage of California Community College transfer
students who have earned sufficient course credits by the end of
their first year of enrollment to indicate that they will graduate
within two years.
(13) For all students, the total amount of funds received from all
sources identified in subdivision (c) of Section 89290 for the year,
divided by the number of degrees awarded that same year.
(14) For undergraduate students, the total amount of funds
received from all sources identified in subdivision (c) of Section
89290 for the year expended for undergraduate education, divided by
the number of undergraduate degrees awarded that same year.
(15) The average number of California State University course
credits and the total course credits, including credits accrued at
other institutions, accumulated by all undergraduate students who
graduated, and separately for freshman entrants and California
Community College transfer students.
(16) (A) The number of degree completions in science, technology,
engineering, and mathematics (STEM) fields, in total, and separately
for undergraduate students, graduate students, and low-income
students.
(B) For purposes of subparagraph (A), "STEM fields" include, but
are not necessarily limited to, all of the following: computer and
information sciences, engineering and engineering technologies,
biological and biomedical sciences, mathematics and statistics,
physical sciences, and science technologies.
(c) It is the intent of the Legislature that the appropriate
policy and fiscal committees of the Legislature review these
performance measures in a collaborative process with the Department
of Finance, the Legislative Analyst's Office, individuals with
expertise in statewide accountability efforts, the University of
California, the California State University, and, for purposes of
data integrity and consistency, the California Community Colleges,
and consider any recommendations for their modification and
refinement. It is further the intent of the Legislature that any
modification or refinement of these measures be guided by the
legislative intent expressed in Section 66010.93.
SEC. 135. Section 89500.7 of the Education Code is amended to
read:
89500.7. (a) The trustees shall offer, on at least a semiannual
basis, to each of the university's filers, an orientation course on
the relevant ethics statutes and regulations that govern the official
conduct of university officials.
(b) As used in this section, "filer" means each member, officer,
or designated employee of the California State University, including
a trustee, who, because of his or her affiliation with the university
or any subdivision or campus thereof, is required to file a
Statement of Economic Interests in accordance with Chapter 7
(commencing with Section 87100) of Title 9 of the Government Code.
(c) The trustees shall maintain records indicating the specific
attendees, each attendee's job title, and dates of their attendance
for each orientation course offered pursuant to this section. These
records shall be maintained for a period of at least five years after
each course is offered. These records shall be public records
subject to inspection and copying in accordance with
subdivision (a) of Section 81008 of the Government Code and
any other public records disclosure laws that are applicable to the
university.
(d) Except as provided in subdivision (e), each filer shall attend
the orientation course established pursuant to subdivision (a) in
accordance with both of the following:
(1) For a person who, as of January 1, 2005, is a filer, as
defined in subdivision (b), not later than December 31, 2005, and
thereafter, at least once during each consecutive period of two
calendar years commencing on January 1, 2007.
(2) For a person who becomes a filer, as defined in subdivision
(b), after January 1, 2005, within six months after he or she becomes
a filer, and at least once during each consecutive period of two
calendar years commencing on January 1 of the first odd-numbered year
thereafter.
(e) The requirements of subdivision (d) shall
do not apply to a filer, as defined in subdivision (b),
who has taken an ethics orientation course through another state
agency or the Legislature within the periods set forth in paragraphs
(1) and (2) of subdivision (d) if, in the determination of the
trustees, that course covered substantially the same material as the
course the university would offer to the filer pursuant to this
section.
SEC. 136. Section 89770 of the Education Code is amended to read:
89770. (a) (1) The California State University may pledge, in
addition to any of its other revenues that the university chooses to
pledge, its annual General Fund support appropriation less the amount
of that appropriation required to fund general obligation bond
payments and State Public Works Board rental payments, to secure the
payment of debt obligations issued by the Trustees of the California
State University pursuant to the State University Revenue Bond Act of
1947 (Article 2 (commencing with Section 90010) of Chapter 8).
(2) To the extent the university pledges any part of its support
appropriation as a source of revenue securing any obligation, it
shall provide that this commitment of revenue is subject to annual
appropriation by the Legislature.
(3) The university may fund debt service for capital expenditures
defined in subdivision (b), and the costs or expenses incidental to
the issuance and sale of bonds to finance those costs, including, but
not limited to, capitalized interest on the bonds, from its General
Fund support appropriation pursuant to Sections 89772 and 89773.
(4) The state hereby covenants with the holders of the university'
s obligations, secured by the pledge of the university authorized by
this section, that so long as any of the obligations
referred to in this subdivision remain outstanding, the state will
not impair or restrict the ability of the university to pledge any
support appropriation or support appropriations that may be enacted
for the university. The university may include this covenant of the
state in the agreements or other documents underlying the university'
s obligations to this effect.
(b) For purposes of this section, "capital expenditures" means any
of the following:
(1) The costs to acquire real property to design, construct, or
equip academic facilities to address seismic and life safety needs,
enrollment growth, or modernization of out-of-date facilities, and
renewal or expansion of infrastructure to serve academic programs.
(2) The debt service amount associated with refunding, defeasing,
or retiring State Public Works Board lease revenue bonds.
(3) The costs to design, construct, or equip energy conservation
projects.
(4) The costs of deferred maintenance of academic facilities and
related infrastructure.
(c) Nothing in this This section
shall does not require the Legislature
to make an appropriation from the General Fund in any specific amount
to support the California State University.
(d) The ability to utilize its support appropriation as stated in
this section shall not be used as a justification for future
increases in student tuition, additional employee layoffs, or
reductions in employee compensation at the California State
University.
SEC. 137. Section 92611.7 of the Education Code is amended to
read:
92611.7. (a) The regents are urged to offer, on at least a
semiannual basis, to each of the university's filers, an orientation
course on the relevant ethics statutes and regulations that govern
the official conduct of university officials.
(b) As used in this section, "filer" means each member, officer,
or designated employee of the University of California, including a
regent, who, because of his or her affiliation with the university or
any subdivision or campus thereof, is required to file a statement
of economic interests in accordance with Chapter 7 (commencing with
Section 87100) of Title 9 of the Government Code.
(c) The regents shall maintain records indicating the specific
attendees, each attendee's job title, and dates of their attendance
for each orientation course offered pursuant to this section. These
records shall be maintained for a period of at least five years after
each course is offered. These records shall be public records
subject to inspection and copying in accordance with
subdivision (a) of Section 81008 of the Government Code and
any other public records disclosure laws that are applicable to the
university.
(d) Except as provided in subdivision (e), each filer shall attend
the orientation course established pursuant to subdivision (a) in
accordance with both of the following:
(1) For a person who, as of January 1, 2005, is a filer, as
defined in subdivision (b), not later than December 31, 2005, and
thereafter, at least once during each consecutive period of two
calendar years commencing on January 1, 2007.
(2) For a person who becomes a filer, as defined in subdivision
(b), after January 1, 2005, within six months after he or she becomes
a filer, and at least once during each consecutive period of two
calendar years commencing on January 1 of the first odd-numbered year
thereafter.
(e) The requirements of subdivision (d) shall
do not apply to a filer, as defined in subdivision (b),
who has taken an ethics orientation course through another state
agency or the Legislature within the periods set forth in paragraphs
(1) and (2) of subdivision (d) if, in the determination of the
regents, that course covered substantially the same material as the
course the university would offer to the filer pursuant to this
section.
SEC. 138. Section 92675 of the Education Code is amended to read:
92675. (a) For purposes of this section, the following terms are
defined as follows:
(1) The "four-year graduation rate" means the percentage of a
cohort of undergraduate students who entered the university as
freshmen at any campus and graduated from any campus within four
years.
(2) The "two-year transfer graduation rate" means the percentage
of a cohort of undergraduate students who entered the university at
any campus as junior-level transfer students from the California
Community Colleges and graduated from any campus within two years.
(3) "Low-income student" means an undergraduate student who has an
expected family contribution, as defined in subdivision (g) of
Section 69432.7, at any time during the student's matriculation at
the institution that would qualify the student to receive a federal
Pell Grant. The calculation of a student's expected family
contribution shall be based on the Free Application for Federal
Student Aid (FAFSA) application or an application determined by the
California Student Aid Commission to be equivalent
to the FAFSA application submitted by that applicant.
(b) Commencing with the 2013-14 academic year, the University of
California shall report, by March 15 of each year, on the following
performance measures for the preceding academic year, to inform
budget and policy decisions and promote the effective and efficient
use of available resources:
(1) The number of transfer students enrolled from the California
Community Colleges, and the percentage of California Community
College transfer students as a proportion of the total number of
undergraduate students enrolled.
(2) The number of new transfer students enrolled from the
California Community Colleges, and the percentage of new
California Community College transfer students as a proportion of the
total number of new undergraduate students enrolled.
(3) The number of low-income students enrolled and the percentage
of low-income students as a proportion of the total number of
undergraduate students enrolled.
(4) The number of new low-income students enrolled and the
percentage of new low-income students as a proportion of
the total number of new undergraduate students enrolled.
(5) The four-year graduation rate for students who entered the
university four years prior and, separately, for low-income students
in that cohort.
(6) The two-year transfer graduation rate for students who entered
the university two years prior and, separately, for low-income
students in that cohort.
(7) The number of degree completions, in total and for the
following categories:
(A) Freshman entrants.
(B) California Community College transfer students.
(C) Graduate students.
(D) Low-income students.
(8) The percentage of freshman entrants who have earned sufficient
course credits by the end of their first year of enrollment to
indicate they will graduate within four years.
(9) The percentage of California Community College transfer
students who have earned sufficient course credits by the end of
their first year of enrollment to indicate they will graduate within
two years.
(10) For all students, the total amount of funds received from all
sources identified in subdivision (c) of Section 92670 for the year,
divided by the number of degrees awarded that same year.
(11) For undergraduate students, the total amount of funds
received from the sources identified in subdivision (c) of Section
92670 for the year expended for undergraduate education, divided by
the number of undergraduate degrees awarded that same year.
(12) The average number of University of California course credits
and total course credits, including credit accrued at other
institutions, accumulated by all undergraduate students who
graduated, and separately for freshman entrants and California
Community College transfer students.
(13) (A) The number of degree completions in science, technology,
engineering, and mathematics (STEM) fields, in total, and separately
for undergraduate students, graduate students, and low-income
students.
(B) For purposes of subparagraph (A), "STEM fields" include, but
are not necessarily limited to, all of the following: computer and
information sciences, engineering and engineering technologies,
biological and biomedical sciences, mathematics and statistics,
physical sciences, and science technologies.
(c) It is the intent of the Legislature that the appropriate
policy and fiscal committees of the Legislature review these
performance measures in a collaborative process with the Department
of Finance, the Legislative Analyst's Office, individuals with
expertise in statewide accountability efforts, the University of
California, the California State University, and, for purposes of
data integrity and consistency, the California Community Colleges,
and consider any recommendations for their modification and
refinement. It is further the intent of the Legislature that any
modification or refinement of these measures be guided by the
legislative intent expressed in Section 66010.93.
SEC. 139. Section 94143 of the Education Code is amended to read:
94143. The authority is authorized from time to time to issue its
notes for any corporate purpose and renew from time to time any
notes by the issuance of new notes, whether the notes to be renewed
have or have not matured. The authority may issue notes partly to
renew notes or to discharge other obligations then outstanding and
partly for any other purpose. The notes may be authorized, sold,
executed executed, and delivered in the
same manner as bonds. A resolution or resolutions authorizing notes
of the authority or any issue of notes of the authority may contain
any provisions that the authority is authorized to include in a
resolution or resolutions authorizing bonds of the authority or any
issue of bonds of the authority, and the authority may include in the
notes any terms, covenants covenants,
or conditions that it is authorized to include in bonds. Notes issued
by the authority shall be payable from revenues of the authority or
other moneys available for payment of notes and not otherwise
pledged, subject only to any contractual rights of the holders of its
notes or other obligations then outstanding.
SEC. 140. Section 94145.5 of the Education Code is amended to
read:
94145.5. Any A provision that
the authority may include in a trust agreement of
or resolution providing for the issuance of bonds pursuant
to this chapter may also be included in a bond and the
provision shall have the same effect.
SEC. 141. Section 94880 of the Education Code is amended to read:
94880. (a) There is within the bureau a 14-member advisory
committee. On or before July 1, 2015, the members of the committee
shall be appointed as follows:
(1) Three members, who shall have a demonstrated record of
advocacy on behalf of consumers, of which the director, the Senate
Committee on Rules, and the Speaker of the Assembly shall each
appoint one member.
(2) Two members, who shall be current or past students of
institutions, appointed by the director.
(3) Three members, who shall be representatives of institutions,
appointed by the director.
(4) Two members, which who shall be
employers that who hire students,
appointed by the director.
(5) One public member appointed by the Senate Committee on Rules.
(6) One public member appointed by the Speaker of the Assembly.
(7) Two nonvoting, ex officio members as follows:
(A) The chair of the policy committee of the Assembly with
jurisdiction over legislation relating to the bureau or designee
appointed by the Speaker of the Assembly.
(B) The chair of the policy committee of the Senate with
jurisdiction over legislation relating to the bureau or designee
appointed by the Senate Committee on Rules.
(b) (1) A public member shall not, either at the time of his or
her appointment or during his or her tenure in office, have any
financial interest in any organization currently or previously
subject to regulation by the bureau, be a close family member of an
employee, officer, or the director of any institution subject to
regulation by the bureau, or currently have, or previously have had,
a business relationship, in the five years preceding his or her
appointment, with any institution subject to regulation by the
bureau.
(2) A public member shall not, within the five years immediately
preceding his or her appointment, have engaged in pursuits on behalf
of an institution or institutional accreditor or have provided
representation to the postsecondary educational industry or a
profession regulated by the bureau, if he or she is employed in the
industry or a member of the profession, respectively, and he or she
shall not engage in those pursuits or provide that representation
during his or her term of office.
(c) The advisory committee shall examine the oversight functions
and operational policies of the bureau and advise the bureau with
respect to matters relating to private postsecondary education and
the administration of this chapter, including annually reviewing the
fee schedule and the equity of the schedule relative to the way
institutions are structured, and the licensing and enforcement
provisions of this chapter. The advisory committee shall make
recommendations with respect to policies, practices, and regulations
relating to private postsecondary education, and shall provide any
assistance as may be requested by the bureau.
(d) The bureau shall actively seek input from, and consult with,
the advisory committee regarding the development of regulations to
implement this chapter prior to the adoption, amendment, or repeal of
its regulations, and provide the advisory committee with sufficient
time to review and comment on those regulations. The bureau shall
take into consideration and respond to all feedback provided by
members of the advisory committee.
(e) The bureau
chief shall attend all advisory committee meetings and shall
designate staff to provide ongoing administrative support to the
advisory committee.
(f) Until January 1, 2017, the director shall personally attend,
and testify and answer questions at, each meeting of the advisory
committee.
(g) The advisory committee shall have the same access to records
within the Department of Consumer Affairs related to the operation
and administration of this chapter as do members of constituent
boards of the department in regard to records related to their
functions.
(h) Advisory committee meetings shall be subject to the
Bagley-Keene Open Meeting Act. Act (Article 9
(commencing with Section 11120) of Chapter 1 of Part 1 of Division 3
of Title 2 of the Government Code). Advisory committee meeting
materials shall be posted on the Internet.
(i) The advisory committee shall meet at least quarterly and shall
appoint a member of the committee to represent the committee for
purposes of communicating with the Legislature.
(j) The Department of Consumer Affairs shall review, and revise if
necessary, the department's conflicts of interest regulations to
ensure that each advisory committee member is required to disclose
conflicts of interest to the public.
SEC. 142. Section 2150 of the Elections Code, as amended by
Section 3 of Chapter 619 of the Statutes of 2014, is amended to read:
2150. (a) The affidavit of registration shall show:
(1) The facts necessary to establish the affiant as an elector.
(2) The affiant's name at length, including his or her given name,
and a middle name or initial, or if the initial of the given name is
customarily used, then the initial and middle name. The affiant's
given name may be preceded, at affiant's option, by the designation
of Miss, Ms., Mrs., or Mr. A person shall not be denied the right to
register because of his or her failure to mark a prefix to the given
name and shall be so advised on the voter registration card. This
subdivision shall not be construed as requiring the printing of
prefixes on an affidavit of registration.
(3) The affiant's place of residence, residence telephone number,
if furnished, and e-mail email address,
if furnished. A person shall not be denied the right to register
because of his or her failure to furnish a telephone number or
e-mail email address, and shall be so
advised on the voter registration card.
(4) The affiant's mailing address, if different from the place of
residence.
(5) The affiant's date of birth to establish that he or she will
be at least 18 years of age on or before the date of the next
election. In the case of an affidavit of registration submitted
pursuant to subdivision (d) of Section 2102, the affiant's date of
birth to establish that he or she is at least 16 years of age.
(6) The state or country of the affiant's birth.
(7) (A) In the case of an applicant who has been issued a current
and valid driver's license, the applicant's driver's license number.
(B) In the case of any other applicant, other than an applicant to
whom subparagraph (C) applies, the last four digits of the applicant'
s social security number.
(C) If an applicant for voter registration has not been issued a
current and valid driver's license or a social security number, the
state shall assign the applicant a number that will serve to identify
the applicant for voter registration purposes. To the extent that
the state has a computerized list in effect under this subdivision
and the list assigns unique identifying numbers to registrants, the
number assigned under this subparagraph shall be the unique
identifying number assigned under the list.
(8) The affiant's political party preference.
(9) That the affiant is currently not imprisoned or on parole for
the conviction of a felony.
(10) A prior registration portion indicating whether the affiant
has been registered at another address, under another name, or as
preferring another party. If the affiant has been so registered, he
or she shall give an additional statement giving that address, name,
or party.
(b) The affiant shall certify the content of the affidavit as to
its truth and correctness, under penalty of perjury, with the
signature of his or her name and the date of signing. If the affiant
is unable to write he or she shall sign with a mark or cross.
(c) The affidavit of registration shall also contain a space that
would enable the affiant to state his or her ethnicity or race, or
both. An affiant shall not be denied the ability to register because
he or she declines to state his or her ethnicity or race.
(d) If a person, including a deputy registrar, assists the affiant
in completing the affidavit, that person shall sign and date the
affidavit below the signature of the affiant.
(e) The affidavit of registration shall also contain a space to
permit the affiant to apply for permanent vote by mail status.
(f) The Secretary of State may continue to supply existing
affidavits of registration to county elections officials
prior to before printing new or revised forms
that reflect the changes made to this section by the act that added
this subdivision.
SEC. 143. Section 2157 of the Elections Code is amended to read:
2157. (a) Subject to this chapter, the paper affidavit of
registration shall be in a form prescribed by regulations adopted by
the Secretary of State. The affidavit shall comply with all of the
following:
(1) Contain the information prescribed in Section 2150.
(2) Be sufficiently uniform among the separate counties to allow
for the processing and use by one county of an affidavit completed in
another county.
(3) Allow for the inclusion of informational language to meet the
specific needs of that county, including, but not limited to, the
return address of the elections official in that county, and a
telephone number at which a voter can obtain elections information in
that county.
(4) Be included on one portion of a multipart card, to be known as
a voter registration card, the other portions of which shall include
information sufficient to facilitate completion and mailing of the
affidavit. The affidavit portion of the multipart card shall be
numbered according to regulations adopted by the Secretary of State.
For purposes of facilitating the distribution of voter registration
cards as provided in Section 2158, there shall be attached to the
affidavit portion a receipt. The receipt shall be separated from the
body of the affidavit by a perforated line.
(5) Contain, in a type size and color of ink that is clearly
distinguishable from surrounding text, a statement identical or
substantially similar to the following:
"Certain voters facing life-threatening situations may qualify for
confidential voter status. For more information, please contact the
Secretary of State's Safe At at Home
program or visit the Secretary of State's Web site."
(6) Contain, in a type size and color of ink that is clearly
distinguishable from surrounding text, a statement that the use of
voter registration information for commercial purposes is a
misdemeanor pursuant to subdivision (a) of Section 2194 and Section
18109, and any suspected misuse shall be reported to the Secretary of
State.
(7) Contain a toll-free fraud hotline telephone number maintained
by the Secretary of State that the public may use to report suspected
fraudulent activity concerning misuse of voter registration
information.
(8) Be returnable to the county elections official as a
self-enclosed mailer with postage prepaid by the Secretary of State.
(b) Nothing contained in this This
division shall does not prevent the use
of voter registration cards and affidavits of registration in
existence on the effective date of this section and produced pursuant
to regulations of the Secretary of State, and all references to
voter registration cards and affidavits in this division shall be
applied to the existing voter registration cards and affidavits of
registration.
(c) The Secretary of State may continue to supply existing
affidavits of registration prior to before
printing new or revised forms that reflect the changes required
pursuant to this section, Section 2150, or Section 2160.
(d) An affidavit of registration shall not be submitted
electronically on a county's Internet Web site. However, a county may
provide a hyperlink on the county's Internet Web site to the
Secretary of State's electronic voter registration system.
SEC. 144. Section 8040 of the Elections Code is amended to read:
8040. (a) The declaration of candidacy by a candidate shall be
substantially as follows:
DECLARATION OF CANDIDACY
I hereby declare myself a candidate for
nomination to the office of ________ District
Number ________ to be voted for at the primary
election to be held ________, 20__, and declare
the following to be true:
My name is ___________________________________.
I want my name and occupational designation to
appear on the ballot as follows:
______________________________________.
Addresses:
Residence ______________________________________
_________________________________________
Business ______________________________________
__________________________________________
Mailing ______________________________________
__________________________________________
Telephone numbers: Day _________ Evening
_________
Web site:
_______________________________________
I meet the statutory and constitutional
qualifications for this office (including, but
not limited to, citizenship, residency, and
party preference, if required).
I am at present an incumbent of the following
public office
(if any) __________.
If nominated, I will accept the nomination and
not withdraw.
____________________________________
Signature of candidate
A candidate for voter-nominated office shall also
complete all of the following:
(1) I hereby certify that:
(a) At the time of presentation of this
declaration, as shown by my current affidavit of
registration, I have disclosed the following
political party preference, if any: _____________.
(b) My complete voter registration and
party affiliation/preference history, from (10
years prior to current year) through the date of
signing this document, is as follows:
Party Registration County Timeframe (by year)
__________________ _________ _____________________
__________________ _________ _____________________
__________________ _________ _____________________
(2) Pursuant to Section 8002.5 of the Elections
Code, select one of the following:
______ Party Preference: _____________________
(insert the name of the qualified political party
as disclosed upon your affidavit of registration).
______ Party Preference: None (if you have
declined to disclose a preference for a qualified
political party upon your affidavit of
registration).
Dated this ___ day
of _____, 20___.
_____________________
Signature of
candidate
State of California )
County of ______________ ) ss.
)
Subscribed and sworn to before me this ___ day
of ________, 20____.
__________________________________________
Notary Public (or other official)
Examined and certified by me this ________ day
of ________, 20____.
______________________________________
County Elections Official
WARNING: Every person acting on behalf of a
candidate is guilty of a misdemeanor who
deliberately fails to file at the proper time
and in the proper place any declaration
of candidacy in his or her possession which is
entitled to be filed under the provisions of
the Elections Code Section 18202.
(b) At the discretion of the elections official,a
official, a candidate for a judicial office, or
a candidate for any office whose voter registration information is
confidential under Section 2166, 2166.5, or 2166.7, may withhold his
or her residence address from the declaration of candidacy. If a
candidate does not state his or her residence address on the
declaration of candidacy, the elections official shall verify
whether if the candidate's address is
within the appropriate political subdivision and add the notation
"verified" where appropriate on the declaration.
SEC. 145. Section 3201 of the Family Code, as added by Section 2
of Chapter 1004 of the Statutes of 1999, is amended and renumbered to
read:
3201. 3201.5. (a) The programs
described in this chapter shall be administered by the family law
division of the superior court in the county.
(b) For purposes of this chapter, "education about protecting
children during family disruption" includes education on parenting
skills and the impact of parental conflict on children, how to put a
parenting agreement into effect, and the responsibility of both
parents to comply with custody and visitation orders.
SEC. 146. Section 3690 of the Family Code, as added by Section 6
of Chapter 653 of the Statutes of 1999, is repealed.
3690. (a) The court may, on any terms that may be just, relieve a
party from a support order, or any part or parts thereof, after the
six-month time limit of Section 473 of the Code of Civil Procedure
has run, based on the grounds, and within the time limits, provided
in this article.
(b) In all proceedings under this division, before granting
relief, the court shall find that the facts alleged as the grounds
for relief materially affected the original order and that the moving
party would materially benefit from the granting of the relief.
(c) Nothing in this article shall limit or modify the provisions
of Section 11356 or 11356.2 of the Welfare and Institutions Code.
(d) This section shall not be operative if Assembly Bill 196, of
the 1999-2000 Regular Session, is enacted and becomes operative.
SEC. 147. The heading of Article 3 (commencing with Section 3780)
of Chapter 7 of Part 1 of Division 9 of the Family Code is repealed.
Article 3. Assignment of Reimbursement Rights Under Health
Plan
SEC. 148. Section 4051 of the Family Code is repealed.
4051. This article takes effect on July 1, 1992.
SEC. 149. Section 6203 of the Family Code is amended to read:
6203. (a) For purposes of this act, "abuse" means any of the
following:
(1) Intentionally To intentionally
or recklessly to cause or attempt to cause bodily
injury.
(2) Sexual assault.
(3) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another.
(4) To engage in any behavior that has been or could be enjoined
pursuant to Section 6320.
(b) Abuse is not limited to the actual infliction of physical
injury or assault.
SEC. 150. Section 6301 of the Family Code is amended to read:
6301. (a) An order under this part may be granted to any person
described in Section 6211, including a minor pursuant to subdivision
(b) of Section 372 of the Code of Civil Procedure.
(b) The right to petition for relief shall not be denied because
the petitioner has vacated the household to avoid abuse, and in the
case of a marital relationship, notwithstanding that a petition for
dissolution of marriage, for nullity of marriage, or for legal
separation of the parties has not been filed.
(c) The length of time since the most recent act of abuse is not,
by itself, determinative. The court shall consider the totality of
the circumstances in determining whether to grant or deny
a petition for relief will be granted or denied .
SEC. 151. Section 7613.5 of the Family Code is amended to read:
7613.5. (a) An intended parent may, but is not required to, use
the forms set forth in this section to demonstrate his or her intent
to be a legal parent of a child conceived through assisted
reproduction. These forms shall satisfy the writing requirement
specified in Section 7613, and are designed to provide clarity
regarding the intentions, at the time of conception, of intended
parents using assisted reproduction. These forms do not affect any
presumptions of parentage based on Section 7611, and do not preclude
a court from considering any other claims to parentage under
California statute or case law.
(b) These forms apply only in very limited circumstances. Please
read the forms carefully to see if you qualify for use of the forms.
(c) These forms do not apply to assisted reproduction agreements
for gestational carriers or surrogacy agreements.
(d) Nothing in this This section
shall not be interpreted to require the use of one of
these forms to satisfy the writing requirement of Section 7613.
(e) The following are the optional California Statutory Forms for
Assisted Reproduction:
California Statutory Forms for Assisted
Reproduction, Form 1:
Married Spouses or Registered Domestic Partners
Using Assisted Reproduction to Conceive a Child
Use this form if: (1) You and the other person
are married spouses or registered domestic
partners (including registered domestic
partners or civil union partners from another
jurisdiction); (2) you and the other person are
conceiving a child through assisted
reproduction using sperm and/or egg donation;
and (3) one of you will be giving birth.
WARNING: Signing this form does not terminate
the parentage claim of a sperm donor. A sperm
donor's claim to parentage is terminated
if the sperm is provided to a licensed
physician or surgeon or to a licensed sperm
bank prior to insemination as required by
Section 7613(b) of the Family Code.
The laws about parentage of a child are
complicated. You are strongly encouraged to
consult with an attorney about your rights.
Even if you do not fill out this form, a spouse
or domestic partner of the parent giving birth
is presumed to be a legal parent of any child
born during the marriage or domestic
partnership.
_______________________________________________
This form demonstrates your intent to be
parents of the child you plan to conceive
through assisted reproduction using sperm
and/or egg donation.
I, ____________________ (print name of
spouse/partner), am married to, or in a
registered domestic partnership (including a
registered domestic partnership or civil union
from another jurisdiction) with, a person who
will give birth to a child we plan to conceive
through assisted reproduction using sperm
and/or egg donation. I consent to the use of
assisted reproduction by my spouse/domestic
partner to conceive a child. I INTEND to be a
parent of the child conceived.
SIGNATURES
Intended parent who will give birth:
___________________ (print name)
________________________ (signature)
____________(date)
Intended parent spouse or registered domestic
partner: ____________ (print name)
_________________________ (signature)
___________(date)
_______________________________________________
NOTARY ACKNOWLEDGMENT
State of California
County of )
On ____ before me, _____________________________
(insert name and title of the
________
officer)
personally appeared ___________________________,
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity,
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_______________________________ (Seal)
_______________________________________________
California Statutory Forms for Assisted
Reproduction, Form 2:
Unmarried, Intended Parents Using Intended
Parent's Sperm to Conceive a Child
Use this form if: (1) Neither you or the other
person are married or in a registered domestic
partnership (including a registered domestic
partnership or civil union from another state);
(2) one of you will give birth to a child
conceived through assisted reproduction using
the intended parent's sperm; and (3) you both
intend to be parents of that child.
Do not use this form if you are conceiving
using a surrogate.
WARNING: If you do not sign this form, you may
be treated as a sperm donor if your sperm is
provided to a licensed physician or surgeon or
to a licensed sperm bank prior to insemination
according to Section 7613(b) of the Family Code.
The laws about parentage of a child are
complicated. You are strongly encouraged to
consult with an attorney about your rights.
_______________________________________________
This form demonstrates your intent to be
parents of the child you plan to conceive
through assisted reproduction using sperm
donation.
I, ____________________ (print name of parent
giving birth), plan to use assisted
reproduction with another intended parent who
is providing sperm to conceive the child. I am
not married and am not in a registered domestic
partnership (including a registered domestic
partnership or civil union from another
jurisdiction), and I INTEND for the person
providing sperm to be a parent of the child to
be conceived.
I, ____________________ (print name of parent
providing sperm), plan to use assisted
reproduction to conceive a child using my sperm
with the parent giving birth. I am not married
and am not in a registered domestic partnership
(including a registered domestic partnership or
civil union from another jurisdiction), and I
INTEND to be a parent of the child to be
conceived.
SIGNATURES
Intended parent giving birth:
___________________ (print name)
________________________ (signature)
____________(date)
Intended parent providing sperm: ____________
(print name)
_________________________ (signature)
___________(date)
_______________________________________________
NOTARY ACKNOWLEDGMENT
State of California
County of )
On ____ before me, _____________________________
(insert name and title of the
________
officer)
personally appeared ___________________________,
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity,
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_______________________________ (Seal)
_______________________________________________
California Statutory Forms for Assisted
Reproduction, Form 3:
Intended Parents Conceiving a Child Using Eggs
from One Parent and the Other Parent Will Give
Birth
Use this form if: You are conceiving a child
using the eggs from one of you and the other
person will give birth to the child; (2) and
you both intend to be parents to that child.
Do not use this form if you are conceiving
using a surrogate.
WARNING: Signing this form does not terminate
the parentage claim of a sperm donor. A sperm
donor's claim to parentage is terminated if the
sperm is provided to a licensed physician or
surgeon or to a licensed sperm bank prior to
insemination as required by Section 7613(b) of
the Family Code.
The laws about parentage of a child are
complicated. You are strongly encouraged to
consult with an attorney about your rights.
_______________________________________________
This form demonstrates your intent to be
parents of the child you plan to conceive
through assisted reproduction using eggs from
one parent and the other parent will give birth
to the child.
I, ____________________ (print name of parent
giving birth), plan to use assisted
reproduction to conceive and give birth to a
child with another person who will provide eggs
to conceive the child. I INTEND for the person
providing eggs to be a parent of the child to
be conceived.
I, ____________________ (print name of parent
providing eggs), plan to use assisted
reproduction to conceive a child with another
person who will give birth to the child
conceived using my eggs. I INTEND to be a
parent of the child to be conceived.
SIGNATURES
Intended parent giving birth:
___________________ (print name)
________________________ (signature)
____________(date)
Intended parent providing eggs: ____________
(print name)
_________________________ (signature)
___________(date)
_______________________________________________
NOTARY ACKNOWLEDGMENT
State of California
County of )
On ____ before me, _____________________________
(insert name and title of the
________
officer)
personally appeared ___________________________,
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity,
and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_______________________________ (Seal)
SEC. 152. Section 8712 of the Family Code is amended to read:
8712. (a) The department, county adoption agency, or licensed
adoption agency shall require each person who files an application
for adoption to be fingerprinted and shall secure from an appropriate
law enforcement agency any criminal record of that person to
determine whether the person has ever been convicted of a crime other
than a minor traffic violation. The department, county adoption
agency, or licensed adoption agency may also secure the person's full
criminal record, if any, with the exception of any
convictions for which relief has
been granted pursuant to Section 1203.49 of the Penal Code. Any
federal-level criminal offender record requests to the Department of
Justice shall be submitted with fingerprint images and related
information required by the Department of Justice for the purposes of
obtaining information as to the existence and content of a record of
an out-of-state or federal conviction or arrest of a person or
information regarding any out-of-state or federal crimes or arrests
for which the Department of Justice establishes that the person is
free on bail, or on his or her own recognizance pending trial or
appeal. The Department of Justice shall forward to the Federal Bureau
of Investigation any requests for federal summary criminal history
information received pursuant to this section. The Department of
Justice shall review the information returned from the Federal Bureau
of Investigation and shall compile and disseminate a response to the
department, county adoption agency, or licensed adoption agency.
(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be included
in the report to the court.
(c) (1) Under no circumstances shall the
The department, county adoption agency, or licensed adoption
agency shall not give final approval for an adoptive
placement in any home where in which
the prospective adoptive parent or any adult living in the
prospective adoptive home has either of the following:
(A) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subdivision, crimes involving violence means those violent
crimes contained in clause (i) of subparagraph (A), and subparagraph
(B), of paragraph (1) of subdivision (g) of Section 1522 of the
Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.
(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. Sec. 670 and following). et seq.).
(d) Any fee charged by a law enforcement agency for fingerprinting
or for checking or obtaining the criminal record of the applicant
shall be paid by the applicant. The department, county adoption
agency, or licensed adoption agency may defer, waive, or reduce the
fee when its payment would cause economic hardship to prospective
adoptive parents detrimental to the welfare of the adopted child,
when the child has been in the foster care of the prospective
adoptive parents for at least one year, or if necessary for the
placement of a special-needs child.
SEC. 153. Section 8811 of the Family Code is amended to read:
8811. (a) The department or delegated county adoption agency
shall require each person who files an adoption petition to be
fingerprinted and shall secure from an appropriate law enforcement
agency any criminal record of that person to determine whether the
person has ever been convicted of a crime other than a minor traffic
violation. The department or delegated county adoption agency may
also secure the person's full criminal record, if any, with the
exception of any convictions for which relief has been granted
pursuant to Section 1203.49 of the Penal Code. Any federal-level
criminal offender record requests to the Department of Justice shall
be submitted with fingerprint images and related information required
by the Department of Justice for the purposes of obtaining
information as to the existence and content of a record of an
out-of-state or federal conviction or arrest of a person or
information regarding any out-of-state or federal crimes or arrests
for which the Department of Justice establishes that the person is
free on bail, or on his or her own recognizance pending trial or
appeal. The Department of Justice shall forward to the Federal Bureau
of Investigation any requests for federal summary criminal history
information received pursuant to this section. The Department of
Justice shall review the information returned from the Federal Bureau
of Investigation and shall compile and disseminate a response to the
department or delegated county adoption agency.
(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be included
in the report to the court.
(c) (1) Under no circumstances shall the
The department or a delegated county adoption agency shall
not give final approval for an adoptive placement in any home
where in which the prospective adoptive
parent or any adult living in the prospective adoptive home has
either of the following:
(A) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subdivision, crimes involving violence means those violent
crimes contained in clause (i) of subparagraph (A), and subparagraph
(B), of paragraph (1) of subdivision (g) of Section 1522 of the
Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.
(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. 670 and following). et seq.).
(d) Any fee charged by a law enforcement agency for fingerprinting
or for checking or obtaining the criminal record of the petitioner
shall be paid by the petitioner. The department or delegated county
adoption agency may defer, waive, or reduce the fee when its payment
would cause economic hardship to the prospective adoptive parents
detrimental to the welfare of the adopted child, when the child has
been in the foster care of the prospective adoptive parents for at
least one year, or if necessary for the placement of a special-needs
child.
SEC. 154. Section 8908 of the Family Code is amended to read:
8908. (a) A licensed adoption agency shall require each person
filing an application for adoption to be fingerprinted and shall
secure from an appropriate law enforcement agency any criminal record
of that person to determine whether the person has ever been
convicted of a crime other than a minor traffic violation. The
licensed adoption agency may also secure the person's full criminal
record, if any, with the exception of any convictions for which
relief has been granted pursuant to Section 1203.49 of the Penal
Code. Any federal-level criminal offender record requests to the
Department of Justice shall be submitted with fingerprint images and
related information required by the Department of Justice for the
purposes of obtaining information as to the existence and content of
a record of an out-of-state or federal conviction or arrest of a
person or information regarding any out-of-state or federal crimes or
arrests for which the Department of Justice establishes that the
person is free on bail, or on his or her own recognizance pending
trial or appeal. The Department of Justice shall forward to the
Federal Bureau of Investigation any requests for federal summary
criminal history information received pursuant to this section. The
Department of Justice shall review the information returned from the
Federal Bureau of Investigation and shall compile and disseminate a
fitness determination to the licensed adoption agency.
(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be included
in the report to the court.
(c) (1) Under no circumstances shall a A
licensed adoption agency shall not give final
approval for an adoptive placement in any home where
in which the prospective adoptive parent, or any
adult living in the prospective adoptive home, has a felony
conviction for either of the following:
(A) Any felony conviction for child abuse or neglect, spousal
abuse, crimes against a child, including child pornography, or for a
crime involving violence, including rape, sexual assault, or
homicide, but not including other physical assault and battery. For
purposes of this subdivision, crimes involving violence means those
violent crimes contained in clause (i) of subparagraph (A), and
subparagraph (B), of paragraph (1) of subdivision (g) of Section 1522
of the Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.
(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. 670 and following). et seq.).
(d) Any fee charged by a law enforcement agency for fingerprinting
or for checking or obtaining the criminal record of the applicant
shall be paid by the applicant. The licensed adoption agency may
defer, waive, or reduce the fee when its payment would cause economic
hardship to the prospective adoptive parents detrimental to the
welfare of the adopted child.
SEC. 155. Section 12201 of the Financial Code is amended to read:
12201. (a) An application for a license shall be in writing,
under oath, and in a form prescribed by the commissioner and shall
contain the name, and the address both of the residence and place of
business, of the applicant and if the applicant is a partnership or
association, of every member thereof, and if a corporation, of every
officer and director thereof.
(b) Notwithstanding any other law, the commissioner may by rule or
order prescribe circumstances under which to accept electronic
records or electronic signatures. This section shall
does not require the commissioner to accept
electronic records or electronic signatures.
(c) For purposes of this section, the following terms have the
following meanings:
(1) "Electronic record" means an initial license application, or
material modification of that license application, and any other
record created, generated, sent, communicated, received, or stored by
electronic means. "Electronic record" also includes, but is not
limited to, all of the following:
(A) An application, amendment, supplement, and exhibit, filed for
any license, consent, or other authority.
(B) A financial statement, reports, report,
or advertising.
(C) An order, license, consent, or other authority.
(D) A notice of public hearing, accusation, and statement of
issues in connection with any application, license, consent, or other
authority.
(E) A proposed decision of a hearing officer and a decision of the
commissioner.
(F) The transcripts of a hearing.
(G) A release, newsletter, interpretive opinion, determination, or
specific ruling.
(H) Correspondence between a party and the commissioner directly
relating to any document listed in subparagraphs (A) to (G),
inclusive.
(2) "Electronic signature" means an electronic sound, symbol, or
process attached to or logically associated with an electronic record
and executed or adopted by a person with the intent to sign the
electronic record.
(d) The Legislature finds and declares that the Department of
Business Oversight has continuously implemented methods to accept
records filed electronically, and is encouraged to continue to expand
its use of electronic filings to the extent feasible, as budget,
resources, and equipment are made available to accomplish that goal.
SEC. 156. Section 17201 of the Financial Code is amended to read:
17201. (a) An application for a license as an escrow agent shall
be in writing and in such form as is prescribed by the commissioner.
The application shall be verified by the oath of the applicant.
(b) Notwithstanding any other law, the commissioner may by rule or
order prescribe circumstances under which to accept electronic
records or electronic signatures. This section shall
does not require the commissioner to accept
electronic records or electronic signatures.
(c) For purposes of this section, the following terms have the
following meanings:
(1) "Electronic record" means an initial license application, or
material modification of that license application, and any other
record created, generated, sent, communicated, received, or stored by
electronic means. "Electronic records" also includes, but is not
limited to, all of the following:
(A) An application, amendment, supplement, and exhibit, filed for
any order, license, consent, or other authority.
(B) A financial statement, reports,
report, or advertising.
(C) An order, license, consent, or other authority.
(D) A notice of public hearing, accusation, and statement of
issues in connection with any application, registration, order,
license, consent, or other authority.
(E) A proposed decision of a hearing officer and a decision of the
commissioner.
(F) The transcripts of a hearing and correspondence between a
party and the commissioner directly relating to the record.
(G) A release, newsletter, interpretive opinion, determination, or
specific ruling.
(H) Correspondence between a party and the commissioner directly
relating to any document listed in subparagraphs (A) to (G),
inclusive.
(2) "Electronic signature" means an electronic sound, symbol, or
process attached to or logically associated with an electronic record
and executed or adopted by a person with the intent to sign the
electronic record.
(d) The Legislature finds and declares that the Department of
Business Oversight has continuously implemented methods to accept
records filed electronically, and is encouraged to continue to expand
its use of electronic filings to the extent feasible, as budget,
resources, and equipment are made available to accomplish that goal.
SEC. 157. Section 22066 of the Financial Code is amended to read:
22066. (a) The Legislature finds and declares that nonprofit
organizations have an important role to play in helping individuals
obtain access to affordable, credit-building small dollar loans.
California law should refrain from creating statutory barriers that
risk slowing the growth of these loans. This section shall be
liberally construed to encourage nonprofit organizations to help
facilitate the making of zero-interest, low-cost loans, through
lending circles and other programs and services that allow
individuals to establish and build credit histories or to improve
their credit scores.
(b) For the purposes of this section, an organization described in
subdivision (c) shall be known as an exempt organization, and an
organization described in subdivision (d) shall be known as a
partnering organization.
(c) There shall be exempted from this division a nonprofit
organization that facilitates one or more zero-interest, low-cost
loans, provided all of the following conditions are met:
(1) The organization is exempt from federal income taxes under
Section 501(c)(3) of the Internal Revenue Code and is organized and
operated exclusively for one or more of the purposes described in
Section 501(c)(3) of the Internal Revenue Code.
(2) No part of the net earnings of the organization inures to the
benefit of a private shareholder or individual.
(3) No A broker's fee is not
paid in connection with the making of the loan that is
facilitated by the organization.
(4) Any An organization wishing to
operate pursuant to an exemption granted under this section shall
file an application for exemption with the commissioner, in a manner
prescribed by the commissioner, and shall pay a fee to the
commissioner, in an amount calculated by the commissioner to cover
his or her costs to administer this section and Section 22067. The
commissioner may refuse to grant an exemption, or to suspend or
revoke a previously issued exemption if he or she finds that one or
more of the provisions of this section were not met or are not being
met by the organization and that denial, suspension, or revocation of
the exemption is in the best interests of the public.
(5) Every organization whose exemption is approved by the
commissioner shall file an annual report with the commissioner on or
before March 15 of each year, containing relevant information that
the commissioner reasonably requires concerning lending facilitated
by the organization within the state during the preceding calendar
year at all locations at which the organization facilitates lending.
The commissioner shall compile the information submitted pursuant to
this paragraph for use in preparing the report required by Section
22067.
(6) Any loan made pursuant to this section shall comply with the
following requirements:
(A) The loan shall be unsecured.
(B) No interest may Interest shall not
be imposed.
(C) An administrative fee may be charged in an amount not to
exceed the following:
(i) Seven percent of the principal amount, exclusive of the
administrative fee, or ninety dollars ($90), whichever is less, on
the first loan made to a borrower.
(ii) Six percent of the principal amount, exclusive of the
administrative fee, or seventy-five dollars ($75), whichever is less,
on the second and subsequent loans made to that borrower.
(D) An organization shall not charge the same borrower an
administrative fee more than once in any four-month period. Each
administrative fee shall be fully earned immediately upon
consummation of a loan agreement.
(E) Notwithstanding subdivision (a) of Section 22320.5 and in lieu
of any other type of delinquency fee or late fee, an organization
may require reimbursement from a borrower of up to ten dollars ($10)
to cover an insufficient funds fee incurred by that organization due
to actions of the borrower. No An
organization shall not charge more than two insufficient
funds fees to the same borrower in a single month.
(F) The following information shall be disclosed to the consumer
in writing, in a typeface no smaller than 12-point type, at the time
of the loan application:
(i) The amount to be borrowed, the total dollar cost of the loan
to the consumer if the loan is paid back on time, including the sum
of the administrative fee and principal amount borrowed, the
corresponding annual percentage rate, calculated in accordance with
Federal Reserve Board Regulation Z (12 C.F.R. 226.1), the periodic
payment amount, the payment frequency, and the insufficient funds
fee, if applicable.
(ii) An explanation of whether, and under what circumstances, a
borrower may exit a loan agreement.
(G) The loan shall have a minimum principal amount upon
origination of two hundred fifty dollars ($250) and a maximum
principal amount upon origination of two thousand five hundred
dollars ($2,500), and a term of not less than the following:
(i) Ninety days for loans whose principal balance upon origination
is less than five hundred dollars ($500).
(ii) One hundred twenty days for loans whose principal balance
upon origination is at least five hundred dollars ($500), but is less
than one thousand five hundred dollars ($1,500).
(iii) One hundred eighty days for loans whose principal balance
upon origination is at least one thousand five hundred dollars
($1,500).
(H) The loan shall not be refinanced.
(I) Neither the The organization
nor or any of its wholly owned
subsidiaries shall not sell or assign unpaid debt to an
independent party for collection before at least 90 has
days have passed since the start of the
delinquency.
(7) Prior to disbursement of loan proceeds, the organization shall
either (A) offer a credit education program or seminar to the
borrower that has been previously reviewed and approved by the
commissioner for use in complying with this section, or (B) invite
the borrower to a credit education program or seminar offered by an
independent third party that has been previously reviewed and
approved by the commissioner for use in complying with this section.
A credit education program or seminar offered pursuant to this
paragraph shall be provided at no cost to the borrower.
(8) The organization shall report each borrower's payment
performance to at least one consumer reporting agency that compiles
and maintains files on consumers on a nationwide basis, upon
acceptance as a data furnisher by that consumer reporting agency. For
purposes of this section, a consumer reporting agency that compiles
and maintains files on consumers on a nationwide basis is one that
meets the definition in Section 603(p) of the federal Fair Credit
Reporting Act (15 U.S.C. Sec. 1681a(p)). Any
An organization that is accepted as a data furnisher after
being granted an exemption by the commissioner pursuant to this
subdivision shall report all borrower payment performance since its
inception of lending under the program, as soon as practicable after
its acceptance into the program, but in no event more than six months
after its acceptance into the program.
(9) The organization shall underwrite each loan and shall ensure
that a loan is not made if, through its underwriting, the
organization determines that the borrower's total monthly debt
service payments, at the time of loan origination, including the loan
for which the borrower is being considered, and across all
outstanding forms of credit that can be independently verified by the
organization, exceed 50 percent of the borrower's gross monthly
household income except as specified in clause (iii) of subparagraph
(D).
(A) The organization shall seek information and documentation
pertaining to all of a borrower's outstanding debt obligations during
the loan application and underwriting process, including loans that
are self-reported by the borrower but not available through
independent verification. The organization shall verify that
information using a credit report from at least one consumer
reporting agency that compiles and maintains files on consumers on a
nationwide basis or through other available electronic debt
verification services that provide reliable evidence of a borrower's
outstanding debt obligations.
(B) The organization shall also request from the borrower and
include all information obtained from the borrower regarding
outstanding deferred deposit transactions in the calculation of the
borrower's outstanding debt obligations.
(C) The organization shall not be required to consider, for
purposes of debt-to-income ratio evaluation, loans from friends or
family.
(D) The organization shall also verify the borrower's household
income that the organization relies on to determine the borrower's
debt-to-income ratio using information from any of the following:
(i) Electronic means or services that provide reliable evidence of
the borrower's actual income.
(ii) Internal Revenue Service Form W-2, tax returns, payroll
receipts, bank statements, or other third-party documents that
provide reasonably reliable evidence of the borrower's actual income.
(iii) A signed statement from the borrower stating sources and
amounts of income, if the borrower's actual income cannot be
independently verified using electronic means or services, Internal
Revenue Service forms, tax returns, payroll receipts, bank
statements, or other third-party documents. If income is verified
using a signed statement from a borrower, a loan shall not be made if
the borrower's total monthly debt service payments, at the time of
loan origination, including the loan for which the borrower is being
considered, and across all outstanding forms of credit, exceed 25
percent of the borrower's gross monthly household income.
(10) The organization shall notify each borrower, at least two
days prior to each payment due date, informing the borrower of the
amount due and the payment due date. Notification may be provided by
any means mutually acceptable to the borrower and the organization. A
borrower shall have the right to opt out of this notification at any
time, upon electronic or written request to the organization. The
organization shall notify each borrower of this right prior to
disbursing loan proceeds.
(11) Notwithstanding Sections 22311 to 22315, inclusive, no
organization, in connection with, or incidental to, the facilitating
of any loan made pursuant to this section, may offer, sell, or
require a borrower to contract for "credit insurance" as defined in
paragraph (1) of subdivision (a) of Section 22314 or insurance on
tangible personal or real property of the type specified in Section
22313.
(12) No An organization shall
not require, as a condition of making a loan, that a borrower
waive any right, penalty, remedy, forum, or procedure provided for in
any law applicable to the loan, including the right to file and
pursue a civil action or file a complaint with or otherwise
communicate with the commissioner or any court or other public
entity, or that the borrower agree to resolve disputes in a
jurisdiction outside of California or to the application of laws
other than those of California, as provided by law. Any waiver by a
borrower must be knowing, voluntary, and in writing, and expressly
not made a condition of doing business with the organization. Any
waiver that is required as a condition of doing business with the
organization shall be presumed involuntary, unconscionable, against
public policy, and unenforceable. The organization has the burden of
proving that a waiver of any rights,
penalties, forums, or procedures was knowing, voluntary,
and not made a condition of the contract with the borrower.
(13) No An organization shall
not refuse to do business with or discriminate against a
borrower or applicant on the basis that the borrower or applicant
refuses to waive any right, penalty, remedy, forum, or procedure,
including the right to file and pursue a civil action or complaint
with, or otherwise notify, the commissioner or any court or other
public entity. The exercise of a person's right to refuse to waive
any right, penalty, remedy, forum, or procedure, including a
rejection of a contract requiring a waiver, shall not affect any
otherwise legal terms of a contract or an agreement.
(14) This section shall does not
apply to any agreement to waive any right, penalty, remedy, forum, or
procedure, including any agreement to arbitrate a claim or dispute,
after a claim or dispute has arisen. Nothing in this
This section shall does
not affect the enforceability or validity of any other
provision of the contract.
(d) This division does not apply to a nonprofit organization that
partners with an organization granted an exemption pursuant to
subdivision (c) for the purpose of facilitating zero-interest,
low-cost loans, provided that the requirements of paragraphs (6) to
(14), inclusive, of subdivision (c), and the following additional
conditions are met:
(1) The partnership of each exempt organization and each
partnering organization shall be formalized through a written
agreement that specifies the obligations of each party. Each written
agreement shall contain a provision establishing that the partnering
organization agrees to comply with the provisions of this section and
any regulations that may be adopted by the commissioner pursuant to
this section. Each such written
agreement shall be provided to the commissioner upon request.
(2) Each partnering organization shall meet the requirements for
federal income tax exemption under Section 501(c)(3) of the Internal
Revenue Code and shall be organized and operated exclusively for one
or more of the purposes described in Section 501(c)(3) of the
Internal Revenue Code.
(3) No part of the net earnings of the partnering organization
shall inure to the benefit of a private shareholder or individual.
(4) Each exempt organization shall notify the commissioner within
30 days of entering into a written agreement with a partnering
organization, on such form and in such manner as the commissioner may
prescribe. At a minimum, this notification shall include the name of
the partnering organization, the contact information for a person
responsible for the lending activities facilitated by that partnering
organization, and the address or addresses at which the organization
facilitates lending activities.
(5) Upon a determination that a partnering organization has acted
in violation of this section or any regulation adopted thereunder,
the commissioner may disqualify that partnering organization from
performing services under this section, bar that organization from
performing services at one or more specific locations of that
organization, terminate a written agreement between a partnering
organization and an exempt organization, and, if the commissioner
deems such action to be in the public interest, prohibit the use of
that partnering organization by all organizations granted exemptions
by the commissioner pursuant to subdivision (c).
(6) The exempt organization shall include information regarding
the loans facilitated by the partnering organization in the annual
report required pursuant to paragraph (5) of subdivision (c).
(e) The commissioner may examine each exempt organization and each
partnering organization for compliance with the provisions of this
section, upon reasonable notice to the party responsible for the
lending activities facilitated by that organization. Any
An organization so examined shall make available
to the commissioner or his or her representative all books and
records requested by the commissioner related to the lending
activities facilitated by that organization. The cost of any
such the examination shall be paid by the
exempt organization.
(f) This section shall does not apply
to any loan of a bona fide principal amount of two thousand five
hundred dollars ($2,500) or more as determined in accordance with
Section 22251. For purposes of this subdivision, "bona fide principal
amount" shall be determined in accordance with Section 22251.
SEC. 158. Section 22101 of the Financial Code is amended to read:
22101. (a) An application for a license as a finance lender or
broker under this division shall be in the form and contain the
information that the commissioner may by rule or order require and
shall be filed upon payment of the fee specified in Section 22103.
(b) Notwithstanding any other law, an applicant who does not
currently hold a license as a finance lender or broker under this
division shall furnish, with his or her application, a full set of
fingerprints and related information for purposes of the commissioner
conducting a criminal history record check. The commissioner shall
obtain and receive criminal history information from the Department
of Justice and the Federal Bureau of Investigation pursuant to
Section 22101.5.
(c) This section shall not be construed to prevent a licensee from
engaging in the business of a finance lender through a subsidiary
corporation if the subsidiary corporation is licensed pursuant to
this division.
(d) For purposes of this section, "subsidiary corporation" means a
corporation that is wholly owned by a licensee.
(e) A new application shall not be required for a change in the
address of an existing location previously licensed under this
division. However, the licensee shall comply with the requirements of
Section 22153.
(f) Notwithstanding subdivisions (a) to (e), inclusive, the
commissioner may by rule require an application to be made through
the Nationwide Mortgage Licensing System and Registry, and may
require fees, fingerprints, financial statements, supporting
documents, changes of address, and any other information, and
amendments or modifications thereto, to be submitted in the same
manner.
(g) Notwithstanding any other law, the commissioner may by rule or
order prescribe circumstances under which to accept electronic
records or electronic signatures. This section shall
does not require the commissioner to accept
electronic records or electronic signatures.
(h) For purposes of this section, the following terms have the
following meanings:
(1) "Electronic record" means an initial license application, or
material modification of that license application, and any other
record created, generated, sent, communicated, received, or stored by
electronic means. "Electronic records" also includes, but is not
limited to, all of the following:
(A) An application, amendment, supplement, and exhibit, filed for
any license, consent, or other authority.
(B) A financial statement, reports,
report, or advertising.
(C) An order, license, consent, or other authority.
(D) A notice of public hearing, accusation, and statement of
issues in connection with any application, license, consent, or other
authority.
(E) A proposed decision of a hearing officer and a decision of the
commissioner.
(F) The transcripts of a hearing and correspondence between a
party and the commissioner directly relating to the record.
(G) A release, newsletter, interpretive opinion, determination, or
specific ruling.
(H) Correspondence between a party and the commissioner directly
relating to any document listed in subparagraphs (A) to (G),
inclusive.
(2) "Electronic signature" means an electronic sound, symbol, or
process attached to or logically associated with an electronic record
and executed or adopted by a person with the intent to sign the
electronic record.
(i) The Legislature finds and declares that the Department of
Business Oversight has continuously implemented methods to accept
records filed electronically, and is encouraged to continue to expand
its use of electronic filings to the extent feasible, as budget,
resources, and equipment are made available to accomplish that goal.
SEC. 159. Section 23005 of the Financial Code is amended to read:
23005. (a) A person shall not offer, originate, or make a
deferred deposit transaction, arrange a deferred deposit transaction
for a deferred deposit originator, act as an agent for a deferred
deposit originator, or assist a deferred deposit originator in the
origination of a deferred deposit transaction without first obtaining
a license from the commissioner and complying with the provisions of
this division. The requirements of this subdivision shall not apply
to persons or entities that are excluded from the definition of
"licensee" as set forth in Section 23001. This division shall not be
construed to require the commissioner to create separate classes of
licenses.
(b) An application for a license under this division shall be in
the form and contain the information that the commissioner may by
rule require and shall be filed upon payment of the fee specified in
Section 23006.
(c) A licensee with one or more licensed locations seeking an
additional location license may file a short form license application
as may be established by the commissioner pursuant to subdivision
(b) of this section.
(d) Notwithstanding any other law, the commissioner may by rule or
order prescribe circumstances under which to accept electronic
records or electronic signatures. This section shall
does not require the commissioner to accept
electronic records or electronic signatures.
(e) For purposes of this section, the following terms have the
following meanings:
(1) "Electronic record" means an initial license application, or
material modification of that license application, and any other
record created, generated, sent, communicated, received, or stored by
electronic means. "Electronic records" also includes, but is not
limited to, all of the following:
(A) An application, amendment, supplement, and exhibit, filed for
any license, consent, or other authority.
(B) A financial statement, reports,
report, or advertising.
(C) An order, license, consent, or other authority.
(D) A notice of public hearing, accusation, and statement of
issues in connection with any application, license, consent, or other
authority.
(E) A proposed decision of a hearing officer and a decision of the
commissioner.
(F) The transcripts of a hearing.
(G) A release, newsletter, interpretive opinion, determination, or
specific ruling.
(H) Correspondence between a party and the commissioner directly
relating to any document listed in subparagraphs (A) to (G),
inclusive.
(2) "Electronic signature" means an electronic sound, symbol, or
process attached to or logically associated with an electronic record
and executed or adopted by a person with the intent to sign the
electronic record.
(f) The Legislature finds and declares that the Department of
Business Oversight has continuously implemented methods to accept
records filed electronically, and is encouraged to continue to expand
its use of electronic filings to the extent feasible, as budget,
resources, and equipment are made available to accomplish that goal.
SEC. 160. Section 23015 of the Financial Code, as added by Section
25 of Chapter 101 of the Statutes of 2007, is amended and renumbered
to read:
23015. 23015.5. (a) It is unlawful
for any person to knowingly alter, destroy, mutilate, conceal, cover
up, falsify, or make a false entry in any record, document, or
tangible object with the intent to impede, obstruct, or influence the
administration or enforcement of any provision of this division.
(b) It is unlawful for any person to knowingly make an untrue
statement to the commissioner during the course of licensing,
investigation, or examination, with the intent to impede, obstruct,
or influence the administration or enforcement of any provision of
this division.
SEC. 161. Section 24058 of the Financial Code is repealed.
24058. This division does not apply to any loans made or arranged
by a licensed residential mortgage lender or servicer when acting
under the authority of that license.
SEC. 162. Section 32208 of the Financial Code is amended to read:
32208. "Energy Commission" means the California
State Energy Resources Conservation and
Development Commission.
SEC. 163. The heading of Article 1 (commencing with Section 32700)
of Chapter 6 of Division 15.5 of the Financial Code is repealed.
Article 1. Office of Management Services
SEC. 164. The heading of Article 2 (commencing with Section 32710)
of Chapter 6 of Division 15.5 of the Financial Code is repealed.
Article 2. Alternative Energy Research
SEC. 165. The heading of Chapter 8 (commencing with Section 50601)
of Division 20 of the Financial Code is repealed.
CHAPTER 8. OPERATION OF DIVISION
SEC. 166. Section 1652 of the Fish and Game Code is amended to
read:
1652. (a) A project proponent may submit a written request to
approve a habitat restoration or enhancement project to the director
pursuant to this section if the project has not received
certification pursuant to the State Water Resources Control Board's
Order for Clean Water Act Section 401 General Water Quality
Certification for Small Habitat Restoration Projects, or its current
equivalent at the time the project proponent submits the written
request. If the project has received certification pursuant to that
order, or its current equivalent, the project proponent may submit a
request for approval of the project pursuant to Section 1653.
(b) A written request to approve a habitat restoration or
enhancement project pursuant to this section shall contain all of the
following:
(1) The name, address, title, organization, telephone number, and
email address of the natural person or persons who will be the main
point of contact for the project proponent.
(2) A full description of the habitat restoration and
or enhancement project that includes the designs
and techniques to be used for the project, restoration or
enhancement methods, an estimate of temporary restoration- or
enhancement-related disturbance, project schedule, anticipated
activities, and how the project is expected to result in a net
benefit to any affected habitat and species, consistent with
paragraph (4) of subdivision (c).
(3) An assessment of the project area that provides a description
of the existing flora and fauna and the potential presence of
sensitive species or habitat. The assessment shall include preproject
photographs of the project area that include a descriptive title,
date taken, the photographic monitoring point, and photographic
orientation.
(4) A geographic description of the project site including maps,
land ownership information, and other relevant location information.
(5) A description of the environmental protection measures
incorporated into the project design, so that no potentially
significant adverse effects on the environment, as defined in Section
15382 of Title 14 of the California Code of Regulations, are likely
to occur with application of the specified environmental protection
measures. Environmental protection measures may include, but are not
limited to, appropriate seasonal work limitations, measures to avoid
and minimize impacts to water quality and potentially present species
protected by state and federal law, and the use of qualified
professionals for standard preconstruction surveys where protected
species are potentially present.
(6) Substantial evidence to support a conclusion that the project
meets the requirements set forth in this section. Substantial
evidence shall include references to relevant design criteria and
environmental protection measures found in the documents specified in
paragraph (4) of subdivision (c).
(7) A certifying statement that the project will comply with the
California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code), which may include, but
not be limited to, the requirements of Section 15333 of Title 14 of
the California Code of Regulations.
(c) Notwithstanding any other law, within 60 days after receiving
a written request to approve a habitat restoration or enhancement
project, the director shall approve a habitat restoration or
enhancement project if the director determines that the written
request includes all of the required information set forth in
subdivision (b), and the project meets all of the following
requirements:
(1) The project purpose is voluntary habitat restoration and the
project is not required as mitigation.
(2) The project is not part of a regulatory permit for a
nonhabitat restoration or enhancement construction activity, a
regulatory settlement, a regulatory enforcement action, or a court
order.
(3) The project meets the eligibility requirements of the State
Water Resources Control Board's Order for Clean Water Act Section 401
General Water Quality Certification for Small Habitat Restoration
Projects, or its current equivalent at the time the project proponent
submits the written request, but has not received certification
pursuant to that order or its equivalent.
(4) The project is consistent with, or identified in, sources that
describe best available restoration and enhancement methodologies,
including one or more of the following:
(A) Federal- and state-listed species recovery plans or published
protection measures, or previously approved department agreements and
permits issued for voluntary habitat restoration or enhancement
projects.
(B) Department and National Marine Fisheries Service fish
screening criteria or fish passage guidelines.
(C) The department's California Salmonid Stream Habitat
Restoration Manual.
(D) Guidance documents and practice manuals that describe best
available habitat restoration or enhancement methodologies that are
utilized or approved by the department.
(5) The project will not result in cumulative adverse
environmental impacts that are significant when viewed in connection
with the effects of past, current, or probable future projects.
(d) If the director determines that the written request does not
contain all of the information required by subdivision (b), or fails
to meet the requirements set forth in subdivision (c), or both, the
director shall deny the written request and inform the project
proponent of the reason or reasons for the denial.
(e) The project proponent shall submit a notice of completion to
the department no later than 30 days after the project approved
pursuant to this section is completed. The notice of completion shall
demonstrate that the project has been carried out in accordance with
the project's description. The notice of completion shall include a
map of the project location, including the final boundaries of the
restoration area or areas and postproject photographs. Each
photograph shall include a descriptive title, date taken,
photographic monitoring point, and photographic orientation.
(f) The project proponent shall submit a monitoring report
describing whether the restoration project is meeting each of the
restoration goals stated in the project application. Each report
shall include photographs with a descriptive title, date taken,
photographic monitoring point, and photographic orientation. The
monitoring reports for Section 401 Water Quality Certification or
waste discharge requirements of the State Water Resources Control
Board or a regional water quality control board, or for department or
federal voluntary habitat restoration programs, including, but not
limited to, the Fisheries Restoration Grant Program, may be submitted
in lieu of this requirement.
SEC. 167. Section 1653 of the Fish and Game Code is amended to
read:
1653. (a) A project proponent may submit a written request to
approve a habitat restoration or enhancement project to the director
pursuant to this section if the project has received certification
pursuant to the State Water Resources Control Board's Order for Clean
Water Act Section 401 General Water Quality Certification for Small
Habitat Restoration Projects, or its current equivalent at the time
the project proponent submits the written request.
(b) A written request to approve a habitat restoration or
enhancement project pursuant to this section shall include all of the
following:
(1) Notice that the project proponent has received a notice of
applicability that indicates that the project is authorized pursuant
to the State Water Resources Control Board's Order for Clean Water
Act Section 401 General Water Quality Certification for Small Habitat
Restoration Projects, or its equivalent at the time the project
proponent submits the written request.
(2) A copy of the notice of applicability.
(3) A copy of the notice of intent provided to the State Water
Resources Control Board or a regional water quality control board.
(4) A description of species protection measures incorporated into
the project design, but not already included in the notice of
intent, to avoid and minimize impacts to potentially present species
protected by state and federal law, such as appropriate seasonal work
limitations and the use of qualified professionals for standard
preconstruction surveys where protected species are potentially
present.
(5) The fees required pursuant to Section 1655.
(c) Upon receipt of the notice specified in paragraph (1) of
subdivision (b), the director shall immediately have published in the
General Public Interest section of the California Regulatory Notice
Register the receipt of that notice.
(d) Within 30 days after the director has received the notice of
applicability described in subdivision (b), the director shall
determine whether the written request accompanying the notice of
applicability is complete.
(e) If the director determines within that 30-day period, based
upon substantial evidence, that the written request is not complete,
then the project may be authorized under Section 1652.
(f) The director shall immediately publish the determination
pursuant to subdivision (d) in the General Public Interest section of
the California Regulatory Notice Register.
(g) The project proponent shall submit the monitoring plan,
monitoring report, and notice of completion to the department as
required by the State Water Resources Control Board's Order for
Clean Water Act Section 401 General Water Quality Certification
for Small Habitat Restoration Projects, or its current equivalent at
the time the project proponent submits the written request. The
order or its current equivalent may include programmatic waivers or
waste discharge requirements for small scale restoration projects.
SEC. 168. Section 1654 of the Fish and Game Code is amended to
read:
1654. (a) The director's approval of a habitat restoration or
enhancement project pursuant to Section 1652 or 1653 shall be in lieu
of any other permit, agreement, license, or other approval issued by
the department, including, but not limited to, those issued pursuant
to Chapter 6 (commencing with Section 1600) and Chapter 10
(commencing with Section 1900) of this Division
division and Chapter 1.5 (commencing with Section 2050) of
Division 3.
(b) Nothing in this This
chapter shall not be construed as expanding the scope of
projects requiring a permit, agreement, license, or other approval
issued by the department.
(c) (1) If the director determines at any time that the project is
no longer consistent with subdivision (c) of Section 1652 or
subdivision (b) of Section 1653, as applicable, due to a material
change between the project as submitted and the project being
implemented or a change in the environmental circumstances in the
area of implementation, the director shall notify the project
proponent in writing and project implementation shall be suspended.
Written notice from the director shall be delivered in person, by
certified mail, or by electronic communication to the project
proponent and shall specify the reasons why approval of the project
was suspended. The approval for a project shall not be revoked
pursuant to this subdivision unless it has first been suspended
pursuant to this subdivision.
(2) Within 30 days of receipt of a notice of suspension, the
project proponent may file an objection with the director. Any
objection shall be in writing and state the reasons why the project
proponent objects to the suspension. The project proponent may
provide additional environmental protection measures, design
modifications, or other evidence that the project is consistent with
subdivision (c) of Section 1652 or subdivision (b) of Section 1653,
as applicable, and request that the notice of suspension be lifted
and approval granted.
(3) The director shall revoke approval or lift the suspension of
project approval within 30 days after receiving the project proponent'
s objection pursuant to paragraph (2).
(d) Pursuant to Section 818.4 of the Government Code, the
department and any other state agency exercising authority under this
section shall not be liable with regard to any determination or
authorization made pursuant to this section.
SEC. 169. Section 1745.2 of the Fish and Game Code is amended to
read:
1745.2. (a) The department shall do both of the following:
(1) Consider permitting apiculture on department-managed wildlife
areas, where deemed appropriate by the department.
(2) Determine, when developing or amending its land management
plans, the following:
(A) If the department-managed wildlife areas, or any
portion portions of the those
areas, are suitable for apiculture and whether apiculture is
consistent with the management goals and objectives for those areas
on a temporary, seasonal, or long-term basis.
(B) If the administration of apiculture on department-managed
wildlife areas, where deemed appropriate by the department, is
meeting the management goals and objectives for those areas.
(C) The appropriate use or permit fee to be assessed for
conducting apiculture on department-managed wildlife areas.
(b) The department, in implementing this section, may consult with
apiculture experts, including, but not limited to, the Department of
Food and Agriculture, the University of California, other academic
or professional experts, and interested stakeholders,
for permitting apiculture on
department-managed wildlife areas consistent with the respective
management goals and objectives for those areas.
(c) Moneys collected for conducting apiculture on
department-managed wildlife areas pursuant to subparagraph (C) of
paragraph (2) of subdivision (a) shall be deposited by the department
into the Wildlife Restoration Fund and, upon appropriation by the
Legislature, be used to support the management, maintenance,
restoration, and operation of department-managed wildlife areas.
SEC. 170. Section 12002 of the Fish and Game Code is amended to
read:
12002. (a) Unless otherwise provided, the punishment for a
violation of this code that is a misdemeanor is a fine of not more
than one thousand dollars ($1,000), imprisonment in the
a county jail for not more than six months, or
by both that fine and imprisonment.
(b) The punishment for a violation of any of the following
provisions is a fine of not more than two thousand dollars ($2,000),
imprisonment in the a county jail for
not more than one year, or both the fine and imprisonment:
(1) Section 1059.
(2) Subdivision (c) of Section 4004.
(3) Section 4600.
(4) Paragraph (1) or (2) of subdivision (a) of Section 5650.
(5) A first violation of Section 8670.
(6) Section 10500.
(7) Unless a greater punishment is otherwise provided, a violation
subject to subdivision (a) of Section 12003.1.
(c) Except as specified in Sections 12001 and 12010, the
punishment for violation of Section 3503, 3503.5, 3513, or 3800 is a
fine of not more than five thousand dollars ($5,000), imprisonment in
the county jail for not more than six months, or by both that fine
and imprisonment.
(d) (1) A license, tag, stamp, reservation, permit, or other
entitlement or privilege issued pursuant to this code to a defendant
who fails to appear at a court hearing for a violation of this code,
or who fails to pay a fine imposed pursuant to this code, shall be
immediately suspended or revoked. The license, tag, stamp,
reservation, permit, or other entitlement or privilege shall not be
reinstated or renewed, and no other license, tag, stamp, reservation,
permit, or other entitlement or privilege shall be issued to that
person pursuant to this code, until the court proceeding is completed
or the fine is paid.
(2) This subdivision does not apply to any violation of Section
1052, 1059, 1170, 5650, 5653.9, 6454, 6650, or 6653.5.
SEC. 171. The heading of Article 5 (commencing with Section 491)
of Chapter 3 of Part 1 of Division 1 of the Food and Agricultural
Code, as added by Section 1 of Chapter 589 of the Statutes of 2000,
is amended and renumbered to read:
Article 5. 4.5. Food
Biotechnology Task Force
SEC. 172. Section 6045 of the Food and Agricultural Code is
amended to read:
6045. (a) The Legislature finds and declares that the plant
killing bacterium, Xyella Fastidiosa
Fastidiosa, and the resulting pathogen, Pierce's disease, and
its vectors present a clear and present danger to California's
60-billion-dollar sixty-billion-dollar
grape industry, as well as to many other commodities and plant life.
(b) There exists an ongoing need for at least fifteen million
dollars ($15,000,000) annually in research and programs to combat
Pierce's disease and its vectors in California.
SEC. 173. Section 6047.9 of the Food and Agricultural Code is
amended to read:
6047.9. (a) For purposes of calculating the amount to be
collected by the processor for purchased grapes, the assessment shall
be based on the gross dollar value of the grapes, which is the gross
dollar amount payable for the grapes before any deductions for
governmental assessments and fees.
(b) For purposes of calculating the assessment for grapes not
purchased, the assessment shall be based on the following:
(1) The tonnage of grapes delivered less material other than
grapes and defects or other weight adjustments deducted from gross
weight.
(2) The weighted average price per ton delivered basis purchased
from all nonrelated sources for wine, concentrate, juice, wine
vinegar, and beverage brandy by processors, by type, variety
variety, and reporting district where grown for
the grapes delivered, sources as reported by the secretary pursuant
to Section 55601.5 for the immediately preceding marketing season.
SEC. 174. Section 12996 of the Food and Agricultural Code is
amended to read:
12996. (a) Every person who violates any provision of this
division relating to pesticides, or any regulation issued pursuant to
a provision of this division relating to pesticides, is guilty of a
misdemeanor and upon conviction shall be punished by a fine of not
less than five hundred dollars ($500) nor more than five thousand
dollars ($5,000), or by imprisonment of not more than six months, or
by both the fine and imprisonment. Upon a second or subsequent
conviction of the same provision of this division relating to
pesticides, a person shall be punished by a fine of not less than one
thousand dollars ($1,000) nor more than ten thousand dollars
($10,000), or by imprisonment of not more than six months
months, or by both the fine and imprisonment.
Each violation constitutes a separate offense.
(b) Notwithstanding the penalties prescribed in subdivision (a),
if the offense involves an intentional or negligent violation that
created or reasonably could have created a hazard to human health or
the environment, the convicted person shall be punished by
imprisonment in a county jail not exceeding one year or in the state
prison or by a fine of not less than five thousand dollars ($5,000)
nor more than fifty thousand dollars ($50,000), or by both the fine
and imprisonment.
(c) This section does not apply to violations of Chapter 7.5
(commencing with Section 15300) or Section 13186.5.
SEC. 175. Section 12999.5 of the Food and Agricultural Code is
amended to read:
12999.5. (a) In lieu of civil prosecution by the director, the
county agricultural commissioner may levy a civil penalty against a
person violating Division 6 (commencing with Section 11401), Article
10 (commencing with Section 12971) or Article 10.5 (commencing with
Section 12980) of this chapter, Section 12995, Article 1 (commencing
with Section 14001) of Chapter 3, Chapter 3.7 (commencing with
Section 14160), Chapter 7.5 (commencing with Section 15300), or a
regulation adopted pursuant to any of these provisions, of not more
than one thousand dollars ($1,000) for each violation. Any violation
determined by the county agricultural commissioner to be a Class A
violation as defined in Section 6130 of Title 3 of the California
Code of Regulations is subject to a fine of not more than five
thousand dollars ($5,000) for each violation. It is unlawful and
grounds for denial of a permit under Section 14008 for a person to
refuse or neglect to pay a civil penalty levied pursuant to this
section once the order is final.
(b) If a person has received a civil penalty for pesticide drift
in a school area subject to Section 11503.5 that results in a Class A
violation as defined in subdivision (a), the county agricultural
commissioner shall charge a fee, not to exceed fifty dollars ($50),
for processing and monitoring each subsequent pesticide application
that may pose a risk of pesticide drift made in a school area subject
to Section 11503.5. The county agricultural commissioner shall
continue to impose the fee for each subsequent application that may
pose a risk of drift, until the person has completed 24 months
without another Class A violation as defined in subdivision (a).
(c) Before a civil penalty is levied, the person charged with the
violation shall be given a written notice of the proposed
action action, including the nature of the
violation and the amount of the proposed penalty, and shall have the
right to request a hearing within 20 days after receiving notice of
the proposed action. A notice of the proposed action that is sent by
certified mail to the last known address of the person charged shall
be considered received even if delivery is refused or the notice is
not accepted at that address. If a hearing is requested, notice of
the time and place of the hearing shall be given at least 10 days
before the date set for the hearing. At the hearing, the person shall
be given an opportunity to review the county agricultural
commissioner's evidence and to present evidence on his or her own
behalf. If a hearing is not timely requested, the county agricultural
commissioner may take the action proposed without a hearing.
(d) If the person upon whom the county agricultural commissioner
levied a civil penalty requested and appeared at a hearing, the
person may appeal the county agricultural commissioner's decision to
the director within 30 days of the date of receiving a copy of the
county agricultural commissioner's decision. The following procedures
apply to the appeal:
(1) The appeal shall be in writing and signed by the appellant or
his or her authorized agent, state the grounds for the appeal, and
include a copy of the county agricultural commissioner's decision.
The appellant shall file a copy of the appeal with the county
agricultural commissioner at the same time it is filed with the
director.
(2) The appellant and the county agricultural commissioner may, at
the time of filing the appeal or within 10 days thereafter or at a
later time prescribed by the director, present the record of the
hearing hearing, including written
evidence that was submitted at the hearing
hearing, and a written argument to the director stating grounds
for affirming, modifying, or reversing the county agricultural
commissioner's decision.
(3) The director may grant oral arguments upon application made at
the time written arguments are filed.
(4) If an application to present an oral argument is granted,
written notice of the time and place for the oral argument shall be
given at least 10 days before the date set for the oral argument. The
times may be altered by mutual agreement of the appellant, the
county agricultural commissioner, and the director.
(5) The director shall decide the appeal on the record of the
hearing, including the written evidence and the written argument
described in paragraph (2), that he or she has received. If the
director finds substantial evidence in the record to support the
county agricultural commissioner's decision, the director shall
affirm the decision.
(6) The director shall render a written decision within 45 days of
the date of appeal or within 15 days of the date of oral arguments
or as soon thereafter as practical.
(7) On an appeal pursuant to this section, the director may affirm
the county agricultural commissioner's decision, modify the county
agricultural commissioner's decision by reducing or increasing the
amount of the penalty levied so that it is within the director's
guidelines for imposing civil penalties, or reverse the county
agricultural commissioner's decision. Any A
civil penalty increased by the director shall not be higher
than that proposed in the county agricultural commissioner's notice
of proposed action given pursuant to subdivision (c). A copy of the
director's decision shall be delivered or mailed to the appellant and
the county agricultural commissioner.
(8) Any person who does not request a hearing pursuant to
subdivision (c) may not file an appeal pursuant to this subdivision.
(9) Review of a decision of the director may be sought by the
appellant within 30 days of the date of the decision pursuant to
Section 1094.5 of the Code of Civil Procedure.
(e) The county agricultural commissioner may levy a civil penalty
pursuant to subdivisions (a), (c), and (d) against a person violating
paragraph (1), (2), or (8) of subdivision (a) of Section 1695 of the
Labor Code, which pertains to registration with the county
agricultural commissioner, carrying proof of that registration, and
filing changes of address with the county agricultural commissioner.
(f) After the exhaustion of the appeal and review procedures
provided in this section, the county agricultural commissioner or his
or her representative may file a certified copy of a final decision
of the county agricultural commissioner that directs the payment of a
civil penalty and, if applicable, a copy of any decision of the
director or his or her authorized representative rendered on an
appeal from the county agricultural commissioner's decision and a
copy of any order that denies a petition for a writ of administrative
mandamus, with the clerk of the superior court of any county.
Judgment shall be entered immediately by the clerk in conformity with
the decision or order. No fees Fees
shall not be charged by the clerk of the superior court
for the performance of any official service
required in connection with the entry of judgment pursuant to this
section.
SEC. 176. Section 13186.5 of the Food and Agricultural Code is
amended to read:
13186.5. (a) Commencing July 1, 2016, and except as provided in
subdivision (b), a school designee, as defined in Section 17609 of
the Education Code, and any person, including, but not necessarily
limited to, a schoolsite or school district employee, who,
in the course of his or her work, intends to apply a pesticide at a
schoolsite subject to this article, shall annually complete a
training course provided by the department or an agent authorized by
the department. The training course shall include integrated pest
management and the safe use of pesticides in relation to the unique
nature of schoolsites and children's health.
(b) (1) Commencing July 1, 2016, any person hired to apply a
pesticide at a schoolsite subject to this article shall complete at
least a one-hour training course in integrated pest management and
the safe use of pesticides in relation to the unique nature of
schoolsites and children's health before applying pesticides at a
schoolsite subject to this article and during each subsequent
licensing period in which the person applies a pesticide at a
schoolsite subject to this article. The training course may be
applied to his or her professional continuing education requirement
required by the Structural Pest Control Board or the department.
(2) The training course required by paragraph (1) shall be
developed by the department and may also be developed by a provider
approved by the Structural Pest Control Board if the training course
has been approved by the department.
(3) The department shall ensure that the training course it
develops or approves pursuant to paragraph (2) meets the requirements
for continuing education credit required by the Structural Pest
Control Board and the department.
SEC. 177. Section 19227 of the Food and Agricultural Code is
amended to read:
19227. (a) In addition to the license fee required pursuant to
Section 19225, the department may charge each licensed renderer and
collection center an additional fee necessary to cover the reasonable
costs of administering Article 6 (commencing with Section 19300) and
Article 6.5 (commencing with Section 19310). The additional fees
authorized to be imposed by this section may
shall not exceed three thousand dollars ($3,000) per year per
each licensed rendering plant or collection center.
(b) The secretary shall fix the annual fee established pursuant to
this section and may fix different fees for renderers and collection
centers. The secretary shall also fix the date the fee is due and
the method of collecting the fee. If an additional fee is imposed on
licensed renderers pursuant to subdivision (a) and an additional fee
is imposed on registered transporters pursuant to subdivision (a) of
Section 19315, only one additional fee may be imposed on a person or
firm that is both licensed as a renderer pursuant to Article 6
(commencing with Section 19300) and registered as a transporter of
inedible kitchen grease pursuant to Article 6.5 (commencing with
Section 19310), which fee shall be the higher of the two fees.
(c) If the fee established pursuant to this section is not paid
within one calendar month of the date it is due, a penalty shall be
imposed in the amount of 10 percent per annum on the amount of the
unpaid fee.
(d) This section shall become inoperative on July 1, 2020, and, as
of January 1, 2021, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2021, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 178. Section 55462 of the Food and Agricultural Code, as
added by Section 5 of Chapter 651 of the Statutes of 1997, is
repealed.
55462. For the purposes of trading in cattle, this chapter does
not apply to or include any person who is bonded under the federal
Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181, et seq.) who is
engaged in the business of buying or selling cattle.
SEC. 179. Section 77103 of the Food and Agricultural Code is
repealed.
77103. (a) Notwithstanding any other provision of this chapter,
the following duties are imposed upon the executive committee of the
commission, established in the commission's bylaws, for the 2006
marketing year:
(1) Continue any and all existing contracts and agreements
necessary for the operation of the commission.
(2) Establish the annual budget according to accepted accounting
practices.
(3) Establish the assessment rate not later than the first day of
the marketing year or as soon thereafter as possible. The assessment
rate shall not exceed the 2005 marketing year assessment rate.
(b) In fulfilling the duties of this section, except for the
disbursements made pursuant to Section 77086, the executive committee
shall obtain concurrence by the secretary.
(c) This section shall become inoperative on July 1, 2007.
SEC. 180. Section 78579 of the Food and Agricultural Code is
amended to read:
78579. (a) Unless funds are otherwise provided by the Secretary
of for Environmental Affairs
pursuant to subdivision (b) of Section 35062 of the Public Resources
Code, Protection, before the referendum vote is
conducted by the director, secretary,
the proponents of the council shall deposit with the director
secretary the amount that the director
secretary determines is necessary to defray the
expenses of preparing the necessary lists and information and
conducting the referendum vote.
(b) Any funds not used in carrying out this article shall be
returned to the proponents of the council who deposited the funds
with the director. secretary.
(c) Upon the establishment of the council, the council may
reimburse the proponents of the council for any funds deposited by
the proponents with the director which
secretary that were used in carrying out this article, and for
any legal expenses and costs incurred in establishing the council.
SEC. 181. The heading of Chapter 3 (commencing with Section 980)
of Part 5 of Division 3.6 of Title 1 of the Government Code is
repealed.
CHAPTER 3. CONSTRUCTION CLAIMS AND CONTRACT PAYMENTS
SEC. 182. Section 4420.5 of the Government Code, as added by
Section 18 of Chapter 407 of the Statutes of 1998, is repealed.
4420.5. (a) Subdivision (b) of Section 4420 shall not apply to
any construction or renovation project undertaken by a school
district.
(b) The district may use owner-controlled or wrap-up insurance
with regard to a construction or renovation project if the district
makes the following determinations:
(1) Prospective bidders, including contractors and subcontractors,
meet minimum occupational safety and health qualifications
established to bid on the project. The evaluation of prospective
bidders shall be based on consideration of the following factors:
(A) Serious and willful violations of Part 1 (commencing with
Section 6300) of Division 5 of the Labor Code, by a contractor or
subcontractor during the past five-year period.
(B) The contractor's or subcontractor's workers' compensation
experience modification factor.
(C) A contractor's or subcontractor's injury prevention program
instituted pursuant to Section 3201.5 or 6401.7 of the Labor Code.
(2) The use of owner-controlled or wrap-up insurance will maximize
the expenditure of public funds on the project in conjunction with
the exercise of appropriate risk management.
(c) For purposes of this section, "owner-controlled or wrap-up
insurance" means a series of insurance policies issued to cover all
of the contractors and subcontractors on a given project for purposes
of general liability and workers' compensation.
(d) Any use of owner-controlled or wrap-up insurance pursuant to
this section shall be subject to subparagraphs (B), (C), (D), and (E)
of paragraph (1) of subdivision (d) of Section 4420 and paragraphs
(2) and (3) of that subdivision.
SEC. 183. The heading of Chapter 14 (commencing with Section 5970)
of Division 6 of Title 1 of the Government Code, as added by Section
1 of Chapter 309 of the Statutes of 1996, is amended and renumbered
to read:
CHAPTER 14. 15. AWARDING OF
CONTRACTS
SEC. 184. Section 6254 of the Government Code is amended to read:
6254. Except as provided in Sections 6254.7 and 6254.13, this
chapter does not require the disclosure of any of the following
records:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, if the public interest in withholding those
records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3.6
(commencing with Section 810), until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained Records contained in
or related to any of the following:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1).
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
state agency referred to in paragraph (1).
(4) Information received in confidence by any state agency
referred to in paragraph (1).
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, that are obtained in confidence from any
person.
(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, the
Office of Emergency Services and any state or local police agency, or
any investigatory or security files compiled by any other state or
local police agency, or any investigatory or security files compiled
by any other state or local agency for correctional, law enforcement,
or licensing purposes. However, state and local law enforcement
agencies shall disclose the names and addresses of persons involved
in, or witnesses other than confidential informants to, the incident,
the description of any property involved, the date, time, and
location of the incident, all diagrams, statements of the parties
involved in the incident, the statements of all witnesses, other than
confidential informants, to the victims of an incident, or an
authorized representative thereof, an insurance carrier against which
a claim has been or might be made, and any person suffering bodily
injury or property damage or loss, as the result of the incident
caused by arson, burglary, fire, explosion, larceny, robbery,
carjacking, vandalism, vehicle theft, or a crime as defined by
subdivision (b) of Section 13951, unless the disclosure would
endanger the safety of a witness or other person involved in the
investigation, or unless disclosure would endanger the successful
completion of the investigation or a related investigation. However,
nothing in this division shall
does not require the disclosure of that portion of those
investigative files that reflects the analysis or conclusions of the
investigating officer.
Customer lists provided to a state or local police agency by an
alarm or security company at the request of the agency shall be
construed to be records subject to this subdivision.
Notwithstanding any other provision of this subdivision, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency, the individual's physical description including date of
birth, color of eyes and hair, sex, height and weight, the time and
date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount
of bail set, the time and manner of release or the location where the
individual is currently being held, and all charges the individual
is being held upon, including any outstanding warrants from other
jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age
of the victim, the factual
circumstances surrounding the crime or incident, and a general
description of any injuries, property, or weapons involved. The name
of a victim of any crime defined by Section 220, 236.1, 261, 261.5,
262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267,
269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3 (as added
by Chapter 337 of the Statutes of 2006), 288.3 (as added by Section 6
of Proposition 83 of the November 7, 2006, statewide general
election), 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6
of the Penal Code may be withheld at the victim's request, or at the
request of the victim's parent or guardian if the victim is a minor.
When a person is the victim of more than one crime, information
disclosing that the person is a victim of a crime defined in any of
the sections of the Penal Code set forth in this subdivision may be
deleted at the request of the victim, or the victim's parent or
guardian if the victim is a minor, in making the report of the crime,
or of any crime or incident accompanying the crime, available to the
public in compliance with the requirements of this paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency and the current address of the victim of a
crime, where if the requester declares
under penalty of perjury that the request is made for a scholarly,
journalistic, political, or governmental purpose, or that the request
is made for investigation purposes by a licensed private
investigator as described in Chapter 11.3 (commencing with Section
7512) of Division 3 of the Business and Professions Code. However,
the address of the victim of any crime defined by Section 220, 236.1,
261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f,
266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3
(as added by Chapter 337 of the Statutes of 2006), 288.3 (as added
by Section 6 of Proposition 83 of the November 7, 2006, statewide
general election), 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or
647.6 of the Penal Code shall remain confidential. Address
information obtained pursuant to this paragraph may
shall not be used directly or indirectly, or
furnished to another, to sell a product or service to any individual
or group of individuals, and the requester shall execute a
declaration to that effect under penalty of perjury. Nothing
in this This paragraph shall not be
construed to prohibit or limit a scholarly, journalistic, political,
or government use of address information obtained pursuant to this
paragraph.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of Division 14 of Title 3
of the Education Code.
(h) The contents of real estate appraisals or engineering or
feasibility estimates and evaluations made for or by the state or
local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreement
obtained. However, the law of eminent domain shall not be affected by
this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
shall not apply to records of fines imposed on the borrowers.
(k) Records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
( l ) Correspondence of and to the Governor or
employees of the Governor's office or in the custody of or maintained
by the Governor's Legal Affairs Secretary. However, public records
shall not be transferred to the custody of the Governor's Legal
Affairs Secretary to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public database maintained by the
Legislative Counsel that are described in Section 10248.
(n) Statements of personal worth or personal financial data
required by a licensing agency and filed by an applicant with the
licensing agency to establish his or her personal qualification for
the license, certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where if an authorized officer of
the California Pollution Control Financing Authority determines that
disclosure of the financial data would be competitively injurious to
the applicant and the data is required in order to obtain guarantees
from the United States Small Business Administration. The California
Pollution Control Financing Authority shall adopt rules for review
of individual requests for confidentiality under this section and for
making available to the public those portions of an application that
are subject to disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing
with Section 3525), and Chapter 12 (commencing with Section 3560) of
Division 4, that reveal a state agency's deliberative processes,
impressions, evaluations, opinions, recommendations, meeting minutes,
research, work products, theories, or strategy, or that provide
instruction, advice, or training to employees who do not have full
collective bargaining and representation rights under these chapters.
Nothing in this This subdivision shall
not be construed to limit the disclosure duties of a
state agency with respect to any other records relating to the
activities governed by the employee relations acts referred to in
this subdivision.
(q) (1) Records of state agencies related to activities governed
by Article 2.6 (commencing with Section 14081), Article 2.8
(commencing with Section 14087.5), and Article 2.91 (commencing with
Section 14089) of Chapter 7 of Part 3 of Division 9 of the Welfare
and Institutions Code, that reveal the special negotiator's
deliberative processes, discussions, communications, or any other
portion of the negotiations with providers of health care services,
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy, or that provide instruction,
advice, or training to employees.
(2) Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. If a contract for
inpatient services that is entered into prior to April 1, 1984, is
amended on or after April 1, 1984, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after it is fully executed. If the California Medical
Assistance Commission enters into contracts with health care
providers for other than inpatient hospital services, those contracts
shall be open to inspection one year after they are fully executed.
(3) Three years after a contract or amendment is open to
inspection under this subdivision, the portion of the contract or
amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee and the Legislative Analyst's Office. The committee and
that office shall maintain the confidentiality of the contracts and
amendments until the time a contract or amendment is fully open to
inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places and records of Native American places, features, and objects
described in Sections 5097.9 and 5097.993 of the Public Resources
Code maintained by, or in the possession of, the Native American
Heritage Commission, another state agency, or a local agency.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Care Services pursuant to subdivision (b) of
Section 1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4
of this code, that relate to any contract with an insurer or
nonprofit hospital service plan for inpatient or outpatient services
for alternative rates pursuant to Section 10133 of the Insurance
Code. However, the record shall be open to inspection within one year
after the contract is fully executed.
(u) (1) Information contained in applications for licenses to
carry firearms issued pursuant to Section 26150, 26155, 26170, or
26215 of the Penal Code by the sheriff of a county or the chief or
other head of a municipal police department that indicates when or
where the applicant is vulnerable to attack or that concerns the
applicant's medical or psychological history or that of members of
his or her family.
(2) The home address and telephone number of prosecutors, public
defenders, peace officers, judges, court commissioners, and
magistrates that are set forth in applications for licenses to carry
firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of
the Penal Code by the sheriff of a county or the chief or other head
of a municipal police department.
(3) The home address and telephone number of prosecutors, public
defenders, peace officers, judges, court commissioners, and
magistrates that are set forth in licenses to carry firearms issued
pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code
by the sheriff of a county or the chief or other head of a municipal
police department.
(v) (1) Records of the Managed Risk Medical Insurance Board and
the State Department of Health Care Services related to activities
governed by Part 6.3 (commencing with Section 12695), Part 6.5
(commencing with Section 12700), Part 6.6 (commencing with Section
12739.5), or Part 6.7 (commencing with Section 12739.70) of Division
2 of the Insurance Code, or Chapter 2 (commencing with Section 15810)
or Chapter 4 (commencing with Section 15870) of Part 3.3 of Division
9 of the Welfare and Institutions Code, and that reveal any of the
following:
(A) The deliberative processes, discussions, communications, or
any other portion of the negotiations with entities contracting or
seeking to contract with the board or the department, entities with
which the board or the department is considering a contract, or
entities with which the board or department is considering or enters
into any other arrangement under which the board or the department
provides, receives, or arranges services or reimbursement.
(B) The impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff or the department or its staff, or records that provide
instructions, advice, or training to their employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.3
(commencing with Section 12695), Part 6.5 (commencing with Section
12700), Part 6.6 (commencing with Section 12739.5), or Part 6.7
(commencing with Section 12739.70) of Division 2 of the Insurance
Code, or Chapter 2 (commencing with Section 15810) or Chapter 4
(commencing with Section 15870) of Part 3.3 of Division 9 of the
Welfare and Institutions Code, on or after July 1, 1991, shall be
open to inspection one year after their effective dates.
(B) If a contract that is entered into prior to July 1, 1991, is
amended on or after July 1, 1991, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after the effective date of the amendment.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other law, the entire contract or
amendments to a contract shall be open to inspection by the Joint
Legislative Audit Committee. The committee shall maintain the
confidentiality of the contracts and amendments thereto, until the
contracts or amendments to the contracts are open to inspection
pursuant to paragraph (3).
(w) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Chapter 8 (commencing with Section
10700) of Part 2 of Division 2 of the Insurance Code, and that reveal
the deliberative processes, discussions, communications, or any
other portion of the negotiations with health plans, or the
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of the board or its staff, or
records that provide instructions, advice, or training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other law, the entire contract or
amendments to a contract shall be open to inspection by the Joint
Legislative Audit Committee. The committee shall maintain the
confidentiality of the contracts and amendments thereto, until the
contracts or amendments to the contracts are open to inspection
pursuant to paragraph (2).
(x) Financial data contained in applications for registration, or
registration renewal, as a service contractor filed with the Director
of Consumer Affairs pursuant to Chapter 20 (commencing with Section
9800) of Division 3 of the Business and Professions Code, for the
purpose of establishing the service contractor's net worth, or
financial data regarding the funded accounts held in escrow for
service contracts held in force in this state by a service
contractor.
(y) (1) Records of the Managed Risk Medical Insurance Board and
the State Department of Health Care Services related to activities
governed by Part 6.2 (commencing with Section 12693) or Part 6.4
(commencing with Section 12699.50) of Division 2 of the Insurance
Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing
with Section 15850) of Part 3.3 of Division 9 of, the Welfare and
Institutions Code, if the records reveal any of the following:
(A) The deliberative processes, discussions, communications, or
any other portion of the negotiations with entities contracting or
seeking to contract with the board or the department, entities with
which the board or department is considering a contract, or entities
with which the board or department is considering or enters into any
other arrangement under which the board or department provides,
receives, or arranges services or reimbursement.
(B) The impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff, or the department or its staff, or records that provide
instructions, advice, or training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code, on or after January 1,
1998, or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing
with Section 15850) of Part 3.3 of Division 9 of, the Welfare and
Institutions Code shall be open to inspection one year after their
effective dates.
(B) If a contract entered into pursuant to Part 6.2 (commencing
with Section 12693) or Part 6.4 (commencing with Section 12699.50) of
Division 2 of the Insurance Code or Sections 14005.26 and 14005.27
of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of
Division 9 of, the Welfare and Institutions Code, is amended, the
amendment shall be open to inspection one year after the effective
date of the amendment.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other law, the entire contract or
amendments to a contract shall be open to inspection by the Joint
Legislative Audit Committee. The committee shall maintain the
confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to paragraph (2) or (3).
(5) The exemption from disclosure provided pursuant to this
subdivision for the contracts, deliberative processes, discussions,
communications, negotiations, impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of
the board or its staff, or the department or its staff, shall also
apply to the contracts, deliberative processes, discussions,
communications, negotiations, impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of
applicants pursuant to Part 6.4 (commencing with Section 12699.50) of
Division 2 of the Insurance Code or Chapter 3 (commencing with
Section 15850) of Part 3.3 of Division 9 of the Welfare and
Institutions Code.
(z) Records obtained pursuant to paragraph (2) of subdivision (f)
of Section 2891.1 of the Public Utilities Code.
(aa) A document prepared by or for a state or local agency that
assesses its vulnerability to terrorist attack or other criminal acts
intended to disrupt the public agency's operations and that is for
distribution or consideration in a closed session.
(ab) Critical infrastructure information, as defined in Section
131(3) of Title 6 of the United States Code, that is voluntarily
submitted to the California Emergency Management Agency
Office of Emergency Services for use by that
office, including the identity of the person who or entity that
voluntarily submitted the information. As used in this subdivision,
"voluntarily submitted" means submitted in the absence of the office
exercising any legal authority to compel access to or submission of
critical infrastructure information. This subdivision shall not
affect the status of information in the possession of any other state
or local governmental agency.
(ac) All information provided to the Secretary of State by a
person for the purpose of registration in the Advance Health Care
Directive Registry, except that those records shall be released at
the request of a health care provider, a public guardian, or the
registrant's legal representative.
(ad) The following records of the State Compensation Insurance
Fund:
(1) Records related to claims pursuant to Chapter 1 (commencing
with Section 3200) of Division 4 of the Labor Code, to the extent
that confidential medical information or other individually
identifiable information would be disclosed.
(2) Records related to the discussions, communications, or any
other portion of the negotiations with entities contracting or
seeking to contract with the fund, and any related deliberations.
(3) Records related to the impressions, opinions, recommendations,
meeting minutes of meetings or sessions that are lawfully closed to
the public, research, work product, theories, or strategy of the fund
or its staff, on the development of rates, contracting strategy,
underwriting, or competitive strategy pursuant to the powers granted
to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of
Division 2 of the Insurance Code.
(4) Records obtained to provide workers' compensation insurance
under Chapter 4 (commencing with Section 11770) of Part 3 of Division
2 of the Insurance Code, including, but not limited to, any medical
claims information, policyholder information provided that nothing in
this paragraph shall be interpreted to prevent an insurance agent or
broker from obtaining proprietary information or other information
authorized by law to be obtained by the agent or broker, and
information on rates, pricing, and claims handling received from
brokers.
(5) (A) Records that are trade secrets pursuant to Section
6276.44, or Article 11 (commencing with Section 1060) of Chapter 4 of
Division 8 of the Evidence Code, including without limitation,
instructions, advice, or training provided by the State Compensation
Insurance Fund to its board members, officers, and employees
regarding the fund's special investigation unit, internal audit unit,
and informational security, marketing, rating, pricing,
underwriting, claims handling, audits, and collections.
(B) Notwithstanding subparagraph (A), the portions of records
containing trade secrets shall be available for review by the Joint
Legislative Audit Committee, the Bureau of State Audits, Division of
Workers' Compensation, and the Department of Insurance to ensure
compliance with applicable law.
(6) (A) Internal audits containing proprietary information and the
following records that are related to an internal audit:
(i) Personal papers and correspondence of any person providing
assistance to the fund when that person has requested in writing that
his or her papers and correspondence be kept private and
confidential. Those papers and correspondence shall become public
records if the written request is withdrawn, or upon order of the
fund.
(ii) Papers, correspondence, memoranda, or any substantive
information pertaining to any audit not completed or an internal
audit that contains proprietary information.
(B) Notwithstanding subparagraph (A), the portions of records
containing proprietary information, or any information specified in
subparagraph (A) shall be available for review by the Joint
Legislative Audit Committee, the Bureau of State Audits, Division of
Workers' Compensation, and the Department of Insurance to ensure
compliance with applicable law.
(7) (A) Except as provided in subparagraph (C), contracts entered
into pursuant to Chapter 4 (commencing with Section 11770) of Part 3
of Division 2 of the Insurance Code shall be open to inspection one
year after the contract has been fully executed.
(B) If a contract entered into pursuant to Chapter 4 (commencing
with Section 11770) of Part 3 of Division 2 of the Insurance Code is
amended, the amendment shall be open to inspection one year after the
amendment has been fully executed.
(C) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(D) Notwithstanding any other law, the entire contract or
amendments to a contract shall be open to inspection by the Joint
Legislative Audit Committee. The committee shall maintain the
confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to this paragraph.
(E) This paragraph is not intended to apply to documents related
to contracts with public entities that are not otherwise expressly
confidential as to that public entity.
(F) For purposes of this paragraph, "fully executed" means the
point in time when all of the necessary parties to the contract have
signed the contract.
This section shall does not prevent
any agency from opening its records concerning the administration of
the agency to public inspection, unless disclosure is otherwise
prohibited by law.
This section shall does not prevent
any health facility from disclosing to a certified bargaining agent
relevant financing information pursuant to Section 8 of the National
Labor Relations Act (29 U.S.C. Sec. 158).
SEC. 185. Section 6276.22 of the Government Code is amended to
read:
6276.22. Gambling Control Act, exemption from disclosure for
records of the California Gambling Control Commission and the
Department of Justice, Sections 19819 and 19821, Business and
Professions Code.
Genetically Handicapped Person's Persons
Program, confidentiality of factor replacement therapy
contracts, Section 125191, Health and Safety Code.
Governor, correspondence of and to Governor and Governor's office,
subdivision (l), Section 6254.
Governor, transfer of public records in control of, restrictions
on public access, Section 6268.
Grand jury, confidentiality of request for special counsel,
Section 936.7, Penal Code.
Grand jury, confidentiality of transcription of indictment or
accusation, Section 938.1, Penal Code.
Group Insurance, public employees, Section 53202.25.
Guardian, confidentiality of report used to check ability, Section
2342, Probate Code.
Guardianship, confidentiality of report regarding the suitability
of the proposed guardian, Section 1543, Probate Code.
Guardianship, disclosure of report and recommendation concerning
proposed guardianship of person or estate, Section 1513, Probate
Code.
SEC. 186. Section 6700 of the Government Code is amended to read:
6700. (a) The holidays in this state are:
(1) Every Sunday.
(2) January 1st.
(3) The third Monday in January, known as "Dr. Martin Luther King,
Jr. Day."
(4) February 12th, known as "Lincoln Day."
(5) The third Monday in February.
(6) March 31st , known as "Cesar Chavez Day."
(7) The last Monday in May.
(8) July 4th.
(9) The first Monday in September.
(10) September 9th, known as "Admission Day."
(11) The fourth Friday in September, known as "Native American
Day."
(12) The second Monday in October, known as "Columbus Day."
(13) November 11th, known as "Veterans Day."
(14) December 25th.
(15) Good Friday from 12 noon until 3 p.m.
(16) (A) Every day appointed by the President or Governor
for a public fast, thanksgiving, or holiday.
(B) Except for the Thursday in November appointed as Thanksgiving
Day, this paragraph and paragraphs (3) and (6) shall not apply to a
city, county, or district unless made applicable by charter, or by
ordinance or resolution of the governing body thereof.
(b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Chapter 12 (commencing with Section 3560) of Division 4 of Title 1,
the memorandum of understanding shall be controlling without further
legislative action, except that if those provisions of a memorandum
of understanding require the expenditure of funds, the provisions
shall not become effective unless approved by the Legislature in the
annual Budget Act.
SEC. 187. The heading of Article 8.5 (commencing with Section
8601) of Chapter 7 of Division 1 of Title 2 of the Government Code is
repealed.
Article 8.5. Urban Search and Rescue Emergency Response
Advisory Committee
SEC. 188. Section 8753.6 of the Government Code is amended to
read:
8753.6. (a) The California Arts Council Contribution and
Donations Fund is hereby created in the State Treasury to receive
funds pursuant to subdivision (m) of Section 8753. Notwithstanding
Government Code Section 13340, the moneys in the
fund are continuously appropriated, without regard to fiscal years,
to the Arts Council for the purposes of this chapter.
(b) Any moneys in the Art Council Donations Account in the Special
Deposit Fund shall be transferred to the California Arts Council
Contribution and Donations Fund.
SEC. 189. Section 11146.2 of the Government Code is amended to
read:
11146.2. Each state agency shall maintain records indicating the
specific attendees, each attendee's job title, and dates of their
attendance for each orientation course offered pursuant to Section
11146.1 for a period of not less than five years after each course is
given. These records shall be public records subject to inspection
and copying consistent with subdivision (a) of
Section 81008 and otherwise subject to the California Public Records
Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1).
SEC. 190. The heading of Article 8 (commencing with Section 11351)
of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the Government
Code, as added by Chapter 567 of the Statutes of 1979, is repealed.
Article 8. Exemptions
SEC. 191. The heading of Article 1 (commencing with Section 11370)
of Chapter 4 of Part 1 of Division 3 of Title 2 of the Government
Code, as added by Chapter 1425 of the Statutes of 1947, is repealed.
Article 1. General
SEC. 192. The heading of Article 6 (commencing with Section 12099)
of Chapter 1.6 of Part 2 of Division 3 of Title 2 of the Government
Code, as added by Section 1 of Chapter 530 of the Statutes of 2013,
is amended and renumbered to read:
Article 6. 6.2. California
Innovation Initiatives
SEC. 193. Section 12804 of the Government Code, as amended by
Section 27 of Chapter 46 of the Statutes of 2012, is repealed.
12804. The Agriculture and Services Agency is hereby renamed the
State and Consumer Services Agency.
The State and Consumer Services Agency consists of the following:
the Department of General Services; the Department of Consumer
Affairs; the Franchise Tax Board; the Public Employees' Retirement
System; the State Teachers' Retirement System; the Department of Fair
Employment and Housing; the California Science Center; the
California Victim Compensation and Government Claims Board; the
California African American Museum; the California Building and
Standards Commission; the Alfred E. Alquist Seismic Safety
Commission; and the Office of Privacy Protection.
SEC. 194. Section 13312 of the Government Code is repealed.
13312. (a) (1) Commencing with the 2008-09 fiscal year, and
notwithstanding any other provision of law, if after the annual
Budget Act is enacted, the Director of Finance determines that
General Fund total available resources for the fiscal year will
decline substantially below the estimate of General Fund total
resources available upon which the Budget Act was based, or that
General Fund expenditures will increase substantially above that
estimate of General Fund total resources available, the director may
make reductions pursuant to subdivision (b).
(2) For purposes of this subdivision, "total resources available"
includes prior year balance and revenues and transfers for the fiscal
year.
(b) Upon making a determination as described in subdivision (a),
the Director of Finance, in consultation with agency secretaries and
other cabinet members, may reduce General Fund items of
appropriation, subject to both of the following:
(1) The Director of Finance shall not reduce, pursuant to this
section, the amounts appropriated for any of the following:
(A) The Legislature.
(B) Constitutional officers.
(C) Transfers pursuant to the Article XIX B of the California
Constitution.
(D) Debt service, including, but not limited to, tobacco
settlement revenue shortfalls, payment of interest on General Fund
loans, and interest payments to the federal government.
(E) Health and dental benefits for annuitants.
(F) Equity claims before the California Victim Compensation and
Government Claims Board.
(G) Augmentations for contingencies or emergencies.
(H) Local assistance appropriations.
(I) Any collective bargaining agreement with a recognized state
employee organization.
(2) A General Fund state operations or capital outlay item of
appropriation, and a program or category designated in any line of
any schedule set forth by that appropriation, may not be reduced by
more than 7 percent.
(c) Notwithstanding any provision of law to the contrary, any
cost-of-living adjustment or rate increase funded in an annual Budget
Act shall be subject to the following conditions:
(1) If the Director of Finance determines that suspension by up to
120 days of the effective date of a cost-of-living adjustment or
rate increase funded in an annual Budget Act is necessary to mitigate
conditions that would authorize the issuance of a proclamation
declaring a fiscal emergency pursuant to subdivision (f) of Section
10 of Article IV of the California Constitution, that cost-of-living
adjustment or rate increase shall not take effect during that time.
(2) (A) If the Governor issues a proclamation declaring a fiscal
emergency pursuant to subdivision (f) of Section 10 of Article IV of
the California Constitution, then no cost-of-living adjustment or
rate increase funded in the annual Budget Act for that fiscal year
shall take effect until the Legislature passes and sends to the
Governor a bill or bills to address the fiscal emergency.
(B) Commencing with the 2009-10 fiscal year, the annual Budget Act
shall include a section specifying the cost-of-living adjustments or
rate increases included in the Budget Act or authorized by other
statutes which may be suspended pursuant to this paragraph.
(d) The Director of Finance shall report to the Chair of the Joint
Legislative Budget Committee and the chairs of the committees of
each house of the Legislature that consider appropriations not less
than 30 days prior to making reductions pursuant to this section. The
report shall list the specific reductions, by department, agency,
and program, and state the programmatic effects and impacts of each
reduction.
(e) Cost-of-living adjustments for purposes of this section shall
not include any apportionments made to fund a cost-of-living
adjustment to augment appropriations made pursuant to Section 2558 of
the Education Code, for county office of education revenue limits,
or Section 42238 of the Education Code, for school district revenue
limits, nor shall it include a cost-of-living adjustment negotiated
in a collective bargaining agreement with a recognized state employee
organization.
(f) Nothing within this section shall be construed to confer any
authority upon the Director of Finance to modify or eliminate any
provision of existing law.
(g) This section shall only become operative if either Senate
Constitutional Amendment 1 or Assembly Constitutional Amendment 1 in
the 2009-10 Third Extraordinary Session is submitted to, and approved
by, the voters at a statewide election.
SEC. 195. Section 13956 of the Government Code is amended to read:
13956. Notwithstanding Section 13955, a person shall
is not be eligible for
compensation under the following conditions:
(a) An application shall be denied if the board finds that the
victim or, if compensation is sought by or on behalf of a derivative
victim, either the victim or derivative victim, knowingly and
willingly participated in the commission of the crime that resulted
in the pecuniary loss for which compensation is being sought pursuant
to this chapter. However, this subdivision shall
does not apply if the injury or death occurred as a direct
result of a crime committed in violation of Section 261, 262, or
273.5 of, or a crime of unlawful sexual intercourse with a minor
committed in violation of subdivision (d) of Section 261.5 of, the
Penal Code.
(b) (1) An application shall be denied if the board finds that the
victim or, if compensation is sought by, or on behalf of, a
derivative victim, either the victim or derivative victim failed to
cooperate reasonably with a law enforcement agency in the
apprehension and conviction of a criminal committing the crime.
However, in determining whether cooperation has been reasonable, the
board shall consider the victim's or derivative victim's age,
physical condition, and psychological state, cultural or linguistic
barriers, any compelling health and safety concerns, including, but
not limited to, a reasonable fear of retaliation or harm that would
jeopardize the well-being of the victim or the victim's family or the
derivative victim or the derivative victim's family, and giving due
consideration to the degree of cooperation of which the victim or
derivative victim is capable in light of the presence of any of these
factors.
(2) An application for a claim based on domestic violence shall
not be denied solely because no police report was made by the victim.
The board shall adopt guidelines that allow the board to consider
and approve applications for assistance based on domestic violence
relying upon evidence other than a police report to establish that a
domestic violence crime has occurred. Factors evidencing that a
domestic violence crime has occurred may include, but are not limited
to, medical records documenting injuries consistent with allegations
of domestic violence, mental health records, or the fact that the
victim has obtained a temporary or permanent restraining order, or
all of these.
(3) An application for a claim based on human trafficking as
defined in Section 236.1 of the Penal Code shall not be denied solely
because no a police report was
not made by the victim. The board shall adopt guidelines that
allow the board to consider and approve applications for assistance
based on human trafficking relying upon evidence other than a police
report to establish that a human trafficking crime as defined in
Section 236.1 of the Penal Code has occurred. That evidence may
include any reliable corroborating information approved by the board,
including, but not limited to, the following:
(A) A Law Enforcement Agency Endorsement issued pursuant to
Section 236.2 of the Penal Code.
(B) A human trafficking caseworker as identified in Section 1038.2
of the Evidence Code, has attested by affidavit that the individual
was a victim of human trafficking.
(4) (A) An application for a claim by a military personnel victim
based on a sexual assault by another military personnel shall not be
denied solely because it was not reported to a superior officer or
law enforcement at the time of the crime.
(B) Factors that the board shall consider for purposes of
determining if a claim qualifies for compensation include, but are
not limited to, the evidence of the following:
(i) Restricted or unrestricted reports to a military victim
advocate, sexual assault response coordinator, chaplain, attorney, or
other military personnel.
(ii) Medical or physical evidence consistent with sexual assault.
(iii) A written or oral report from military law enforcement or a
civilian law enforcement agency concluding that a sexual assault
crime was committed against the victim.
(iv) A letter or other written statement from a sexual assault
counselor, as defined in Section 1035.2 of the Evidence Code,
licensed therapist, or mental health counselor, stating that the
victim is seeking services related to the allegation of sexual
assault.
(v) A credible witness to whom the victim disclosed the details
that a sexual assault crime occurred.
(vi) A restraining order from a military or civilian court against
the perpetrator of the sexual assault.
(vii) Other behavior by the victim consistent with sexual assault.
(C) For purposes of this subdivision, the sexual assault at issue
shall have occurred during military service, including deployment.
(D) For purposes of this subdivision, the sexual assault may have
been committed offbase.
(E) For purposes of this subdivision, a "perpetrator" means an
individual who is any of the following at the time of the sexual
assault:
(i) An active duty military personnel from the United States Army,
Navy, Marine Corps, Air Force, or Coast Guard.
(ii) A civilian employee of any military branch specified in
clause (i), military base, or military deployment.
(iii) A contractor or agent of a private military or private
security company.
(iv) A member of the California National Guard.
(F) For purposes of this subdivision, "sexual assault" means an
offense included in Section 261, 262, 264.1, 286, 288a, or 289 of the
Penal Code, as of the date the act that added this paragraph was
enacted.
(c) An application for compensation may be denied, in whole or in
part, if the board finds that denial is appropriate because of the
nature of the victim's or other applicant's involvement in the events
leading to the crime or the involvement of the persons whose injury
or death gives rise to the application. In the case of a minor, the
board shall consider the minor's age, physical condition, and
psychological state, as well as any compelling health and safety
concerns, in determining whether the minor's application should be
denied pursuant to this section. The application of a derivative
victim of domestic violence under the age of 18 years of age or a
derivative victim of trafficking under 18 years of age may not be
denied on the basis of the denial of the victim's application under
this subdivision.
(d) (1) Notwithstanding Section 13955, no person who is convicted
of a felony may be granted compensation until that person has been
discharged from probation or has been released from a correctional
institution and has been discharged from parole, if any. In no case
shall compensation be granted to an applicant pursuant to this
chapter during any period of time the applicant is held in a
correctional institution.
(2) A person who has been convicted of a felony may apply for
compensation pursuant to this chapter at any time, but the award of
that compensation may not be considered until the applicant meets the
requirements for compensation set forth in paragraph (1).
(3) Applications of victims who are not felons shall receive
priority in the award of compensation over an application submitted
by a felon who has met the requirements for compensation set forth in
paragraph (1).
SEC. 196. The heading of Article 7 (commencing with Section 13968)
of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government
Code is repealed.
Article 7. Miscellaneous
SEC. 197. Section 13994 of the Government Code is amended and
renumbered to read:
13994. 13998. Unless the context
otherwise requires, the definitions in this section govern the
construction of this chapter.
(a) "Agency" means the Business, Transportation and Housing
Agency.
(b) "California-based foundation" means an organization defined in
the Internal Revenue Code as a private foundation, which is
incorporated in, and primarily conducts its activities within, the
state and receives funding in whole or in substantial part from
California-based companies.
(c) "Collaborative research" means technological or scientific
research that accelerates existing research toward the
commercialization of products, processes, and services, and is
conducted jointly or funded jointly by some or all of the following:
(1) The private sector, including intraindustry groups,
California-based private foundations, industry associations, and
nonprofit cooperative associations.
(2) The federal government.
(3) The state.
(4) Public or private universities, colleges, and laboratories.
(d) "Consortia" means jointly funded or jointly operated nonprofit
independent research and development organizations. "Consortia
development" means the establishment of consortia to manage and fund
a variety of technology transfer projects within a specific
technology or industry priority.
(e) "Industry association" is a nonprofit organization with a
substantial presence in California whose membership consists in whole
or in part of California-based companies, and whose funding is
derived in whole or in part from California-based companies.
(f) "Information technology" includes, but is not limited to, all
electronic technology systems and services, automated information
handling, system design and analysis, conversion of data, computer
programming, information storage and retrieval, telecommunications
that include voice, video, and data communications, requisite system
controls, simulation, electronic commerce, and all related
interactions between people and machines.
(g) "Nonprofit cooperative association" means an association,
organized and operating pursuant to either Chapter 1 (commencing with
Section 54001) of Division 20 of the Food and Agricultural Code or
Part 2 (commencing with Section 12200) of Division 3 of Title 1 of
the Corporations Code.
(h) "Technology" includes, but is not limited to, the application
of science and engineering to research and development, especially
for industrial or commercial objectives, in sectors that include
telecommunications, information technologies, electronics,
biochemistry, medicine, agriculture, transportation, space, and
aerospace.
(i) "Technology transfer" means the movement of the results of
basic or applied technological or scientific research to the design,
development, and production of new or improved products, services, or
processes.
SEC. 198. Section 13994.1 of the Government Code is amended and
renumbered to read:
13994.1. 13998.1. (a) (1) There is
within the agency the Regional Technology Alliance Program. The
intent of the regional technology alliances is to decentralize the
delivery of services and resources, programs and activities for
technology development, commercialization, application, and
competitiveness at a regional level.
(2) The agency may designate new regional technology alliances
upon application to carry out activities described in this section.
(3) The agency may establish criteria for designation that
includes, but need not be limited to, criteria previously established
by the Defense Conversion Council pursuant to Article 3.7
(commencing with Section 15346) of Chapter 1, as it read on December
31, 1998.
(b) Each alliance shall perform the following activities:
(1) Raise and leverage funds from multiple public and private
sources to support technology development, commercialization, and
application and industry competitiveness particularly in response to
defense industry conversion and diversification.
(2) Assist in the formation of new businesses.
(3) Maintain an electronic network and access to databases that
encourages business ventures.
(4) Coordinate with activities and efforts of industry, academia,
federal laboratories, and governments.
(5) Recommend administrative actions or programs that could assist
California's defense-dependent industries to successfully convert to
commercial markets.
(6) Provide information about state and federal defense conversion
programs, including, but not limited to, job training, economic
development, industrial modernization, dual-use technology, new
management techniques, and technology development and transfer.
(7) Identify emerging industries that may include commercial space
applications, transportation, environment, high performance
computing and communications, biotechnology and advanced materials,
and processing and critical existing industries.
(c) Each alliance may also perform, but need not be limited to,
the following activities:
(1) Assist in identifying businesses that could benefit from
defense conversion programs and defense-dislocated workers who
require employment and training opportunities.
(2) Assist and provide coordination in determining job
opportunities within and outside of the defense industry for which
displaced workers could be retrained and placed.
(3) Serve as a forum for industrywide networking linking
producers, suppliers, and consumers.
(4) Assist individual businesses and industry consortia in
applying for state and federal defense conversion program funds.
(5) Provide information and assistance in upgrading individual
businesses and industrywide production and management processes.
(6) Provide information on available state and federal resources
to aid businesses and workers affected by defense spending
reductions, base closures, plant closures, and layoffs, to foster
long-term economic vitality, industrial growth, and job
opportunities.
(d) Each alliance is encouraged to develop activities that achieve
the following results:
(1) Creation and retention of jobs.
(2) Creation of new businesses.
(3) Development of new commercial or dual-use products.
(4) Establishment of industry partnerships and consortia.
(5) Demonstration of productivity enhancement such as return on
investment, reduced cost, employee training, and upgrades.
(6) Establishment of public and private partnerships.
(7) Commitment of industry support, participation, and capital.
(8) Leverage of state funds.
(9) Loan repayment ratio.
(10) Participation of small businesses and minority-, women-, and
disabled veteran-owned businesses.
(11) Workforce training.
(e) The agency shall be authorized to enter into a contract for
services with any alliance to provide services to the office. These
contracts shall be sole source contracts, and exempt from the
competitive bid process.
(f) During the first two years following selection of an alliance,
the alliance shall monitor the performance of any application funded
pursuant to Section 13994.2, 13998.2,
and each invoice for payment shall be reviewed and approved by the
alliance, but the contract for services shall be directly between the
agency and the entity receiving grant funding. Commencing with the
third year of designation, any alliance with procedures and processes
approved by the agency shall be authorized to directly contract with
grant recipients. The agency shall audit these grants on a regular
basis.
SEC. 199. Section 13994.2 of the Government Code is amended and
renumbered to read:
13994.2. 13998.2. (a) There is
within the agency the Challenge Grant Program, consisting of
technology transfer grants and defense industry conversion and
diversification grants. Challenge grant projects funded shall
include, but not be limited to, the following: defense industry
conversion and diversification, access to ongoing research and
research findings, exchange or transfer of personnel and research
support services, including capital outlay, consortia development,
and collaborative research.
(b) All funds appropriated or received by the Challenge Grant
Program shall administratively be divided into either the Technology
Transfer Grant Program or the Defense Industry Conversion and
Diversification Program. Funding awards for the Technology Transfer
Grant Program shall be made pursuant to the requirements set forth in
Sections 13994.3 and 13994.6 13998.3 and
13998.6 .
(c) The agency shall award grants based upon a competitive
application process addressing the project's eligibility and ability
to fulfill the goals of the program.
(d) The agency shall report on this program to the Governor and
the Legislature.
SEC. 200. Section 13994.3 of the Government Code is amended and
renumbered to read:
13994.3. 13998.3. (a) An eligible
technology transfer or defense industry conversion and
diversification project shall, at least, do all of the following:
(1) Identify the sources of funding for the entire project.
(2) Not supplant other funding.
(3) Demonstrate that a significant portion of the project will be
undertaken in California.
(b) In addition to the requirements contained in subdivision (a),
a defense industry conversion and diversification project shall not
receive more than 25 percent of the total project costs requested in
the proposal.
(c) In addition to the requirements contained in subdivision (a),
a technology transfer project shall:
(1) Represent a technology or industry, or both, targeted in the
application.
(2) Include a significant amount of matching contributions from
either of the following:
(A) A private sector company or companies.
(B)
A California-based foundation or foundations, an industry association
or associations, or a nonprofit cooperative association or
associations.
(3) Include either of the following:
(A) A private sector company or companies that have significant
operations in the state.
(B) A California-based foundation or foundations, an industry
association or associations, or a nonprofit cooperative association
or associations.
SEC. 201. Section 13994.4 of the Government Code is amended and
renumbered to read:
13994.4. 13998.4. The technology
transfer grantee shall not incur expenses to be paid with grant funds
without evidence of a workable agreement between the parties
participating in the project that includes at least both of the
following:
(a) A resolution of the intellectual property rights relative to
the project.
(b) A direct and ongoing involvement of the public and private
sectors, when applicable in the project.
SEC. 202. Section 13994.5 of the Government Code is amended and
renumbered to read:
13994.5. 13998.5. (a) In awarding
technology transfer grants, the agency shall consider the following:
(1) The likelihood of commercialization of a product, service, or
process.
(2) The potential impact on the state's economy.
(3) The cost-effectiveness of the project.
(4) The importance of state funding for the viability of the
project.
(5) Cost sharing by other participants.
(6) The involvement of small businesses and minority-, disabled
veteran-, and women-owned businesses.
(7) Projects that will result in a prototype by the end of the
grant period.
(8) Other criteria that the agency determines are consistent with
the purposes of the program.
(b) The agency shall target industries and technologies with a
potential for enhancing the California economy, and shall fund
projects within those industries and utilizing those technologies.
SEC. 203. Section 13994.6 of the Government Code is amended and
renumbered to read:
13994.6. 13998.6. Technology
transfer projects may include reasonable overhead costs incurred by a
research institute and related to the project that shall not exceed
the allowable federal overhead costs for research. All other projects
may include any costs authorized by the principal funding agency,
and not precluded by state requirements.
SEC. 204. Section 13994.7 of the Government Code is amended and
renumbered to read:
13994.7. 13998.7. Except for defense
industry conversion and diversification projects, only a public
agency or a not-for-profit or nonprofit organization shall receive
funds under this chapter. Any person or entity is authorized to
receive a defense industry conversion and diversification grant.
SEC. 205. Section 13994.8 of the Government Code is amended and
renumbered to read:
13994.8. 13998.8. (a) The agency
may obtain scientific and technological expertise as needed to
provide advice and input on the program, the establishment of
targeted technologies and industries, the review of grant
applications, and the review of project performance.
(b) The agency may award funds over a multiyear period to a
grantee without requiring the grantee to reapply, so long as the
funds in multiple years are utilized for the same project originally
funded.
SEC. 206. Section 13994.9 of the Government Code is amended and
renumbered to read:
13994.9. 13998.9. (a)
Notwithstanding Sections 13994.2, 13994.3, 13994.4, and 13994.5, and
the regulations implementing this chapter, the secretary may award
discretionary technology transfer grants totaling not more than 5
percent or one hundred thousand dollars ($100,000), whichever is
greater, of the funds appropriated each year for this program.
(b) Notwithstanding Sections 13994.2, 13994.3, 13994.4,
13994.5, 13998.2, 13998.3, 13998.4, 13998.5, and
subdivision (a) of this section, the secretary may award up to 15
percent of the funds appropriated for a given fiscal year for
consortia development projects that do not have private sector match
but will have private sector match within six months from the date of
the award of funding. For purposes of this subdivision, "private
sector match" means a cash or in-kind contribution available for
expenditure or use to a consortium development project. If, after six
months, no a private sector match is
not available, funding under the program shall cease and
all moneys previously received shall be returned to the state.
SEC. 207. Section 13994.10 of the Government Code is amended and
renumbered to read:
13994.10. 13998.10. (a) In order to
carry out this chapter, there is hereby created in the State
Treasury the California Competitive Technology Fund.
(b) The fund shall receive state funds appropriated to it,
contributions from nonstate sources, reimbursements, federal funds,
and interest that accrues to the moneys in the fund pursuant to
subdivision (c).
(c) The Treasurer shall invest moneys contained in the fund not
needed to meet current obligations in the same manner as other public
funds are invested.
(d) Notwithstanding Section 13340, all moneys in the fund are
continuously appropriated without regard to fiscal years to the
agency for the purposes of this chapter, and for the purposes for
which moneys were provided. Except for state funds appropriated to,
or transferred into, the fund for local assistance, moneys in the
fund, including all interest, may be spent for support.
SEC. 208. Section 13994.11 of the Government Code is amended and
renumbered to read:
13994.11. 13998.11. The agency
shall report on this program to the Governor and the Legislature.
SEC. 209. Section 13994.12 of the Government Code is amended and
renumbered to read:
13994.12. 13998.12. There is hereby
established within the agency the Technology Planning Program. The
program shall provide grants and technical assistance to California
nonprofit organizations and public entities working within specific
industries to identify conversion or expansion projects. Grants may
be awarded in the areas of strategic planning and strategic
alliances. The program shall award grants based upon a competitive
application process addressing the project's eligibility, a review of
the proposal's scientific and technological aspects, and ability to
fulfill goals of the program. Priority shall be given to those
projects with the identified support of industry representatives,
matching funding, projects likely to receive federal funds requiring
matching funds, and any other criteria determined by the agency. A
project example is a joint effort to develop and commercialize
defense-related technologies by federal laboratories, universities,
and companies in close geographical proximity.
SEC. 210. Section 14254.5 of the Government Code is repealed.
14254.5. "Department," as used in this chapter, means (a) the
Department of Water Resources as to any project under the
jurisdiction of that department, (b) the Department of General
Services as to any project under the jurisdiction of that department,
(c) the Department of Boating and Waterways as to any project under
the jurisdiction of that department pursuant to Article 2.5
(commencing with Section 65) of Chapter 2 of Division 1 of the
Harbors and Navigation Code, (d) the Department of Corrections with
respect to any project under its jurisdiction pursuant to Chapter 11
(commencing with Section 7000) of Title 7 of Part 3 of the Penal
Code, and (e) the Department of Transportation as to all other
projects.
"Director," as used in this chapter, means the director of each
department as defined herein respectively.
SEC. 211. Section 14670.2 of the Government Code, as added by
Section 2 of Chapter 681 of the Statutes of 2007, is amended and
renumbered to read:
14670.2. 14670.22. (a)
Notwithstanding any other provision of law, the Director of General
Services, with the consent of the Department of Motor Vehicles, may
lease or exchange, if the director deems the leasing or exchanging to
be in the best interest of the state, for a term of years, as
determined by the director, and for fair market value, all or
portions of parcels of real property, that are acquired and used by
the state for the benefit of the Department of Motor Vehicles, as
described in subdivision (b), for the purpose of developing mixed
public and private use facilities, including adequate parking for the
Department of Motor Vehicles field office, as determined by that
department, subject to all of the following conditions:
(1) All proceeds from the lease or exchange of the Department of
Motor Vehicles property shall be deposited into the Motor Vehicle
Account in the State Transportation Fund and shall be available for
expenditure by the Department of Motor Vehicles.
(2) Each lease shall provide that the lessee may sublease for
commercial, retail or residential uses that portion of the developed
property that is not required for use of the state.
(3) A mixed-use facility developed pursuant to this section shall
be located at the current state-owned site unless there are
mitigating circumstances requiring relocation. If relocation does
become necessary, the replacement facility shall be located within
the geographic area that serves the current customer base.
(b) For purposes of this section, the following parcels of real
properties may be leased or exchanged pursuant to subdivision (a):
(1) A parcel of real property located at 1377 Fell Street, San
Francisco.
(2) 3960 Normal Street, San Diego, provided that any lease or
exchange of property shall include a condition that a local farmer's
market may continue to conduct regular business.
(3) 8629 Hellman Avenue, Rancho Cucamonga.
(c) The Department of General Services and the Department of
Motor Vehicles, jointly, shall notify the Joint Legislative Budget
Committee when the Department of General Services, with the consent
of the Department of Motor Vehicles, enters into any lease for a
period of 30 years or more and shall report to the committee the
terms and conditions of any lease at least 45 days prior to entering
into that lease.
(d) Any lease or exchange of properties carried out pursuant to
this section shall be for no less than fair market value and upon
terms and conditions that the Director of General Services determines
to be in the best interest of the state. Compensation for the
property may include land, improvements, money, or any combination
thereof.
(e) The Department of General Services shall be reimbursed for any
cost or expense incurred in the disposition or lease of any parcels
described in this section by the Department of Motor Vehicles or from
the proceeds of the lease or exchange of those parcels.
(f) None of the The
properties identified in this section shall be
are not subject to Section 11011.1 or Article 8
(commencing with Section 54220) of Chapter 5 of Part 1 of Division 2
of Title 5, and the properties shall be or have been offered to the
public through a competitive process determined by the director to be
in the best interest of the state.
SEC. 212. The heading of Article 18 (commencing with Section
14717) of Chapter 2 of Part 5.5 of Division 3 of Title 2 of the
Government Code is amended and renumbered to read:
Article 18. 8. Article
8.] Integrated Pest Management
SEC. 213. The heading of Chapter 4 (commencing with Section 14730)
of Part 5.5 of Division 3 of Title 2 of the Government Code is
repealed.
CHAPTER 4. INVENTORY OF PROPRIETARY LANDS
SEC. 214. Section 14829.2 of the Government Code is repealed.
14829.2. This article shall remain in effect until January 1,
1988, and as of that date is repealed, unless a later enacted
statute, which is chaptered before January 1, 1988, deletes or
extends that date, or unless the Director of General Services
determines that as of December 1, 1987, the programs established by
this article are self-supporting and notifies the Joint Legislative
Budget Committee of that determination.
SEC. 215. Section 15155 of the Government Code is amended to read:
15155. The committee shall consist of representatives from the
following organizations:
(1)
(a) Two representatives from the California
Peace Officers' Association of the State of California
.
(2)
(b) One representative from the California State
Sheriffs' Association.
(3)
(c) One representative from the League of California
Cities.
(4)
(d) One representative from the County Supervisors
Association of California.
(5)
(e) One representative from the Department of Justice.
(6)
(f) One representative from the Department of Motor
Vehicles.
(7)
(g) One representative from the Office of Emergency
Services.
(8)
(h) One representative from the Department of the
California Highway Patrol.
(9)
(i) One representative from the California Police
Chiefs Association.
SEC. 216. Section 15814.22 of the Government Code is amended to
read:
15814.22. The Department of General Services, in consultation
with the California State Energy
Resources Conservation and Development Commission and other state
agencies and departments, shall develop a multiyear plan, to be
updated biennially, with the goal of exploiting all practicable and
cost-effective energy efficiency measures in state facilities. The
department shall coordinate plan implementation efforts, and make
recommendations to the Governor and the Legislature to achieve energy
efficiency goals for state facilities.
SEC. 217. Section 16183 of the Government Code is amended to read:
16183. (a) (1) From the
time a payment is made pursuant to Section 16180, the amount of that
payment shall bear interest at a rate (not compounded), determined as
follows:
(1) Beginning July 1, 2016, the rate of interest shall be 7
percent per annum.
(2) The Controller shall establish an adjusted rate of interest
for the purpose of this subdivision not later than July 15th of any
year if the effective annual yield of the Pooled Money Investment
Account for the prior fiscal year is at least a full percentage point
more or less than the interest rate which is then in effect. The
adjusted rate of interest shall be equal per annum to the effective
annual yield earned in the prior fiscal year by the Pooled Money
Investment Account rounded to the nearest full percent, and shall
become effective for new deferrals, beginning on July 1, 1984, and on
July 1 of each immediately succeeding year, until June 30, 2016.
(3) The rate of interest provided pursuant to this subdivision for
the first fiscal year commencing after payment is made pursuant to
Section 16180 shall apply for that fiscal year and each fiscal year
thereafter until these postponed property taxes are repaid.
(b) The interest provided for in subdivision (a) shall be applied
beginning the first day of the month following the month in which
that payment is made and continuing on the first day of each month
thereafter until that amount is paid. In the event that any payments
are applied, in any month, to reduce the amount paid pursuant to
Section 16180, the interest provided for herein shall be applied to
the balance of that amount beginning on the first day of the
following month.
(c) In computing interest in accordance with this section,
fractions of a cent shall be disregarded.
(d) For the purpose of this section, the time a payment is made
shall be deemed to be the time a certificate of eligibility is
countersigned by the tax collector or the delinquency date of the
respective tax installment, whichever is later.
(e) The Controller shall include on forms supplied to claimants
pursuant to Sections 20621, 20630.5, 20639.9, 20640.9, and 20641 of
the Revenue and Taxation Code, a statement of the interest rate which
shall apply to amounts postponed for the fiscal year to which the
form applies.
SEC. 218. Article 12 (commencing with Section 16429.30) of Chapter
2 of Part 2 of Division 4 of Title 2 of the Government Code is
repealed.
SEC. 219. Section 17581.6 of the Government Code is amended to
read:
17581.6. (a) Funding apportioned pursuant to this section shall
constitute reimbursement pursuant to Section 6 of Article XIII B of
the California Constitution for the performance of any state mandates
included in the statutes and executive orders identified in
subdivision (e).
(b) Any school district, county office of education, or charter
school may elect to receive block grant funding pursuant to this
section.
(c) (1) A school district, county office of education, or charter
school that elects to receive block grant funding pursuant to this
section in a given fiscal year shall submit a letter requesting
funding to the Superintendent of Public Instruction on or before
August 30 of that fiscal year.
(2) The Superintendent of Public Instruction shall, in the month
of November of each year, apportion block grant funding appropriated
pursuant to Item 6110-296-0001 of Section 2.00 of the annual Budget
Act to all school districts, county offices of education, and charter
schools that submitted letters requesting funding in that fiscal
year according to the provisions of that item.
(3) A school district or county office of education that receives
block grant funding pursuant to this section shall not be eligible to
submit claims to the Controller for reimbursement pursuant to
Section 17560 for any costs of any state mandates included in the
statutes and executive orders identified in subdivision (e) incurred
in the same fiscal year during which the school district or county
office of education received funding pursuant to this section.
(d) Block grant funding apportioned pursuant to this section is
subject to annual financial and compliance audits required by Section
41020 of the Education Code.
(e) Block grant funding apportioned pursuant to this section is
specifically intended to fund the costs of the following programs and
activities:
(1) Academic Performance Index (01-TC-22; Chapter 3 of the
Statutes of 1999, First Extraordinary Session; and Chapter 695 of the
Statutes of 2000).
(2) Agency Fee Arrangements (00-TC-17 and 01-TC-14; Chapter 893 of
the Statutes of 2000 and Chapter 805 of the Statutes of 2001).
(3) AIDS Instruction and AIDS Prevention Instruction (CSM 4422,
99-TC-07, and 00-TC-01; Chapter 818 of the Statutes of 1991; and
Chapter 403 of the Statutes of 1998).
(4) California State Teachers' Retirement System (CalSTRS) Service
Credit (02-TC-19; Chapter 603 of the Statutes of 1994; Chapters 383,
634, and 680 of the Statutes of 1996; Chapter 838 of the Statutes of
1997; Chapter 965 of the Statutes of 1998; Chapter 939 of the
Statutes of 1999; and Chapter 1021 of the Statutes of 2000).
(5) Caregiver Affidavits (CSM 4497; Chapter 98 of the Statutes of
1994).
(6) Charter Schools I, II, and III (CSM 4437, 99-TC-03, and
99-TC-14; Chapter 781 of the Statutes of 1992; Chapters 34 and 673 of
the Statutes of 1998; Chapter 34 of the Statutes of 1998; and
Chapter 78 of the Statutes of 1999).
(7) Charter Schools IV (03-TC-03; Chapter 1058 of the Statutes of
2002).
(8) Child Abuse and Neglect Reporting (01-TC-21: Chapters 640 and
1459 of the Statutes of 1987; Chapter 132 of the Statutes of 1991;
Chapter 459 of the Statutes of 1992; Chapter 311 of the Statutes of
1998; Chapter 916 of the Statutes of 2000; and Chapters 133 and 754
of the Statutes of 2001).
(9) Collective Bargaining (CSM 4425; Chapter 961 of the Statutes
of 1975).
(10) Comprehensive School Safety Plans (98-TC-01 and 99-TC-10;
Chapter 736 of the Statutes of 1997; Chapter 996 of the Statutes of
1999; and Chapter 828 of the Statutes of 2003).
(11) Consolidation of Annual Parent Notification/Schoolsite
Discipline Rules/Alternative Schools (CSM 4488, CSM 4461, 99-TC-09,
00-TC-12, 97-TC-24, CSM 4453, CSM 4474, CSM 4462; Chapter 448 of the
Statutes of 1975; Chapter 965 of the Statutes of 1977; Chapter 975 of
the Statutes of 1980; Chapter 469 of the Statutes of 1981; Chapter
459 of the Statutes of 1985; Chapters 87 and 97 of the Statutes of
1986; Chapter 1452 of the Statutes of 1987; Chapters 65 and 1284 of
the Statutes of 1988; Chapter 213 of the Statutes of 1989; Chapters
10 and 403 of the Statutes of 1990; Chapter 906 of the Statutes of
1992; Chapter 1296 of the Statutes of 1993; Chapter 929 of the
Statutes of 1997; Chapters 846 and 1031 of the Statutes of 1998;
Chapter 1 of the Statutes of 1999, First Extraordinary Session;
Chapter 73 of the Statutes of 2000; Chapter 650 of the Statutes of
2003; Chapter 895 of the Statutes of 2004; and Chapter 677 of the
Statutes of 2005).
(12) Consolidation of Law Enforcement Agency Notification and
Missing Children Reports (CSM 4505; Chapter 1117 of the Statutes of
1989 and 01-TC-09; Chapter 249 of the Statutes of 1986; and Chapter
832 of the Statutes of 1999).
(13) Consolidation of Notification to Teachers: Pupils Subject to
Suspension or Expulsion I and II, and Pupil Discipline Records
(00-TC-10 and 00-TC-11; Chapter 345 of the Statutes of 2000).
(14) County Office of Education Fiscal Accountability Reporting
(97-TC-20; Chapters 917 and 1452 of the Statutes of 1987; Chapters
1461 and 1462 of the Statutes of 1988; Chapter 1372 of the Statutes
of 1990; Chapter 1213 of the Statutes of 1991; Chapter 323 of the
Statutes of 1992; Chapters 923 and 924 of the Statutes of 1993;
Chapters 650 and 1002 of the Statutes of 1994; and Chapter 525 of the
Statutes of 1995).
(15) Criminal Background Checks (97-TC-16; Chapters 588 and 589 of
the Statutes of 1997).
(16) Criminal Background Checks II (00-TC-05; Chapters 594 and 840
of the Statutes of 1998; and Chapter 78 of the Statutes of 1999).
(17) Developer Fees (02-TC-42; Chapter 955 of the Statutes of
1977; Chapter 282 of the Statutes of 1979; Chapter 1354 of the
Statutes of 1980; Chapter 201 of the Statutes of 1981; Chapter 923 of
the Statutes of 1982; Chapter 1254 of the Statutes of 1983; Chapter
1062 of the Statutes of 1984; Chapter 1498 of the Statutes of 1985;
Chapters 136 and 887 of the Statutes of 1986; and Chapter 1228 of the
Statutes of 1994).
(18) Differential Pay and Reemployment (99-TC-02; Chapter 30 of
the Statutes of 1998).
(19) Expulsion of Pupil: Transcript Cost for Appeals (SMAS;
Chapter 1253 of the Statutes of 1975).
(20) Financial and Compliance Audits (CSM 4498 and CSM 4498-A;
Chapter 36 of the Statutes of 1977).
(21) Graduation Requirements (CSM 4181; Chapter 498 of the
Statutes of 1983).
(22) Habitual Truants (CSM 4487 and CSM 4487-A; Chapter 1184 of
the Statutes of 1975).
(23) High School Exit Examination (00-TC-06; Chapter 1 of the
Statutes of 1999, First Extraordinary Session; and Chapter 135 of the
Statutes of 1999).
(24) Immunization Records (SB 90-120; Chapter 1176 of the Statutes
of 1977).
(25) Immunization Records--Hepatitis B (98-TC-05; Chapter 325 of
the Statutes of 1978; Chapter 435 of the Statutes of 1979; Chapter
472 of the Statutes of 1982; Chapter 984 of the Statutes of 1991;
Chapter 1300 of the Statutes of 1992; Chapter 1172 of the Statutes of
1994; Chapters 291 and 415 of the Statutes of 1995; Chapter 1023 of
the Statutes of 1996; and Chapters 855 and 882 of the Statutes of
1997).
(26) Interdistrict Attendance Permits (CSM 4442; Chapters 172 and
742 of the Statutes of 1986; Chapter 853 of the Statutes of 1989;
Chapter 10 of the Statutes of 1990; and Chapter 120 of the Statutes
of 1992).
(27) Intradistrict Attendance (CSM 4454; Chapters 161 and 915 of
the Statutes of 1993).
(28) Juvenile Court Notices II (CSM 4475; Chapters 1011 and 1423
of the Statutes of 1984; Chapter 1019 of the Statutes of 1994; and
Chapter 71 of the Statutes of 1995).
(29) Notification of Truancy (CSM 4133; Chapter 498 of the
Statutes of 1983; Chapter 1023 of the Statutes of 1994; and Chapter
19 of the Statutes of 1995).
(30) Parental Involvement Programs (03-TC-16; Chapter 1400 of the
Statutes of 1990; Chapters 864 and 1031 of the Statutes of 1998;
Chapter 1037 of the Statutes of 2002).
(31) Physical Performance Tests (96-365-01; Chapter 975 of the
Statutes of 1995).
(32) Prevailing Wage Rate (01-TC-28; Chapter 1249 of the Statutes
of 1978).
(33) Public Contracts (02-TC-35; Chapter 1073 of the Statutes of
1985; Chapter 1408 of the Statutes 1988; Chapter 330 of the Statutes
of 1989; Chapter 1414 of the Statutes of 1990; Chapter 321 of the
Statutes of 1990; Chapter 799 of the Statutes of 1992; and Chapter
726 of the Statutes of 1994).
(34) Pupil Health Screenings (CSM 4440; Chapter 1208 of the
Statutes of 1976; Chapter 373 of the Statutes of 1991; and Chapter
750 of the Statutes of 1992).
(35) Pupil Promotion and Retention (98-TC-19; Chapter 100 of the
Statutes of 1981; Chapter 1388 of the Statutes of 1982; Chapter 498
of the Statutes of 1983; Chapter 1263 of the Statutes of 1990; and
Chapters 742 and 743 of the Statutes of 1998).
(36) Pupil Safety Notices (02-TC-13; Chapter 498 of the Statutes
of 1983; Chapter 482 of the Statutes of 1984; Chapter 948 of the
Statutes of 1984; Chapter 196 of the Statutes of 1986; Chapter 332 of
the Statutes of 1986; Chapter 445 of the Statutes of 1992; Chapter
1317 of the Statutes of 1992; Chapter 589 of the Statutes of 1993;
Chapter 1172 of the Statutes of 1994; Chapter 1023 of the Statutes of
1996; and Chapter 492 of the Statutes of 2000).
(37) Pupil Expulsions (CSM 4455; Chapter 1253 of the Statutes of
1975; Chapter 965 of the Statutes of 1977; Chapter 668 of the
Statutes of 1978; Chapter 318 of the Statutes of 1982; Chapter 498 of
the Statutes of 1983; Chapter 622 of the Statutes of 1984; Chapter
942 of the Statutes of 1987; Chapter 1231 of the Statutes of 1990;
Chapter 152 of the Statutes of 1992; Chapters 1255, 1256, and 1257 of
the Statutes of 1993; and Chapter 146 of the Statutes of 1994).
(38) Pupil Expulsion Appeals (CSM 4463; Chapter 1253 of the
Statutes of 1975; Chapter 965 of the Statutes of 1977; Chapter 668 of
the Statutes of 1978; and Chapter 498 of the Statutes of 1983).
(39) Pupil Suspensions (CSM 4456; Chapter 965 of the Statutes of
1977; Chapter 668 of the Statutes of 1978; Chapter 73 of the Statutes
of 1980; Chapter 498 of the Statutes of 1983; Chapter 856 of the
Statutes of 1985; and Chapter 134 of the Statutes of 1987).
(40) School
Accountability Report Cards (97-TC-21, 00-TC-09, 00-TC-13, and
02-TC-32; Chapter 918 of the Statutes of 1997; Chapter 912 of the
Statutes of 1997; Chapter 824 of the Statutes of 1994; Chapter 1031
of the Statutes of 1993; Chapter 759 of the Statutes of 1992; and
Chapter 1463 of the Statutes of 1989).
(41) School District Fiscal Accountability Reporting (97-TC-19;
Chapter 100 of the Statutes of 1981; Chapter 185 of the Statutes of
1985; Chapter 1150 of the Statutes of 1986; Chapters 917 and 1452 of
the Statutes of 1987; Chapters 1461 and 1462 of the Statutes of 1988;
Chapter 525 of the Statutes of 1990; Chapter 1213 of the Statutes of
1991; Chapter 323 of the Statutes of 1992; Chapters 923 and 924 of
the Statutes of 1993; Chapters 650 and 1002 of the Statutes of 1994;
and Chapter 525 of the Statutes of 1995).
(42) School District Reorganization (98-TC-24; Chapter 1192 of the
Statutes of 1980; and Chapter 1186 of the Statutes of 1994).
(43) Student Records (02-TC-34; Chapter 593 of the Statutes of
1989; Chapter 561 of the Statutes of 1993; Chapter 311 of the
Statutes of 1998; and Chapter 67 of the Statutes of 2000).
(44) The Stull Act (98-TC-25; Chapter 498 of the Statutes of 1983;
and Chapter 4 of the Statutes of 1999).
(45) Threats Against Peace Officers (CSM 96-365-02; Chapter 1249
of the Statutes of 1992; and Chapter 666 of the Statutes of 1995).
(46) Uniform Complaint Procedures (03-TC-02; Chapter 1117 of the
Statutes of 1982; Chapter 1514 of the Statutes of 1988;
and Chapter 914 of the Statutes of 1998).
(47) Williams Case Implementation I, II, and III (05-TC-04,
07-TC-06, and 08-TC-01; Chapters 900, 902, and 903 of the Statutes of
2004; Chapter 118 of the Statutes of 2005; Chapter 704 of the
Statutes of 2006; and Chapter 526 of the Statutes of 2007).
(48) Pupil Expulsions II, Pupil Suspensions II, and Educational
Services Plan for Expelled Pupils (96-358-03, 03A, 98-TC-22,
01-TC-18, 98-TC-23, 97-TC-09; Chapters 972 and 974 of the Statutes of
1995; Chapters 915, 937, and 1052 of the Statutes of 1996; Chapter
637 of the Statutes of 1997; Chapter 498 of the Statutes of 1998;
Chapter 332 of the Statutes of 1999; Chapter 147 of the Statutes of
2000; and Chapter 116 of the Statutes of 2001).
(f) Notwithstanding Section 10231.5, on or before November 1 of
each fiscal year, the Superintendent of Public Instruction shall
produce a report that indicates the total amount of block grant
funding each school district, county office of education, and charter
school received in that fiscal year pursuant to this section. The
Superintendent of Public Instruction shall provide this report to the
appropriate fiscal and policy committees of the Legislature, the
Controller, the Department of Finance, and the Legislative Analyst's
Office.
SEC. 220. Section 18720.45 of the Government Code is amended to
read:
18720.45. Employment forms used by a state agency shall require a
person applying for employment to disclose whether the person has
entered into an agreement with the state regarding any previous
employment with the state and that
agreement prohibits that person from seeking or accepting
any subsequent employment with the state.
SEC. 221. The heading of Chapter 5.5 (commencing with Section
19994.20) of Part 2.6 of Division 5 of Title 2 of the Government Code
is repealed.
CHAPTER 5.5. ACCIDENT REDUCTION INCENTIVE PROGRAM
SEC. 222. Section 19995.5 of the Government Code, as added by
Section 71 of Chapter 446 of the Statutes of 1999, is repealed.
19995.5. (a) There is hereby created in the State Treasury, the
State Employee Scholarship Fund to which funds shall be allocated
from the amount negotiated in memoranda of understanding between the
state and recognized employee organizations, as defined in Section
3513, and appropriated by the Legislature for the 2000-01 fiscal
year.
(b) The fund shall be used to establish a program for career
advancement to assist eligible state employees to participate in
educational programs that will enhance the personal growth and career
development of employees in state government.
(c) The fund shall be administered by the Department of Personnel
Administration. The amounts to be allocated and expended from funds
available for compensation shall be determined by the department.
(d) Notwithstanding Section 13340, moneys in the fund shall be
available for expenditure without regard to fiscal years through June
30, 2001. As of June 30, 2001, the fund shall cease to exist unless
the existence of the fund is extended by statute and that statute is
enacted prior to June 30, 2001.
SEC. 223. Section 22960.51 of the Government Code, as added by
Section 3 of Chapter 790 of the Statutes of 2014, is amended and
renumbered to read:
22960.51. 22960.52. Consistent with
the requirements of Section 401(a)(2) of the Internal Revenue Code
(26 U.S.C. Sec. 401(a)(2)), the corpus or income of the plan's trust
shall not be diverted to, or used for, purposes other than the
exclusive benefit of the members or their beneficiaries nor shall
there be a reversion of trust funds except as permitted by Revenue
Ruling 91-4, 1991-1 C.B. 57, by the Internal Revenue Service.
SEC. 224. Section 31685.96 of the Government Code, as added by
Section 2 of Chapter 670 of the Statutes of 1994, is amended and
renumbered to read:
31685.96. 31685.97. This article
shall not be operative in any county until the board of supervisors
shall, by resolution adopted by a majority vote, make this article
applicable in the county.
SEC. 225. Section 43009 of the Government Code, as added by
Section 5 of Chapter 752 of the Statutes of 1995, is repealed.
43009. In exercising its discretion to waive the security deposit
authorized by subdivision (b) of Section 43008, a utility shall
consider the creditworthiness of the transferee, and any other
factors determined by the utility.
SEC. 226. Section 53216.8 of the Government Code, as amended by
Section 156 of Chapter 62 of the Statutes of 2003, is amended and
renumbered to read:
53216.8. 53216.9. (a) Any former
member who left the service of a local agency with established
reciprocity, and who became a member of a county retirement system, a
retirement system established under the Public Employees' Retirement
Law, or another reciprocal retirement system and who did not elect
to, or was not eligible to, leave his or her contributions on
deposit, may elect to redeposit those contributions if he or she is
an active member of a reciprocal retirement system or the Public
Employees' Retirement System at the time of redeposit. A former
member may exercise this right by redepositing in the retirement fund
of the local agency he or she left, the amount of accumulated
contributions and interest that he or she withdrew from that
retirement fund plus regular interest thereon from the date of
separation.
(b) A former member who redeposits under this section shall have
the same rights as a member who elected to leave his or her
accumulated contributions on deposit in the local agency's fund. The
deferred retirement allowance of the member shall be determined in
accordance with provisions applicable to a member retiring directly
from local agency employment on the date of his or her retirement.
(c) A former member who redeposits under this section shall be
entitled to a reduced age at entry, commencing with contributions
payable the first day of the month following the date the local
agency receives notice of the redeposit, if applicable.
(d) This section does not apply to either of the following:
(1) A member or former member who is retired.
(2) A former member who is not in the service of an employer
making him or her a member of a county retirement system, a
retirement system established under the Public Employees' Retirement
Law, or another reciprocal retirement system.
(e) This section shall only apply
applies to either of the following:
(1) A former member who is in the service of an employer as an
officer or employee of a law enforcement agency or fire department
whose principal duties consist of active law enforcement or
firefighting and prevention service, but excluding one whose
principal duties are those of a telephone operator, clerk,
stenographer, machinist, mechanic, or otherwise, and whose functions
do not clearly come within the scope of active law enforcement or
firefighting and prevention service, even though the officer or
employee is subject to occasional call, or is occasionally called
upon, to perform duties within the scope of active law enforcement or
firefighting and prevention service.
(2) A former member who is in the service of an employer and seeks
to redeposit contributions for past employment as an officer or
employee of a law enforcement agency or fire department in this
system whose principal duties consisted of active law enforcement or
firefighting and prevention service, but excluding one whose
principal duties were those of a telephone operator, clerk,
stenographer, machinist, mechanic, or otherwise, and whose functions
did not clearly come within the scope of active law enforcement or
firefighting and prevention service, even though the officer or
employee was subject to occasional call, or was occasionally called
upon, to perform duties within the scope of active law enforcement or
firefighting and prevention service.
(f) For purposes of this section, a "former member" is a member
who left service under a retirement system established under this
article and who did not elect to, or was not eligible to, leave his
or her contributions on deposit.
(g) Each retirement system subject to this section shall establish
criteria to determine the eligibility of a former member to
redeposit contributions, and the amount of contributions that may be
redeposited, in those cases in which the system no longer maintains
complete records with respect to the former member.
(h) It is the intent of the Legislature in enacting this section
to recognize a statewide public obligation to all those whose duties
as local public safety officers expose them to more than ordinary
risks through their contribution to ensuring public safety and to
ensure that those who do serve or have served as local public safety
officers shall have the ability to receive pension benefits for past
public service in other jurisdictions within the state.
SEC. 227. Section 53398.52 of the Government Code is amended to
read:
53398.52. (a) (1) A district may finance any of the following:
(A) The purchase, construction, expansion, improvement, seismic
retrofit, or rehabilitation of any real or other tangible property
with an estimated useful life of 15 years or longer that satisfies
the requirements of subdivision (b).
(B) The planning and design work that is directly related to the
purchase, construction, expansion, or rehabilitation of property.
(C) The costs described in Sections 53398.56 and 53398.57.
(2) The facilities need not be physically located within the
boundaries of the district. However, any facilities financed outside
of a district must have a tangible connection to the work of the
district, as detailed in the infrastructure financing plan adopted
pursuant to Section 53398.69.
(3) A district may shall not finance
routine maintenance, repair work, or the costs of an ongoing
operation or providing services of any kind.
(b) The district shall finance only public capital facilities or
other specified projects of communitywide significance that provide
significant benefits to the district or the surrounding community,
including, but not limited to, all of the following:
(1) Highways, interchanges, ramps and bridges, arterial streets,
parking facilities, and transit facilities.
(2) Sewage treatment and water reclamation plants and interceptor
pipes.
(3) Facilities for the collection and treatment of water for urban
uses.
(4) Flood control levees and dams, retention basins, and drainage
channels.
(5) Child care facilities.
(6) Libraries.
(7) Parks, recreational facilities, and open space.
(8) Facilities for the transfer and disposal of solid waste,
including transfer stations and vehicles.
(9) Brownfield restoration and other environmental mitigation.
(10) The development of projects on a former military base,
provided that the projects are consistent with the military base
authority reuse plan and are approved by the military base reuse
authority, if applicable.
(11) The repayment of the transfer of funds to a military base
reuse authority pursuant to Section 67851 that occurred on or after
the creation of the district.
(12) The acquisition, construction, or rehabilitation of housing
for persons of low and moderate income, as defined in Section 50093
of the Health and Safety Code, for rent or purchase.
(13) Acquisition, construction, or repair of industrial structures
for private use.
(14) Transit priority projects, as defined in Section 21155 of the
Public Resources Code, that are located within a transit priority
project area. For purposes of this paragraph, a transit priority
project area may include a military base reuse plan that meets the
definition of a transit priority project area and it may include a
contaminated site within a transit priority project area.
(15) Projects that implement a sustainable communities strategy,
when the State Air Resources Board, pursuant to Chapter 2.5
(commencing with Section 65080) of Division 2
1 of Title 7, has accepted a metropolitan planning
organization's determination that the sustainable communities
strategy or the alternative planning strategy would, if implemented,
achieve the greenhouse gas emission reduction targets.
(c) The district shall require, by recorded covenants or
restrictions, that housing units built pursuant to this section shall
remain available at affordable housing costs to, and occupied by,
persons and families of low- or moderate-income households for the
longest feasible time, but for not less than 55 years for rental
units and 45 years for owner-occupied units.
(d) The district may finance mixed-income housing developments,
but may finance only those units in such a development that are
restricted to occupancy by persons of low or moderate incomes as
defined in Section 50093 of the Health and Safety Code, and those
onsite facilities for child care, after-school care, and social
services that are integrally linked to the tenants of the restricted
units.
(e) A district may utilize any powers under the Polanco
Redevelopment Act (Article 12.5 (commencing with Section 33459) of
Chapter 4 of Part 1 of Division 24 of the Health and Safety Code),
and finance any action necessary to implement that act.
SEC. 228. Section 53398.75 of the Government Code is amended to
read:
53398.75. (a) Any infrastructure financing plan may contain a
provision that taxes, if any, levied upon taxable property in the
area included within the enhanced infrastructure financing district
each year by or for the benefit of the State of California, or any
affected taxing entity after the effective date of the ordinance
adopted pursuant to Section 53398.69 to create the district, shall be
divided as follows:
(1) That portion of the taxes that would be produced by the rate
upon which the tax is levied each year by or for each of the affected
taxing entities upon the total sum of the assessed value of the
taxable property in the district as shown upon the assessment roll
used in connection with the taxation of the property by the affected
taxing entity, last equalized prior to the effective date of the
ordinance adopted pursuant to Section 53398.69 to create the
district, shall be allocated to, and when collected shall be paid to,
the respective affected taxing entities as taxes by or for the
affected taxing entities on all other property are paid.
(2) That portion of the levied taxes each year specified in the
adopted infrastructure financing plan for the city or county and each
affected taxing entity that has agreed to participate pursuant to
Section 53398.68 in excess of the amount specified in
subdivision (a) paragraph (1) shall be allocated
to, and when collected shall be paid into a special fund of, the
district for all lawful purposes of the district. Unless and until
the total assessed valuation of the taxable property in a district
exceeds the total assessed value of the taxable property in the
district as shown by the last equalized assessment roll referred to
in subdivision (a), paragraph (1), all
of the taxes levied and collected upon the taxable property in the
district shall be paid to the respective affected taxing entities.
When the district ceases to exist pursuant to the adopted
infrastructure financing plan, all moneys thereafter received from
taxes upon the taxable property in the district shall be paid to the
respective affected taxing entities as taxes on all other property
are paid.
(b) Notwithstanding subdivision (a), where any district boundaries
overlap with the boundaries of any former redevelopment project
area, any debt or obligation of a district shall be subordinate to
any and all enforceable obligations of the former redevelopment
agency, as approved by the Oversight Board and the Department of
Finance. For the purposes of this chapter, the division of taxes
allocated to the district pursuant to subdivision (a) of this section
or of subdivision (b) of Section 53396 shall not include any taxes
required to be deposited by the county auditor-controller into the
Redevelopment Property Tax Trust Fund created pursuant to subdivision
(b) of Section 34170.5 of the Health and Safety Code.
(c) The legislative body of the city or county forming the
district may choose to dedicate any portion of its net available
revenue to the district through the financing plan described in
Section 53398.63.
(d) For the purposes of this section, "net available revenue"
means periodic distributions to the city or county from the
Redevelopment Property Tax Trust Fund, created pursuant to Section
34170.5 of the Health and Safety Code, that are available to the city
or county after all preexisting legal commitments and statutory
obligations funded from that revenue are made pursuant to Part 1.85
(commencing with Section 34170) of Division 24 of the Health and
Safety Code. "Net available revenue" shall not include any funds
deposited by the county auditor-controller into the Redevelopment
Property Tax Trust Fund or funds remaining in the Redevelopment
Property Tax Trust Fund prior to distribution. Net available revenues
shall not include any moneys payable to a school district that
maintains kindergarten and grades 1 to 12, inclusive, community
college districts, county office of education, or to the Educational
Revenue Augmentation Fund, pursuant to paragraph (4) of subdivision
(a) of Section 34183 of the Health and Safety Code.
(e) (1) That portion of any ad valorem property tax revenue
annually allocated to a city or county pursuant to Section 97.70 of
the Revenue and Taxation Code that is specified in the adopted
infrastructure financing plan for the city or county that has agreed
to participate pursuant to Section 53398.68, and that corresponds to
the increase in the assessed valuation of taxable property shall be
allocated to, and when collected shall be apportioned to a special
fund of the district for all lawful purposes of the district.
(2) When the district ceases to exist pursuant to the adopted
infrastructure financing plan, the revenues described in this
subdivision shall be allocated to, and when collected, shall be
apportioned to the respective city or county.
(f) This section shall not be construed to prevent a district from
utilizing revenues from any of the following sources to support its
activities provided that the applicable voter approval has been
obtained, and the infrastructure financing plan has been approved
pursuant to Section 53398.69:
(1) The Improvement Act of 1911 (Division 7 (commencing with
Section 5000) of the Streets and Highways Code).
(2) The Municipal Improvement Act of 1913 (Division 12 (commencing
with Section 10000) of the Streets and Highways Code).
(3) The Improvement Bond Act of 1915 (Division 10 (commencing with
Section 8500) of the Streets and Highways Code).
(4) The Landscaping and Lighting Act of 1972 (Part 2 (commencing
with Section 22500) of Division 15 of the Streets and Highways Code).
(5) The Vehicle Parking District Law of 1943 (Part 1 (commencing
with Section 31500) of Division 18 of the Streets and Highways Code).
(6) The Parking District Law of 1951 (Part 4 (commencing with
Section 35100) of Division 18 of the Streets and Highways Code).
(7) The Park and Playground Act of 1909 (Chapter 7 (commencing
with Section 38000) of Part 2 of Division 3 of Title 4 of this code).
(8) The Mello-Roos Community Facilities Act of 1982 (Chapter 2.5
(commencing with Section 53311) of Part 1 of Division 2 of this
title).
(9) The Benefit Assessment Act of 1982 (Chapter 6.4 (commencing
with Section 54703) of Part 1 of Division 2 of this title).
(10) The so-called facilities benefit assessment levied by the
charter city of San Diego or any substantially similar assessment
levied for the same purpose by any other charter city pursuant to any
ordinance or charter provision.
SEC. 229. Section 56378 of the Government Code is amended to read:
56378. (a) In addition to its other powers, the commission shall
initiate and make studies of existing governmental agencies. Those
studies shall include, but shall not be limited to, inventorying
those agencies and determining their maximum service area and service
capacities. In conducting those studies, the commission may request
land use information, studies, joint powers agreements, and plans of
cities, counties, districts, including school districts, community
college districts, joint powers agencies and joint powers
authorities, regional agencies , and state agencies and
departments. Cities, counties, districts, including school districts,
community college districts, joint powers agencies and joint powers
authorities, regional agencies, and state agencies and departments,
shall comply with the request of the commission for that information
and the commission shall make its studies available to public
agencies and any interested person. In making these studies, the
commission may cooperate with the county planning commissions.
(b) The commission, or the board of supervisors on behalf of the
commission, may apply for or accept, or both, any financial
assistance and grants-in-aid from public or private agencies or from
the state or federal government or from a local government.
SEC. 230. Section 65080.1 of the Government Code, as added by
Section 3 of Chapter 375 of the Statutes of 2007, is amended and
renumbered to read:
65080.1. 65080.6. Each
transportation planning agency designated under Section 29532 or
29532.1 whose jurisdiction includes a portion of the California
Coastal Trail, or property designated for the trail, that is located
within the coastal zone, as defined in Section 30103 of the Public
Resources Code, shall coordinate with the State Coastal Conservancy,
the California Coastal Commission, and the Department of
Transportation regarding development of the California Coastal Trail,
and each transportation planning agency shall include provisions for
the California Coastal Trail in its regional plan, under Section
65080.
SEC. 231. Section 65352.5 of the Government Code is amended to
read:
65352.5. (a) The Legislature finds and declares that it is vital
that there be close coordination and consultation between California'
s water supply or management agencies and California's land use
approval agencies to ensure that proper water supply and management
planning occurs to accommodate projects that will result in increased
demands on water supplies or impact water resource management.
(b) It is, therefore, the intent of the Legislature to provide a
standardized process for determining the adequacy of existing and
planned future water supplies to meet existing and planned future
demands on these water supplies and the impact of land use decisions
on the management of California's water supply resources.
(c) Upon receiving, pursuant to Section 65352, notification of a
city's or a county's proposed action to adopt or substantially amend
a general plan, a public water system, as defined in Section 116275
of the Health and Safety Code, with 3,000 or more service
connections, shall provide the planning agency with the following
information, as is appropriate and relevant:
(1) The current version of its urban water management plan,
adopted pursuant to Part 2.6 (commencing with Section 10610) of
Division 6 of the Water Code.
(2) The current version of its capital improvement program or
plan, as reported pursuant to Section 31144.73 of the Water Code.
(3) A description of the source or sources of the total water
supply currently available to the water supplier by water right or
contract, taking into account historical data concerning wet, normal,
and dry runoff years.
(4) A description of the quantity of surface water that was
purveyed by the water supplier in each of the previous five years.
(5) A description of the quantity of groundwater that was purveyed
by the water supplier in each of the previous five years.
(6) A description of all proposed additional sources of water
supplies for the water supplier, including the estimated dates by
which these additional sources should be available and the quantities
of additional water supplies that are being proposed.
(7) A description of the total number of customers currently
served by the water supplier, as identified by the following
categories and by the amount of water served to each category:
(A) Agricultural users.
(B) Commercial users.
(C) Industrial users.
(D) Residential users.
(8) Quantification of the expected reduction in total water
demand, identified by each customer category set forth in paragraph
(7), associated with future implementation of water use reduction
measures identified in the water supplier's urban water management
plan.
(9) Any additional information that is relevant to determining the
adequacy of existing and planned future water supplies to meet
existing and planned future demands on these water
supplies.
(d) Upon receiving, pursuant to Section 65352, notification of a
city's or a county's proposed action to adopt or substantially amend
a general plan, a groundwater sustainability agency, as defined in
Section 10721 of the Water Code, or an entity that submits an
alternative under Section 10733.6 of the Water Code shall
provide the planning agency with the following information, as is
appropriate and relevant:
(1) The current version of its groundwater sustainability plan or
alternative adopted pursuant to Part 2.74 (commencing with Section
10720) of Division 6 of the Water Code.
(2) If the groundwater sustainability agency manages groundwater
pursuant to a court order, judgment, decree, or agreement among
affected water rights holders, or if the State Water Resources
Control Board has adopted an interim plan pursuant to Chapter 11
(commencing with Section 10735) of Part 2.74 of Division 6 of the
Water Code, the groundwater sustainability agency shall provide the
planning agency with maps of recharge basins and percolation ponds,
extraction limitations, and other relevant information, or the court
order, judgment, or decree.
(3) A report on the anticipated effect of proposed action to adopt
or substantially amend a general plan on implementation of a
groundwater sustainability plan pursuant to Part 2.74 (commencing
with Section 10720) of Division 6 of the Water Code.
SEC. 232. Section 65583.2 of the Government Code, as amended by
Chapter 883 of the Statutes of 2014, is amended to read:
65583.2. (a) A city's or county's inventory of land suitable for
residential development pursuant to paragraph (3) of subdivision (a)
of Section 65583 shall be used to identify sites that can be
developed for housing within the planning period and that are
sufficient to provide for the jurisdiction's share of the regional
housing need for all income levels pursuant to Section 65584. As used
in this section, "land suitable for residential development"
includes all of the following:
(1) Vacant sites zoned for residential use.
(2) Vacant sites zoned for nonresidential use that allows
residential development.
(3) Residentially zoned sites that are capable of being developed
at a higher density.
(4) Sites zoned for nonresidential use that can be redeveloped
for, and as necessary, rezoned for, residential use.
(b) The inventory of land shall include all of the following:
(1) A listing of properties by parcel number or other unique
reference.
(2) The size of each property listed pursuant to paragraph (1),
and the general plan designation and zoning of each property.
(3) For nonvacant sites, a description of the existing use of each
property.
(4) A general description of any environmental constraints to the
development of housing within the jurisdiction, the documentation for
which has been made available to the jurisdiction. This information
need not be identified on a site-specific basis.
(5) A general description of existing or planned water, sewer, and
other dry utilities supply, including the availability and access to
distribution facilities. This information need not be identified on
a site-specific basis.
(6) Sites identified as available for housing for above
moderate-income households in areas not served by public sewer
systems. This information need not be identified on a site-specific
basis.
(7) A map that shows the location of the sites included in the
inventory, such as the land use map from the jurisdiction's general
plan, for reference purposes only.
(c) Based on the information provided in subdivision (b), a city
or county shall determine whether each site in the inventory can
accommodate some portion of its share of the regional housing need by
income level during the planning period, as determined pursuant to
Section 65584. The analysis shall determine whether the inventory can
provide for a variety of types of housing, including multifamily
rental housing, factory-built housing, mobilehomes, housing for
agricultural employees, emergency shelters, and transitional housing.
The city or county shall determine the number of housing units that
can be accommodated on each site as follows:
(1) If local law or regulations require the development of a site
at a minimum density, the department shall accept the planning agency'
s calculation of the total housing unit capacity on that site based
on the established minimum density. If the city or county does not
adopt a law or regulations requiring the development of a site at a
minimum density, then it shall demonstrate how the number of units
determined for that site pursuant to this subdivision will be
accommodated.
(2) The number of units calculated pursuant to paragraph (1) shall
be adjusted as necessary, based on the land use controls and site
improvements requirement identified in paragraph (5) of subdivision
(a) of Section 65583.
(3) For the number of units calculated to accommodate its share of
the regional housing need for lower income households pursuant to
paragraph (2), a city or county shall do either of the following:
(A) Provide an analysis demonstrating how the adopted densities
accommodate this need. The analysis shall include, but is not limited
to, factors such as market demand, financial feasibility, or
information based on development project experience within a zone or
zones that provide housing for lower income households.
(B) The following densities shall be deemed appropriate to
accommodate housing for lower income households:
(i) For an incorporated city within a nonmetropolitan county and
for a nonmetropolitan county that has a micropolitan area: sites
allowing at least 15 units per acre.
(ii) For an unincorporated area in a nonmetropolitan county not
included in clause (i): sites allowing at least 10 units per acre.
(iii) For a suburban jurisdiction: sites allowing at least 20
units per acre.
(iv) For a jurisdiction in a metropolitan county: sites allowing
at least 30 units per acre.
(d) For purposes of this section, a metropolitan county,
nonmetropolitan county, and nonmetropolitan county with a
micropolitan area shall be as determined by the United States Census
Bureau. A nonmetropolitan county with a micropolitan area includes
the following counties: Del Norte, Humboldt, Lake, Mendocino, Nevada,
Tehama, and Tuolumne and other counties as may be determined by the
United States Census Bureau to be nonmetropolitan counties with
micropolitan areas in the future.
(e) (1) Except as provided in paragraph (2), a jurisdiction shall
be considered suburban if the jurisdiction does not meet the
requirements of clauses (i) and (ii) of subparagraph (B) of paragraph
(3) of subdivision (c) and is located in a Metropolitan Statistical
Area (MSA) of less than 2,000,000 in population, unless that
jurisdiction's population is greater than 100,000, in which case it
shall be considered metropolitan. A county, not including the City
and County of San Francisco, shall be considered suburban unless the
county is in an MSA of 2,000,000 or greater in population in which
case the county shall be considered metropolitan.
(2) (A) (i) Notwithstanding paragraph (1), if a county that is in
the San Francisco-Oakland-Fremont California MSA has a population of
less than 400,000, that county shall be considered suburban. If this
county includes an incorporated city that has a population of less
than 100,000, this city shall also be considered suburban. This
paragraph shall apply to a housing element revision cycle, as
described in subparagraph (A) of paragraph (3) of subdivision (e) of
Section 65588, that is in effect from July 1, 2014, to December 31,
2023, inclusive.
(ii) A county subject to this subparagraph shall utilize the sum
existing in the county's housing trust fund as of June 30, 2013, for
the development and preservation of housing affordable to low- and
very low income households.
(B) A jurisdiction that is classified as suburban pursuant to this
paragraph shall report to the Assembly Committee on Housing and
Community Development, the Senate Committee on Transportation and
Housing, and the Department of Housing and Community Development
regarding its progress in developing low- and very low income housing
consistent with the requirements of Section 65400. The report shall
be provided twice, twice: once, on or
before December 31, 2019, which report shall address the initial four
years of the housing element cycle, and a second time, on or before
December 31, 2023, which report shall address the subsequent four
years of the housing element cycle and the cycle as a whole. The
reports shall be provided consistent with the requirements of Section
9795.
(f) A jurisdiction shall be considered metropolitan if the
jurisdiction does not meet the requirements for "suburban area" above
and is located in a an MSA of
2,000,000 or greater in population, unless that jurisdiction's
population is less than 25,000 in which case it shall be considered
suburban.
(g) For sites described in paragraph (3) of subdivision (b), the
city or county shall specify the additional development potential for
each site within the planning period and shall provide an
explanation of the methodology used to determine the development
potential. The methodology shall consider factors including the
extent to which existing uses may constitute an impediment to
additional residential development, development trends, market
conditions, and regulatory or other incentives or standards to
encourage additional residential development on these sites.
(h) The program required by subparagraph (A) of paragraph (1) of
subdivision (c) of Section 65583 shall accommodate 100 percent of the
need for housing for very low and low-income households allocated
pursuant to Section 65584 for which site capacity has not been
identified in the inventory of sites pursuant to paragraph (3) of
subdivision (a) on sites that shall be zoned to permit owner-occupied
and rental multifamily residential use by right during the planning
period. These sites shall be zoned with minimum density and
development standards that permit at least 16 units per site at a
density of at least 16 units per acre in jurisdictions described in
clause (i) of subparagraph (B) of paragraph (3) of subdivision (c)
and at least 20 units per acre in jurisdictions described in clauses
(iii) and (iv) of subparagraph (B) of paragraph (3) of subdivision
(c). At least 50 percent of the very low and low-income housing need
shall be accommodated on sites designated for residential use and for
which nonresidential uses or mixed-uses are not permitted, except
that a city or county may accommodate all of the very low and
low-income housing need on sites designated for mixed uses if those
sites allow 100 percent residential use and require that residential
use occupy 50 percent of the total floor area of a mixed-use project.
(i) For purposes of this section and Section 65583, the phrase
"use by right" shall mean that the local government's review of the
owner-occupied or multifamily residential use may not require a
conditional use permit, planned unit development permit, or other
discretionary local government review or approval that would
constitute a "project" for purposes of Division 13 (commencing with
Section 21000) of the Public Resources Code. Any subdivision of the
sites shall be subject to all laws, including, but not limited to,
the local government ordinance implementing the Subdivision Map Act.
A local ordinance may provide that "use by right" does not exempt the
use from design review. However, that design review shall not
constitute a "project" for purposes of Division 13 (commencing with
Section 21000) of the Public Resources Code. Use by right for all
rental multifamily residential housing shall be provided in
accordance with subdivision (f) of Section 65589.5.
(j) Notwithstanding any other provision of this section, within
one-half mile of a Sonoma-Marin Area Rail Transit station, housing
density requirements in place on June 30, 2014, shall apply.
(k) This section shall remain in effect only until December 31,
2023, and as of that date is repealed, unless a later enacted
statute, that is enacted before December 31, 2023, deletes or extends
that date.
SEC. 233. Section 65995.7 of the Government Code is amended to
read:
65995.7. (a) (1) If state
funds for new school facility construction are not available, the
governing board of a school district that complies with Section
65995.5 may increase the alternative fee, charge, dedication, or
other requirement calculated pursuant to subdivision (c) of Section
65995.5 by an amount that may not exceed the amount calculated
pursuant to subdivision (c) of Section 65995.5, except that for the
purposes of calculating this additional amount, the amount identified
in paragraph (2) of subdivision (c) of Section 65995.5 may not be
subtracted from the amount determined pursuant to paragraph (1) of
subdivision (c) of Section 65995.5. For purposes of this section,
state funds are not available if the State Allocation Board is no
longer approving apportionments for new construction pursuant to
Article 5 (commencing with Section 17072.20) of Chapter 12.5 of Part
10 of the Education Code due to a lack of funds available for new
construction. Upon making a determination that state funds are no
longer available, the State Allocation Board shall notify the
Secretary of the Senate and the Chief Clerk of the Assembly, in
writing, of that determination and the date when state funds are no
longer available for publication in the respective journal of each
house. For the purposes of making this determination, the board shall
not consider whether funds are available for, or whether it is
making preliminary apportionments or final apportionments pursuant
to, Article 11 (commencing with Section 17078.10).
(2) Paragraph (1) shall become inoperative commencing on the
effective date of the measure that amended this section to add this
paragraph, and shall remain inoperative through the earlier of either
of the following:
(A) November 5, 2002, if the voters reject the Kindergarten
University Public Education Facilities Bond Act of 2002, after which
date paragraph (1) shall again become operative.
(B) The date of the 2004 direct primary election after which date
paragraph (1) shall again become operative.
(3) Paragraph (1) shall become inoperative commencing on the
effective date of the measure that amended this section to add this
paragraph, and shall remain inoperative through December 31, 2014,
after which date paragraph (1) shall again become operative, except
that it may become operative sooner in either of the following
circumstances:
(A) A statewide school facilities bond passes before December 31,
2014, in which case paragraph (1) shall become operative upon
certification of the election in which the voters approved the bond.
(B) A statewide school facilities bond has not been placed on the
ballot for the November 4, 2014, statewide general election by August
31, 2014, in which case paragraph (1) shall become operative on
September 1, 2014.
(b) A governing board may offer a reimbursement election to the
person subject to the fee, charge, dedication, or other requirement
that provides the person with the right to monetary reimbursement of
the supplemental amount authorized by this section, to the extent
that the district receives funds from state sources for construction
of the facilities for which that amount was required, less any amount
expended by the district for interim housing. At the option of the
person subject to the fee, charge, dedication, or other requirement
the reimbursement election may be made on a tract or lot basis.
Reimbursement of available funds shall be made within 30 days as they
are received by the district.
(c) A governing board may offer the person subject to the fee,
charge, dedication, or other requirement an opportunity to negotiate
an alternative reimbursement agreement if the terms of the agreement
are mutually agreed upon.
(d) A governing board may provide that the rights granted by the
reimbursement election or the alternative reimbursement agreement are
assignable.
SEC. 234. The heading of Article 2 (commencing with Section 72054)
of Chapter 8 of Title 8 of the Government Code is repealed.
Article 2. Clerk
SEC. 235. The heading of Article 4 (commencing with Section 72150)
of Chapter 8 of Title 8 of the Government Code is repealed.
Article 4. Additional Deputies
SEC. 236. Section 75070 of the Government Code is amended to read:
75070. In lieu of the retirement allowance for his or her life
alone, a judge may elect, or revoke or change a previous election
prior to the approval of the previous election, to have the actuarial
equivalent of his or her retirement allowance as of the
date of retirement applied to a lesser retirement allowance, in
accordance with one of the optional settlements specified in Section
75071.
That election, revocation, or change of election shall be made by
a writing filed with the Judges' Retirement System within 30 calendar
days after the making of the first payment on account of any
retirement allowance.
SEC. 237. Section 75521 of the Government Code is amended to read:
75521. (a) A judge who leaves judicial office before accruing at
least five years of service shall be paid the amount of his or her
contributions to the system, and no other amount.
(b) A judge who leaves judicial office after accruing five or more
years of service and who is not eligible to elect to retire under
Section 75522 shall be paid the amount of his or her monetary credits
determined pursuant to Section 75520, including the credits added
under subdivision (b) of that section computed to the last day of the
month preceding the date of distribution, and no other amount.
(c) Judges who leave office as described in subdivision (b) are
"retired judges" for purposes of a concurrent retirement with respect
to the benefits provided under Section 20639 and assignment pursuant
to Article 2 (commencing with Section 66540
68540.7 ) of Chapter 2 and are eligible for benefits provided
under Section 22814.
(d) After a judge has withdrawn his or her accumulated
contributions or the amount of his or her monetary credits upon
leaving judicial office, the service shall not count in the event he
or she later becomes a judge again, until he or she pays into the
Judges' Retirement System II Fund the amount withdrawn, plus interest
thereon at the rate of interest then being required to be paid by
members of the Public Employees' Retirement System under Section
20750 from the date of withdrawal to the date of payment.
SEC. 238. Section 82015 of the Government Code is amended to read:
82015. (a) "Contribution" means a payment, a forgiveness of a
loan, a payment of a loan by a third party, or an enforceable promise
to make a payment except to the extent that full and adequate
consideration is received, unless it is clear from the surrounding
circumstances that it is not made for political purposes.
(b) (1) A payment made at the behest of a committee, as defined in
subdivision (a) of Section 82013, is a contribution to the committee
unless full and adequate consideration is received from the
committee for making the payment.
(2) A payment made at the behest of a candidate is a contribution
to the candidate unless the criteria in either subparagraph (A) or
(B) are satisfied:
(A) Full and adequate consideration is received from the
candidate.
(B) It is clear from the surrounding circumstances that the
payment was made for purposes unrelated to his or her candidacy for
elective office. The following types of payments are presumed to be
for purposes unrelated to a candidate's candidacy for elective
office:
(i) A payment made principally for personal purposes, in which
case it may be considered a gift under the provisions of Section
82028. Payments that are otherwise subject to the limits of Section
86203 are presumed to be principally for personal purposes.
(ii) A payment made by a state, local, or federal governmental
agency or by a nonprofit organization that is exempt from taxation
under Section 501(c)(3) of the Internal Revenue Code.
(iii) A payment not covered by clause (i), made principally for
legislative, governmental, or charitable purposes, in which case it
is neither a gift nor a contribution. However, payments of this type
that are made at the behest of a candidate who is an elected officer
shall be reported within 30 days following the date on which the
payment or payments equal or exceed five thousand dollars ($5,000) in
the aggregate from the same source in the same calendar year in
which they are made. The report shall be filed by the elected officer
with the elected officer's agency and shall be a public record
subject to inspection and copying pursuant to subdivision
(a) of Section 81008. The report shall contain the
following information: name of payor, address of payor, amount of the
payment, date or dates the payment or payments were made, the name
and address of the payee, a brief description of the goods or
services provided or purchased, if any, and a description of the
specific purpose or event for which the payment or payments were
made. Once the five-thousand-dollar ($5,000) aggregate threshold from
a single source has been reached for a calendar year, all payments
for the calendar year made by that source shall be disclosed within
30 days after the date the threshold was reached or the payment was
made, whichever occurs later. Within 30 days after receipt of the
report, state agencies shall forward a copy of these reports to the
Commission, and local agencies shall forward a copy of these reports
to the officer with whom elected officers of that agency file their
campaign statements.
(C) For purposes of subparagraph (B), a payment is made for
purposes related to a candidate's candidacy for elective office if
all or a portion of the payment is used for election-related
activities. For purposes of this subparagraph, "election-related
activities" shall include, but are not limited to, the following:
(i) Communications that contain express advocacy of the nomination
or election of the candidate or the defeat of his or her opponent.
(ii) Communications that contain reference to the candidate's
candidacy for elective office, the candidate's election campaign, or
the candidate's or his or her opponent's qualifications for elective
office.
(iii) Solicitation of contributions to the candidate or to third
persons for use in support of the candidate or in opposition to his
or her opponent.
(iv) Arranging, coordinating, developing, writing, distributing,
preparing, or planning of any communication or activity described in
clause (i), (ii), or (iii).
(v) Recruiting or coordinating campaign activities of campaign
volunteers on behalf of the candidate.
(vi) Preparing campaign budgets.
(vii) Preparing campaign finance disclosure statements.
(viii) Communications directed to voters or potential voters as
part of activities encouraging or assisting persons to vote if the
communication contains express advocacy of the nomination or election
of the candidate or the defeat of his or her opponent.
(D) A contribution made at the behest of a candidate for a
different candidate or to a committee not controlled by the behesting
candidate is not a contribution to the behesting candidate.
(3) A payment made at the behest of a member of the Public
Utilities Commission, made principally for legislative, governmental,
or charitable purposes, is not a contribution. However, payments of
this type shall be reported within 30 days following the date on
which the payment or payments equal or exceed five thousand dollars
($5,000) in the aggregate from the same source in the same calendar
year in which they are made. The report shall be filed by the member
with the Public Utilities Commission and shall be a public record
subject to inspection and copying pursuant to subdivision
(a) of Section 81008. The report shall contain the
following information: name of payor, address of payor, amount of the
payment, date or dates the payment or payments were made, the name
and address of the payee, a brief description of the goods or
services provided or purchased, if any, and a description of the
specific purpose or event for which the payment or payments were
made. Once the five-thousand-dollar ($5,000) aggregate threshold from
a single source has been reached for a calendar year, all payments
for the calendar year made by that source shall be disclosed within
30 days after the date the threshold was reached or the payment was
made, whichever occurs later. Within 30 days after receipt of the
report, the Public Utilities Commission shall forward a copy of these
reports to the Fair Political Practices Commission.
(c) "Contribution" includes the purchase of tickets for events
such as dinners, luncheons, rallies, and similar fundraising events;
the candidate's own money or property used on behalf of his or her
candidacy, other than personal funds of the candidate used to pay
either a filing fee for a declaration of candidacy or a candidate
statement prepared pursuant to Section 13307 of the Elections Code;
the granting of discounts or rebates not extended to the public
generally or the granting of discounts or rebates by television and
radio stations and newspapers not extended on an equal basis to all
candidates for the same office; the payment of compensation by any
person for the personal services or expenses of any other person if
the services are rendered or expenses incurred on behalf of a
candidate or committee without payment of full and adequate
consideration.
(d) "Contribution" further includes any transfer of anything of
value received by a committee from another committee, unless full and
adequate consideration is received.
(e) "Contribution" does not include amounts received pursuant to
an enforceable promise to the extent those amounts have been
previously reported as a contribution. However, the fact that those
amounts have been received shall be indicated in the appropriate
campaign statement.
(f) (1) Except as provided in paragraph (2) or (3), "contribution"
does not include a payment made by an occupant of a home or office
for costs related to any meeting or fundraising event held
in the occupant's home or office
if the costs for the meeting or fundraising event are five hundred
dollars ($500) or less.
(2) "Contribution" includes a payment made by a lobbyist or a
cohabitant of a lobbyist for costs related to a fundraising event
held at the home of the lobbyist, including the value of the use of
the home as a fundraising event venue. A payment described in this
paragraph shall be attributable to the lobbyist for purposes of
Section 85702.
(3) "Contribution" includes a payment made by a lobbying firm for
costs related to a fundraising event held at the office of the
lobbying firm, including the value of the use of the office as a
fundraising event venue.
(g) Notwithstanding the foregoing definition of "contribution,"
the term does not include volunteer personal services or payments
made by any individual for his or her own travel expenses if the
payments are made voluntarily without any understanding or agreement
that they shall be, directly or indirectly, repaid to him or her.
(h) "Contribution" further includes the payment of public moneys
by a state or local governmental agency for a communication to the
public that satisfies both of the following:
(1) The communication expressly advocates the election or defeat
of a clearly identified candidate or the qualification, passage, or
defeat of a clearly identified measure, or, taken as a whole and in
context, unambiguously urges a particular result in an election.
(2) The communication is made at the behest of the affected
candidate or committee.
(i) "Contribution" further includes a payment made by a person to
a multipurpose organization as defined and described in Section
84222.
SEC. 239. Section 95014 of the Government Code is amended to read:
95014. (a) The term "eligible infant or toddler" for the purposes
of this title means infants and toddlers from birth through two
years of age, for whom a need for early intervention services, as
specified in the federal Individuals with Disabilities Education Act
(20 U.S.C. Sec. 1431 1430 et seq.) and
applicable regulations, is documented by means of assessment and
evaluation as required in Sections 95016 and 95018 and who meet one
of the following criteria:
(1) Infants and toddlers with a developmental delay in one or more
of the following five areas: cognitive development; physical and
motor development, including vision and hearing; communication
development; social or emotional development; or adaptive
development. Developmentally delayed infants and toddlers are those
who are determined to have a significant difference between the
expected level of development for their age and their current level
of functioning. This determination shall be made by qualified
personnel who are recognized by, or part of, a multidisciplinary
team, including the parents. A significant difference is defined as a
33-percent delay in one or more developmental areas.
(2) Infants and toddlers with established risk conditions, who are
infants and toddlers with conditions of known etiology or conditions
with established harmful developmental consequences. The conditions
shall be diagnosed by a qualified personnel
recognized by, or part of, a multidisciplinary team, including the
parents. The condition shall be certified as having a high
probability of leading to developmental delay if the delay is not
evident at the time of diagnosis.
(3) Infants and toddlers who are at high risk of having
substantial developmental disability due to a combination of
biomedical risk factors, the presence of which are diagnosed by
qualified personnel recognized by, or part of, a multidisciplinary
team, including the parents.
(b) Regional centers and local educational agencies shall be
responsible for ensuring that eligible infants and toddlers are
served as follows:
(1) The State Department of Developmental Services and regional
centers shall be responsible for the provision of appropriate early
intervention services that are required for California's
participation in Part C of the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1431 et seq.) for all infants eligible
under Section 95014, this section,
except for those infants with solely a visual, hearing, or severe
orthopedic impairment, or any combination of those impairments, who
meet the criteria in Sections 56026 and 56026.5 of the Education
Code, and in Section 3030(a) , or (b)
, (d), or (e) of, and Section 3031 of, Title 5 of
the California Code of Regulations.
(2) The State Department of Education and local educational
agencies shall be responsible for the provision of appropriate early
intervention services in accordance with Part C of the federal
Individuals with Disabilities Education Act (20 U.S.C. Sec. 1431 et
seq.) for infants with solely a visual, hearing, or severe orthopedic
impairment, or any combination of those impairments, who meet the
criteria in Sections 56026 and 56026.5 of the Education Code, and in
Section 3030(a) , or (b) ,
(d), or (e) of, and Section 3031 of, Title 5 of the
California Code of Regulations, and who are not eligible for services
under the Lanterman Developmental Disabilities Services Act
(Division 4.5 (commencing with Section 4500) of the Welfare and
Institutions Code).
(3) The transfer procedures and timelines, as provided under
subdivision (d) of Section 4643.5 of the Welfare and Institutions
Code, shall apply if the circumstances pertaining to an eligible
infant or toddler are that the child (A) has an order for foster care
placement, is awaiting foster care placement, or is placed in
out-of-home care through voluntary placement as defined in
subdivision (o) of Section 11400 of the Welfare and Institutions
Code, and (B) transfers between regional centers.
(c) For infants and toddlers and their families who are eligible
to receive services from both a regional center and a local
educational agency, the regional center shall be the agency
responsible for providing or purchasing appropriate early
intervention services that are beyond the mandated responsibilities
of local educational agencies and that are required for California's
participation in Part C of the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1431 et seq.). The local educational
agency shall provide special education services up to its funded
program capacity as established annually by the State Department of
Education in consultation with the State Department of Developmental
Services and the Department of Finance.
(d) No An agency or
multidisciplinary team, including any agency listed in Section 95012,
shall not presume or determine eligibility, including
eligibility for medical services, for any other agency. However,
regional centers and local educational agencies shall coordinate
intake, evaluation, assessment, and individualized family service
plans for infants and toddlers and their families who are served by
an agency.
(e) Upon termination of the program pursuant to Section 95003, the
State Department of Developmental Services shall be responsible for
the payment of services pursuant to this title.
(f) This section shall become operative on January 1, 2015.
SEC. 240. The heading of Chapter 10 (commencing with Section
95030) of Title 14 of the Government Code is repealed.
CHAPTER 10. TERMINATION
SEC. 241. Section 678.3 of the Harbors and Navigation Code is
amended to read:
678.3. (a) (1) The division shall determine the fees required
under this section in amounts sufficient to cover the reasonable
costs of the development, establishment, and operation of the
program. The fees shall not exceed those costs.
(2) The division shall charge a fee not to exceed thirty dollars
($30) for the initial vessel operator card issued pursuant to
subdivision (b) of Section 678.
(3) The division shall charge a fee not to exceed ten dollars
($10) for a duplicate vessel operator card issued pursuant to
subdivision (b) of Section 678.
(b) In determining the amount of the fees imposed pursuant to this
section, the division shall establish, and consult with, a technical
advisory group consisting of interested persons, including, but not
limited to, representatives of the boating community. The deputy
director shall appoint the members of the advisory group.
(c) The fees collected pursuant to this section shall be deposited
in the Vessel Operator Certification Account, which is hereby
established within the Harbors and Watercraft Revolving Fund.
(d) The division may expend the moneys in the Vessel Operator
Certification Account, upon appropriation by the Legislature, for
purposes of implementing this article.
SEC. 242. Section 1159.1 of the Harbors and Navigation Code is
repealed.
1159.1. The board shall impose a board operations surcharge, the
purpose of which is to fully compensate the board for its official
services, for the services of its staff, and for all its incidental
expenses. The amount of the surcharge shall not exceed 71/2 percent
of all pilotage fees charged by pilots and inland pilots, unless the
board establishes, with the approval of the Department of Finance, a
lesser percentage. The board shall quarterly review its ongoing and
anticipated expenses and adjust the surcharge to reflect any changes
which have occurred since the last adjustment.
SEC. 243. Section 1159.2 of the Harbors and Navigation Code is
amended to read:
1159.2. (a) The vessel shall pay a board operations surcharge,
the purpose of which is to fully compensate the board and the
Business, Transportation and Housing
Agency for the official services, staff services, and
incidental expenses of the board and agency. The amount of the
surcharge shall be 7.5 percent of all pilotage fees charged by pilots
pursuant to Sections 1190 and 1191 unless the board establishes,
with the approval of the Department of Finance, a lesser percentage,
not to exceed any percentage consistent with subdivision (d).
(b) The surcharge shall be billed and collected by the pilots. The
pilots shall pay all surcharges collected by them to the board
monthly or at a later time that the board may direct.
(c) The board shall quarterly review its ongoing and anticipated
expenses and adjust the surcharge to reflect any changes that have
occurred since the last adjustment.
(d) The board operations surcharge shall not represent a
percentage significantly more than that required to support the board
and any costs of the Business, Transportation
and Housing Agency related to the administration
of the board pursuant to subdivision (a) in addition to the
maintenance of a reasonable reserve.
SEC. 244. Section 6087 of the Harbors and Navigation Code is
amended to read:
6087. (a) (1) Notwithstanding the borrowing limit set forth in
Section 6084, the Oxnard Harbor District may borrow money by issuance
of promissory notes, or execute conditional sales contracts to
purchase personal property, in an amount or of a value not exceeding
in the aggregate at any one time the sum of ten million dollars
($10,000,000), for the purposes of acquiring land for and
constructing or operating any work, project, or facility authorized
by subdivision (d) of Section 6012 or Section 6075 or for the making
of improvements or the purchase of equipment or for the maintenance
thereof.
(2) All moneys borrowed pursuant to this section shall
not be borrowed for a term not exceeding five
years, and the indebtednesses shall not incur a rate of
accrue interest in excess of 12 percent per
annum. The indebtedness shall be authorized by a resolution of the
board of commissioners adopted by a two-thirds vote of the members of
the board.
(3) As a condition precedent to the borrowing of any money or the
execution of any conditional sales contract, as provided in this
section, in excess of one hundred thousand dollars ($100,000), the
board shall first , by a two-thirds vote ,
approve by resolution and have on file a report on the engineering
and economic feasibility relating to the project contemplated for the
expenditure of the borrowed money or conditional sales contract. The
feasibility report shall be prepared and signed by an engineer or
engineers licensed and registered under the laws of the
State of California state .
(4) The district shall budget, levy, and collect taxes and pay for
all indebtedness without limitation by any other provision of this
part.
(b) Subdivision (a) does not apply to any money borrowed from any
agency or department of the United States government or of the
State of California state .
SEC. 245. Section 442.5 of the Health and Safety Code is amended
to read:
442.5. (a) When a health care provider makes a diagnosis that a
patient has a terminal illness, the health care provider shall do
both of the following:
(1) Notify the patient of his or her right, or , when
applicable, the right of another person authorized to make health
care decisions for the patient, to comprehensive information and
counseling regarding legal end-of-life options. This notification may
be provided at the time of diagnosis or at a subsequent visit in
which the provider discusses treatment options with the patient or
the other authorized person.
(2) Upon the request of the patient or another person authorized
to make health care decisions for the patient, provide the patient or
other authorized person with comprehensive information and
counseling regarding legal end-of-life care options pursuant to this
section. When a terminally ill patient is in a health facility, as
defined in Section 1250, the health care provider, or medical
director of the health facility if the patient's health care provider
is not available, may refer the patient or other authorized person
to a hospice provider or private or public agencies and
community-based organizations that specialize in end-of-life care
case management and consultation to receive comprehensive information
and counseling regarding legal end-of-life care options.
(b) If a patient or another person authorized to make health care
decisions for the patient, requests information and counseling
pursuant to paragraph (2) of subdivision (a), the comprehensive
information shall include, but not be limited to, the following:
(1) Hospice care at home or in a health care setting.
(2) A prognosis with and without the continuation of
disease-targeted treatment.
(3) The patient's right to refusal of or withdrawal from
life-sustaining treatment.
(4) The patient's right to continue to pursue disease-targeted
treatment, with or without concurrent palliative care.
(5) The patient's right to comprehensive pain and symptom
management at the end of life, including, but not limited to,
adequate pain medication, treatment of nausea, palliative
chemotherapy, relief of shortness of breath and fatigue, and other
clinical treatments useful when a patient is actively dying.
(6) The patient's right to give individual health care instruction
pursuant to Section 4670 of the Probate Code, which provides the
means by which a patient may provide written health care instruction,
such as an advance health care directive, and the patient's right to
appoint a legally recognized health care decisionmaker.
(c) The information described in subdivision (b) may, but is not
required to, be in writing. Health care providers may utilize
information from organizations specializing in end-of-life care that
provide information on factsheets and Internet Web sites to convey
the information described in subdivision (b).
(d) Counseling may include, but is not limited to, discussions
about the outcomes for the patient and his or her family, based on
the interest of the patient. Information and counseling, as described
in subdivision (b), may occur over a series of meetings with the
health care provider or others who may be providing the information
and counseling based on the patient's needs.
(e) The information and counseling sessions may include a
discussion of treatment options in a culturally sensitive manner that
the patient and his or her family, or, when applicable, another
person authorized to make health care decisions for the patient, can
easily understand. If the patient or other authorized person requests
information on the costs of treatment options, including the
availability of insurance and eligibility of the patient for
coverage, the patient or other authorized person shall be referred to
the appropriate entity for that information.
(f) The notification made pursuant to paragraph (1) of subdivision
(a) shall not be required if the patient or other person authorized
to make health care decisions, as defined in Section 4617 of the
Probate Code, for the patient has already received the notification.
(g) For purposes of this section, "health care decisions" has the
meaning set fourth in Section 4617 of the Probate Code.
(h) This section shall not be construed to interfere with the
clinical judgment of a health care provider in recommending the
course of treatment.
SEC. 246. Section 1317.5 of the Health and Safety Code, as amended
by Section 92 of Chapter 886 of the Statutes of 1989, is repealed.
1317.5. (a) All alleged violations of this article and the
regulations adopted hereunder shall be investigated by the state
department. The state department, with the agreement of the local EMS
agency, may refer violations of this article to the local EMS agency
for investigation. The investigation shall be conducted pursuant to
procedures established by the state department and shall be completed
no later than 60 days after the report of apparent violation is
received by the state department.
(b) At the conclusion of its investigation, the state department
or the local EMS agency shall refer any alleged violation by a
physician to the Medical Board of California unless it is determined
that the complaint is without a reasonable basis.
SEC. 247. Section 1339.9 of the Health and Safety Code, as added
by Section 1 of Chapter 716 of the Statutes of 1998, is amended and
renumbered to read:
1339.9. 1339.10. (a) The
state department may request and maintain employment
information for nurse assistants and direct care staff of
intermediate care facilities/developmentally disabled, other than
state-operated intermediate care facilities/developmentally disabled
that secure criminal record clearances for employees through another
method, intermediate care facilities/developmentally
disabled-habilitative, or intermediate care
facilities/developmentally disabled-nursing.
(b) Within five working days of receipt of a criminal record or
information from the Department of Justice pursuant to Section
1338.5, 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.
SEC. 248. Section 1347.5 of the Health and Safety Code is amended
to read:
1347.5. (a) A health care service plan providing individual
coverage in the Exchange shall cooperate with requests from the
Exchange to collaborate in the development of, and participate in the
implementation of, the Medi-Cal program's premium and cost-sharing
payments under Sections 14102 and 14148.65 of the Welfare and
Institutions Code for eligible Exchange enrollees.
(b) A health care service plan providing individual coverage in
the Exchange shall not charge, bill, ask, or require an enrollee
receiving benefits under Section 14102 or Section
14148.65 of the Welfare and Institutions Code to make any premium or
cost-sharing payments for any services that are subject to premium or
cost-sharing payments by the State Department of Health Care
Services under Section 14102 or Section 14148.65
of the Welfare and Institutions Code.
(c) For purposes of this section, "Exchange" means the California
Health Benefit Exchange established pursuant to Title 22 (commencing
with Section 100500) of the Government Code.
SEC. 249. Section 1357.504 of the Health and Safety Code is
amended to read:
1357.504. (a) With respect to small employer health care service
plan contracts offered outside the Exchange, after a small employer
submits a completed application form for a plan contract, the health
care service plan shall, within 30 days, notify the employer of the
employer's actual premium charges for that plan contract established
in accordance with Section 1357.512. The employer shall have 30 days
in which to exercise the right to buy coverage at the quoted premium
charges.
(b) Except as provided in subdivision (c), when a small employer
submits a premium payment, based on the quoted premium charges, and
that payment is delivered or postmarked, whichever occurs earlier,
within the first 15 days of the month, coverage under the plan
contract shall become effective no later than the first day of the
following month. When that payment is neither delivered nor
postmarked until after the 15th day of a month, coverage shall become
effective no later than the first day of the second month following
delivery or postmark of the payment.
(c) (1) With respect to a small employer health care service plan
contract offered through the Exchange, a plan shall apply coverage
effective dates consistent with those required under Section 155.720
of Title 45 of the Code of Federal Regulations and paragraph
(2) of subdivision (e) of Section 1399.849.
(2) With respect to a small employer health care service plan
contract offered outside the Exchange for which an individual applies
during a special enrollment period described in subdivision (b) of
Section 1357.503, the following provisions shall apply:
(A) Coverage under the plan contract shall become effective no
later than the first day of the first calendar month beginning after
the date the plan receives the request for special enrollment.
(B) Notwithstanding subparagraph (A), in the case of a birth,
adoption, or placement for adoption, coverage under the plan contract
shall become effective on the date of birth, adoption, or placement
for adoption.
(d) During the first 30 days after the effective date of the plan
contract, the small employer shall have the option of changing
coverage to a different plan contract offered by the same health care
service plan. If a small employer notifies the plan of the change
within the first 15 days of a month, coverage under the new plan
contract shall become effective no later than the first day of the
following month. If a small employer notifies the plan of the change
after the 15th day of a month, coverage under the new plan contract
shall become effective no later than the first day of the second
month following notification.
(e) All eligible employees and dependents listed on a small
employer's completed application shall be covered on the effective
date of the health benefit plan.
SEC. 250. Section 1358.18 of the Health and Safety Code is amended
to read:
1358.18. In the interest of full and fair disclosure, and to
assure ensure the availability of
necessary consumer information to potential subscribers or enrollees
not possessing a special knowledge of Medicare, health care service
plans, or Medicare supplement contracts, an issuer shall comply with
the following provisions:
(a) Application forms shall include the following questions
designed to elicit information as to whether, as of the date of the
application, the applicant currently has Medicare supplement,
Medicare Advantage, Medi-Cal coverage, or another health insurance
policy or certificate or plan contract in force or whether a Medicare
supplement contract is intended to replace any other disability
policy or certificate, or plan contract, presently in force. A
supplementary application or other form to be signed by the applicant
and solicitor containing those questions and statements may be used.
"(Statements)
(1) You do not need more than one Medicare supplement policy or
contract.
(2) If you purchase this contract, you may want to evaluate your
existing health coverage and decide if you need multiple coverages.
(3) You may be eligible for benefits under Medi-Cal or Medicaid
and may not need a Medicare supplement contract.
(4) If , after purchasing this contract ,
you become eligible for Medi-Cal, the benefits and premiums under
your Medicare supplement contract can be suspended, if requested,
during your entitlement to benefits under Medi-Cal or Medicaid for 24
months. You must request this suspension within 90 days of becoming
eligible for Medi-Cal or Medicaid. If you are no longer entitled to
Medi-Cal or Medicaid, your suspended Medicare supplement contract or
, if that is no longer available, a substantially
equivalent contract, will be reinstituted if requested within 90 days
of losing Medi-Cal or Medicaid eligibility. If the Medicare
supplement contract provided coverage for outpatient prescription
drugs and you enrolled in Medicare Part D while your contract was
suspended, the reinstituted contract will not have outpatient
prescription drug coverage, but will otherwise be substantially
equivalent to your coverage before the date of the suspension.
(5) If you are eligible for, and have enrolled in, a Medicare
supplement contract by reason of disability and you later become
covered by an employer or union-based group health plan, the benefits
and premiums under your Medicare supplement contract can be
suspended, if requested, while you are covered under the employer or
union-based group health plan. If you suspend your Medicare
supplement contract under these circumstances and later lose your
employer or union-based group health plan, your suspended Medicare
supplement contract or , if that is no longer available, a
substantially equivalent contract, will be reinstituted if requested
within 90 days of losing your employer or union-based group health
plan. If the Medicare supplement contract provided coverage for
outpatient prescription drugs and you enrolled in Medicare Part D
while your contract was suspended, the reinstituted contract will not
have outpatient prescription drug coverage, but
will otherwise be substantially equivalent to
your coverage before the date of the suspension.
(6) Counseling services are available in this state to provide
advice concerning your purchase of Medicare supplement coverage and
concerning medical assistance through the Medi-Cal or Medicaid
Program, including benefits as a qualified Medicare beneficiary (QMB)
and a specified low-income Medicare beneficiary (SLMB). Information
regarding counseling services may be obtained from the California
Department of Aging.
(Questions)
If you lost or are losing other health insurance coverage and
received a notice from your prior insurer saying you were eligible
for guaranteed issue of a Medicare supplement insurance contract or
that you had certain rights to buy such a contract, you may be
guaranteed acceptance in one or more of our Medicare supplement
plans. Please include a copy of the notice from your prior insurer
with your application. PLEASE ANSWER ALL QUESTIONS.
Please mark Yes or No below with an "X."]
To the best of your knowledge,
(1) (a) Did you turn 65 years of age in the last 6 months
Yes____ No____
(b) Did you enroll in Medicare Part B in the last 6 months
Yes____ No____
(c) If yes, what is the effective date ___________________
(2) Are you covered for medical assistance through California's
Medi-Cal program
NOTE TO APPLICANT: If you have a share of cost under the Medi-Cal
program, please answer NO to this question.
Yes____ No____
If yes,
(a) Will Medi-Cal pay your premiums for this Medicare supplement
contract
Yes____ No____
(b) Do you receive benefits from Medi-Cal OTHER THAN payments
toward your Medicare Part B premium
Yes____ No____
(3) (a) If you had coverage from any Medicare plan other than
original Medicare within the past 63 days (for example, a Medicare
Advantage plan or a Medicare HMO or PPO), fill in your start and end
dates below. If you are still covered under this plan, leave "END"
blank.
START __/__/__ END __/__/__
(b) If you are still covered under the Medicare plan, do you
intend to replace your current coverage with this new Medicare
supplement contract
Yes____ No____
(c) Was this your first time in this type of Medicare plan
Yes____ No____
(d) Did you drop a Medicare supplement contract to enroll in the
Medicare plan
Yes____ No____
(4) (a) Do you have another Medicare supplement policy or
certificate or contract in force
Yes____ No____
(b) If so, with what company, and what plan do you have optional
for Direct Mailers]
Yes____ No____
(c) If so, do you intend to replace your current Medicare
supplement policy or certificate or contract with this contract
Yes____ No____
(5) Have you had coverage under any other health insurance within
the past 63 days (For example, an employer, union, or individual
plan)
Yes____ No____
(a) If so, with what companies and what kind of policy
________________________________________________
________________________________________________
________________________________________________
________________________________________________
(b) What are your dates of coverage under the other policy
START __/__/__ END __/__/__
(If you are still covered under the other policy, leave "END"
blank). "
(b) Solicitors shall list any other health insurance policies or
plan contracts they have sold to the applicant as follows:
(1) List policies and contracts sold that are still in force.
(2) List policies and contracts sold in the past five years that
are no longer in force.
(c) An issuer issuing Medicare supplement contracts without a
solicitor or solicitor firm (a direct response issuer) shall return
to the applicant, upon delivery of the contract, a copy of the
application or supplemental forms, signed by the applicant and
acknowledged by the issuer.
(d) Upon determining that a sale will involve replacement of
Medicare supplement coverage, any an
issuer, other than a direct response issuer, or its agent, shall
furnish the applicant, prior to issuance for delivery of the Medicare
supplement contract, a notice regarding replacement of Medicare
supplement coverage. One copy of the notice signed by the applicant
and the agent, except where the coverage is sold without an agent,
shall be provided to the applicant and an additional signed copy
shall be retained by the issuer. A direct response issuer shall
deliver to the applicant at the time of the issuance of the contract
the notice regarding replacement of Medicare supplement coverage.
(e) The notice required by subdivision (d) for an issuer shall be
provided in substantially the following form in no less than 12-point
type:
NOTICE TO APPLICANT REGARDING REPLACEMENT OF MEDICARE
SUPPLEMENT COVERAGE OR MEDICARE ADVANTAGE
(Company name and address)
SAVE THIS NOTICE! IT MAY BE IMPORTANT TO YOU IN THE FUTURE
According to your application] information you have furnished],
you intend to lapse or otherwise terminate an existing Medicare
supplement policy or contract or Medicare Advantage plan and replace
it with a contract to be issued by Plan Name]. Your contract to be
issued by Plan Name] will provide 30 days within which you may decide
without cost whether you desire to keep the contract. You should
review this new coverage carefully. Compare it with all accident and
sickness coverage you now have. Terminate your present policy or
contract only if, after due consideration, you find that purchase of
this Medicare supplement coverage is a wise decision.
STATEMENT TO APPLICANT BY PLAN, SOLICITOR, SOLICITOR FIRM, OR
OTHER REPRESENTATIVE:
(1) I have reviewed your current medical or health coverage. To
the best of my knowledge, the replacement of coverage involved in
this transaction does not duplicate coverage or, if applicable,
Medicare Advantage coverage because you intend to terminate your
existing Medicare supplement coverage or leave your Medicare
Advantage plan. The replacement contract is being purchased for the
following reason (check one):
__ Additional benefits.
__ No change in benefits, but lower premiums or charges.
__ Fewer benefits and lower premiums or charges.
__ Plan has outpatient prescription drug coverage and applicant is
enrolled in Medicare Part D.
__ Disenrollment from a Medicare Advantage plan. Reasons for
disenrollment:
__ Other. (please specify) ________.
(2) If the issuer of the Medicare supplement contract being
applied for does not impose, or is otherwise prohibited from
imposing, preexisting condition limitations, please skip to statement
3 below. Health conditions that you may presently have (preexisting
conditions) may not be immediately or fully covered under the new
contract. This could result in denial or delay of a claim for
benefits under the new contract, whereas a similar claim might have
been payable under your present contract.
(3) State law provides that your replacement Medicare supplement
contract may not contain new preexisting conditions, waiting periods,
elimination periods, or probationary periods. The plan will waive
any time periods applicable to preexisting conditions, waiting
periods, elimination periods, or probationary periods in the new
coverage for similar benefits to the extent that time was spent
(depleted) under the original contract.
(4) If you still wish to terminate your present policy or contract
and replace it with new coverage, be certain to truthfully and
completely answer any and all questions on the application concerning
your medical and health history. Failure to include all material
medical information on an application requesting that information may
provide a basis for the plan to deny any future claims and to refund
your prepaid or periodic payment as though your contract had never
been in force. After the application has been completed and before
you sign it, review it carefully to be certain that all information
has been properly recorded.
(5) Do not cancel your present Medicare supplement coverage until
you have received your new contract and are sure you want to keep it.
_________________________________________________
(Signature of Solicitor, Solicitor Firm, or
Other
Representative)
(Typed Name and Address of Plan, Solicitor, or
Solicitor Firm)
_________________________________________________
(Applicant's Signature)
_________________________________________________
(Date)
(f) The application form or other consumer information for persons
eligible for Medicare and used by an issuer shall contain ,
as an attachment , a Medicare supplement buyer's
guide in the form approved by the director. The application or other
consumer information, containing , as an attachment ,
the buyer's guide, shall be mailed or delivered to each
applicant applying for that coverage at or before the time of
application and, to establish compliance with this subdivision, the
issuer shall obtain an acknowledgment of receipt of the attached
buyer's guide from each applicant. No issuer shall make use of or
otherwise disseminate any buyer's guide that does not accurately
outline current Medicare supplement benefits. No issuer shall be
required to provide more than one copy of the buyer's guide to any
applicant.
(g) An issuer may comply with the requirement of this section in
the case of group contracts by causing the subscriber (1) to
disseminate copies of the disclosure form containing as an attachment
the buyer's guide to all persons eligible under the group contract
at the time those persons are offered the Medicare supplement plan,
and (2) collecting and forwarding to the issuer an acknowledgment of
receipt of the disclosure form containing , as an
attachment , the buyer's guide from each enrollee.
(h) An issuer shall not require, request, or obtain health
information as part of the application process for an applicant who
is eligible for guaranteed issuance of, or open enrollment for, any
Medicare supplement coverage pursuant to Section 1358.11 or 1358.12,
except for purposes of paragraph (1) or (2) of subdivision (a) of
Section 1358.11 when the applicant is first enrolled in Medicare Part
B. The application form shall include a clear and conspicuous
statement that the applicant is not required to provide health
information during a period where guaranteed issue or open enrollment
applies, as specified in Section 1358.11 or 1358.12, except for
purposes of paragraph (1) or (2) of subdivision (a) of Section
1358.11 when the applicant is first enrolled in Medicare Part B, and
shall inform the applicant of those periods of guaranteed issuance of
Medicare supplement coverage. This subdivision shall
does not prohibit an issuer from requiring proof
of eligibility for a guaranteed issuance of Medicare supplement
coverage.
SEC. 251. Section 1367.004 of the Health and Safety Code is
amended to read:
1367.004. (a) A health care service plan that issues, sells,
renews, or offers a specialized health care service plan contract
covering dental services shall, no later than September 30, 2015, and
each year thereafter, file a report, which shall be known as the MLR
annual report, with the department that is organized by market and
product type and contains the same information required in the 2013
federal Medical Loss Ratio (MLR) Annual Reporting Form (CMS-10418).
(b) The MLR reporting year shall be for the calendar year during
which dental coverage is provided by the plan. All terms used in the
MLR annual report shall have the same meaning as used in the federal
Public Health Service Act (42 U.S.C. Sec. 300gg-18), Part 158
(commencing with Section 158.101) of Title 45 of the Code
of Federal Regulations, and Section 1367.003.
(c) If the director decides to conduct a financial examination, as
described in Section 1382, because the director finds it necessary
to verify the health care service plan's representations in the MLR
annual report, the department shall provide the health care service
plan with a notification 30 days before the commencement of the
financial examination.
(d) The health care service plan shall have 30 days from the date
of notification to electronically submit to the department all
requested records, books, and papers specified in subdivision (a) of
Section 1381. The director may extend the time for a health care
service plan to comply with this subdivision upon a finding of good
cause.
(e) The department shall make available to the public all of the
data provided to the department pursuant to this section.
(f) This section does not apply to a health care service plan
contract issued, sold, renewed, or offered for health care services
or coverage provided in the Medi-Cal program (Chapter 7 (commencing
with Section 14000) of Part 3 of Division 9 of the Welfare and
Institutions Code), the Healthy Families Program (Part 6.2
(commencing with Section 12693) of Division 2 of the Insurance Code),
the Access for Infants and Mothers Program (Part 6.3 (commencing
with Section 12695) of Division 2 of the Insurance Code), the
California Major Risk Medical Insurance Program (Part 6.5 (commencing
with Section 12700) of Division 2 of the Insurance Code), or the
Federal Temporary High Risk Insurance Pool (Part 6.6 (commencing with
Section 12739.5) of Division 2 of the Insurance Code), to the extent
consistent with the federal Patient Protection and Affordable Care
Act (Public Law 111-148).
(g) It is the intent of the Legislature that the data reported
pursuant to this section be considered by the Legislature in adopting
a medical loss ratio standard for health care service plans that
cover dental services that would take effect no later than January 1,
2018.
(h) Until January 1, 2018, the director may issue guidance to
health care service plans subject to this section regarding
compliance with this section. This guidance shall not be subject to
the Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code). Any guidance issued pursuant to this subdivision shall be
effective only until the director adopts regulations pursuant to the
Administrative Procedure Act. The department shall consult with the
Department of Insurance in issuing guidance pursuant to this
subdivision.
SEC. 252. Section 1367.035 of the Health and Safety Code is
amended to read:
1367.035. (a) As part of the reports submitted to the department
pursuant to subdivision (f) of Section 1367.03 and regulations
adopted pursuant to that section, a health care service plan shall
submit to the department, in a manner specified by the department,
data regarding network adequacy, including, but not limited to, the
following:
(1) Provider office location.
(2) Area of specialty.
(3) Hospitals where providers have admitting privileges, if any.
(4) Providers with open practices.
(5) The number of patients assigned to a primary care provider or,
for providers who do not have assigned enrollees, information that
demonstrates the capacity of primary care providers to be accessible
and available to enrollees.
(6) Grievances regarding network adequacy and timely access that
the health care service plan received during the preceding calendar
year.
(b) A health care service plan that uses a network for its
Medi-Cal managed care product line that is different from the network
used for its other product lines shall submit the data required
under subdivision (a) for its Medi-Cal managed care product line
separately from the data submitted for its other product lines.
(c) A health care service plan that uses a network for its
individual market product line that is different from the network
used for its small group market product line shall submit the data
required under subdivision (a) for its individual market product line
separate from the data submitted for its small group market product
line.
(d) The department shall review the data submitted pursuant to
this section for compliance with this chapter.
(e) In submitting data under this section, a health care service
plan that provides services to Medi-Cal beneficiaries pursuant to
Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing
with Section 14200) of Part 3 of Division 9 of the Welfare and
Institutions Code, Code shall provide
the same data to the State Department of Health Care Services
pursuant to Section 14456.3 of the Welfare and Institutions Code.
(f) In developing the format and requirements for reports, data,
or other information provided by plans pursuant to subdivision (a),
the department shall not create duplicate reporting requirements,
but, instead, shall take into consideration all existing relevant
reports, data, or other information provided by plans to the
department. This subdivision does not limit the authority of the
department to request additional information from the plan as deemed
necessary to carry out and complete any enforcement action initiated
under this chapter.
(g) If the department requests additional information or data to
be reported pursuant to subdivision (a), which is different or in
addition to the information required to be reported in paragraphs (1)
to (6), inclusive, of subdivision (a), the department shall provide
health care service plans notice of that change by November 1 of the
year prior to the change.
(h) A health care service plan may include in the provider
contract provisions requiring compliance with the reporting
requirements of Section 1367.03 and this section.
SEC. 253. Section 1367.20 of the Health and Safety Code, as added
by Section 2 of Chapter 68 of the Statutes of 1998, is repealed.
1367.20. Every health care service plan that provides
prescription drug benefits and maintains one or more drug formularies
shall provide to members of the public, upon request, a copy of the
most current list of prescription drugs on the formulary of the plan
by major therapeutic category, with an indication of whether any
drugs on the list are preferred over other listed drugs. If the
health care service plan maintains more than one formulary, the plan
shall notify the requester that a choice of formulary lists is
available.
SEC. 254. Section 1367.25 of the Health and Safety Code is amended
to read:
1367.25. (a) A group health care service plan contract, except
for a specialized health care service plan contract, that is issued,
amended, renewed, or delivered on or after January 1, 2000, through
December 31, 2015, inclusive, and an individual health care service
plan contract that is amended, renewed, or delivered on or after
January 1, 2000, through December 31, 2015, inclusive, except for a
specialized health care service plan contract, shall provide coverage
for the following, under general terms and conditions applicable to
all benefits:
(1) A health care service plan contract that provides coverage
for outpatient prescription drug benefits shall include coverage for
a variety of federal Food and Drug Administration (FDA)
approved (FDA)-approved prescription
contraceptive methods designated by the plan. In the event the
patient's participating provider, acting within his or her scope of
practice, determines that none of the methods designated by the plan
is medically appropriate for the patient's medical or personal
history, the plan shall also provide coverage for another
FDA approved, FDA-approved, medically
appropriate prescription contraceptive method prescribed by the
patient's provider.
(2) Benefits for an enrollee under this subdivision shall be the
same for an enrollee's covered spouse and covered nonspouse
dependents.
(b) (1) A health care service plan contract, except for a
specialized health care service plan contract, that is issued,
amended, renewed, or delivered on or after January 1, 2016, shall
provide coverage for all of the following services and contraceptive
methods for women:
(A) Except as provided in subparagraphs (B) and (C) of paragraph
(2), all FDA-approved contraceptive drugs, devices, and other
products for women, including all FDA-approved contraceptive drugs,
devices, and products available over the counter, as prescribed by
the enrollee's provider.
(B) Voluntary sterilization procedures.
(C) Patient education and counseling on contraception.
(D) Followup services related to the drugs, devices, products, and
procedures covered under this subdivision, including, but not
limited to, management of side effects, counseling for continued
adherence, and device insertion and removal.
(2) (A) Except for a grandfathered health plan, a health care
service plan subject to this subdivision shall not impose a
deductible, coinsurance, copayment, or any other cost-sharing
requirement on the coverage provided pursuant to this subdivision.
Cost sharing shall not be imposed on any Medi-Cal beneficiary.
(B) Where If the FDA has approved
one or more therapeutic equivalents of a contraceptive drug, device,
or product, a health care service plan is not required to cover all
of those therapeutically equivalent versions in accordance with this
subdivision, as long as at least one is covered without cost sharing
in accordance with this subdivision.
(C) If a covered therapeutic equivalent of a drug, device, or
product is not available, or is deemed medically inadvisable by the
enrollee's provider, a health care service plan shall provide
coverage, subject to a plan's utilization management procedures, for
the prescribed contraceptive drug, device, or product without cost
sharing. Any request by a contracting provider shall be responded to
by the health care service plan in compliance with the Knox-Keene
Health Care Service Plan Act of 1975, as set forth in this chapter
and, as applicable, with the plan's Medi-Cal managed care contract.
(3) Except as otherwise authorized under this section, a health
care service plan shall not impose any restrictions or delays on the
coverage required under this subdivision.
(4) Benefits for an enrollee under this subdivision shall be the
same for an enrollee's covered spouse and covered nonspouse
dependents.
(5) For purposes of paragraphs (2) and (3) of this subdivision,
"health care service plan" shall include Medi-Cal managed care plans
that contract with the State Department of Health Care Services
pursuant to Chapter 7 (commencing with Section 14000) and Chapter 8
(commencing with Section 14200) of Part 3 of Division 9 of the
Welfare and Institutions Code.
(c) Notwithstanding any other provision of this section, a
religious employer may request a health care service plan contract
without coverage for FDA approved
FDA-approved contraceptive methods that are contrary to the
religious employer's religious tenets. If so requested, a health care
service plan contract shall be provided without coverage for
contraceptive methods.
(1) For purposes of this section, a "religious employer" is an
entity for which each of the following is true:
(A) The inculcation of religious values is the purpose of the
entity.
(B) The entity primarily employs persons who share the religious
tenets of the entity.
(C) The entity serves primarily persons who share the religious
tenets of the entity.
(D) The entity is a nonprofit organization as described in
Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of
1986, as amended.
(2) Every religious employer that invokes the exemption provided
under this section shall provide written notice to prospective
enrollees prior to enrollment with the plan, listing the
contraceptive health care services the employer refuses to cover for
religious reasons.
(d) Nothing in this This section
shall not be construed to exclude coverage for
contraceptive supplies as prescribed by a provider, acting within his
or her scope of practice, for reasons other than contraceptive
purposes, such as decreasing the risk of ovarian cancer or
eliminating symptoms of menopause, or for contraception that is
necessary to preserve the life or health of an enrollee.
(e) Nothing in this This section
shall not be construed to deny or restrict in any way the
department's authority to ensure plan compliance with this chapter
when a plan provides coverage for contraceptive drugs, devices, and
products.
(f) Nothing in this This section
shall not be construed to require an individual or group
health care service plan contract to cover experimental or
investigational treatments.
(g) For purposes of this section, the following definitions apply:
(1) "Grandfathered health plan" has the meaning set forth in
Section 1251 of PPACA.
(2) "PPACA" means the federal Patient Protection and Affordable
Care Act (Public Law 111-148), as amended by the federal Health Care
and Education Reconciliation Act of 2010 (Public Law 111-152), and
any rules, regulations, or guidance issued thereunder.
(3) With respect to health care service plan contracts issued,
amended, or renewed on or after January 1, 2016, "provider" means an
individual who is certified or licensed pursuant to Division 2
(commencing with Section 500) of the Business and Professions Code,
or an initiative act referred to in that division, or Division 2.5
(commencing with Section 1797) of this code.
SEC. 255. Section 1368.05 of the Health and Safety Code is amended
to read:
1368.05. (a) (1) By enacting this section, which was originally
enacted by Assembly Bill 922 (Chapter 552 of the Statutes of 2011),
the Legislature recognizes that, because of the enactment of federal
health care reform on March 23, 2010, and the implementation of
various provisions by January 1, 2014, and the ongoing complexities
of health care reform, it is appropriate to transfer the direct
consumer assistance activities that were newly conferred on the
Office of the Patient Advocate to the Department
of Managed Health Care, and the Legislature recognizes that these new
duties are necessary to be carried out by the department in
partnership with community-based consumer assistance organizations
for the purposes of serving California's health care consumers.
(2) In addition to maintaining the toll-free telephone number for
the purpose of receiving complaints regarding health care service
plans as required in Section 1368.02, the department and its
contractors shall carry out these new responsibilities, which include
assisting consumers in navigating private and public health
care coverage and assisting
consumers in determining the regulator that regulates the health care
coverage of a particular consumer. In order to further assist in
implementing health care reform, the department and its contractors
shall also receive and respond to inquiries, complaints, and requests
for assistance and education concerning health care coverage
available in California.
(b) (1) The department shall annually contract with
community-based organizations in furtherance of providing assistance
to consumers as described in subdivision (a), as authorized by and in
accordance with Section 19130 of the Government Code.
(2) These organizations shall be community-based nonprofit
consumer assistance programs that shall include in their mission the
assistance of, and duty to, health care consumers.
(3) Contracting consumer assistance organizations shall have
experience in assisting consumers in navigating the local health care
system, advising consumers regarding their health care coverage
options, assisting consumers with problems in accessing health care
services, and serving consumers with special needs, including, but
not limited to, consumers with limited-English language proficiency,
consumers requiring culturally competent services, low-income
consumers, consumers with disabilities, consumers with low literacy
rates, and consumers with multiple health conditions, including
behavioral health. The organizations shall also have experience with,
and the capacity for, collecting and reporting data regarding the
consumers they assist, including demographic data, source of
coverage, regulator, type of problem or issue, and resolution of
complaints.
SEC. 256. Section 1371.36 of the Health and Safety Code, as added
by Section 5 of Chapter 825 of the Statutes of 2000, is repealed.
1371.36. (a) A health care service plan shall not deny payment
of a claim on the basis that the plan, medical group, independent
practice association, or other contracting entity did not provide
authorization for health care services that were provided in a
licensed acute care hospital and that were related to services that
were previously authorized, if all of the following conditions are
met:
(1) It was medically necessary to provide the services at the
time.
(2) The services were provided after the plan's normal business
hours.
(3) The plan does not maintain a system that provides for the
availability of a plan representative or an alternative means of
contact through an electronic system, including voicemail or
electronic mail, whereby the plan can respond to a request for
authorization within 30 minutes of the time that a request was made.
(b) This section shall not apply to investigational or
experimental therapies, or other noncovered services.
SEC. 257. Section 1371.37 of the Health and Safety Code, as added
by Section 6 of Chapter 825 of the Statutes of 2000, is repealed.
1371.37. (a) A health care service plan is prohibited from
engaging in an unfair payment pattern, as defined in this section.
(b) Consistent with subdivision (a) of Section 1371.39, the
director may investigate a health care service plan to determine
whether it has engaged in an unfair payment pattern.
(c) An "unfair payment pattern," as used in this section, means
any of the following:
(1) Engaging in a demonstrable and unjust pattern, as defined by
the department, of reviewing or processing complete and accurate
claims that results in payment delays.
(2) Engaging in a demonstrable and unjust pattern, as defined by
the department, of reducing the amount of payment or denying complete
and accurate claims.
(3) Failing on a repeated basis to pay the uncontested portions
of a claim within the timeframes specified in Section 1371, 1371.1,
or 1371.35.
(4) Failing on a repeated basis to automatically include the
interest due on claims pursuant to Section 1371.
(d) (1) Upon a final determination by the director that a health
care service plan has engaged in an unfair payment pattern, the
director may:
(A) Impose monetary penalties as permitted under this chapter.
(B) Require the health care service plan for a period of three
years from the date of the director's determination, or for a shorter
period prescribed by the director, to pay complete and accurate
claims from the provider within a shorter period of time than that
required by Section 1371. The provisions of this subparagraph shall
not become operative until January 1, 2002.
(C) Include a claim for costs incurred by the department in any
administrative or judicial action, including investigative expenses
and the cost to monitor compliance by the plan.
(2) For any overpayment made by a health care service plan while
subject to the provisions of paragraph (1), the provider shall remain
liable to the plan for repayment pursuant to Section 1371.1.
(e) The enforcement remedies provided in this section are not
exclusive and shall not limit or preclude the use of any otherwise
available criminal, civil, or administrative remedy.
(f) The penalties set forth in this section shall not preclude,
suspend, affect, or impact any other duty, right, responsibility, or
obligation under a statute or under a contract between a health care
service plan and a provider.
(g) A health care service plan may not delegate any statutory
liability under this section.
(h) For the purposes of this section, "complete and accurate
claim" has the same meaning as that provided in the regulations
adopted by the department pursuant to subdivision (a) of Section
1371.38.
(i) On or before December 31, 2001, the department shall report
to the Legislature and the Governor information regarding the
development of the definition of "unjust pattern" as used in this
section. This report shall include, but not be limited to, a
description of the process used and a list of the parties involved in
the department's development of this definition as well as
recommendations for statutory adoption.
(j) The department shall make available upon request and on its
web site, information regarding actions taken pursuant to this
section, including a description of the activities that were the
basis for the action.
SEC. 258. Section 1371.38 of the Health and Safety Code, as added
by Section 7 of Chapter 825 of the Statutes of 2000, is repealed.
1371.38. (a) The department shall, on or before July 1, 2001,
adopt regulations that ensure that plans have adopted a dispute
resolution mechanism pursuant to subdivision (h) of Section 1367. The
regulations shall require that any dispute resolution mechanism of a
plan is fair, fast, and cost-effective for contracting and
noncontracting providers and define the term "complete and accurate
claim, including attachments and supplemental information or
documentation."
(b) On or before December 31, 2001, the department shall report
to the Governor and the Legislature its recommendations for any
additional statutory requirements relating to plan and provider
dispute resolution mechanisms.
SEC. 259. Section 1371.39 of the Health and Safety Code, as added
by Section 8 of Chapter 825 of the Statutes of 2000, is repealed.
1371.39. (a) Providers may report to the department's Office of
Plan and Provider Relations, either through the toll-free provider
line (877-525-1295) or e-mail address (plans-providers@dmhc.ca.gov),
instances in which the provider believes a plan is engaging in an
unfair payment pattern.
(b) Plans may report to the department's Office of Plan and
Provider Relations, either through the toll-free provider line
(877-525-1295) or e-mail address (plans-providers@dmhc.ca.gov),
instances in which the plan believes a provider is engaging in an
unfair billing pattern.
(1) "Unfair billing pattern" means engaging in a demonstrable and
unjust pattern of unbundling of claims, upcoding of claims, or other
demonstrable and unjustified billing patterns, as defined by the
department.
(2) The department shall convene appropriate state agencies to
make recommendations by July 1, 2001, to the Legislature and the
Governor for the purpose of developing a system for responding to
unfair billing patterns as defined in this section. This section
shall include a process by which information is made available to the
public regarding actions taken against providers for unfair billing
patterns and the activities that were the basis for the action.
(c) On or before December 31, 2001, the department shall report
to the Legislature and the Governor information regarding the
development of the definition of "unfair billing pattern" as used in
this section. This report shall include, but not be limited to, a
description of the process used and a list of the parties involved in
the department's development of this definition as well as
recommendations for statutory adoption.
SEC. 260. Section 1389.4 of the Health and Safety Code, as amended
by Section 9 of Chapter 2 of the First Extraordinary Session of the
Statutes of 2013, is amended to read:
1389.4. (a) A full service health care service plan that issues,
renews, or amends individual health plan contracts shall be subject
to this section.
(b) A health care service plan subject to this section shall have
written policies, procedures, or underwriting guidelines establishing
the criteria and process whereby the plan makes its decision to
provide or to deny coverage to individuals applying for coverage and
sets the rate for that coverage. These guidelines, policies, or
procedures shall ensure that the plan rating and underwriting
criteria comply with Sections 1365.5 and 1389.1 and all other
applicable provisions of state and federal law.
(c) On or before June 1, 2006, and annually thereafter, every
health care service plan shall file with the department a general
description of the criteria, policies, procedures, or guidelines the
plan uses for rating and underwriting decisions related to individual
health plan contracts, which means automatic declinable health
conditions, health conditions that may lead to a coverage decline,
height and weight standards, health history, health care utilization,
lifestyle, or behavior that might result in a decline for coverage
or severely limit the plan products for which they would be eligible.
A plan may comply with this section by submitting to the department
underwriting materials or resource guides provided to plan solicitors
or solicitor firms, provided that those materials include the
information required to be submitted by this section.
(d) Commencing January 1, 2011, the director shall post on the
department's Internet Web site, in a manner accessible and
understandable to consumers, general, noncompany specific information
about rating and underwriting criteria and practices in the
individual market and information about the California Major Risk
Medical Insurance Program (Part 6.5 (commencing with Section 12700)
of Division 2 of the Insurance Code) and the federal temporary high
risk pool established pursuant to Part 6.6 (commencing with Section
12739.5) of Division 2 of the Insurance Code. The director shall
develop the information for the Internet Web site in consultation
with the Department of Insurance to enhance the consistency of
information provided to consumers. Information about individual
health coverage shall also include the following notification:
"Please examine your options carefully before declining group
coverage or continuation coverage, such as COBRA, that may be
available to you. You should be aware that companies selling
individual health insurance typically require a review of your
medical history that could result in a higher premium or you could be
denied coverage entirely."
(e) Nothing in this section shall This
section does not authorize public disclosure of company
specific rating and underwriting criteria and practices submitted to
the director.
(f) This section shall does not
apply to a closed block of business, as defined in Section 1367.15.
(g) (1) This section shall become inoperative on November 1, 2013,
or the 91st calendar day following the adjournment of the 2013-14
First Extraordinary Session, whichever date is later.
(2) If Section 5000A of the Internal Revenue Code, as added by
Section 1501 of PPACA, is repealed or amended to no longer apply to
the individual market, as defined in Section 2791 of the federal
Public Health Service Act (42 U.S.C. Sec. 300gg-4
300gg-91 ), this section shall become operative 12 months
after the date of that repeal or amendment.
SEC. 261. Section 1389.4 of the Health and Safety Code, as added
by Section 10 of Chapter 2 of the First Extraordinary Session of the
Statutes of 2013, is amended to read:
1389.4. (a) A full service health care service plan that renews
individual grandfathered health benefit plans shall be subject to
this section.
(b) A health care service plan subject to this section shall have
written policies, procedures, or underwriting guidelines establishing
the criteria and process whereby the plan makes its decision to
provide or to deny coverage to dependents applying for an individual
grandfathered health plan and sets the rate for that coverage. These
guidelines, policies, or procedures shall ensure that the plan rating
and underwriting criteria comply with Sections 1365.5 and 1389.1 and
all other applicable provisions of state and federal law.
(c) On or before the June 1 next following the operative date of
this section, and annually thereafter, every health care service plan
shall file with the department a general description of the
criteria, policies, procedures, or guidelines the plan uses for
rating and underwriting decisions related to individual grandfathered
health plans, which means automatic declinable health conditions,
health conditions that may lead to a coverage decline, height and
weight standards, health history, health care utilization, lifestyle,
or behavior that might result in a decline for coverage or severely
limit the plan products for which they would be eligible. A plan may
comply with this section by submitting to the department underwriting
materials or resource guides provided to plan solicitors or
solicitor firms, provided that those materials include the
information required to be submitted by this section.
(d) Nothing in this section shall This
section does not authorize public disclosure of
company specific rating and underwriting criteria and practices
submitted to the director.
(e) For purposes of this section, the following definitions shall
apply:
(1) "PPACA" means the federal Patient Protection and Affordable
Care Act (Public Law 111-148), as amended by the federal Health Care
and Education Reconciliation Act of 2010 (Public Law 111-152), and
any rules, regulations, or guidance issued pursuant to that law.
(2) "Grandfathered health plan" has the same meaning as that term
is defined in Section 1251 of PPACA.
(f) (1) This section shall become operative on November 1, 2013,
or the 91st calendar day following the adjournment of the 2013-14
First Extraordinary Session, whichever date is later.
(2) If Section 5000A of the Internal Revenue Code, as added by
Section 1501 of PPACA, is repealed or amended to no longer apply to
the individual market, as defined in Section 2791 of the federal
Public Health Service Act (42 U.S.C. Sec. 300gg-4
300gg-91 ), this section shall become inoperative 12
months after the date of that repeal or amendment.
SEC. 262. Section 1389.5 of the Health and Safety Code is amended
to read:
1389.5. (a) This section shall apply
applies to a health care service plan that provides coverage
under an individual plan contract that is issued, amended, delivered,
or renewed on or after January 1, 2007.
(b) At least once each year, the health care service plan shall
permit an individual who has been covered for at least 18 months
under an individual plan contract to transfer, without medical
underwriting, to any other individual plan contract offered by that
same health care service plan that provides equal or lesser benefits,
as determined by the plan.
"Without medical underwriting" means that the health care service
plan shall not decline to offer coverage to, or deny enrollment of,
the individual or impose any preexisting condition exclusion on the
individual who transfers to another individual plan contract pursuant
to this section.
(c) The plan shall establish, for the purposes of subdivision (b),
a ranking of the individual plan contracts it offers to individual
purchasers and post the ranking on its Internet Web site or make the
ranking available upon request. The plan shall update the ranking
whenever a new benefit design for individual purchasers is approved.
(d) The plan shall notify in writing all enrollees of the right to
transfer to another individual plan contract pursuant to this
section, at a minimum, when the plan changes the enrollee's premium
rate. Posting this information on the plan's Internet Web site shall
not constitute notice for purposes of this subdivision. The notice
shall adequately inform enrollees of the transfer rights provided
under this section, including information on the process to obtain
details about the individual plan contracts available to that
enrollee and advising that the enrollee may be unable to return to
his or her current individual plan contract if the enrollee transfers
to another individual plan contract.
(e) The requirements of this section shall
do not apply to the following:
(1) A federally eligible defined individual, as defined in
subdivision (c) of Section 1399.801, who is enrolled in an individual
health benefit plan contract offered pursuant to Section 1366.35.
(2) An individual offered conversion coverage pursuant to Section
1373.6.
(3) Individual coverage under a specialized health care service
plan contract.
(4) An individual enrolled in the Medi-Cal program pursuant to
Chapter 7 (commencing with Section 14000) of Division 9 of Part 3 of
the Welfare and Institutions Code.
(5) An individual enrolled in the Access for Infants and Mothers
Program pursuant to Part 6.3 (commencing with Section 12695) of
Division 2 of the Insurance Code.
(6) An individual enrolled in the Healthy Families Program
pursuant to Part 6.2 (commencing with Section 12693) of Division 2 of
the Insurance Code.
(f) It is the intent of the Legislature that individuals shall
have more choice in their health coverage when health care service
plans guarantee the right of an individual to transfer to another
product based on the plan's own ranking system. The Legislature does
not intend for the department to review or verify the plan's ranking
for actuarial or other purposes.
(g) (1) This section shall become inoperative January 1, 2014, or
the 91st calendar day following the adjournment of the 2013-14 First
Extraordinary Session, whichever date is later.
(2) If Section 5000A of the Internal Revenue Code, as added by
Section 1501 of PPACA, is repealed or amended to no longer apply to
the individual market, as defined in Section 2791 of the federal
Public Health Service Act (42 U.S.C. Sec. 300gg-4
300gg-91 ), this section shall become operative 12 months
after the date of that repeal or amendment.
SEC. 263. Section 1389.7 of the Health and Safety Code, as amended
by Section 12 of Chapter 2 of the First Extraordinary Session of the
Statutes of 2013, is amended to read:
1389.7. (a) Every health care service plan that offers, issues,
or renews individual plan contracts shall offer to any individual,
who was covered under an individual plan contract that was rescinded,
a new individual plan contract, without medical underwriting, that
provides equal benefits. A health care service plan may also permit
an individual, who was covered under an individual plan contract that
was rescinded, to remain covered under that individual plan
contract, with a revised premium rate that reflects the number of
persons remaining on the plan contract.
(b) "Without medical underwriting" means that the health care
service plan shall not decline to offer coverage to, or deny
enrollment of, the individual or impose any preexisting condition
exclusion on the individual who is issued a new individual plan
contract or remains covered under an individual plan contract
pursuant to this section.
(c) If a new individual plan contract is issued, the plan may
revise the premium rate to reflect only the number of persons covered
on the new individual plan contract.
(d) Notwithstanding subdivisions (a) and (b), if an individual was
subject to a preexisting condition provision or a waiting or an
affiliation period under the individual plan contract that was
rescinded, the health care service plan may apply the same
preexisting condition provision or waiting or affiliation period in
the new individual plan contract. The time period in the new
individual plan contract for the preexisting condition provision or
waiting or affiliation period shall not be longer than the one in the
individual plan contract that was rescinded and the health care
service plan shall credit any time that the individual was covered
under the rescinded individual plan contract.
(e) The plan shall notify in writing all enrollees of the right to
coverage under an individual plan contract pursuant to this section,
at a minimum, when the plan rescinds the individual plan contract.
The notice shall adequately inform enrollees of the right to coverage
provided under this section.
(f) The plan shall provide 60 days for enrollees to accept the
offered new individual plan contract and this contract shall be
effective as of the effective date of the original plan contract and
there shall be no lapse in coverage.
(g) This section shall does not
apply to any individual whose information in the application for
coverage and related communications led to the rescission.
(h) (1) This section shall become inoperative on January 1, 2014,
or the 91st calendar day following the adjournment of the 2013-14
First Extraordinary Session, whichever date is later.
(2) If Section 5000A of the Internal Revenue Code, as added by
Section 1501 of PPACA, is repealed or amended to no longer apply to
the individual market, as defined in Section 2791 of the federal
Public Health Service Act (42 U.S.C. Sec. 300gg-4
300gg-91 ), this section shall become operative 12 months
after the date of that repeal or amendment.
SEC. 264. Section 1389.7 of the Health and Safety Code, as added
by Section 13 of Chapter 2 of the First Extraordinary Session of the
Statutes of 2013, is amended to read:
1389.7. (a) Every health care service plan that offers, issues,
or renews individual plan contracts shall offer to any individual,
who was covered by the plan under an individual plan contract that
was rescinded, a new individual plan contract that provides the most
equivalent benefits.
(b) A health care service plan that offers, issues, or renews
individual plan contracts inside or outside the California Health
Benefit Exchange may also permit an individual, who was covered by
the plan under an individual plan contract that was rescinded, to
remain covered under that individual plan contract, with a revised
premium rate that reflects the number of persons remaining on the
individual plan contract consistent with Section 1399.855.
(c) The plan shall notify in writing all enrollees of the right to
coverage under an individual plan contract pursuant to this section,
at a minimum, when the plan rescinds the individual plan contract.
The notice shall adequately inform enrollees of the right to coverage
provided under this section.
(d) The plan shall provide 60 days for enrollees to accept the
offered new individual plan contract under subdivision (a), and this
contract shall be effective as of the effective date of the original
plan contract and there shall be no lapse in coverage.
(e) This section shall does not
apply to any individual whose information in the application for
coverage and related communications led to the rescission.
(f) This section shall apply applies
notwithstanding subdivision (a) or (d) of Section 1399.849.
(g) (1) This section shall become operative on January 1, 2014, or
the 91st calendar day following the adjournment of the 2013-14 First
Extraordinary Session, whichever date is later.
(2) If Section 5000A of the Internal Revenue Code, as added by
Section 1501 of PPACA, is repealed or amended to no longer apply to
the individual market, as defined in Section 2791 of the federal
Public Health Service Act (42 U.S.C. Sec. 300gg-4
300gg-91 ), this section shall become inoperative 12
months after the date of that repeal or amendment.
SEC. 265. Section 1399.836 of the Health and Safety Code is
amended to read:
1399.836. (a) This article shall become inoperative on January 1,
2014, or the 91st calendar day following the adjournment of the
2013-14 First Extraordinary Session, whichever date is later.
(b) If Section 5000A of the Internal Revenue Code, as added by
Section 1501 of PPACA, is repealed or amended to no longer apply to
the individual market, as defined in Section 2791 of the federal
Public Health Service Act (42 U.S.C. Sec. 300gg-4
300gg-91 ), this article shall become operative 12 months
after the date of that repeal or amendment.
SEC. 266. Section 1399.855 of the Health and Safety Code is
amended to read:
1399.855. (a) With respect to individual health benefit plans for
policy years on or after January 1, 2014, a health care service
plan may use only the following
characteristics of an individual, and any dependent thereof, for
purposes of establishing the rate of the individual health benefit
plan covering the individual and the eligible dependents thereof,
along with the health benefit plan selected by the individual:
(1) Age, pursuant to the age bands established by the United
States Secretary of Health and Human Services and the age rating
curve established by the federal Centers for Medicare and Medicaid
Services pursuant to Section 2701(a)(3) of the federal Public Health
Service Act (42 U.S.C. Sec. 300gg(a)(3)). Rates based on age shall be
determined using the individual's age as of the date of the health
benefit plan contract issuance or renewal, as applicable, and shall
not vary by more than three to one for like individuals of different
age who are 21 years of age or older as described in federal
regulations adopted pursuant to Section 2701(a)(3) of the federal
Public Health Service Act (42 U.S.C. Sec. 300gg(a)(3)).
(2) (A) Geographic region. The geographic regions for purposes of
rating shall be the following:
(i) Region 1 shall consist of the Counties of Alpine, Amador,
Butte, Calaveras, Colusa, Del Norte, Glenn, Humboldt, Lake, Lassen,
Mendocino, Modoc, Nevada, Plumas, Shasta, Sierra, Siskiyou, Sutter,
Tehama, Trinity, Tuolumne, and Yuba.
(ii) Region 2 shall consist of the Counties of Marin, Napa,
Solano, and Sonoma.
(iii) Region 3 shall consist of the Counties of El Dorado, Placer,
Sacramento, and Yolo.
(iv) Region 4 shall consist of the City and County of San
Francisco.
(v) Region 5 shall consist of the County of Contra Costa.
(vi) Region 6 shall consist of the County of Alameda.
(vii) Region 7 shall consist of the County of Santa Clara.
(viii) Region 8 shall consist of the County of San Mateo.
(ix) Region 9 shall consist of the Counties of Monterey, San
Benito, and Santa Cruz.
(x) Region 10 shall consist of the Counties of Mariposa, Merced,
San Joaquin, Stanislaus, and Tulare.
(xi) Region 11 shall consist of the Counties of Fresno, Kings, and
Madera.
(xii) Region 12 shall consist of the Counties of San Luis Obispo,
Santa Barbara, and Ventura.
(xiii) Region 13 shall consist of the Counties of Imperial, Inyo,
and Mono.
(xiv) Region 14 shall consist of the County of Kern.
(xv) Region 15 shall consist of the ZIP Codes in the County of Los
Angeles starting with 906 to 912, inclusive, 915, 917, 918, and 935.
(xvi) Region 16 shall consist of the ZIP Codes in the County of
Los Angeles other than those identified in clause (xv).
(xvii) Region 17 shall consist of the Counties of Riverside and
San Bernardino.
(xviii) Region 18 shall consist of the County of Orange.
(xix) Region 19 shall consist of the County of San Diego.
(B) No later than June 1, 2017, the department, in collaboration
with the Exchange and the Department of Insurance, shall review the
geographic rating regions specified in this paragraph and the impacts
of those regions on the health care coverage market in California,
and make a report to the appropriate policy committees of the
Legislature.
(3) Whether the plan covers an individual or family, as described
in PPACA.
(b) The rate for a health benefit plan subject to this section
shall not vary by any factor not described in this section.
(c) With respect to family coverage under an individual health
benefit plan, the rating variation permitted under paragraph (1) of
subdivision (a) shall be applied based on the portion of the premium
attributable to each family member covered under the plan. The total
premium for family coverage shall be determined by summing the
premiums for each individual family member. In determining the total
premium for family members, premiums for no more than the three
oldest family members who are under 21 years of age shall be taken
into account.
(d) The rating period for rates subject to this section shall be
from January 1 to December 31, inclusive.
(e) This section shall does not
apply to an individual health benefit plan that is a grandfathered
health plan.
(f) The requirement for submitting a report imposed under
subparagraph (B) of paragraph (2) of subdivision (a) is inoperative
on June 1, 2021, pursuant to Section 10231.5 of the Government Code.
(g) If Section 5000A of the Internal Revenue Code, as added by
Section 1501 of PPACA, is repealed or amended to no longer apply to
the individual market, as defined in Section 2791 of the federal
Public Health Service Act (42 U.S.C. Sec. 300gg-4
300gg-91 ), this section shall become inoperative 12
months after the date of that repeal or amendment.
SEC. 267. Section 1502 of the Health and Safety Code is amended to
read:
1502. As used in this chapter:
(a) "Community care facility" means any facility, place, or
building that is maintained and operated to provide nonmedical
residential care, day treatment, adult day care, or foster family
agency services for children, adults, or children and adults,
including, but not limited to, the physically handicapped, mentally
impaired, incompetent persons, and abused or neglected children, and
includes the following:
(1) "Residential facility" means any family home, group care
facility, or similar facility determined by the director, for 24-hour
nonmedical care of persons in need of personal services,
supervision, or assistance essential for sustaining the activities of
daily living or for the protection of the individual.
(2) "Adult day program" means any community-based facility or
program that provides care to persons 18 years of age or older in
need of personal services, supervision, or assistance essential for
sustaining the activities of daily living or for the protection of
these individuals on less than a 24-hour basis.
(3) "Therapeutic day services facility" means any facility that
provides nonmedical care, counseling, educational or vocational
support, or social rehabilitation services on less than a 24-hour
basis to persons under 18 years of age who would otherwise be placed
in foster care or who are returning to families from foster care.
Program standards for these facilities shall be developed by the
department, pursuant to Section 1530, in consultation with
therapeutic day services and foster care providers.
(4) "Foster family agency" means any organization engaged in the
recruiting, certifying, and training of, and providing professional
support to, foster parents, or in finding homes or other places for
placement of children for temporary or permanent care who require
that level of care as an alternative to a group home. Private foster
family agencies shall be organized and operated on a nonprofit basis.
(5) "Foster family home" means any residential facility providing
24-hour care for six or fewer foster children that is owned, leased,
or rented and is the residence of the foster parent or parents,
including their family, in whose care the foster children have been
placed. The placement may be by a public or private child placement
agency or by a court order, or by voluntary placement by a parent,
parents, or guardian. It also means a foster family home described in
Section 1505.2.
(6) "Small family home" means any residential facility, in the
licensee's family residence, that provides 24-hour care for six or
fewer foster children who have mental disorders or developmental or
physical disabilities and who require special care and supervision as
a result of their disabilities. A small family home may accept
children with special health care needs, pursuant to subdivision (a)
of Section 17710 of the Welfare and Institutions Code. In addition to
placing children with special health care needs, the department may
approve placement of children without special health care needs, up
to the licensed capacity.
(7) "Social rehabilitation facility" means any residential
facility that provides social rehabilitation services for no longer
than 18 months in a group setting to adults recovering from mental
illness who temporarily need assistance, guidance, or counseling.
Program components shall be subject to program standards pursuant to
Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of
Division 5 of the Welfare and Institutions Code.
(8) "Community treatment facility" means any residential facility
that provides mental health treatment services to children in a group
setting and that has the capacity to provide secure containment.
Program components shall be are subject
to program standards developed and enforced by the State Department
of Health Care Services pursuant to Section 4094 of the Welfare and
Institutions Code.
Nothing in this section shall be construed to
This section does not prohibit or discourage placement
of persons who have mental or physical disabilities into any category
of community care facility that meets the needs of the individual
placed, if the placement is consistent with the licensing regulations
of the department.
(9) "Full-service adoption agency" means any licensed entity
engaged in the business of providing adoption services, that does all
of the following:
(A) Assumes care, custody, and control of a child through
relinquishment of the child to the agency or involuntary termination
of parental rights to the child.
(B) Assesses the birth parents, prospective adoptive parents, or
child.
(C) Places children for adoption.
(D) Supervises adoptive placements.
Private full-service adoption agencies shall be organized and
operated on a nonprofit basis. As a condition of licensure to provide
intercountry adoption services, a full-service adoption agency shall
be accredited and in good standing according to Part 96 of Title 22
of the Code of Federal Regulations, or supervised by an accredited
primary provider, or acting as an exempted provider, in compliance
with Subpart F (commencing with Section 96.29) of Part 96 of Title 22
of the Code of Federal Regulations.
(10) "Noncustodial adoption agency" means any licensed entity
engaged in the business of providing adoption services, that does all
of the following:
(A) Assesses the prospective adoptive parents.
(B) Cooperatively matches children freed for adoption, who are
under the care, custody, and control of a licensed adoption agency,
for adoption, with assessed and approved adoptive applicants.
(C) Cooperatively supervises adoptive placements with a
full-service adoptive agency, but does not disrupt a placement or
remove a child from a placement.
Private noncustodial adoption agencies shall be organized and
operated on a nonprofit basis. As a condition of licensure to provide
intercountry adoption services, a noncustodial adoption agency shall
be accredited and in good standing according to Part 96 of Title 22
of the Code of Federal Regulations, or supervised by an accredited
primary provider, or acting as an exempted provider, in compliance
with Subpart F (commencing with Section 96.29) of Part 96 of Title 22
of the Code of Federal Regulations.
(11) "Transitional shelter care facility" means any group care
facility that provides for 24-hour nonmedical care of persons in need
of personal services, supervision, or assistance essential for
sustaining the activities of daily living or for the protection of
the individual. Program components shall be subject to program
standards developed by the State Department of Social Services
pursuant to Section 1502.3.
(12) "Transitional housing placement provider" means an
organization licensed by the department pursuant to Section 1559.110
and Section 16522.1 of the Welfare and Institutions Code to provide
transitional housing to foster children at least 16 years of age and
not more than 18 years of age, and nonminor dependents, as defined in
subdivision (v) of Section 11400 of the Welfare and Institutions
Code, to promote their transition to adulthood. A transitional
housing placement provider shall be privately operated and organized
on a nonprofit basis.
(13) "Group home" means a residential facility that provides
24-hour care and supervision to children, delivered at least in part
by staff employed by the licensee in a structured environment. The
care and supervision provided by a group home shall be nonmedical,
except as otherwise permitted by law.
(14) "Runaway and homeless youth shelter" means a group home
licensed by the department to operate a program pursuant to Section
1502.35 to provide voluntary, short-term, shelter and personal
services to runaway youth or homeless youth, as defined in paragraph
(2) of subdivision (a) of Section 1502.35.
(15) "Enhanced behavioral supports home" means a facility
certified by the State Department of Developmental Services pursuant
to Article 3.6 (commencing with Section 4684.80) of Chapter 6 of
Division 4.5 of the Welfare and Institutions Code, and licensed by
the State Department of Social Services as an adult residential
facility or a group home that provides 24-hour nonmedical care to
individuals with developmental disabilities who require enhanced
behavioral supports, staffing, and supervision in a homelike setting.
An enhanced behavioral supports home shall have a maximum capacity
of four consumers, shall conform to Section 441.530(a)(1) of Title 42
of the Code of Federal Regulations, and shall be eligible for
federal Medicaid home- and community-based services funding.
(16) "Community crisis home" means a facility certified by the
State Department of Developmental Services pursuant to Article 8
(commencing with Section 4698) of Chapter 6 of Division 4.5 of the
Welfare and Institutions Code, and licensed by the State Department
of Social Services pursuant to Article 9.7 (commencing with Section
1567.80), as an adult residential facility, providing 24-hour
nonmedical care to individuals with developmental disabilities
receiving regional center service, in need of crisis intervention
services, and who would otherwise be at risk of admission to the
acute crisis center at Fairview Developmental Center, Sonoma
Developmental Center, an acute general a
general acute care hospital, acute psychiatric hospital, an
institution for mental disease, as described in Part 5 (commencing
with Section 5900) of Division 5 of the Welfare and Institutions
Code, or an out-of-state placement. A community crisis home shall
have a maximum capacity of eight consumers, as defined in subdivision
(a) of Section 1567.80, shall conform to Section 441.530(a)(1) of
Title 42 of the Code of Federal Regulations, and shall be eligible
for federal Medicaid home- and community-based services funding.
(17) "Crisis nursery" means a facility licensed by the department
to operate a program pursuant to Section 1516 to provide short-term
care and supervision for children under six years of age who are
voluntarily placed for temporary care by a parent or legal guardian
due to a family crisis or stressful situation.
(b) "Department" or "state department" means the State Department
of Social Services.
(c) "Director" means the Director of Social Services.
SEC. 268. Section 1522 of the Health and Safety Code is amended to
read:
1522. The Legislature recognizes the need to generate timely and
accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a community
care facility, foster family home, or a certified family home of a
licensed foster family agency. Therefore, the Legislature supports
the use of the fingerprint live-scan technology, as identified in the
long-range plan of the Department of Justice for fully automating
the processing of fingerprints and other data by the year 1999,
otherwise known as the California Crime Information Intelligence
System (CAL-CII), to be used for applicant fingerprints. It is the
intent of the Legislature in enacting this section to require the
fingerprints of those individuals whose contact with community care
clients may pose a risk to the clients' health and safety. An
individual shall be required to obtain either a criminal record
clearance or a criminal record exemption from the State Department of
Social Services before his or her initial presence in a community
care facility or certified family home.
(a) (1) Before and, as applicable, subsequent to issuing a license
or special permit to any person or persons to operate or manage a
community care facility, the State Department of Social Services
shall secure from an appropriate law enforcement agency a criminal
record to determine whether the applicant or any other person
specified in subdivision (b) has ever been convicted of a crime other
than a minor traffic violation or arrested for any crime specified
in Section 290 of the Penal Code, or for violating Section 245,
273ab, or 273.5 of the Penal Code, subdivision (b) of Section 273a of
the Penal Code, or, prior to January 1, 1994, paragraph (2) of
Section 273a of the Penal Code, or for any crime for which the
department is prohibited from granting a criminal record exemption
pursuant to subdivision (g).
(2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) Except during the 2003-04 to the 2014-15 fiscal years,
inclusive, neither the Department of Justice
nor and the State Department of Social
Services may shall not charge a fee for
the fingerprinting of an applicant for a license or special permit
to operate a facility providing nonmedical board, room, and care for
six or less fewer children or for
obtaining a criminal record of the applicant pursuant to this
section.
(4) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), has been
convicted of a crime other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (g).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the criminal
record information until the conclusion of the trial.
(C) If no criminal record information has
not been recorded, the Department of Justice shall provide the
applicant and the State Department of Social Services with a
statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (1) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (g).
(E) An applicant and any other person specified in subdivision (b)
shall submit fingerprint images and related information to the
Department of Justice for the purpose of searching the criminal
records of the Federal Bureau of Investigation, in addition to the
criminal records search required by this subdivision. If an applicant
and all other persons described in subdivision (b) meet all of the
conditions for licensure, except receipt of the Federal Bureau of
Investigation's criminal offender record information search response
for the applicant or any of the persons described in subdivision (b),
the department may issue a license if the applicant and each person
described in subdivision (b) has signed and submitted a statement
that he or she has never been convicted of a crime in the United
States, other than a traffic infraction, as prescribed in paragraph
(1) of subdivision (a) of Section 42001 of the Vehicle Code. If,
after licensure, or the issuance of a certificate of approval of a
certified family home by a foster family agency, the department
determines that the licensee or any other person specified in
subdivision (b) has a criminal record, the department may revoke the
license, or require a foster family agency to revoke the certificate
of approval, pursuant to Section 1550. The department may also
suspend the license or require a foster family agency to suspend the
certificate of approval pending an administrative hearing pursuant to
Section 1550.5.
(F) The State Department of Social Services shall develop
procedures to provide the individual's state and federal criminal
history information with the written notification of his or her
exemption denial or revocation based on the criminal record. Receipt
of the criminal history information shall be optional on the part of
the individual, as set forth in the agency's procedures. The
procedure shall protect the confidentiality and privacy of the
individual's record, and the criminal history information shall not
be made available to the employer.
(G) Notwithstanding any other 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 his or her
written request. The department shall retain a copy of the individual'
s written request and the response and date provided.
(b) (1) In addition to the applicant, this section shall be
applicable to criminal record clearances and exemptions for the
following persons:
(A) Adults responsible for administration or direct supervision of
staff.
(B) Any person, other than a client, residing in the facility or
certified family home.
(C) Any A person who provides client
assistance in dressing, grooming, bathing, or personal hygiene.
Any A nurse assistant or home health
aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the community
care facility. The facility shall maintain the copy of the
certification on file as long as care is being provided by the
certified nurse assistant or certified home health aide at the
facility or certified family home. Nothing in this
This paragraph restricts does not
restrict the right of the department to exclude a certified
nurse assistant or certified home health aide from a licensed
community care facility or certified family home pursuant to Section
1558.
(D) Any A staff person, volunteer,
or employee who has contact with the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
like capacity.
(F) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(2) The following persons are exempt from the requirements
applicable under paragraph (1):
(A) A medical professional as defined in department regulations
who holds a valid license or certification from the person's
governing California medical care regulatory entity and who is not
employed, retained, or contracted by the licensee if all of the
following apply:
(i) The criminal record of the person has been cleared as a
condition of licensure or certification by the person's governing
California medical care regulatory entity.
(ii) The person is providing time-limited specialized clinical
care or services.
(iii) The person is providing care or services within the person's
scope of practice.
(iv) The person is not a community care facility licensee or an
employee of the facility.
(B) A third-party repair person or similar retained contractor if
all of the following apply:
(i) The person is hired for a defined, time-limited job.
(ii) The person is not left alone with clients.
(iii) When clients are present in the room in which the repair
person or contractor is working, a staff person who has a criminal
record clearance or exemption is also present.
(C) Employees of a licensed home health agency and other members
of licensed hospice interdisciplinary teams who have a contract with
a client or resident of the facility and are in the facility at the
request of that client or resident's legal decisionmaker. The
exemption does not apply to a person who is a community care facility
licensee or an employee of the facility.
(D) Clergy and other spiritual caregivers who are performing
services in common areas of the community care facility or who are
advising an individual client at the request of, or with the
permission of, the client or legal decisionmaker, are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption does not apply to a person
who is a community care licensee or employee of the facility.
(E) Members of fraternal, service, or similar organizations who
conduct group activities for clients if all of the following apply:
(i) Members are not left alone with clients.
(ii) Members do not transport clients off the facility premises.
(iii) The same organization does not conduct group activities for
clients more often than defined by the department's regulations.
(3) In addition to the exemptions in paragraph (2), the following
persons in foster family homes, certified family homes, and small
family homes are exempt from the requirements applicable under
paragraph (1):
(A) Adult friends and family of the licensed or certified foster
parent, who come into the home to visit for a length of time no
longer than defined by the department in regulations,
provided that the adult friends and
family of the licensee or certified foster parent are not
left alone with the foster children. However, the licensee or
certified foster parent, acting as a reasonable and
prudent parent, as defined in paragraph (2) of subdivision (a) of
Section 362.04 of the Welfare and Institutions Code, may allow his or
her adult friends and family to provide short-term care to the
foster child and act as an appropriate occasional short-term
babysitter for the child.
(B) Parents of a foster child's friend when the foster child is
visiting the friend's home and the friend, licensed or certified
foster parent, or both are also present. However, the licensee or
certified foster parent, acting as a reasonable and
prudent parent, may allow the parent of the foster child's friend to
act as an appropriate short-term babysitter for the child without the
friend being present.
(C) Individuals who are engaged by any licensed or certified
foster parent to provide short-term care to the child for periods not
to exceed 24 hours. Caregivers shall use a reasonable and prudent
parent standard in selecting appropriate individuals to act as
appropriate occasional short-term babysitters.
(4) In addition to the exemptions specified in paragraph (2), the
following persons in adult day care and adult day support centers are
exempt from the requirements applicable under paragraph (1):
(A) Unless contraindicated by the client's individualized program
plan (IPP) or needs and service plan, a spouse, significant other,
relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to the client.
(B) A volunteer if all of the following applies:
(i) The volunteer is supervised by the licensee or a facility
employee with a criminal record clearance or exemption.
(ii) The volunteer is never left alone with clients.
(iii) The volunteer does not provide any client assistance with
dressing, grooming, bathing, or personal hygiene other than washing
of hands.
(5) (A) In addition to the exemptions specified in paragraph (2),
the following persons in adult residential and social rehabilitation
facilities, unless contraindicated by the client's individualized
program plan (IPP) or needs and services plan, are exempt from the
requirements applicable under paragraph (1): a spouse, significant
other, relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to that client.
(B) Nothing in this This subdivision
shall does not prevent a licensee from
requiring a criminal record clearance of any individual exempt from
the requirements of this section, provided that the individual has
client contact.
(6) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(c) (1) Subsequent to initial licensure, a person specified in
subdivision (b) who is not exempted from fingerprinting shall obtain
either a criminal record clearance or an exemption from
disqualification pursuant to subdivision (g) from the State
Department of Social Services prior to employment, residence, or
initial presence in the facility. A person specified in subdivision
(b) who is not exempt from fingerprinting shall be fingerprinted and
shall sign a declaration under penalty of perjury regarding any prior
criminal convictions. The licensee shall submit fingerprint images
and related information to the Department of Justice and the Federal
Bureau of Investigation, through the Department of Justice, for a
state and federal level criminal offender record information search,
or comply with paragraph (1) of subdivision (h). These fingerprint
images and related information shall be sent by electronic
transmission in a manner approved by the State Department of Social
Services and the Department of Justice for the purpose of obtaining a
permanent set of fingerprints, and shall be submitted to the
Department of Justice by the licensee. A licensee's failure to
prohibit the employment, residence, or initial presence of a person
specified in subdivision (b) who is not exempt from fingerprinting
and who has not received either a criminal record clearance or an
exemption from disqualification pursuant to subdivision (g) or to
comply with paragraph (1) of subdivision (h), as required in this
section, shall result in the citation of a deficiency and the
immediate assessment of civil penalties in the amount of one hundred
dollars ($100) per violation per day for a maximum of five days,
unless the violation is a second or subsequent violation within a
12-month period in which case the civil penalties shall be in the
amount of one hundred dollars ($100) per violation for a maximum of
30 days, and shall be grounds for disciplining the licensee pursuant
to Section 1550. The department may assess civil penalties for
continued violations as permitted by Section 1548. The fingerprint
images and related information shall then be submitted to the
Department of Justice for processing. Upon request of the licensee,
who shall enclose a self-addressed stamped postcard for this purpose,
the Department of Justice shall verify receipt of the fingerprints.
(2) Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided
for in subdivision (a). If no criminal record
information has not been recorded, the Department of
Justice shall provide the licensee and the State Department of Social
Services with a statement of that fact within 14 calendar days of
receipt of the fingerprint images. Documentation of the individual's
clearance or exemption from disqualification shall be maintained by
the licensee and be available for inspection. If new fingerprint
images are required for processing, the Department of Justice shall,
within 14 calendar days from the date of receipt of the fingerprints,
notify the licensee that the fingerprints were illegible, the
Department of Justice shall notify the State Department of Social
Services, as required by Section 1522.04, and shall also notify the
licensee by mail, within 14 days of electronic transmission of the
fingerprints to the Department of Justice, if the person has no
criminal history recorded. A violation of the regulations adopted
pursuant to Section 1522.04 shall result in the citation of a
deficiency and an immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation per day for a
maximum of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining the
licensee pursuant to Section 1550. The department may assess civil
penalties for continued violations as permitted by Section 1548.
(3) Except for persons specified in subdivision (b) who are exempt
from fingerprinting, the licensee shall endeavor to ascertain the
previous employment history of persons required to be fingerprinted.
If it is determined by the State Department of Social Services, on
the basis of the fingerprint images and related information submitted
to the Department of Justice, that subsequent to obtaining a
criminal record clearance or exemption from disqualification pursuant
to subdivision (g), the person has been convicted of, or is awaiting
trial for, a sex offense against a minor, or has been convicted for
an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or
368 of the Penal Code, or a felony, the State Department of Social
Services shall notify the licensee to act immediately to terminate
the person's employment, remove the person from the community care
facility, or bar the person from entering the community care
facility. The State Department of Social Services may subsequently
grant an exemption from disqualification pursuant to subdivision (g).
If the conviction or arrest was for another crime, except a minor
traffic violation, the licensee shall, upon notification by the State
Department of Social Services, act immediately to either (A)
terminate the person's employment, remove the person from the
community care facility, or bar the person from entering the
community care facility; or (B) seek an exemption from
disqualification pursuant to subdivision (g). The State Department of
Social Services shall determine if the person shall be allowed to
remain in the facility until a decision on the exemption from
disqualification is rendered. A licensee's failure to comply with the
department's prohibition of employment, contact with clients, or
presence in the facility as required by this paragraph shall result
in a citation of deficiency and an immediate assessment of civil
penalties in the amount of one hundred dollars ($100) per violation
per day and shall be grounds for disciplining the licensee pursuant
to Section 1550.
(4) The department may issue an exemption from disqualification on
its own motion pursuant to subdivision (g) if the person's criminal
history indicates that the person is of good character based on the
age, seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption from
disqualification pursuant to this paragraph.
(5) Concurrently with notifying the licensee pursuant to paragraph
(3), the department shall notify the affected individual of his or
her right to seek an exemption from disqualification pursuant to
subdivision (g). The individual may seek an exemption from
disqualification only if the licensee terminates the person's
employment or removes the person from the facility after receiving
notice from the department pursuant to paragraph (3).
(d) (1) Before and, as applicable, subsequent to issuing a license
or certificate of approval to any person or persons to operate a
foster family home or certified family home as described in Section
1506, the State Department of Social Services or other approving
authority shall secure California and Federal Bureau of Investigation
criminal history information to determine whether the applicant or
any person specified in subdivision (b) who is not exempt from
fingerprinting has ever been convicted of a crime other than a minor
traffic violation or arrested for any crime specified in subdivision
(c) of Section 290 of the Penal Code, for violating Section 245,
273ab, or 273.5, subdivision (b) of Section 273a, or, prior to
January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or
for any crime for which the department is prohibited from granting a
criminal record exemption pursuant to subdivision (g). The State
Department of Social Services or other approving authority shall not
issue a license or certificate of approval to any foster family home
or certified family home applicant who has not obtained both a
California and Federal Bureau of Investigation criminal record
clearance or exemption from disqualification pursuant to subdivision
(g).
(2) The criminal history information shall include the full
criminal record, if any, of those persons.
(3) Neither the Department of Justice nor the State Department of
Social Services may charge a fee for the fingerprinting of an
applicant for a license, special permit, or certificate of approval
described in this subdivision. The record, if any, shall be taken
into consideration when evaluating a prospective applicant.
(4) The following shall apply to the criminal record information:
(A) If the applicant or other persons specified in subdivision (b)
who are not exempt from fingerprinting have convictions that would
make the applicant's home unfit as a foster family home or a
certified family home, the license, special permit, certificate of
approval, or presence shall be denied.
(B) If the State Department of Social Services finds that the
applicant, or any person specified in subdivision (b) who is not
exempt from fingerprinting is awaiting trial for a crime other than a
minor traffic violation, the State Department of Social Services or
other approving authority may cease processing the criminal record
information until the conclusion of the trial.
(C) For purposes of this subdivision, a criminal record clearance
provided under Section 8712 of the Family Code may be used by the
department or other approving agency.
(D) To the same extent required for federal funding, an applicant
for a foster family home license or for certification as a family
home, and any other person specified in subdivision (b) who is not
exempt from fingerprinting, shall submit a set of fingerprint images
and related information to the Department of Justice and the Federal
Bureau of Investigation, through the Department of Justice, for a
state and federal level criminal offender record information search,
in addition to the criminal records search required by subdivision
(a).
(5) Any A person specified in this
subdivision shall, as a part of the application, be fingerprinted and
sign a declaration under penalty of perjury regarding any prior
criminal convictions or arrests for any crime against a child,
spousal or cohabitant abuse, or any crime for which the department
cannot grant an exemption if the person was convicted and shall
submit these fingerprints to the licensing agency or other approving
authority.
(6) (A) Subsequent to initial licensure or certification, a person
specified in subdivision (b) who is not exempt from fingerprinting
shall obtain both a California and Federal Bureau of Investigation
criminal record clearance, or an exemption from disqualification
pursuant to subdivision (g), prior to employment, residence, or
initial presence in the foster family or certified family home. A
foster family home licensee or foster family agency shall submit
fingerprint images and related information of persons specified in
subdivision (b) who are not exempt from fingerprinting to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, or to comply with
paragraph (1) of subdivision (h). A foster family home licensee's or
a foster family agency's failure to either prohibit the employment,
residence, or initial presence of a person specified in subdivision
(b) who is not exempt from fingerprinting and who has not received
either a criminal record clearance or an exemption from
disqualification pursuant to subdivision (g), or comply with
paragraph (1) of subdivision (h), as required in this section, shall
result in a citation of a deficiency, and the immediate civil
penalties of one hundred dollars ($100) per violation per day for a
maximum of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining the
licensee pursuant to Section 1550. A violation of the regulation
adopted pursuant to Section 1522.04 shall result in the citation of a
deficiency and an immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation per day for a
maximum of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining the
foster family home licensee or the foster family agency pursuant to
Section 1550. The State Department of Social Services may assess
penalties for continued violations, as permitted by Section 1548. The
fingerprint images shall then be submitted to the Department of
Justice for processing.
(B) Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the Department of Justice
shall verify receipt of the fingerprints. Within five working days of
the receipt of the criminal record or information regarding criminal
convictions from the Department of Justice, the department shall
notify the applicant of any criminal arrests or convictions. If no
arrests or convictions are recorded, the Department of Justice shall
provide the foster family home licensee or the foster family agency
with a statement of that fact concurrent with providing the
information to the State Department of Social Services.
(7) If the State Department of Social Services or other approving
authority finds that the applicant, or any other person specified in
subdivision (b) who is not exempt from fingerprinting, has been
convicted of a crime other than a minor traffic violation, the
application or presence shall be denied, unless the director grants
an exemption from disqualification pursuant to subdivision (g).
(8) If the State Department of Social Services or other approving
authority finds after licensure or the granting of the certificate of
approval that the licensee, certified foster parent, or any other
person specified in subdivision (b) who is not exempt from
fingerprinting, has been convicted of a crime other than a minor
traffic violation, the license or certificate of approval may be
revoked by the department or the foster family agency, whichever is
applicable, unless the director grants an exemption from
disqualification pursuant to subdivision (g). A licensee's failure to
comply with the department's prohibition of employment, contact with
clients, or presence in the facility as required by paragraph (3) of
subdivision (c) shall be grounds for disciplining the licensee
pursuant to Section 1550.
(e) (1) The State Department of Social Services shall not use a
record of arrest to deny, revoke, or terminate any application,
license, employment, or residence unless the department investigates
the incident and secures evidence, whether or not related to the
incident of arrest, that is admissible in an administrative hearing
to establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client.
(2) The department shall not issue a criminal record clearance to
a person who has been arrested for any crime specified in Section 290
of the Penal Code, or for violating Section 245, 273ab, or 273.5, or
subdivision (b) of Section 273a, of the Penal Code, or, prior to
January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or
for any crime for which the department is prohibited from granting a
criminal record exemption pursuant to subdivision (g), prior to the
department's completion of an investigation pursuant to paragraph
(1).
(3) The State Department of Social Services is authorized to
obtain any arrest or conviction records or reports from any law
enforcement agency as necessary to the performance of its duties to
inspect, license, and investigate community care facilities and
individuals associated with a community care facility.
(f) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
State Department of Social Services is permitted to take following
the establishment of a conviction may be taken when the time for
appeal has elapsed, when the judgment of conviction has been affirmed
on appeal, or when an order granting probation is made suspending
the imposition of sentence, notwithstanding a subsequent order
pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting
the person to withdraw his or her plea of guilty and to enter a plea
of not guilty, or setting aside the verdict of guilty, or dismissing
the accusation, information, or indictment. For purposes of this
section or any other provision of this chapter, the record of a
conviction, or a copy thereof certified by the clerk of the court or
by a judge of the court in which the conviction occurred, shall be
conclusive evidence of the conviction. For purposes of this section
or any other provision of this chapter, the arrest disposition report
certified by the Department of Justice, or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code, shall be
prima facie evidence of the conviction, notwithstanding any other
law prohibiting the admission of these documents in a civil or
administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(g) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraph (4) of subdivision (a), or for a license,
special permit, or certificate of approval as specified in paragraphs
(4), (7), and (8) of subdivision (d), or for employment, residence,
or presence in a community care facility as specified in paragraphs
(3), (4), and (5) of subdivision (c), if the director has substantial
and convincing evidence to support a reasonable belief that the
applicant and the person convicted of the crime, if other than the
applicant, are of good character as to justify issuance of the
license or special permit or granting an exemption for purposes of
subdivision (c). Except as otherwise provided in this subdivision, an
exemption shall not be granted pursuant to this subdivision if the
conviction was for any of the following offenses:
(A) (i) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a, or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289,
subdivision (c) of Section 290, or Section 368, of the Penal Code, or
was a conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(ii) Notwithstanding clause (i), the director may grant an
exemption regarding the conviction for an offense described in
paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5
of the Penal Code, if the employee or prospective employee has been
rehabilitated as provided in Section 4852.03 of the Penal Code, has
maintained the conduct required in Section 4852.05 of the Penal Code
for at least 10 years, and has the recommendation of the district
attorney representing the employee's county of residence, or if the
employee or prospective employee has received a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code. This clause
shall does not apply to foster care providers,
including relative caregivers, nonrelated extended family members, or
any other person specified in subdivision (b), in those homes where
the individual has been convicted of an offense described in
paragraph (1) of subdivision (c) of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) of Section
451 of the Penal Code.
(C) Under no circumstances shall an An
exemption shall not be granted pursuant to this
subdivision to any foster care provider applicant if that applicant,
or any other person specified in subdivision (b) in those homes, has
a felony conviction for either of the following offenses:
(i) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subparagraph, a crime involving violence means a violent crime
specified in clause (i) of subparagraph (A), or subparagraph (B).
(ii) A felony conviction, within the last five years, for physical
assault, battery, or a drug- or alcohol-related offense.
(iii) This subparagraph shall does
not apply to licenses or approvals wherein a caregiver was granted an
exemption to a criminal conviction described in clause (i) or (ii)
prior to the enactment of this subparagraph.
(iv) This subparagraph shall remain operative only to the extent
that compliance with its provisions is required by federal law as a
condition for receiving funding under Title IV-E of the federal
Social Security Act (42 U.S.C. Sec. 670 et seq.).
(2) The department shall not prohibit a person from being employed
or having contact with clients in a facility on the basis of a
denied criminal record exemption request or arrest information unless
the department complies with the requirements of Section 1558.
(h) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the State Department of Social
Services, and shall include a copy of the person's driver's license
or valid identification card issued by the Department of Motor
Vehicles, or a valid photo identification issued by another state or
the United States government if the person is not a California
resident. Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the State Department of
Social Services shall verify whether the individual has a clearance
that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of three years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearance to be transferred.
(3) The following shall apply applies
to a criminal record clearance or exemption from the department
or a county office with department-delegated licensing authority:
(A) A county office with
department-delegated licensing authority may accept a clearance or
exemption from the department.
(B) The department may accept a clearance or exemption from any
county office with department-delegated licensing authority.
(C) A county office with department-delegated licensing authority
may accept a clearance or exemption from any other county office with
department-delegated licensing authority.
(4) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning an
individual whose criminal record clearance was originally processed
by the department or a county office with department-delegated
licensing authority, all of the following shall apply:
applies:
(A) The Department of Justice shall process a request from the
department or a county office with department-delegated licensing
authority to receive the notice only if all of the following
conditions are met:
(i) The request shall be submitted to the Department of Justice by
the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.
(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the
department and the Department of Justice.
(B) (i) On or before January 7, 2005, the department shall notify
the Department of Justice of all county offices that have
department-delegated licensing authority.
(ii) The department shall notify the Department of Justice within
15 calendar days of the date on which a new county office receives
department-delegated licensing authority or a county's delegated
licensing authority is rescinded.
(C) The Department of Justice shall charge the department, a
county office with department-delegated licensing authority, or a
county child welfare agency with criminal record clearance and
exemption authority, a fee for each time a request to substitute the
recipient agency is received for purposes of this paragraph. This fee
shall not exceed the cost of providing the service.
(5) (A) A county child welfare agency with authority to secure
clearances pursuant to Section 16504.5 of the Welfare and
Institutions Code and to grant exemptions pursuant to Section 361.4
of the Welfare and Institutions Code may accept a clearance or
exemption from another county with criminal record and exemption
authority pursuant to these sections.
(B) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning an
individual whose criminal record clearance was originally processed
by a county child welfare agency with criminal record clearance and
exemption authority, the Department of Justice shall process a
request from a county child welfare agency with criminal record and
exemption authority to receive the notice only if all of the
following conditions are met:
(i) The request shall be submitted to the Department of Justice by
the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.
(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the State
Department of Social Services and the Department of Justice.
(i) The full criminal record obtained for purposes of this section
may be used by the department or by a licensed adoption agency as a
clearance required for adoption purposes.
(j) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1558, the licensee or facility shall not
incur civil liability or unemployment insurance liability as a result
of that denial or termination.
(k) The State Department of Social Services may charge a fee for
the costs of processing electronic fingerprint images and related
information.
( l ) Amendments to this section made in the 1999
portion of the 1999-2000 Regular Session shall be implemented
commencing 60 days after the effective date of the act amending this
section in the 1999 portion of the 1999-2000 Regular Session, except
that those provisions for the submission of fingerprints for
searching the records of the Federal Bureau of Investigation shall be
implemented 90 days after the effective date of that act.
SEC. 269. The heading of Article 2.6 (commencing with Section
1528) of Chapter 3 of Division 2 of the Health and Safety Code is
repealed.
Article 2.6. Foster Care for Children
SEC. 270. Section 1531.2 of the Health and Safety Code, as added
by Section 2 of Chapter 993 of the Statutes of 1989, is amended and
renumbered to read:
1531.2. 1531.18. A prospective
applicant for licensure shall be notified at the time of the initial
request for information regarding application for licensure that,
prior to obtaining licensure, the facility shall secure and maintain
a fire clearance approval from the local fire enforcing agency
, as defined in Section 13244, or the State Fire
Marshal, whichever has primary fire protection jurisdiction. The
prospective applicant shall be notified of the provisions of Section
13235, relating to the fire safety clearance application. The
prospective applicant for licensure shall be notified that the fire
clearance shall be in accordance with state and local fire safety
regulations.
SEC. 271. Section 1534 of the Health and Safety Code is amended to
read:
1534. (a) (1) (A) Except for foster family homes, every licensed
community care facility shall be is
subject to unannounced inspections by the department.
(B) Foster family homes shall be subject to announced inspections
by the department, except that a foster family home shall be subject
to unannounced inspections in response to a complaint, a plan of
correction, or under any of the circumstances set forth in
subparagraph (B) of paragraph (2).
(2) (A) The department may inspect these facilities as often as
necessary to ensure the quality of care provided.
(B) The department shall conduct an annual unannounced inspection
of a facility under any of the following circumstances:
(i) When a license is on probation.
(ii) When the terms of agreement in a facility compliance plan
require an annual inspection.
(iii) When an accusation against a licensee is pending.
(iv) When a facility requires an annual inspection as a condition
of receiving federal financial participation.
(v) In order to verify that a person who has been ordered out of a
facility by the department is no longer at the facility.
(C) (i) The department shall conduct annual unannounced
inspections of no less than 20 percent of facilities, except for
foster family homes, not subject to an inspection under subparagraph
(B).
(ii) The department shall conduct annual announced inspections of
no less than 20 percent of foster family homes not subject to an
inspection under subparagraph (B).
(iii) These inspections shall be conducted based on a random
sampling methodology developed by the department.
(iv) If the total citations issued by the department to facilities
exceed the previous year's total by 10 percent, the following year
the department shall increase the random sample by an additional 10
percent of the facilities not subject to an inspection under
subparagraph (B). The department may request additional resources to
increase the random sample by 10 percent.
(v) The department shall not inspect a licensed community care
facility less often than once every five years.
(3) In order to facilitate direct contact with group home clients,
the department may interview children who are clients of group homes
at any public agency or private agency at which the client may be
found, including, but not limited to, a juvenile hall, recreation or
vocational program, or a public or nonpublic school. The department
shall respect the rights of the child while conducting the interview,
including informing the child that he or she has the right not to be
interviewed and the right to have another adult present during the
interview.
(4) The department shall notify the community care facility in
writing of all deficiencies in its compliance with the provisions of
this chapter and the rules and regulations adopted pursuant to this
chapter, and shall set a reasonable length of time for compliance by
the facility.
(5) Reports on the results of each inspection, evaluation, or
consultation shall be kept on file in the department, and all
inspection reports, consultation reports, lists of deficiencies, and
plans of correction shall be open to public inspection.
(b) (1) This section does not limit the authority of the
department to inspect or evaluate a licensed foster family agency, a
certified family home, or any aspect of a program in which a licensed
community care facility is certifying compliance with licensing
requirements.
(2) (A) A foster family agency shall conduct an announced
inspection of a certified family home during the annual
recertification described in Section 1506 in order to ensure that the
certified family home meets all applicable licensing standards. A
foster family agency may inspect a certified family home as often as
necessary to ensure the quality of care provided.
(B) In addition to the inspections required pursuant to
subparagraph (A), a foster family agency shall conduct an unannounced
inspection of a certified family home under any of the following
circumstances:
(i) When a certified family home is on probation.
(ii) When the terms of the agreement in a facility compliance plan
require an annual inspection.
(iii) When an accusation against a certified family home is
pending.
(iv) When a certified family home requires an annual inspection as
a condition of receiving federal financial participation.
(v) In order to verify that a person who has been ordered out of a
certified family home by the department is no longer at the home.
(3) Upon a finding of noncompliance by the department, the
department may require a foster family agency to deny or revoke the
certificate of approval of a certified family home, or take other
action the department may deem necessary for the protection of a
child placed with the certified family home. The certified
foster parent or prospective foster parent shall be afforded
the due process provided pursuant to this chapter.
(4) If the department requires a foster family agency to deny or
revoke the certificate of approval, the department shall serve an
order of denial or revocation upon the certified or prospective
foster parent and foster family agency that shall notify the
certified or prospective foster parent of the basis of the department'
s action and of the certified or prospective foster parent's right to
a hearing.
(5) Within 15 days after the department serves an order of denial
or revocation, the certified or prospective foster parent may file a
written appeal of the department's decision with the department. The
department's action shall be final if the certified or prospective
foster parent does not file a written appeal within 15 days after the
department serves the denial or revocation order.
(6) The department's order of the denial or revocation of the
certificate of approval shall remain in effect until the hearing is
completed and the director has made a final determination on the
merits.
(7) A certified or prospective foster parent who files a written
appeal of the department's order with the department pursuant to this
section shall, as part of the written request, provide his or her
current mailing address. The certified or prospective foster parent
shall subsequently notify the department in writing of any change in
mailing address, until the hearing process has been completed or
terminated.
(8) Hearings held pursuant to this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code. In all proceedings
conducted in accordance with this section the standard of proof shall
be by a preponderance of the evidence.
(9) The department may institute or continue a disciplinary
proceeding against a certified or prospective foster parent upon any
ground provided by this section or Section 1550, enter an order
denying or revoking the certificate of approval, or otherwise take
disciplinary action against the certified or prospective foster
parent, notwithstanding any resignation, withdrawal of application,
surrender of the certificate of approval, or denial or revocation of
the certificate of approval by the foster family agency.
(10) A foster family agency's failure to comply with the
department's order to deny or revoke the certificate of approval by
placing or retaining children in care shall be grounds for
disciplining the licensee pursuant to Section 1550.
SEC. 272. Section 1546.1 of the Health and Safety Code is amended
to read:
1546.1. (a) (1) It is the intent of the Legislature in enacting
this section to authorize the department to take quick, effective
action to protect the health and safety of clients of community care
facilities and to minimize the effects of transfer trauma that
accompany the abrupt transfer of clients by appointing a temporary
manager to assume the operation of a facility that is found to be in
a condition in which continued operation by the licensee or his or
her representative presents a substantial probability of imminent
danger of serious physical harm or death to the clients.
(2) A temporary manager appointed pursuant to this section shall
assume the operation of the facility in order to bring it into
compliance with the law, facilitate a transfer of ownership to a new
licensee, or ensure the orderly transfer of clients should the
facility be required to close. Upon a final decision and order of
revocation of the license or a forfeiture by operation of law, the
department shall immediately issue a provisional license to the
appointed temporary manager. Notwithstanding the applicable sections
of this code governing the revocation of a provisional license, the
provisional license issued to a temporary manager shall automatically
expire upon the termination of the temporary manager. The temporary
manager shall possess the provisional license solely for purposes of
carrying out the responsibilities authorized by this section and the
duties set forth in the written agreement between the department and
the temporary manager. The temporary manager shall
does not have no the right
to appeal the expiration of the provisional license.
(b) For purposes of this section, "temporary manager" means the
person, corporation, or other entity appointed temporarily by the
department as a substitute facility licensee or administrator with
authority to hire, terminate, reassign staff, obligate facility
funds, alter facility procedures, and manage the facility to correct
deficiencies identified in the facility's operation. The temporary
manager shall have has the final
authority to direct the care and supervision activities of any person
associated with the facility, including superseding the authority of
the licensee and the administrator.
(c) The director may appoint a temporary manager when it is
determined that it is necessary to temporarily suspend any license of
a community care facility pursuant to Section 1550.5 and any of the
following circumstances exist:
(1) The immediate relocation of the clients is not feasible based
on transfer trauma, lack of alternate placements, or other emergency
considerations for the health and safety of the clients.
(2) The licensee is unwilling or unable to comply with the
requirements of Section 1556 for the safe and orderly relocation of
clients when ordered to do so by the department.
(d) (1) Upon appointment, the temporary manager shall complete its
application for a license to operate a community care facility and
take all necessary steps and make best efforts to eliminate any
substantial threat to the health and safety to clients or complete
the transfer of clients to alternative placements pursuant to Section
1556. For purposes of a provisional license issued to a temporary
manager, the licensee's existing fire safety clearance shall serve as
the fire safety clearance for the temporary manager's provisional
license.
(2) A person shall not impede the operation of a temporary
manager. The temporary manager's access to, or possession of, the
property shall not be interfered with during the term of the
temporary manager appointment. There shall be an automatic stay for a
60-day period subsequent to the appointment of a temporary manager
of any action that would interfere with the functioning of the
facility, including, but not limited to, termination of utility
services, attachments or setoffs of client trust funds, and
repossession of equipment in the facility.
(e) (1) The appointment of a temporary manager shall be
immediately effective and shall continue for a period not to exceed
60 days unless otherwise extended in accordance with paragraph (2) of
subdivision (h) at the discretion of the department or otherwise
terminated earlier by any of the following events:
(A) The temporary manager notifies the department, and the
department verifies, that the facility meets state and, if
applicable, federal standards for operation, and will be able to
continue to maintain compliance with those standards after the
termination of the appointment of the temporary manager.
(B) The department approves a new temporary manager.
(C) A new operator is licensed.
(D) The department closes the facility.
(E) A hearing or court order ends the temporary manager
appointment, including the appointment of a receiver under Section
1546.2.
(F) The appointment is terminated by the department or the
temporary manager.
(2) The appointment of a temporary manager shall authorize the
temporary manager to act pursuant to this section. The appointment
shall be made pursuant to a written agreement between the temporary
manager and the department that outlines the circumstances under
which the temporary manager may expend funds. The department shall
provide the licensee and administrator with a copy of the accusation
to appoint a temporary manager at the time of appointment. The
accusation shall notify the licensee of the licensee's right to
petition the Office of Administrative Hearings for a hearing to
contest the appointment of the temporary manager as described in
subdivision (f) and shall provide the licensee with a form and
appropriate information for the licensee's use in requesting a
hearing.
(3) The director may rescind the appointment of a temporary
manager and appoint a new temporary manager at any time that the
director determines the temporary manager is not adhering to the
conditions of the appointment.
(f) (1) The licensee of a community care facility may contest the
appointment of the temporary manager by filing a petition for an
order to terminate the appointment of the temporary manager with the
Office of Administrative Hearings within 15 days from the date of
mailing of the accusation to appoint a temporary manager under
subdivision (e). On the same day as the petition
is filed with the Office of Administrative Hearings, the licensee
shall serve a copy of the petition to the office of the director.
(2) Upon receipt of a petition under paragraph (1), the Office of
Administrative Hearings shall set a hearing date and time within 10
business days of the receipt of the petition. The office shall
promptly notify the licensee and the department of the date, time,
and place of the hearing. The office shall assign the case to an
administrative law judge. At the hearing, relevant evidence may be
presented pursuant to Section 11513 of the Government Code. The
administrative law judge shall issue a written decision on the
petition within 10 business days of the conclusion of the hearing.
The 10-day time period for holding the hearing and for rendering a
decision may be extended by the written agreement of the parties.
(3) The administrative law judge shall uphold the appointment of
the temporary manager if the department proves, by a preponderance of
the evidence, that the circumstances specified in subdivision (c)
applied to the facility at the time of the appointment. The
administrative law judge shall order the termination of the temporary
manager if the burden of proof is not satisfied.
(4) The decision of the administrative law judge is subject to
judicial review as provided in Section 1094.5 of the Code of Civil
Procedure by the superior court of the county where the facility is
located. This review may be requested by the licensee of the facility
or the department by filing a petition seeking relief from the
order. The petition may also request the issuance of temporary
injunctive relief pending the decision on the petition. The superior
court shall hold a hearing within 10 business days of the filing of
the petition and shall issue a decision on the petition within 10
days of the hearing. The department may be represented by legal
counsel within the department for purposes of court proceedings
authorized under this section.
(g) If the licensee of the community care facility does not
protest the appointment or does not prevail at either the
administrative hearing under paragraph (2) of subdivision (f) or the
superior court hearing under paragraph (4) of subdivision (f), the
temporary manager shall continue in accordance with subdivision (e).
(h) (1) If the licensee of the community care facility petitions
the Office of Administrative Hearings pursuant to subdivision (f),
the appointment of the temporary manager by the director pursuant to
this section shall continue until it is terminated by the
administrative law judge or by the superior court, or it shall
continue until the conditions of subdivision (e) are satisfied,
whichever is earlier.
(2) At any time during the appointment of the temporary manager,
the director may request an extension of the appointment by filing a
petition for hearing with the Office of Administrative Hearings and
serving a copy of the petition on the licensee. The office shall
proceed as specified in paragraph (2) of subdivision (f). The
administrative law judge may extend the appointment of the temporary
manager an additional 60 days upon a showing by the department that
the conditions specified in subdivision (c) continue to exist.
(3) The licensee or the department may request review of the
administrative law judge's decision on the extension as provided in
paragraph (4) of subdivision (f).
(i) The temporary manager appointed pursuant to this section shall
meet the following qualifications:
(1) Be qualified to oversee correction of deficiencies on the
basis of experience and education.
(2) Not be the subject of any pending actions by the department or
any other state agency nor have ever been excluded from a department
licensed facility or had a license or certification suspended or
revoked by an administrative action by the department or any other
state agency.
(3) Have no Not have a financial
ownership interest in the facility and not have
no a member of his or her immediate family who
has a financial ownership interest in the facility.
(4) Not currently serve, or within the past two years have served,
as a member of the staff of the facility.
(j) Payment of the costs of the temporary manager shall comply
with the following requirements:
(1) Upon agreement with the licensee, the costs of the temporary
manager and any other expenses in connection with the temporary
management shall be paid directly by the facility while the temporary
manager is assigned to that facility. Failure of the licensee to
agree to the payment of those costs may result in the payment of the
costs by the department and subsequent required reimbursement
of to the department by the licensee
pursuant to this section.
(2) Direct costs of the temporary manager shall be equivalent to
the sum of the following:
(A) The prevailing fee paid by licensees for positions of the same
type in the facility's geographic area.
(B) Additional costs that reasonably would have been incurred by
the licensee if the licensee and the temporary manager had been in an
employment relationship.
(C) Any other reasonable costs incurred by the temporary manager
in furnishing services pursuant to this section.
(3) May Direct costs may
exceed the amount specified in paragraph (2) if the department is
otherwise unable to attract a qualified temporary manager.
(k) (1) The responsibilities of the temporary manager may include,
but are not limited to, the following:
(A) Paying wages to staff. The temporary manager shall have the
full power to hire, direct, manage, and discharge employees of the
facility, subject to any contractual rights they may have. The
temporary manager shall pay employees at the same rate of
compensation, including benefits, that the employees would have
received from the licensee or wages necessary to provide adequate
staff for the protection of clients and compliance with the law.
(B) Preserving client funds. The temporary manager shall be
entitled to, and shall take possession of, all property or assets of
clients that are in the possession of the licensee or administrator
of the facility. The temporary manager shall preserve all property,
assets, and records of clients of which the temporary manager takes
possession.
(C) Contracting for outside services as may be needed for the
operation of the facility. Any contract for outside services in
excess of five thousand dollars ($5,000) shall be approved by the
director.
(D) Paying commercial creditors of the facility to the extent
required to operate the facility. The temporary manager shall honor
all leases, mortgages, and secured transactions affecting the
building in which the facility is located and all goods and fixtures
in the building, but only to the extent of payments that, in the case
of a rental agreement, are for the use of the property during the
period of the temporary management, or that, in the case of a
purchase agreement, come due during the period of the temporary
management.
(E) Doing all things necessary and proper to
maintain and operate the facility in accordance with sound fiscal
policies. The temporary manager shall take action as is reasonably
necessary to protect or conserve the assets or property of which the
temporary manager takes possession and may use those assets or
property only in the performance of the powers and duties set out in
this section.
(2) Expenditures by the temporary manager in excess of five
thousand dollars ($5,000) shall be approved by the director. Total
encumbrances and expenditures by the temporary manager for the
duration of the temporary management shall not exceed the sum of
forty-nine thousand nine hundred ninety-nine dollars ($49,999) unless
approved by the director in writing.
(3) The temporary manager shall make no capital improvements to
the facility in excess of five thousand dollars ($5,000) without the
approval of the director.
(l) (1) To the extent department funds are advanced for the costs
of the temporary manager or for other expenses in connection with the
temporary management, the department shall be reimbursed from the
revenues accruing to the facility or to the licensee or an entity
related to the licensee. Any reimbursement received by the department
shall be redeposited in the account from which the department funds
were advanced. If the revenues are insufficient to reimburse the
department, the unreimbursed amount shall constitute grounds for a
monetary judgment in civil court and a subsequent lien upon the
assets of the facility or the proceeds from the sale thereof.
Pursuant to Chapter 2 (commencing with Section 697.510)
697.010) of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, a lien against the personal assets of
the facility or an entity related to the licensee based on the
monetary judgment obtained shall be filed with the Secretary of State
on the forms required for a notice of judgment lien. A lien against
the real property of the facility or an entity related to the
licensee based on the monetary judgment obtained shall be recorded
with the county recorder of the county where the facility of the
licensee is located or where the real property of the entity related
to the licensee is located. The lien shall not attach to the
interests of a lessor, unless the lessor is operating the facility.
The authority to place a lien against the personal and real property
of the licensee for the reimbursement of any state funds expended
pursuant to this section shall be given judgment creditor priority.
(2) For purposes of this section, "entity related to the licensee"
means an entity, other than a natural person, of which the licensee
is a subsidiary or an entity in which a person who was obligated to
disclose information under Section 1520 possesses an interest that
would also require disclosure pursuant to Section 1520.
(m) Appointment of a temporary manager under this section does not
relieve the licensee of any responsibility for the care and
supervision of clients under this chapter. The licensee, even if the
license is deemed surrendered or the facility abandoned, shall be
required to reimburse the department for all costs associated with
operation of the facility during the period the temporary manager is
in place that are not accounted for by using facility revenues or for
the relocation of clients handled by the department if the licensee
fails to comply with the relocation requirements of Section 1556 when
required by the department to do so. If the licensee fails to
reimburse the department under this section, then the department,
along with using its own remedies available under this chapter, may
request that the Attorney General's office, the city attorney's
office, or the local district attorney's office seek any available
criminal, civil, or administrative remedy, including, but not limited
to, injunctive relief, restitution, and damages in the same manner
as provided for in Chapter 5 (commencing with Section 17200) of Part
2 of Division 7 of the Business and Professions Code.
(n) The department may use funds from the emergency client
contingency account pursuant to Section 1546 when needed to
supplement the operation of the facility or the transfer of clients
under the control of the temporary manager appointed under this
section if facility revenues are unavailable or exhausted when
needed. Pursuant to subdivision (l), the licensee shall be required
to reimburse the department for any funds used from the emergency
client contingency account during the period of control of the
temporary manager and any incurred costs of collection.
(o) This section does not apply to a residential facility that
serves six or fewer persons and is also the principal residence of
the licensee.
(p) Notwithstanding any other provision of law, the temporary
manager shall be liable only for damages resulting from gross
negligence in the operation of the facility or intentional tortious
acts.
(q) All governmental immunities otherwise applicable to the state
shall also apply to the state in the use of a temporary manager in
the operation of a facility pursuant to this section.
(r) A licensee shall not be liable for any occurrences during the
temporary management under this section except to the extent that the
occurrences are the result of the licensee's conduct.
(s) The department may adopt regulations for the administration of
this section.
SEC. 273. Section 1546.2 of the Health and Safety Code is amended
to read:
1546.2. (a) It is the intent of the Legislature in enacting this
section to authorize the department to take quick, effective action
to protect the health and safety of residents of community care
facilities and to minimize the effects of transfer trauma that
accompany the abrupt transfer of clients through a system whereby the
department may apply for a court order appointing a receiver to
temporarily operate a community care facility. The receivership is
not intended to punish a licensee or to replace attempts to secure
cooperative action to protect the clients' health and safety. The
receivership is intended to protect the clients in the absence of
other reasonably available alternatives. The receiver shall assume
the operation of the facility in order to bring it into compliance
with law, facilitate a transfer of ownership to a new licensee, or
ensure the orderly transfer of clients should the facility be
required to close.
(b) (1) Whenever circumstances exist indicating that continued
management of a community care facility by the current licensee would
present a substantial probability or imminent danger of serious
physical harm or death to the clients, or the facility is closing or
intends to terminate operation as a community care facility and
adequate arrangements for the relocation of clients have
not been made at least 30 days prior to the closing or termination,
the director may petition the superior court for the county in which
the community care facility is located for an order appointing a
receiver to temporarily operate the community care facility in
accordance with this section.
(2) The petition shall allege the facts upon which the action is
based and shall be supported by an affidavit of the director. A copy
of the petition and affidavits, affidavit,
together with an order to appear and show cause why temporary
authority to operate the community care facility should not be vested
in a receiver pursuant to this section, shall be delivered to the
licensee, administrator, or a responsible person at the facility to
the attention of the licensee and administrator. The order shall
specify a hearing date, which shall be not less than 10, nor more
than 15, days following delivery of the petition and order upon the
licensee, except that the court may shorten or lengthen the time upon
a showing of just cause.
(c) (1) If the director files a petition pursuant to subdivision
(b) for appointment of a receiver to operate a community care
facility, in accordance with Section 564 of the Code of Civil
Procedure, the director may also petition the court, in accordance
with Section 527 of the Code of Civil Procedure, for an order
appointing a temporary receiver. A temporary receiver appointed by
the court pursuant to this subdivision shall serve until the court
has made a final determination on the petition for appointment of a
receiver filed pursuant to subdivision (b). A receiver appointed
pursuant to this subdivision shall have the same powers and duties as
a receiver would have if appointed pursuant to subdivision (b). Upon
the director filing a petition for a receiver, the receiver shall
complete its application for a provisional license to operate a
community care facility. For purposes of a provisional license issued
to a receiver, the licensee's existing fire safety clearance shall
serve as the fire safety clearance for the receiver's provisional
license.
(2) At the time of the hearing, the department shall advise the
licensee of the name of the proposed receiver. The receiver shall be
a certified community care facility administrator or other
responsible person or entity, as determined by the court, from a list
of qualified receivers established by the department, and, if need
be, with input from providers of residential care and consumer
representatives. Persons appearing on the list shall have experience
in the delivery of care services to clients of community care
facilities, and, if feasible, shall have experience with the
operation of a community care facility, shall not be the subject of
any pending actions by the department or any other state agency, and
shall not have ever been excluded from a department licensed facility
nor have had a license or certification suspended or revoked by an
administrative action by the department or any other state agency.
The receivers shall have sufficient background and experience in
management and finances to ensure compliance with orders issued by
the court. The owner, licensee, or administrator shall not be
appointed as the receiver unless authorized by the court.
(3) If at the conclusion of the hearing, which may include oral
testimony and cross-examination at the option of any party, the court
determines that adequate grounds exist for the appointment of a
receiver and that there is no other reasonably available remedy to
protect the clients, the court may issue an order appointing a
receiver to temporarily operate the community care facility and
enjoining the licensee from interfering with the receiver in the
conduct of his or her duties. In these proceedings, the court shall
make written findings of fact and conclusions of law and shall
require an appropriate bond to be filed by the receiver and paid for
by the licensee. The bond shall be in an amount necessary to protect
the licensee in the event of any failure on the part of the receiver
to act in a reasonable manner. The bond requirement may be waived by
the licensee.
(4) The court may permit the licensee to participate in the
continued operation of the facility during the pendency of any
receivership ordered pursuant to this section and shall issue an
order detailing the nature and scope of participation.
(5) Failure of the licensee to appear at the hearing on the
petition shall constitute an admission of all factual allegations
contained in the petition for purposes of these proceedings only.
(6) The licensee shall receive notice and a copy of the
application each time the receiver applies to the court or the
department for instructions regarding his or her duties under this
section, when an accounting pursuant to subdivision (i) is submitted,
and when any other report otherwise required under this section is
submitted. The licensee shall have an opportunity to present
objections or otherwise participate in those proceedings.
(d) A person shall not impede the operation of a receivership
created under this section. The receiver's access to, or possession
of, the property shall not be interfered with during the term of the
receivership. There shall be an automatic stay for a 60-day period
subsequent to the appointment of a receiver of any action that would
interfere with the functioning of the facility, including, but not
limited to, cancellation of insurance policies executed by the
licensees, termination of utility services, attachments or setoffs of
client trust funds and working capital accounts, and repossession of
equipment in the facility.
(e) When a receiver is appointed, the licensee may, at the
discretion of the court, be divested of possession and control of the
facility in favor of the receiver. If the court divests the licensee
of possession and control of the facility in favor of the receiver,
the department shall immediately issue a provisional license to the
receiver. Notwithstanding the applicable sections of this code
governing the revocation of a provisional license, the provisional
license issued to a receiver shall automatically expire upon the
termination of the receivership. The receiver shall possess the
provisional license solely for purposes of carrying out the
responsibilities authorized by this section and the duties ordered by
the court. The receiver shall have no right to appeal the expiration
of the provisional license.
(f) A receiver appointed pursuant to this section:
(1) May exercise those powers and shall perform those duties
ordered by the court, in addition to other duties provided by
statute.
(2) Shall operate the facility in a manner that ensures the safety
and adequate care for the clients.
(3) Shall have the same rights to possession of the building in
which the facility is located, and of all goods and fixtures in the
building at the time the petition for receivership is filed, as the
licensee and administrator would have had if the receiver had not
been appointed.
(4) May use the funds, building, fixtures, furnishings, and any
accompanying consumable goods in the provision of care and services
to clients and to any other persons receiving services from the
facility at the time the petition for receivership was filed.
(5) Shall take title to all revenue coming to the facility in the
name of the receiver who shall use it for the following purposes in
descending order of priority:
(A) To pay wages to staff. The receiver shall have full power to
hire, direct, manage, and discharge employees of the facility,
subject to any contractual rights they may have. The receiver shall
pay employees at the same rate of compensation, including benefits,
that the employees would have received from the licensee or wages
necessary to provide adequate staff for the protection of the clients
and compliance with the law.
(B) To preserve client funds. The receiver shall be entitled to,
and shall take, possession of all property or assets of clients that
are in the possession of the licensee or operator of the facility.
The receiver shall preserve all property, assets, and records of
clients of which the receiver takes possession.
(C) To contract for outside services as may be needed for the
operation of the community care facility. Any contract for outside
services in excess of five thousand dollars ($5,000) shall be
approved by the court.
(D) To pay commercial creditors of the facility to the extent
required to operate the facility. Except as provided in subdivision
(h), the receiver shall honor all leases, mortgages, and secured
transactions affecting the building in which the facility is located
and all goods and fixtures in the building of which the receiver has
taken possession, but only to the extent of payments which, in the
case of a rental agreement, are for the use of the property during
the period of receivership, or which, in the case of a purchase
agreement, come due during the period of receivership.
(E) To receive a salary, as approved by the court.
(F) To do all things necessary and proper to maintain and operate
the facility in accordance with sound fiscal policies. The receiver
shall take action as is reasonably necessary to protect or conserve
the assets or property of which the receiver takes possession and may
use those assets or property only in the performance of the powers
and duties set out in this section and by order of the court.
(G) To ask the court for direction in the treatment of debts
incurred prior to the appointment, if the licensee's debts appear
extraordinary, of questionable validity, or unrelated to the normal
and expected maintenance and operation of the facility, or if payment
of the debts will interfere with the purposes of receivership.
(g) (1) A person who is served with notice of an order of the
court appointing a receiver and of the receiver's name and address
shall be liable to pay the receiver, rather than the licensee, for
any goods or services provided by the community care facility after
the date of the order. The receiver shall give a receipt for each
payment and shall keep a copy of each receipt on file. The receiver
shall deposit amounts received in a special account and shall use
this account for all disbursements. Payment to the receiver pursuant
to this subdivision shall discharge the obligation to the extent of
the payment and shall not thereafter be the basis of a claim by the
licensee or any other person. A client shall not be evicted nor may
any contract or rights be forfeited or impaired, nor may any
forfeiture be effected or liability increased, by reason of an
omission to pay the licensee, operator, or other person a sum paid to
the receiver pursuant to this subdivision.
(2) This section shall not be construed to suspend, during the
temporary management by the receiver, any obligation of the licensee
for payment of local, state, or federal taxes. A licensee shall not
be held liable for acts or omissions of the receiver during the term
of the temporary management.
(3) Upon petition of the receiver, the court may order immediate
payment to the receiver for past services that have been rendered and
billed, and the court may also order a sum not to exceed one month's
advance payment to the receiver of any sums that may become payable
under the Medi-Cal program.
(h) (1) A receiver shall not be required to honor a lease,
mortgage, or secured transaction entered into by the licensee of the
facility and another party if the court finds that the agreement
between the parties was entered into for a collusive, fraudulent
purpose or that the agreement is unrelated to the operation of the
facility.
(2) A lease, mortgage, or secured transaction or an agreement
unrelated to the operation of the facility that the receiver is
permitted to dishonor pursuant to this subdivision shall only be
subject to nonpayment by the receiver for the duration of the
receivership, and the dishonoring of the lease, mortgage, security
interest, or other agreement, to this extent, by the receiver shall
not relieve the owner or operator of the facility from any liability
for the full amount due under the lease, mortgage, security interest,
or other agreement.
(3) If the receiver is in possession of real estate or goods
subject to a lease, mortgage, or security interest that the receiver
is permitted to avoid dishonor pursuant
to paragraph (1), and if the real estate or goods are necessary for
the continued operation of the facility, the receiver may apply to
the court to set a reasonable rent, price, or rate of interest to be
paid by the receiver during the duration of the receivership. The
court shall hold a hearing on this application within 15 days. The
receiver shall send notice of the application to any known owner of
the property involved at least 10 days prior to the hearing.
(4) Payment by the receiver of the amount determined by the court
to be reasonable is a defense to any action against the receiver for
payment or possession of the goods or real estate, subject to the
lease or mortgage, which is brought by any person who received the
notice required by this subdivision. However, payment by the receiver
of the amount determined by the court to be reasonable shall not
relieve the owner or operator of the facility from any liability for
the difference between the amount paid by the receiver and the amount
due under the original lease, mortgage, or security interest.
(i) A monthly accounting shall be made by the receiver to the
department of all moneys received and expended by the receiver on or
before the 15th day of the following month or as ordered by the
court, and the remainder of income over expenses for that month shall
be returned to the licensee. A copy of the accounting shall be
provided to the licensee. The licensee or owner of the community care
facility may petition the court for a determination as to the
reasonableness of any expenditure made pursuant to paragraph (5) of
subdivision (f).
(j) (1) The receiver shall be appointed for an initial period of
not more than three months. The initial three-month period may be
extended for additional periods not exceeding three months, as
determined by the court pursuant to this section. At the end of one
month, the receiver shall report to the court on its assessment of
the probability that the community care facility will meet state
standards for operation by the end of the initial three-month period
and will continue to maintain compliance with those standards after
termination of the receiver's management. If it appears that the
facility cannot be brought into compliance with state standards
within the initial three-month period, the court shall take
appropriate action as follows:
(A) Extend the receiver's management for an additional three
months if there is a substantial likelihood that the facility will
meet state standards within that period and will maintain compliance
with the standards after termination of the receiver's management.
The receiver shall report to the court in writing upon the facility's
progress at the end of six weeks of any extension ordered pursuant
to this paragraph.
(B) Order the director to revoke or temporarily suspend, or both,
the license pursuant to Article 5 (commencing with Section 1550) and
extend the receiver's management for the period necessary to transfer
clients in accordance with the transfer plan, but for not more than
three months from the date of initial appointment of a receiver, or
14 days, whichever is greater. An extension of an additional three
months may be granted if deemed necessary by the court.
(2) If it appears at the end of six weeks of an extension ordered
pursuant to subparagraph (A) of paragraph (1) that the facility
cannot be brought into compliance with state standards for operation
or that it will not maintain compliance with those standards after
the receiver's management is terminated, the court shall take
appropriate action as specified in subparagraph (B) of paragraph (1).
(3) In evaluating the probability that a community care facility
will maintain compliance with state standards of operation after the
termination of receiver management ordered by the court, the court
shall consider at least the following factors:
(A) The duration, frequency, and severity of past violations in
the facility.
(B) History of compliance in other care facilities operated by the
proposed licensee.
(C) Efforts by the licensee to prevent and correct past
violations.
(D) The financial ability of the licensee to operate in compliance
with state standards.
(E) The recommendations and reports of the receiver.
(4) Management of a community care facility operated by a receiver
pursuant to this section shall not be returned to the licensee, to
any person related to the licensee, or to any person who served as a
member of the facility's staff or who was employed by the licensee
prior to the appointment of the receiver unless both of the following
conditions are met:
(A) The department believes that it would be in the best interests
of the clients of the facility, requests that the court return the
operation of the facility to the former licensee, and provides clear
and convincing evidence to the court that it is in the best interests
of the facility's clients to take that action.
(B) The court finds that the licensee has fully cooperated with
the department in the appointment and ongoing activities of a
receiver appointed pursuant to this section, and, if applicable, any
temporary manager appointed pursuant to Section 1546.1.
(5) The owner of the facility may at any time sell, lease, or
close the facility, subject to the following provisions:
(A) If the owner closes the facility, or the sale or lease results
in the closure of the facility, the court shall determine if a
transfer plan is necessary. If the court so determines, the court
shall adopt and implement a transfer plan consistent with the
provisions of Section 1556.
(B) If the licensee proposes to sell or lease the facility and the
facility will continue to operate as a community care facility, the
court and the department shall reevaluate any proposed transfer plan.
If the court and the department determine that the sale or lease of
the facility will result in compliance with licensing standards, the
transfer plan and the receivership shall, subject to those conditions
that the court may impose and enforce, be terminated upon the
effective date of the sale or lease.
(k) (1) The salary of the receiver shall be set by the court
commensurate with community care facility industry standards, giving
due consideration to the difficulty of the duties undertaken, and
shall be paid from the revenue coming to the facility. If the revenue
is insufficient to pay the salary in addition to other expenses of
operating the facility, the receiver's salary shall be paid from the
emergency client contingency account as provided in Section 1546.
State advances of funds in excess of five thousand dollars ($5,000)
shall be approved by the director. Total advances for encumbrances
and expenditures shall not exceed the sum of forty-nine thousand nine
hundred ninety-nine dollars ($49,999) unless approved by the
director in writing.
(2) To the extent state funds are advanced for the salary of the
receiver or for other expenses in connection with the receivership,
as limited by subdivision (g), the state shall be reimbursed from the
revenues accruing to the facility or to the licensee or an entity
related to the licensee. Any reimbursement received by the state
shall be redeposited in the account from which the state funds were
advanced. If the revenues are insufficient to reimburse the state,
the unreimbursed amount shall constitute grounds for a monetary
judgment in civil court and a subsequent lien upon the assets of
the facility or the
proceeds from the sale thereof. Pursuant to Chapter 2 (commencing
with Section 697.510) 697.010) of
Division 2 of Title 9 of Part 2 of the Code of Civil Procedure, a
lien against the personal assets of the facility or an entity related
to the licensee based on the monetary judgment obtained shall be
filed with the Secretary of State on the forms required for a notice
of judgment lien. A lien against the real property of the facility or
an entity related to the licensee based on the monetary judgment
obtained shall be recorded with the county recorder of the county
where the facility of the licensee is located or where the real
property of the entity related to the licensee is located. The lien
shall not attach to the interests of a lessor, unless the lessor is
operating the facility. The authority to place a lien against the
personal and real property of the licensee for the reimbursement of
any state funds expended pursuant to this section shall be given
judgment creditor priority.
(3) For purposes of this subdivision, "entity related to the
licensee" means an entity, other than a natural person, of which the
licensee is a subsidiary or an entity in which any person who was
obligated to disclose information under Section 1520 possesses an
interest that would also require disclosure pursuant to Section 1520.
(l) (1) This section does not impair the right of the owner of a
community care facility to dispose of his or her property interests
in the facility, but any facility operated by a receiver pursuant to
this section shall remain subject to that administration until
terminated by the court. The termination shall be promptly
effectuated, provided that the interests of the clients have been
safeguarded as determined by the court.
(2) This section does not limit the power of the court to appoint
a receiver under any other applicable provision of law or to order
any other remedy available under law.
(m) (1) Notwithstanding any other provision of law, the receiver
shall be liable only for damages resulting from gross negligence in
the operation of the facility or intentional tortious acts.
(2) All governmental immunities otherwise applicable to the State
of California shall also apply in the use of a receiver in the
operation of a facility pursuant to this section.
(3) The licensee shall not be liable for any occurrences during
the receivership except to the extent that the occurrences are the
result of the licensee's conduct.
(n) The department may adopt regulations for the administration of
this section. This section does not impair the authority of the
department to temporarily suspend licenses under Section 1550.5 or to
reach a voluntary agreement with the licensee for alternate
management of a community care facility including the use of a
temporary manager under Section 1546.1. This section does not
authorize the department to interfere in a labor dispute.
(o) This section does not apply to a residential facility that
serves six or fewer persons and is also the principal residence of
the licensee.
(p) This section does not apply to a licensee that has obtained a
certificate of authority to offer continuing care contracts, as
defined in paragraph (8) of subdivision (c) of Section 1771.
SEC. 274. Section 1562 of the Health and Safety Code is amended to
read:
1562. (a) The director shall ensure that operators and staffs of
community care facilities have appropriate training to provide the
care and services for which a license or certificate is issued.
The This section shall
does not apply to a facility licensed as an
Adult Residential Facility for Persons with Special Health Care Needs
pursuant to Article 9 (commencing with Section 1567.50).
(b) It is the intent of the Legislature that children in foster
care reside in the least restrictive, family-based settings that can
meet their needs, and that group homes will be used only for
short-term, specialized, and intensive treatment purposes that are
consistent with a case plan that is determined by a child's best
interests. Accordingly, the Legislature encourages the department to
adopt policies, practices, and guidance that ensure that the
education, qualification, and training requirements for child care
staff in group homes are consistent with the intended role of group
homes to provide short-term, specialized, and intensive treatment,
with a particular focus on crisis intervention, behavioral
stabilization, and other treatment-related goals, as well as the
connections between those efforts and work toward permanency for
children.
(c) (1) On and after October 1, 2014, each person employed as a
facility manager or staff member of a group home, as defined in
paragraph (13) of subdivision (a) of Section 1502, who provides
direct care and supervision to children and youth residing in the
group home shall be at least 21 years of age.
(2) Paragraph (1) shall does not
apply to a facility manager or staff member employed at the group
home before October 1, 2014.
(3) For purposes of this subdivision, "group home" does not
include a runaway and homeless youth shelter.
SEC. 275. Section 1567.62 of the Health and Safety Code is amended
to read:
1567.62. (a) Each enhanced behavioral supports home shall be
licensed as an adult residential facility or a group home and
certified by the State Department of Developmental Services.
(b) A certificate of program approval issued by the State
Department of Developmental Services shall be a condition of
licensure for the enhanced behavioral supports home by the State
Department of Social Services.
(c) An enhanced behavioral supports home shall not be licensed by
the State Department of Social Services until the certificate of
program approval, granted by the State Department of Developmental
Services, has been received.
(d) Placements of dual agency clients into enhanced behavioral
supports homes that are licensed as group homes shall be subject to
the limitations on the duration of the placement set forth in
Sections 319.2 and 319.3 of, and subparagraph (A) of paragraph (8)
and subparagraph (A) of paragraph (9) of subdivision (e) of Section
361.2 of, the Welfare and Institutions Code.
(e) For the purpose of this article, dual agency clients are
foster children in temporary custody of the child welfare agency
under Section 319 of the Welfare and Institutions Code or under the
jurisdiction of the juvenile court pursuant to Section 300, 450, 601,
or 602 of the Welfare and Institutions Code who are also either a
consumer of regional center services, or who are receiving services
under the California Early Intervention Services Act (Title 14
(the age of commencing (commencing with
Section 45000) 95000) of the Government
Code) but who are under three years of age and have not yet been
determined to have a developmental disability.
(f) The State Department of Social Services shall
is not be responsible for any
of the following:
(1) Developing and approving a consumer's individual behavior
supports plan in conjunction with the consumer's individual behavior
supports team.
(2) (A) Oversight of any services that may be provided by a
licensed health professional or licensed mental health professional
to a consumer.
(B) Services provided by a licensed health or licensed mental
health professional means services that may only be provided under
the authority of the licensed health service provider's or licensed
mental health service provider's professional license.
(g) Subdivision (f) shall does not
limit the State Department of Social Services' ability to enforce
Chapter 3 (commencing with Section 1500), and applicable regulations.
SEC. 276. Section 1567.69 of the Health and Safety Code is amended
to read:
1567.69. Nothing in this This
article shall does not interfere with
the authority of the State Department of Social Services to
temporarily suspend or revoke the license of an enhanced behavioral
supports home pursuant to Section 1550 of the Health and
Safety Code .
SEC. 277. Section 1568.07 of the Health and Safety Code is amended
to read:
1568.07. (a) (1) Within 90 days after a facility accepts its
first resident for placement following its initial licensure, the
department shall conduct an unannounced inspection of the facility to
evaluate compliance with rules and regulations and to assess the
facility's continuing ability to meet regulatory requirements. The
licensee shall notify the department, within five business days after
accepting its first resident for placement, that the facility has
commenced operating.
(2) The department may take appropriate remedial action as
provided for in this chapter.
(b) (1) Every licensed residential care facility shall be
periodically inspected and evaluated for quality of care by a
representative or representatives designated by the director.
Unannounced inspections shall be conducted at least annually and as
often as necessary to ensure the quality of care being provided.
(2) During each licensing inspection the department shall
determine if the facility meets regulatory standards, including, but
not limited to, providing residents with the appropriate level of
care based on the facility's license, providing adequate staffing and
services, updated resident records and assessments, and compliance
with basic health and safety standards.
(3) If the department determines that a resident requires a higher
level of care than the facility is authorized to provide, the
department may initiate a professional level of care assessment by an
assessor approved by the department. An assessment shall be
conducted in consultation with the resident, the resident's physician
and surgeon, and the resident's case manager, and shall reflect the
desires of the resident, the resident's physician and surgeon, and
the resident's case manager. The assessment also shall recognize that
certain illnesses are episodic in nature and that the resident's
need for a higher level of care may be temporary.
(4) The department shall notify the residential care facility in
writing of all deficiencies in its compliance with this chapter and
the rules and regulations adopted pursuant to this chapter, and shall
set a reasonable length of time for compliance by the facility.
(5) Reports on the results of each inspection or consultation
shall be kept on file in the department, and all inspection reports,
consultation reports, lists of deficiencies, and plans of correction
shall be open to public inspection.
(c) Any duly authorized officer, employee, or agent of the
department may, upon presentation of proper identification, enter and
inspect any place providing personal care, supervision, and
services, at any time, with or without advance notice, to secure
compliance with, or to prevent a violation of, this chapter.
(d) No A licensee, or officer or
employee of the licensee, shall not discriminate or
retaliate in any manner, including, but not limited to, eviction or
threat of eviction, against any person receiving the services of the
licensee's facility, or against any employee of the licensee's
facility, on the basis, or for the reason, that the person or
employee or any other person has initiated or
participated in the filing of a complaint, grievance, or a request
for inspection with the department pursuant to this chapter or
has initiated or participated in the filing of a
complaint, grievance, or request for investigation with the
appropriate local or state ombudsman.
(e) Any A person who, without lawful
authorization from a duly authorized officer, employee, or agent of
the department, informs an owner, operator, employee, agent, or
resident of a residential care facility, of an impending or proposed
inspection of that facility by personnel of the department, is guilty
of a misdemeanor and upon conviction thereof shall be punished by a
fine not to exceed one thousand dollars ($1,000), by imprisonment in
the county jail for a period not to exceed 180 days, or by both a
fine and imprisonment.
SEC. 278. Section 1568.0823 of the Health and Safety Code, as
added by Section 3 of Chapter 888 of the Statutes of 1991, is amended
and renumbered to read:
1568.0823. 1568.0824. Any
A person who, without lawful authorization from
a duly authorized officer, employee, or agent of the department,
informs an owner, operator, employee, agent, or resident of a
residential care facility for persons with a chronic,
life-threatening illness of an impending and unannounced site visit
to that facility by personnel of the department, is guilty of a
misdemeanor and upon conviction thereof shall be punished by a fine
not to exceed one thousand dollars ($1,000), by imprisonment in the
county jail for a period not to exceed 180 days, or by both a fine
and imprisonment.
SEC. 279. Section 1569.335 of the Health and Safety Code is
amended to read:
1569.335. (a) The department shall provide the Office of the
State Long-Term Care Ombudsman, as defined in subdivision (c) of
Section 9701 of the Welfare and Institutions Code, with a
precautionary notification if the department begins to prepare to
issue a temporary suspension or revocation of any license, so that
the office may properly prepare to provide advocacy services if and
when necessary.
(b) The department shall notify affected public placement agencies
and the Office of the State Long-Term Care Ombudsman,
Ombudsman whenever the department substantiates
that a violation has occurred that poses a serious threat to the
health and safety of any resident when the violation results in the
assessment of any penalty or causes an accusation to be filed for the
revocation of a license.
(c) (1) If the violation is appealed by the facility within 10
days, the department shall only notify placement agencies of the
violation when the appeal has been exhausted.
(2) If the appeal process has not been completed within 60 days,
the placement agency shall be notified with a notation that indicates
that the case is still under appeal.
(3) The notice to each placement agency shall be updated monthly
for the following 24-month period and shall include the name and
location of the facility, the amount of the fine, the nature of the
violation, the corrective action taken, the status of the revocation,
and the resolution of the complaint.
SEC. 280. Section 1569.481 of the Health and Safety Code is
amended to read:
1569.481. (a) (1) It is the intent of the Legislature in enacting
this section to authorize the department to take quick, effective
action to protect the health and safety of residents of residential
care facilities for the elderly and to minimize the effects of
transfer trauma that accompany the abrupt transfer of residents by
appointing a temporary manager to assume the operation of a facility
that is found to be in a condition in which continued operation by
the licensee or his or her representative presents a substantial
probability of imminent danger of serious physical harm or death to
the residents.
(2) A temporary manager appointed pursuant to this section shall
assume the operation of the facility in order to bring it into
compliance with the law, facilitate a transfer of ownership to a new
licensee, or ensure the orderly transfer of residents should the
facility be required to close. Upon a final decision and order of
revocation of the license, issuance of a temporary suspension, or a
forfeiture by operation of law, the department shall immediately
issue a provisional license to the appointed temporary manager.
Notwithstanding the applicable sections of this code governing the
revocation of a provisional license, the provisional license issued
to a temporary manager shall automatically expire upon the
termination of the temporary manager. The temporary manager shall
possess the provisional license solely for purposes of carrying out
the responsibilities authorized by this section and the duties set
forth in the written agreement between the department and the
temporary manager. The temporary manager shall
does not have no the right
to appeal the expiration of the provisional license.
(b) For purposes of this section, "temporary manager" means the
person, corporation, or other entity appointed temporarily by the
department as a substitute facility licensee or administrator with
authority to hire, terminate, reassign staff, obligate facility
funds, alter facility procedures, and manage the facility to correct
deficiencies identified in the facility's operation. The temporary
manager shall have has the final
authority to direct the care and supervision activities of any person
associated with the facility, including superseding the authority of
the licensee and the administrator.
(c) The director, in order to protect the residents of the
facility from physical or mental abuse, abandonment, or any other
substantial threat to health or safety, may appoint a temporary
manager when any of the following circumstances exist:
(1) The director determines that it is necessary to temporarily
suspend the license of a residential care facility for the elderly
pursuant to Section 1569.50 and the immediate relocation of the
residents is not feasible based on transfer trauma, lack of available
alternative placements, or other emergency considerations for the
health and safety of the residents.
(2) The licensee is unwilling or unable to comply with the
requirements of Section 1569.525 or the requirements of Section
1569.682 regarding the safe and orderly relocation of residents when
ordered to do so by the department or when otherwise required by law.
(3) The licensee has opted to secure a temporary manager pursuant
to Section 1569.525.
(d) (1) Upon appointment, the temporary manager shall complete its
application for a license to operate a residential care facility for
the elderly and take all necessary steps and make best efforts to
eliminate any substantial threat to the health and safety to
residents or complete the transfer of residents to alternative
placements pursuant to Section 1569.525 or 1569.682. For purposes of
a provisional license issued to a temporary manager, the licensee's
existing fire safety clearance shall serve as the fire safety
clearance for the temporary manager's provisional license.
(2) A person shall not impede the operation of a temporary
manager. The temporary manager's access to, or possession of, the
property shall not be interfered with during the term of the
temporary manager manager's
appointment. There shall be an automatic stay for a 60-day period
subsequent to the appointment of a temporary manager of any action
that would interfere with the functioning of the facility, including,
but not limited to, termination of utility services, attachments, or
setoffs of resident trust funds, and repossession of equipment in
the facility.
(e) (1) The appointment of a temporary manager shall be
immediately effective and shall continue for a period not to exceed
60 days unless otherwise extended in accordance with paragraph (2) of
subdivision (h) at the discretion of the department or as permitted
by paragraph (2) of subdivision (d) of Section 1569.525, or unless
otherwise terminated earlier by any of the following events:
(A) The temporary manager notifies the department, and the
department verifies, that the facility meets state and, if
applicable, federal standards for operation, and will be able to
continue to maintain compliance with those standards after the
termination of the appointment of the temporary manager.
(B) The department approves a new temporary manager.
(C) A new operator is licensed.
(D) The department closes the facility.
(E) A hearing or court order ends the temporary manager
appointment, including the appointment of a receiver under Section
1569.482.
(F) The appointment is terminated by the department or the
temporary manager.
(2) The appointment of a temporary manager shall authorize the
temporary manager to act pursuant to this section. The appointment
shall be made pursuant to a written agreement between the temporary
manager and the department that outlines the circumstances under
which the temporary manager may expend funds. The department shall
provide the licensee and administrator with a copy of the accusation
to appoint a temporary manager at the time of appointment. The
accusation shall notify the licensee of the licensee's right to
petition the Office of Administrative Hearings for a hearing to
contest the appointment of the temporary manager as described in
subdivision (f) and shall provide the licensee with a form and
appropriate information for the licensee's use in requesting a
hearing.
(3) The director may rescind the appointment of a temporary
manager and appoint a new temporary manager at any time that the
director determines the temporary manager is not adhering to the
conditions of the appointment.
(f) (1) The licensee of a residential care facility for the
elderly may contest the appointment of the temporary manager by
filing a petition for an order to terminate the appointment of the
temporary manager with the Office of Administrative Hearings within
15 days from the date of mailing of the accusation to appoint a
temporary manager under subdivision (e). On the same day as
the petition is filed with the Office of Administrative
Hearings, the licensee shall serve a copy of the petition to the
office of the director.
(2) Upon receipt of a petition under paragraph (1), the Office of
Administrative Hearings shall set a hearing date and time within 10
business days of the receipt of the petition. The office shall
promptly notify the licensee and the department of the date, time,
and place of the hearing. The office shall assign the case to an
administrative law judge. At the hearing, relevant evidence may be
presented pursuant to Section 11513 of the Government Code. The
administrative law judge shall issue a written decision on the
petition within 10 business days of the conclusion of the hearing.
The 10-day time period for holding the hearing and for rendering a
decision may be extended by the written agreement of the parties.
(3) The administrative law judge shall uphold the appointment of
the temporary manager if the department proves, by a preponderance of
the evidence, that the circumstances specified in subdivision (c)
applied to the facility at the time of the appointment. The
administrative law judge shall order the termination of the temporary
manager if the burden of proof is not satisfied.
(4) The decision of the administrative law judge is subject to
judicial review as provided in Section 1094.5 of the Code of Civil
Procedure by the superior court of the county where the facility is
located. This review may be requested by the licensee of the facility
or the department by filing a petition seeking relief from the
order. The petition may also request the issuance of temporary
injunctive relief pending the decision on the petition. The superior
court shall hold a hearing within 10 business days of the filing of
the petition and shall issue a decision on the petition within 10
days of the hearing. The department may be represented by legal
counsel within the department for purposes of court proceedings
authorized under this section.
(g) If the licensee does not protest the appointment or does not
prevail at either the administrative hearing under paragraph (2) of
subdivision (f) or the superior court hearing under paragraph (4) of
subdivision (f), the temporary manager shall continue in accordance
with subdivision (e).
(h) (1) If the licensee petitions the Office of Administrative
Hearings pursuant to subdivision (f), the appointment of the
temporary manager by the director pursuant to this section shall
continue until it is terminated by the administrative law judge or by
the superior court, or it shall continue until the conditions of
subdivision (e) are satisfied, whichever is earlier.
(2) At any time during the appointment of the temporary manager,
the director may request an extension of the appointment by filing a
petition for hearing with the Office of Administrative Hearings and
serving a copy of the petition on the licensee. The office shall
proceed as specified in paragraph (2) of subdivision (f). The
administrative law judge may extend the appointment of the temporary
manager an additional 60 days upon a showing by the department that
the conditions specified in subdivision (c) continue to exist.
(3) The licensee or the department may request review of the
administrative law judge's decision on the extension as provided in
paragraph (4) of subdivision (f).
(i) The temporary manager appointed pursuant to this section shall
meet the following qualifications:
(1) Be qualified to oversee correction of deficiencies in a
residential care facility for the elderly on the basis of experience
and education.
(2) Not be the subject of any pending actions by the department or
any other state agency nor have ever been excluded from a
department-licensed facility or had a license or certification
suspended or revoked by an administrative action by the department or
any other state agency.
(3) Have no Not have a financial
ownership interest in the facility and not have
no a member of his or her immediate family who
has a financial ownership interest in the facility.
(4) Not currently serve, or within the past two years have served,
as a member of the staff of the facility.
(j) Payment of the costs of the temporary manager shall comply
with the following requirements:
(1) Upon agreement with the licensee, the costs of the temporary
manager and any other expenses in connection with the temporary
management shall be paid directly by the facility while the temporary
manager is assigned to that facility. Failure of the licensee to
agree to the payment of those costs may result in the payment of the
costs by the department and subsequent required reimbursement of the
department by the licensee pursuant to this section.
(2) Direct costs of the temporary manager shall be equivalent to
the sum of the following:
(A) The prevailing fee paid by licensees for positions of the same
type in the facility's geographic area.
(B) Additional costs that reasonably would have been incurred by
the licensee if the licensee and the temporary manager had been in an
employment relationship.
(C) Any other Other reasonable costs
incurred by the temporary manager in furnishing services pursuant to
this section.
(3) Direct costs may exceed the amount specified in paragraph (2)
if the department is otherwise unable to find a qualified temporary
manager.
(k) (1) The responsibilities of the temporary manager may include,
but are not limited to, the following:
(A) Paying wages to staff. The temporary manager shall have the
full power to hire, direct, manage, and discharge employees of the
facility, subject to any contractual rights they may have. The
temporary manager shall pay employees at the same rate of
compensation, including benefits, that the employees would have
received from the licensee or wages necessary to provide adequate
staff for the protection of clients and compliance with the law.
(B) Preserving resident funds. The temporary manager shall be
entitled to, and shall take possession of, all property or assets of
residents that are in the possession of the licensee or administrator
of the facility. The temporary manager shall preserve all property,
assets, and records of residents of which the temporary manager takes
possession.
(C) Contracting for outside services as may be needed for the
operation of the facility. Any A
contract for outside services in excess of five thousand dollars
($5,000) shall be approved by the director.
(D) Paying commercial creditors of the facility to the extent
required to operate the facility. The temporary manager shall honor
all leases, mortgages, and secured transactions affecting the
building in which the facility is located and all goods and fixtures
in the building, but only to the extent of payments that, in the case
of a rental agreement, are for the use of the property during the
period of the temporary management, or that, in the case of a
purchase agreement, come due during the period of the temporary
management.
(E) Performing all acts that are necessary and proper to maintain
and operate the facility in accordance with sound fiscal policies.
The temporary manager shall take action as is reasonably necessary to
protect or conserve the assets or property of which the temporary
manager takes possession and may use those assets or property only in
the performance of the powers and duties set forth in this section.
(2) Expenditures by the temporary manager in excess of five
thousand dollars ($5,000) shall be approved by the director. Total
encumbrances and expenditures by the temporary manager for the
duration of the temporary management shall not exceed the sum of
forty-nine thousand nine hundred ninety-nine dollars ($49,999) unless
approved by the director in writing.
(3) The temporary manager shall not make capital improvements to
the facility in excess of five thousand dollars ($5,000) without the
approval of the director.
(l) (1) To the extent department funds are advanced for the costs
of the temporary manager or for other expenses in connection with the
temporary management, the department shall be reimbursed from the
revenues accruing to the facility or to the licensee or an entity
related to the licensee. Any reimbursement received by the department
shall be redeposited in the account from which the department funds
were advanced. If the revenues are insufficient to reimburse the
department, the unreimbursed amount shall constitute grounds for a
monetary judgment in civil court and a subsequent lien upon the
assets of the facility or the proceeds from the sale thereof.
Pursuant to Chapter 2 (commencing with Section 697.510)
697.010) of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, a lien against the personal assets of
the facility or an entity related to the licensee based on the
monetary judgment obtained shall be filed with the Secretary of State
on the forms required for a notice of judgment lien. A lien against
the real property of the facility or an entity related to the
licensee based on the monetary judgment obtained shall be recorded
with the county recorder of the county where the facility of the
licensee is located or where the real property of the entity related
to the licensee is located. The lien shall not attach to the
interests of a lessor, unless the lessor is operating the facility.
The authority to place a lien against the personal and real property
of the licensee for the reimbursement of any state funds expended
pursuant to this section shall be given judgment creditor priority.
(2) For purposes of this section, "entity related to the licensee"
means an entity, other than a natural person, of which the licensee
is a subsidiary or an entity in which a person who was obligated to
disclose information under Section 1569.15 possesses an interest that
would also require disclosure pursuant to Section 1569.15.
(m) Appointment of a temporary manager under this section does not
relieve the licensee of any responsibility for the care and
supervision of residents under this chapter. The licensee, even if
the license is deemed surrendered or the facility abandoned, shall be
required to reimburse the department for all costs associated with
operation of the facility during the period the temporary manager is
in place that are not accounted for by using facility revenues or for
the relocation of residents handled by the department if the
licensee fails to comply with the relocation requirements of Section
1569.525 or 1569.682 when required by the department to do so. If the
licensee fails to reimburse the department under this section, then
the department, along with using its own remedies available under
this chapter, may request that the Attorney General's office, the
city attorney's office, or the local district attorney's office seek
any available criminal, civil, or administrative remedy, including,
but not limited to, injunctive relief, restitution, and damages in
the same manner as provided for in Chapter 5 (commencing with Section
17200) of Part 2 of Division 7 of the Business and Professions Code.
(n) The department may use funds from the emergency resident
contingency account pursuant to Section 1569.48 when needed to
supplement the operation of the facility or the transfer of residents
under the control of the temporary manager appointed under this
section if facility revenues are unavailable or exhausted when
needed. Pursuant to subdivision (l), the licensee shall be required
to reimburse the department for any funds used from the emergency
resident contingency account during the period of control of the
temporary manager and any incurred costs of collection.
(o) This section does not apply to a residential care facility for
the elderly that serves six or fewer persons and is also the
principal residence of the licensee.
(p) Notwithstanding any other provision of law, the temporary
manager shall be liable only for damages resulting from gross
negligence in the operation of the facility or intentional tortious
acts.
(q) All governmental immunities otherwise applicable to the state
shall also apply to the state in the use of a temporary manager in
the operation of a facility pursuant to this section.
(r) A licensee shall is not
be liable for any occurrences during the temporary
management under this section except to the extent that the
occurrences are the result of the licensee's conduct.
(s) The department may adopt regulations for the administration of
this section.
SEC. 281. Section 1569.482 of the Health and Safety Code is
amended to read:
1569.482. (a) It is the intent of the Legislature in enacting
this section to authorize the department to take quick, effective
action to protect the health and safety of residents of residential
care facilities for the elderly and to minimize the effects of
transfer trauma that accompany the abrupt transfer of residents
through a system whereby the department may apply for a court order
appointing a receiver to temporarily operate a residential care
facility for the elderly. The receivership is not intended to punish
a licensee or to replace attempts to secure cooperative action to
protect the residents' health and safety. The receivership is
intended to protect the residents in the absence of other reasonably
available alternatives. The receiver shall assume the operation of
the facility in order to bring it into compliance with law,
facilitate a transfer of ownership to a new licensee, or ensure the
orderly transfer of residents should the facility be required to
close.
(b) (1) Whenever circumstances exist indicating that continued
management of a residential care facility by the current licensee
would present a substantial probability or imminent danger of serious
physical harm or death to the residents, or the facility is closing
or intends to terminate operation as a residential care facility for
the elderly and adequate arrangements for the relocation
of residents have not been made at least 30 days prior to the closing
or termination, the director may petition the superior court for the
county in which the facility is located for an order appointing a
receiver to temporarily operate the facility in accordance with this
section.
(2) The petition shall allege the facts upon which the action is
based and shall be supported by an affidavit of the director. A copy
of the petition and affidavits, affidavit
together with an order to appear and show cause why temporary
authority to operate the residential care facility for the elderly
should not be vested in a receiver pursuant to this section, shall be
delivered to the licensee, administrator, or a responsible person at
the facility to the attention of the licensee and administrator. The
order shall specify a hearing date, which shall be not less than 10,
nor more than 15, days following delivery of the petition and order
upon the licensee, except that the court may shorten or lengthen the
time upon a showing of just cause.
(c) (1) If the director files a petition pursuant to subdivision
(b) for appointment of a receiver to operate a residential care
facility for the elderly, in accordance with Section 564 of the Code
of Civil Procedure, the director may also petition the court, in
accordance with Section 527 of the Code of Civil Procedure, for an
order appointing a temporary receiver. A temporary receiver appointed
by the court pursuant to this subdivision shall serve until the
court has made a final determination on the petition for appointment
of a receiver filed pursuant to subdivision (b). A receiver appointed
pursuant to this subdivision shall have the same powers and duties
as a receiver would have if appointed pursuant to subdivision (b).
Upon the director filing a petition for a receiver, the receiver
shall complete its application for a provisional license to operate a
residential care facility for the elderly. For purposes of a
provisional license issued to a receiver, the licensee's existing
fire safety clearance shall serve as the fire safety clearance for
the receiver's provisional license.
(2) At the time of the hearing, the department shall advise the
licensee of the name of the proposed receiver. The receiver shall be
a certified residential care facility for the elderly administrator
or other responsible person or entity, as determined by the court,
from a list of qualified receivers established by the department,
and, if need be, with input from providers of residential care and
consumer representatives. Persons appearing on the list shall have
experience in the delivery of care services to clients of community
care facilities, and, if feasible, shall have experience with the
operation of a residential care facility for the elderly, shall not
be the subject of any pending actions by the department or any other
state agency, and shall not have ever been excluded from a department
licensed facility nor have had a license or certification suspended
or revoked by an administrative action by the department or any other
state agency. The receivers shall have sufficient background and
experience in management and finances to ensure compliance with
orders issued by the court. The owner, licensee, or administrator
shall not be appointed as the receiver unless authorized by the
court.
(3) If at the conclusion of the hearing, which may include oral
testimony and cross-examination at the option of any party, the court
determines that adequate grounds exist for the appointment of a
receiver and that there is no other reasonably available remedy to
protect the residents, the court may issue an order appointing a
receiver to temporarily operate the residential care facility for the
elderly and enjoining the licensee from interfering with the
receiver in the conduct of his or her duties. In these proceedings,
the court shall make written findings of fact and conclusions of law
and shall require an appropriate bond to be filed by the receiver and
paid for by the licensee. The bond shall be in an amount necessary
to protect the licensee in the event of any failure on the part of
the receiver to act in a reasonable manner. The bond requirement may
be waived by the licensee.
(4) The court may permit the licensee to participate in the
continued operation of the facility during the pendency of any
receivership ordered pursuant to this section and shall issue an
order detailing the nature and scope of participation.
(5) Failure of the licensee to appear at the hearing on the
petition shall constitute an admission of all factual allegations
contained in the petition for purposes of these proceedings only.
(6) The licensee shall receive notice and a copy of the
application each time the receiver applies to the court or the
department for instructions regarding his or her duties under this
section, when an accounting pursuant to subdivision (i) is submitted,
and when any other report otherwise required under this section is
submitted. The licensee shall have an opportunity to present
objections or otherwise participate in those proceedings.
(d) A person shall not impede the operation of a receivership
created under this section. The receiver's access to, or possession
of, the property shall not be interfered with during the term of the
receivership. There shall be an automatic stay for a 60-day period
subsequent to the appointment of a receiver of any action that would
interfere with the functioning of the facility, including, but not
limited to, cancellation of insurance policies executed by the
licensees, termination of utility services, attachments, or setoffs
of resident trust funds and working capital accounts and repossession
of equipment in the facility.
(e) When a receiver is appointed, the licensee may, at the
discretion of the court, be divested of possession and control of the
facility in favor of the receiver. If the court divests the licensee
of possession and control of the facility in favor of the receiver,
the department shall immediately issue a provisional license to the
receiver. Notwithstanding the applicable sections of this code
governing the revocation of a provisional license, the provisional
license issued to a receiver shall automatically expire upon the
termination of the receivership. The receiver shall possess the
provisional license solely for purposes of carrying out the
responsibilities authorized by this section and the duties ordered by
the court. The receiver shall have no right to appeal the expiration
of the provisional license.
(f) A receiver appointed pursuant to this section:
(1) May exercise those powers and shall perform those duties
ordered by the court, in addition to other duties provided by
statute.
(2) Shall operate the facility in a manner that ensures the safety
and adequate care for the residents.
(3) Shall have the same rights to possession of the building in
which the facility is located, and of all goods and fixtures in the
building at the time the petition for receivership is filed, as the
licensee and administrator would have had if the receiver had not
been appointed.
(4) May use the funds, building, fixtures, furnishings, and any
accompanying consumable goods in the provision of care and services
to residents and to any other persons receiving services from the
facility at the time the petition for receivership was filed.
(5) Shall take title to all revenue coming to the facility in the
name of the receiver who shall use it for the following purposes in
descending order of priority:
(A) To pay wages to staff. The receiver shall have full power to
hire, direct, manage, and discharge employees of the facility,
subject to any contractual rights they may have. The receiver shall
pay employees at the same rate of compensation, including benefits,
that the employees would have received from the licensee or wages
necessary to provide adequate staff for the protection of the clients
and compliance with the law.
(B) To preserve resident funds. The receiver shall be entitled to,
and shall take, possession of all property or assets of residents
that are in the possession of the licensee or operator of the
facility. The receiver shall preserve all property, assets, and
records of residents of which the receiver takes possession.
(C) To contract for outside services as may be needed for the
operation of the residential care facility for the elderly.
Any A contract for outside services in excess of
five thousand dollars ($5,000) shall be approved by the court.
(D) To pay commercial creditors of the facility to the extent
required to operate the facility. Except as provided in subdivision
(h), the receiver shall honor all leases, mortgages, and secured
transactions affecting the building in which the facility is located
and all goods and fixtures in the building of which the receiver has
taken possession, but only to the extent of payments which, in the
case of a rental agreement, are for the use of the property during
the period of receivership, or which, in the case of a purchase
agreement, come due during the period of receivership.
(E) To receive a salary, as approved by the court.
(F) To do all things necessary and proper to maintain and operate
the facility in accordance with sound fiscal policies. The receiver
shall take action as is reasonably necessary to protect or conserve
the assets or property of which the receiver takes possession and may
use those assets or property only in the performance of the powers
and duties set out in this section and by order of the court.
(G) To ask the court for direction in the treatment of debts
incurred prior to the appointment, if the licensee's debts appear
extraordinary, of questionable validity, or unrelated to the normal
and expected maintenance and operation of the facility, or if payment
of the debts will interfere with the purposes of receivership.
(g) (1) A person who is served with notice of an order of the
court appointing a receiver and of the receiver's name and address
shall be liable to pay the receiver, rather than the licensee, for
any goods or services provided by the residential care facility for
the elderly after the date of the order. The receiver shall give a
receipt for each payment and shall keep a copy of each receipt on
file. The receiver shall deposit amounts received in a special
account and shall use this account for all disbursements. Payment to
the receiver pursuant to this subdivision shall discharge the
obligation to the extent of the payment and shall not thereafter be
the basis of a claim by the licensee or any other person. A resident
shall not be evicted nor may any contract or rights be forfeited or
impaired, nor may any forfeiture be effected or liability increased,
by reason of an omission to pay the licensee, operator, or other
person a sum paid to the receiver pursuant to this subdivision.
(2) This section shall not be construed to suspend, during the
temporary management by the receiver, any obligation of the licensee
for payment of local, state, or federal taxes. A licensee shall not
be held liable for acts or omissions of the receiver during the term
of the temporary management.
(3) Upon petition of the receiver, the court may order immediate
payment to the receiver for past services that have been rendered and
billed, and the court may also order a sum not to exceed one month's
advance payment to the receiver of any sums that may become payable
under the Medi-Cal program.
(h) (1) A receiver shall not be required to honor a lease,
mortgage, or secured transaction entered into by the licensee of the
facility and another party if the court finds that the agreement
between the parties was entered into for a collusive, fraudulent
purpose or that the agreement is unrelated to the operation of the
facility.
(2) A lease, mortgage, or secured transaction or an agreement
unrelated to the operation of the facility that the receiver is
permitted to dishonor pursuant to this subdivision shall only be
subject to nonpayment by the receiver for the duration of the
receivership, and the dishonoring of the lease, mortgage, security
interest, or other agreement, to this extent, by the receiver shall
not relieve the owner or operator of the facility from any liability
for the full amount due under the lease, mortgage, security interest,
or other agreement.
(3) If the receiver is in possession of real estate or goods
subject to a lease, mortgage, or security interest that the receiver
is permitted to avoid dishonor pursuant
to paragraph (1), and if the real estate or goods are necessary for
the continued operation of the facility, the receiver may apply to
the court to set a reasonable rent, price, or rate of interest to be
paid by the receiver during the duration of the receivership. The
court shall hold a hearing on this application within 15 days. The
receiver shall send notice of the application to any known owner of
the property involved at least 10 days prior to the hearing.
(4) Payment by the receiver of the amount determined by the court
to be reasonable is a defense to any action against the receiver for
payment or possession of the goods or real estate, subject to the
lease or mortgage, which is brought by any person who received the
notice required by this subdivision. However, payment by the receiver
of the amount determined by the court to be reasonable
shall does not relieve the owner or operator of
the facility from any liability for the difference between the amount
paid by the receiver and the amount due under the original lease,
mortgage, or security interest.
(i) A monthly accounting shall be made by the receiver to the
department of all moneys received and expended by the receiver on or
before the 15th day of the following month or as ordered by the
court, and the remainder of income over expenses for that month shall
be returned to the licensee. A copy of the accounting shall be
provided to the licensee. The licensee or owner of the residential
care facility for the elderly may petition the court for a
determination as to the reasonableness of any expenditure made
pursuant to paragraph (5) of subdivision (f).
(j) (1) The receiver shall be appointed for an initial period of
not more than three months. The initial three-month period may be
extended for additional periods not exceeding three months, as
determined by the court pursuant to this section. At the end of one
month, the receiver shall report to the court on its assessment of
the probability that the residential care facility for the elderly
will meet state standards for operation by the end of the initial
three-month period and will continue to maintain compliance with
those standards after termination of the receiver's management. If it
appears that the facility cannot be brought into compliance with
state standards within the initial three-month period, the court
shall take appropriate action as follows:
(A) Extend the receiver's management for an additional three
months if there is a substantial likelihood that the facility will
meet state standards within that period and will maintain compliance
with the standards after termination of the receiver's management.
The receiver shall report to the court in writing upon the facility's
progress at the end of six weeks of any extension ordered pursuant
to this paragraph.
(B) Order the director to revoke or temporarily suspend, or both,
the license pursuant to Section 1569.50 and extend the receiver's
management for the period necessary to transfer clients in accordance
with the transfer plan, but for not more than three months from the
date of initial appointment of a receiver, or 14 days, whichever is
greater. An extension of an additional three months may be granted if
deemed necessary by the court.
(2) If it appears at the end of six weeks of an extension ordered
pursuant to subparagraph (A) of paragraph (1) that the facility
cannot be brought into compliance with state standards for operation
or that it will not maintain compliance with those standards after
the receiver's management is terminated, the court shall take
appropriate action as specified in subparagraph (B) of paragraph (1).
(3) In evaluating the probability that a residential care facility
for the elderly will maintain compliance with state standards of
operation after the termination of receiver management ordered by the
court, the court shall consider at least the following factors:
(A) The duration, frequency, and severity of past violations in
the facility.
(B) History of compliance in other care facilities operated by the
proposed licensee.
(C) Efforts by the licensee to prevent and correct past
violations.
(D) The financial ability of the licensee to operate in compliance
with state standards.
(E) The recommendations and reports of the receiver.
(4) Management of a residential care facility for the elderly
operated by a receiver pursuant to this section shall not be returned
to the licensee, to any person related to the licensee, or to any
person who served as a member of the facility's staff or who was
employed by the licensee prior to the appointment of the receiver
unless both of the following conditions are met:
(A) The department believes that it would be in the best interests
of the residents of the facility, requests that the court return the
operation of the facility to the former licensee, and provides clear
and convincing evidence to the court that it is in the best
interests of the facility's residents to take that action.
(B) The court finds that the licensee has fully cooperated with
the department in the appointment and ongoing activities of a
receiver appointed pursuant to this section, and, if applicable, any
temporary manager appointed pursuant to Section 1569.481.
(5) The owner of the facility may at any time sell, lease, or
close the facility, subject to the following provisions:
(A) If the owner closes the facility, or the sale or lease results
in the closure of the facility, the court shall determine if a
transfer plan is necessary. If the court so determines, the court
shall adopt and implement a transfer plan consistent with the
provisions of Section 1569.682.
(B) If the licensee proposes to sell or lease the facility and the
facility will continue to operate as a residential care facility for
the elderly, the court and the department shall reevaluate any
proposed transfer plan. If the court and the department determine
that the sale or lease of the facility will result in compliance with
licensing standards, the transfer plan and the receivership shall,
subject to those conditions that the court may impose and enforce, be
terminated upon the effective date of the sale or lease.
(k) (1) The salary of the receiver shall be set by the court
commensurate with community care facility industry standards, giving
due consideration to the difficulty of the duties undertaken, and
shall be paid from the revenue coming to the facility. If the revenue
is insufficient to pay the salary in addition to other expenses of
operating the facility, the receiver's salary shall be paid from the
emergency resident contingency account as provided in Section
1569.48. State advances of funds in excess of five thousand dollars
($5,000) shall be approved by the director. Total advances for
encumbrances and expenditures shall not exceed the sum of forty-nine
thousand nine hundred ninety-nine dollars ($49,999) unless approved
by the director in writing.
(2) To the extent state funds are advanced for the salary of the
receiver or for other expenses in connection with the receivership,
as limited by subdivision (g), the state shall be reimbursed from the
revenues accruing to the facility or to the licensee or an entity
related to the licensee. Any reimbursement
Reimbursement received by the state shall be redeposited in the
account from which the state funds were advanced. If the revenues
are insufficient to reimburse the state, the unreimbursed amount
shall constitute grounds for a monetary judgment in civil court and a
subsequent lien upon the assets of the facility or the proceeds from
the sale thereof. Pursuant to Chapter 2 (commencing with Section
697.510) 697.010) of Division 2 of
Title 9 of Part 2 of the Code of Civil Procedure, a lien against the
personal assets of the facility or an entity related to the licensee
based on the monetary judgment obtained shall be filed with the
Secretary of State on the forms required for a notice of judgment
lien. A lien against the real property of the facility or an entity
related to the licensee based on the monetary judgment obtained shall
be recorded with the county recorder of the county where the
facility of the licensee is located or where the real property of the
entity related to the licensee is located. The lien shall not attach
to the interests of a lessor, unless the lessor is operating the
facility. The authority to place a lien against the personal and real
property of the licensee for the reimbursement of any state funds
expended pursuant to this section shall be given judgment creditor
priority.
(3) For purposes of this subdivision, "entity related to the
licensee" means an entity, other than a natural person, of which the
licensee is a subsidiary or an entity in which any person who was
obligated to disclose information under Section 1569.15 possesses an
interest that would also require disclosure pursuant to Section
1569.15.
(l) (1) This section does not impair the right of the owner of a
residential care facility for the elderly to dispose of his or her
property interests in the facility, but any facility operated by a
receiver pursuant to this section shall remain subject to that
administration until terminated by the court. The termination shall
be promptly effectuated, provided that the interests of the residents
have been safeguarded as determined by the court.
(2) This section does not limit the power of the court to appoint
a receiver under any other applicable provision of law or to order
any other remedy available under law.
(m) (1) Notwithstanding any other provision of law, the receiver
shall be liable only for damages resulting from gross negligence in
the operation of the facility or intentional tortious acts.
(2) All governmental immunities otherwise applicable to the State
of California shall also apply in the use of a receiver in the
operation of a facility pursuant to this section.
(3) The licensee shall is not
be liable for any occurrences during the
receivership except to the extent that the occurrences are the result
of the licensee's conduct.
(n) The department may adopt regulations for the administration of
this section. This section does not impair the authority of the
department to temporarily suspend licenses under Section 1569.50 or
to reach a voluntary agreement with the licensee for alternate
management of a community care facility including the use of a
temporary manager under Section 1569.481. This section does not
authorize the department to interfere in a labor dispute.
(o) This section does not apply to a residential care facility for
the elderly that serves six or fewer persons and is also the
principal residence of the licensee.
(p) This section does not apply to a licensee that has obtained a
certificate of authority to offer continuing care contracts, as
defined in paragraph (8) of subdivision (c) of Section 1771.
SEC. 282. Section 1569.525 of the Health and Safety Code is
amended to read:
1569.525. (a) If the director determines that it is necessary to
temporarily suspend or to revoke any license of a residential care
facility for the elderly in order to protect the residents or clients
of the facility from physical or mental abuse, abandonment, or any
other substantial threat to health or safety pursuant to Section
1569.50, the department shall make every effort to minimize trauma
for the residents.
(b) (1) (A) After a decision is made to temporarily suspend or,
upon an order, to revoke the license of a residential care facility
for the elderly which is likely to result in closure of the facility,
the department shall contact both of the following:
(i) The Office of the State Long-Term Care Ombudsman.
(ii) Any local agency that may have placement or advocacy
responsibility for the residents of a residential care facility for
the elderly.
(B) The department shall work with these agencies, and the
licensee if the director determines it to be appropriate, to locate
alternative placement sites and to contact relatives or other persons
responsible for the care of these residents, and to assist in the
transfer of residents.
(2) The department shall use appropriately skilled professionals
deemed appropriate by the department to provide onsite evaluation of
the residents and assist in any transfers.
(3) The department shall require the licensee to prepare and
submit to the licensing agency a written plan for relocation and
compliance with the terms and conditions of the approved plans, and
to provide other information as necessary for the enforcement of this
section.
(c) Upon receipt of an order to temporarily suspend or revoke a
license, the licensee shall be prohibited from accepting new
residents or entering into admission agreements for new residents.
(d) Upon an order to temporarily suspend a license, the following
shall apply:
(1) The licensee shall immediately provide written notice of the
temporary suspension to the resident and initiate contact with the
resident's responsible person, if applicable.
(2) The department may secure, or permit the licensee to secure,
the services of a temporary manager who is not an immediate family
member of the licensee or an entity that is not owned by the licensee
to manage the day-to-day operations of the facility. The temporary
manager shall be appointed and assume operation of the facility in
accordance with Section 1569.481.
(e) Upon an order to revoke a license following the temporary
suspension of a license pursuant to Section 1569.50 that led to the
transfer of all residents, the following shall apply:
applies:
(1) The licensee shall provide a 60-day written notice of license
revocation that may lead to closure to the resident and the resident'
s responsible person within 24 hours of receipt of the department's
order of revocation.
(2) The department shall permit the licensee to secure the
services of a temporary manager who is not an immediate family member
of the licensee or an entity that is not owned by the licensee to
manage the day-to-day operations of the residential care facility for
the elderly for a period of at least 60 days, provided that all of
the following conditions are met:
(A) A proposal is submitted to the department within 72 hours of
the licensee's receipt of the department's order of revocation that
includes both of the following:
(i) A completed "Application for a Community Care Facility or
Residential Care Facility for the Elderly License" form (LIC 200), or
similar form as determined by the department, signed and dated by
both the licensee and the person or entity described in paragraph
(2).
(ii) A copy of the executed agreement between the licensee and the
person or entity described in paragraph (2) that delineates the
roles and responsibilities of each party and specifies that the
person or entity described in paragraph (2) shall have the full
authority necessary to operate the facility, in compliance with all
applicable laws and regulations, and without interference from the
licensee.
(B) The person or entity described in paragraph (2) shall be
currently licensed and in substantial compliance to operate a
residential care facility for the elderly that is of comparable size
or greater and has comparable programming to the facility. For
purposes of this subparagraph, the following definitions apply:
(i) "Comparable programming" includes, but is not limited to,
dementia care, hospice care, and care for residents with exempted
prohibited health care conditions.
(ii) "Comparable size" means a facility capacity of 1 to 15
residents, 16 to 49 residents, or 50 or more residents.
(C) The person or entity described in paragraph (2) shall
is not be subject to the
application fee specified in Section 1569.185.
(D) If the department denies a proposal to secure the services of
a person or entity pursuant to paragraph (2), this denial shall not
be deemed a denial of a license application subject to the right to a
hearing under Section 1569.22 and other procedural rights under
Section 1569.51.
(f) (1) Notwithstanding Section 1569.651 or any other law, for
paid preadmission fees, a resident who transfers from the facility
due to the notice of temporary suspension or revocation of a license
pursuant to this section is entitled to a refund in accordance with
all of the following:
(A) A 100-percent refund if preadmission fees were paid within six
months of either notice of closure required by this section.
(B) A 75-percent refund if preadmission fees were paid more than
six months, but not more than 12 months, before either notice
required by this section.
(C) A 50-percent refund if preadmission fees were paid more than
12 months, but not more than 18 months, before either notice required
by this section.
(D) A 25-percent refund if preadmission fees were paid more than
18 months, but not more than 25 months, before either notice required
by this section.
(2) No A preadmission fee refund is
not required if preadmission fees were paid 25 months or
more before either notice required by this section.
(3) The preadmission fee refund required by this paragraph shall
be paid within 15 days of issuing either notice required by this
section. In lieu of the refund, the resident may request that the
licensee provide a credit toward the resident's monthly fee
obligation in an amount equal to the preadmission fee refund due.
(4) If a resident transfers from the facility due to the
revocation of a license, and the resident gives notice at least five
days before leaving the facility, or if the transfer is due to a
temporary suspension of the license order, the licensee shall refund
to the resident or his or her legal representative a proportional per
diem amount of any prepaid monthly fees at the time the resident
leaves the facility and the unit is vacated. Otherwise the licensee
shall pay the refund within seven days from the date that the
resident leaves the facility and the unit is vacated.
(g) Within 24 hours after each residence
resident who is transferring pursuant to these provisions
have has left the facility, the
licensee that had his or her license temporarily suspended or revoked
shall, based on information provided by the resident or the resident'
s responsible person, submit a final list of names and new locations
of all residents to the department and the local ombudsman program.
(h) If at any point during or following a temporary suspension or
revocation order of a license the director determines that there is a
risk to the residents of a facility from of
physical or mental abuse, abandonment, or any other substantial
threat to health or safety, the department shall take any necessary
action to minimize trauma for the residents, including, but not
limited to, all of the following:
(1) Contact any local agency that may have placement or advocacy
responsibility for the residents and work with those agencies to
locate alternative placement sites.
(2) Contact the residents' relatives, legal representatives,
authorized agents in a health care directive, or responsible parties.
(3) Assist in the transfer of residents, and, if necessary,
arrange or coordinate transportation.
(4) Provide onsite evaluation of the residents and use any medical
personnel deemed appropriate by the department to provide onsite
evaluation of the residents and assist in any transfers.
(5) Arrange for or coordinate care and supervision.
(6) Arrange for the distribution of medications.
(7) Arrange for the preparation and service of meals and snacks.
(8) Arrange for the preparation of the residents' records and
medications for transfer of each resident.
(9) Assist in any way necessary to facilitate a safe transfer of
all residents.
(10) Check on the status of each transferred resident within 24
hours of transfer.
(i) The participation of the department and local agencies in the
relocation of residents from a residential care facility for the
elderly shall not relieve the licensee of any responsibility under
this section. A licensee that fails to comply with the requirements
of this section shall be required to reimburse the department and
local agencies for the cost of providing those services. If the
licensee fails to provide the services required in this section, the
department shall request that the Attorney General's office, the city
attorney's office, or the local district attorney's office seek
injunctive relief and damages.
(j) Notwithstanding Section 1569.49, a licensee who fails to
comply with the requirements of this section shall be liable for
civil penalties in the amount of five hundred dollars ($500) per
violation per day for each day that the licensee is in violation of
this section, until the violation has been corrected. The civil
penalties shall be issued immediately following the written notice of
violation.
(k) This section shall does not
preclude the department from amending the effective date in the order
of suspension or revocation of a license and closing the facility,
or from pursuing any other available remedies if necessary to protect
the health and safety of the residents in care.
SEC. 283. Section 1569.682 of the Health and Safety Code is
amended to read:
1569.682. (a) A licensee of a licensed residential care facility
for the elderly shall, prior to transferring a resident of the
facility to another facility or to an independent living arrangement
as a result of the forfeiture of a license, as described in
subdivision (a), (b), or (f) of Section 1569.19, or a change of use
of the facility pursuant to the department's regulations, take all
reasonable steps to transfer affected residents safely and to
minimize possible transfer trauma, and shall, at a minimum, do all of
the following:
(1) Prepare, for each resident, a relocation evaluation of the
needs of that resident, which shall include both of the following:
(A) Recommendations on the type of facility that would meet the
needs of the resident based on the current service plan.
(B) A list of facilities, within a 60-mile radius of the resident'
s current facility, that meet the resident's present needs.
(2) Provide each resident or the resident's responsible person
with a written notice no later than 60 days before the intended
eviction. The notice shall include all of the following:
(A) The reason for the eviction, with specific facts to permit a
determination of the date, place, witnesses, and circumstances
concerning the reasons.
(B) A copy of the resident's current service plan.
(C) The relocation evaluation.
(D) A list of referral agencies.
(E) The right of the resident or resident's legal representative
to contact the department to investigate the reasons given for the
eviction pursuant to Section 1569.35.
(F) The contact information for the local long-term care
ombudsman, including address and telephone number.
(3) Discuss the relocation evaluation with the resident and his or
her legal representative within 30 days of issuing the notice of
eviction.
(4) Submit a written report of any eviction to the licensing
agency within five days.
(5) Upon issuing the written notice of eviction, a licensee shall
not accept new residents or enter into new admission agreements.
(6) (A) For paid preadmission fees in excess of five hundred
dollars ($500), the resident is entitled to a refund in accordance
with all of the following:
(i) A 100-percent refund if preadmission fees were paid within six
months of notice of eviction.
(ii) A 75-percent refund if preadmission fees were paid more than
six months but not more than 12 months before notice of eviction.
(iii) A 50-percent refund if preadmission fees were paid more than
12 months but not more than 18 months before notice of eviction.
(iv) A 25-percent refund if preadmission fees were paid more than
18 months but less than 25 months before notice of eviction.
(B) No preadmission refund is required if preadmission fees were
paid 25 months or more before the notice of eviction.
(C) The preadmission refund required by this paragraph shall be
paid within 15 days of issuing the eviction notice. In lieu of the
refund, the resident may request that the licensee provide a credit
toward the resident's monthly fee obligation in an amount equal to
the preadmission fee refund due.
(7) If the resident gives notice five days before leaving the
facility, the licensee shall refund to the resident or his or her
legal representative a proportional per diem amount of any prepaid
monthly fees at the time the resident leaves the facility and the
unit is vacated. Otherwise the licensee shall pay the refund within
seven days from the date that the resident leaves the facility and
the unit is vacated.
(8) Within 10 days of all residents having left the facility, the
licensee, based on information provided by the resident or resident's
legal representative, shall submit a final list of names and new
locations of all residents to the department and the local ombudsman
program.
(b) If seven or more residents of a residential care facility for
the elderly will be transferred as a result of the forfeiture of a
license or change in the use of the facility pursuant to subdivision
(a), the licensee shall submit a proposed closure plan to the
department for approval. The department shall approve or disapprove
the closure plan, and monitor its implementation, in accordance with
the following requirements:
(1) Upon submission of the closure plan, the licensee shall be
prohibited from accepting new residents and entering into new
admission agreements for new residents.
(2) The closure plan shall meet the requirements described in
subdivision (a), and describe the staff available to assist in the
transfers. The department's review shall include a determination as
to whether the licensee's closure plan contains a relocation
evaluation for each resident.
(3) Within 15 working days of receipt, the department shall
approve or disapprove the closure plan prepared pursuant to this
subdivision, and, if the department approves the plan, it shall
become effective upon the date the department grants its written
approval of the plan.
(4) If the department disapproves a closure plan, the licensee may
resubmit an amended plan, which the department shall promptly either
approve or disapprove, within 10 working days of receipt by the
department of the amended plan. If the department fails to approve a
closure plan, it shall inform the licensee, in writing, of the
reasons for the disapproval of the plan.
(5) If the department fails to take action within 20 working days
of receipt of either the original or the amended closure plan, the
plan, or amended plan, as the case may be, shall be deemed approved.
(6) Until such time that the department has
approved a licensee's closure plan, the facility shall not issue a
notice of transfer or require any resident to transfer.
(7) Upon approval by the department, the licensee shall send a
copy of the closure plan to the local ombudsman program.
(c) (1) If a licensee fails to comply with the requirements of
this section, or if the director determines that it is necessary to
protect the residents of a facility from physical or mental abuse,
abandonment, or any other substantial threat to health or safety, the
department shall take any necessary action to minimize trauma for
the residents, including caring for the residents through the use of
a temporary manager or receiver as provided for in Sections 1569.481
and 1569.482 when the director determines the immediate relocation of
the residents is not feasible based on transfer trauma or other
considerations such as the unavailability of alternative placements.
The department shall contact any local agency that may have
assessment , placement, protective, or advocacy
responsibility for the residents, and shall work together with those
agencies to locate alternative placement sites, contact relatives or
other persons responsible for the care of these residents, provide
onsite evaluation of the residents, and assist in the transfer of
residents.
(2) The participation of the department and local agencies in the
relocation of residents from a residential care facility for the
elderly shall does not relieve the
licensee of any responsibility under this section. A licensee that
fails to comply with the requirements of this section shall be
required to reimburse the department and local agencies for the cost
of providing the relocation services or the costs incurred in caring
for the residents through the use of a temporary manager or receiver
as provided for in Sections 1569.481 and 1569.482. If the licensee
fails to provide the relocation services required in this section,
then the department may request that the Attorney General's office,
the city attorney's office, or the local district attorney's office
seek injunctive relief and damages in the same manner as provided for
in Chapter 5 (commencing with Section 17200) of Part 2 of Division 7
of the Business and Professions Code, including restitution to the
department of any costs incurred in caring for the residents through
the use of a temporary manager or receiver as provided for in
Sections 1569.481 and 1569.482.
(d) A licensee who fails to comply with requirements of this
section shall be liable for the imposition of civil penalties in the
amount of one hundred dollars ($100) per violation per day for each
day that the licensee is in violation of this section, until such
time that the violation has been corrected. The civil penalties shall
be issued immediately following the written notice of violation.
However, if the violation does not present an immediate or
substantial threat to the health or safety of residents and the
licensee corrects the violation within three days after receiving the
notice of violation, the licensee shall not be liable for payment of
any civil penalties pursuant to this subdivision related to the
corrected violation.
(e) A licensee, on and after January 1, 2015, who fails to comply
with this section and abandons the facility and the residents in care
resulting in an immediate and substantial threat to the health and
safety of the abandoned residents, in addition to forfeiture of the
license pursuant to Section 1569.19, shall be excluded from licensure
in facilities licensed by the department without the right to
petition for reinstatement.
(f) A resident of a residential care facility for the elderly
covered under this section may bring a civil action against any
person, firm, partnership, or corporation who owns, operates,
establishes, manages, conducts, or maintains a residential care
facility for the elderly who violates the rights of a resident, as
set forth in this section. Any person, firm, partnership, or
corporation who owns, operates, establishes, manages, conducts, or
maintains a residential care facility for the elderly who violates
this section shall be responsible for the acts of the facility's
employees and shall be liable for costs and attorney's fees. Any such
residential care facility for the elderly may also be enjoined from
permitting the violation to continue. The remedies specified in this
section shall be are in addition to any
other remedy provided by law.
(g) This section shall does not
apply to a licensee that has obtained a certificate of authority to
offer continuing care contracts, as defined in paragraph (8) of
subdivision (c) of Section 1771.
SEC. 284. Section 1597.58 of the Health and Safety Code, as added
by Section 10 of Chapter 813 of the Statutes of 2014, is amended to
read:
1597.58. (a) In addition to the suspension, temporary suspension,
or revocation of a license issued under this chapter, the department
may levy a civil penalty.
(b) The amount of the civil penalty shall
not be less than twenty-five dollars ($25) nor more than fifty
dollars ($50) per day for each violation of this chapter except where
the nature or seriousness of the violation or the frequency of the
violation warrants a higher penalty or an immediate civil penalty
assessment or both, as determined by the department. In no event
shall a civil penalty assessment exceed one hundred fifty dollars
($150) per day per violation.
(c) Notwithstanding Sections 1596.893a, 1596.893b, 1597.56, and
1597.62 , the department shall assess an immediate civil
penalty of one hundred fifty dollars ($150) per day per violation for
any of the following serious violations:
(1) Any violation that results in the injury, illness, or death of
a child.
(2) Absence of supervision, including, but not limited to, a child
left unattended, a child left alone with a person under 18 years of
age, and lack of supervision resulting in a child wandering away.
(3) Accessible bodies of water.
(4) Accessible firearms, ammunition, or both.
(5) Refused entry to a facility or any part of a facility in
violation of Sections 1596.852, 1596.853, 1597.55a, and 1597.55b.
(6) The presence of an excluded person on the premises.
(d) For a violation that the department determines resulted in the
death of a child, the civil penalty shall be assessed as follows:
(1) Five thousand dollars ($5,000) for a small family day care
home, as described in Section 1597.44.
(2) Seven thousand five hundred dollars ($7,500) for a large
family day care home, as described in Section 1597.465.
(e) (1) For a violation that the department determines constitutes
physical abuse or resulted in serious injury, as defined in Section
1596.8865, to a child, the civil penalty shall be assessed as
follows:
(A) One thousand dollars ($1,000) for a small family day care
home, as described in Section 1597.44.
(B) Two thousand dollars ($2,000) for a large family day care
home, as described in Section 1597.465.
(2) For purposes of this subdivision, "physical abuse" includes
physical injury inflicted upon a child by another person by other
than accidental means, sexual abuse as defined in Section 11165.1 of
the Penal Code, neglect as defined in Section 11165.2 of the Penal
Code, or unlawful corporal punishment or injury as defined in Section
11165.4 of the Penal Code when the person responsible for the child'
s welfare is a licensee, administrator, or employee of any facility
licensed to care for children, or an administrator or employee of a
public or private school or other institution or agency.
(f) Prior to the issuance of a citation imposing a civil penalty
pursuant to subdivision (d) or (e), the decision shall be approved by
the director.
(g) Notwithstanding Sections 1596.893a, 1596.893b, 1597.56, and
1597.62, any family day care home that is cited for repeating the
same violation of this chapter or Chapter 3.4 (commencing with
Section 1596.70), within 12 months of the first violation ,
is subject to an immediate civil penalty assessment of up to
one hundred fifty dollars ($150) and may be assessed up to fifty
dollars ($50) for each day the violation continues until the
deficiency is corrected.
(h) Any A family day care home that
is assessed a civil penalty under subdivision (g) that repeats the
same violation of this chapter within 12 months of the violation
subject to subdivision (g) shall be assessed an immediate assessment
of up to one hundred fifty dollars ($150) and may be assessed up to
one hundred fifty dollars ($150) for each day the violation continues
until the deficiency is corrected.
(i) Notwithstanding any other law, revenues received by the state
from the payment of civil penalties imposed on licensed family day
care homes pursuant to this chapter or Chapter 3.4 (commencing with
Section 1596.70), shall be deposited in the Child Health and Safety
Fund, created pursuant to Chapter 4.6 (commencing with Section 18285)
of Part 6 of Division 9 of the Welfare and Institutions Code, and
shall be expended, upon appropriation by the Legislature, pursuant to
subdivision (f) of Section 18285 of the Welfare and Institutions
Code exclusively for the technical assistance, orientation, training,
and education of licensed family day care home providers, and to
assist families with the identification, transportation, and
enrollment of children to another family day care home when a family'
s family day care home's license is revoked or temporarily suspended.
(j) (1) The department shall adopt regulations setting forth the
appeal procedures for deficiencies.
(2) A licensee shall have the right to may
submit to the department a written request for a formal review
of a civil penalty assessed pursuant to subdivisions (d) and (e)
within 10 days of receipt of the notice of a civil penalty assessment
and shall provide all supporting documentation at that time. The
review shall be conducted by a regional manager of the Community Care
Licensing Division. If the regional manager determines that the
civil penalty was not assessed in accordance with applicable statutes
or regulations of the department, he or she may amend or dismiss the
civil penalty. The licensee shall be notified in writing of the
regional manager's decision within 60 days of the request to review
the assessment of the civil penalty.
(3) The licensee may further appeal to the program administrator
of the Community Care Licensing Division within 10 days of receipt of
the notice of the regional manager's decision and shall provide all
supporting documentation at that time. If the program administrator
determines that the civil penalty was not assessed in accordance with
applicable statutes or regulations of the department, he or she may
amend or dismiss the civil penalty. The licensee shall be notified in
writing of the program administrator's decision within 60 days of
the request to review the regional manager's decision.
(4) The licensee may further appeal to the deputy director of the
Community Care Licensing Division within 10 days of receipt of the
notice of the program director's decision and shall provide all
supporting documentation at that time. If the deputy director
determines that the civil penalty was not assessed in accordance with
applicable statutes or regulations of the department, he or she may
amend or dismiss the civil penalty. The licensee shall be notified in
writing of the deputy director's decision within 60 days of the
request to review the program administrator's decision.
(5) Upon exhausting the deputy director review, a licensee may
appeal a civil penalty assessed pursuant to subdivision (d) or (e) to
an administrative law judge. Proceedings shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code, and the department
shall have all the powers granted by those provisions. In all
proceedings conducted in accordance with this section, the standard
of proof shall be by a preponderance of the evidence.
(6) If, in addition to an assessment of civil penalties, the
department elects to file an administrative action to suspend or
revoke the facility license that includes violations relating to the
assessment of the civil penalties, the department review of the
pending appeal shall cease and the assessment of the civil penalties
shall be heard as part of the administrative action process.
(k) The department shall, by January 1, 2016, amend its
regulations to reflect the changes to this section made by the act
that added this subdivision.
(l) This section shall become operative on July 1, 2015.
SEC. 285. Section 1635.1 of the Health and Safety Code is amended
to read:
1635.1. (a) Except as provided in subdivision (b), every tissue
bank operating in California on or after July 1, 1992, shall have a
current and valid tissue bank license issued or renewed by the
department pursuant to Section 1639.2 or 1639.3.
(b) This chapter shall does not
apply to any of the following:
(1) The collection, processing, storage, or distribution of human
whole blood or its derivatives by blood banks licensed pursuant to
Chapter 4 (commencing with Section 1600) or any person exempt from
licensure under that chapter.
(2) The collection, processing, storage, or distribution of tissue
for autopsy, biopsy, training, education, or for other medical or
scientific research or investigation, where
when transplantation of the tissue is not intended or
reasonably foreseeable.
(3) The collection of tissue by an individual physician and
surgeon from his or her patient or the implantation of tissue by an
individual physician and surgeon into his or her patient. This
exemption shall not be interpreted to apply to any processing or
storage of the tissue, except for the processing and storage of semen
by an individual physician and surgeon when the semen was collected
by that physician and surgeon from a semen donor or obtained by that
physician and surgeon from a tissue bank licensed under this chapter.
(4) The collection, processing, storage, or distribution of fetal
tissue or tissue derived from a human embryo or fetus.
(5) The collection, processing, storage, or distribution by an
organ procurement organization (OPO), as defined in Section 485.302
of Title 42 of the Code of Federal Regulations, if the OPO, at the
time of collection, processing, storage, and distribution of the
organ, has been designated by the Secretary of Health and Human
Services as an OPO, pursuant to Section 485.305 of Title 42 of the
Code of Federal Regulations, and meets the requirements of Sections
485.304 and 485.306 of Title 42 of the Code of Federal Regulations,
as applicable.
(6) The storage of prepackaged, freeze-dried bone by a general
acute care hospital.
(7) The storage of freeze-dried bone and dermis by any licensed
dentist practicing in a lawful practice setting, providing
if that the freeze-dried bone and dermis has
been obtained from a licensed tissue bank and
bank, is stored in strict accordance with a kit's package
insert and any other manufacturer instructions and
guidelines guidelines, and is used for the
express purpose of implantation into a patient.
(8) The storage of a human cell, tissue, or cellular- or
tissue-based product, as defined by the federal Food and Drug
Administration, that is either a medical device approved pursuant to
Section 510 or 515 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. Sec. 360,, 360e) or that is a biologic product approved under
Section 351 of the federal Public Health Service Act (42 U.S.C. Sec.
262) by a licensed physician or podiatrist acting within the scope
and authority of his or her license and practicing in a lawful
practice setting. The medical device or biologic product must have
been obtained from a California licensed tissue bank, been stored in
strict accordance with the device's or product's package insert and
any other manufacturer instructions, and used solely for the express
purpose of direct implantation into or application on the
practitioner's own patient. In order to be eligible for the exemption
in this paragraph, the entity or organization where the physician or
podiatrist who is eligible for the exemption is practicing shall
notify the department, in writing, that the practitioner is licensed
and meets the requirements of this paragraph. The notification shall
include all of the following:
(A) A list of all practitioners to whom the notice applies.
(B) Acknowledgment that each listed practitioner uses the medical
device or biologic product in the scope and authority of his or her
license and practice for the purposes of direct patient care as
described in this paragraph.
(C) A statement that each listed practitioner agrees to strictly
abide by the directions for storage in the device's or product's
package insert and any other manufacturer instructions and
guidelines.
(D) Acknowledgment by each practitioner that the medical device or
biologic product shall not be resold or distributed.
SEC. 286. Section 1796.17 of the Health and Safety Code is amended
to read:
1796.17. (a) Each home care organization shall be separately
licensed. Nothing in this This chapter
shall does not prevent a licensee from
obtaining more than one home care organization license or obtaining a
home care organization license in addition to other licenses issued
by the department, or both.
(b) A home care organization shall does
not include the following:
(1) A home health agency licensed under Chapter 8 (commencing with
Section 1725).
(2) A hospice licensed under Chapter 8.5 (commencing with Section
1745).
(3) A health facility licensed under Chapter 2 (commencing with
Section 1250).
(4) A person who performs services through the In-Home Supportive
Services program pursuant to Article 7 (commencing with Section
12300) of Chapter 3 of Part 3 of Division 9 of, or Section 14132.95,
14132.952, or 14132.956 of, the Welfare and Institutions Code.
(5) A home medical device retail facility licensed under Section
111656.
(6) An organization vendored or contracted through a regional
center or the State Department of Developmental Services pursuant to
the Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500) of the Welfare and Institutions Code)
and the California Early Intervention Services Act (Title 14
(commencing with Section 95000) of the Government Code) to provide
services and supports for persons with developmental disabilities, as
defined in Section 4512 of the Welfare and Institutions Code, when
funding for those services is provided through the State Department
of Developmental Services and more than 50 percent of the recipients
of the home care services provided by the organization are persons
with developmental disabilities.
(7) An employment agency, as defined in Section 1812.5095 of the
Civil Code, that procures, offers, refers, provides, or attempts to
provide an independent home care aide who provides home care services
to clients.
(8) A community care facility licensed pursuant to Chapter 3
(commencing with Section 1500), a residential care facility for
persons with chronic life-threatening illness licensed pursuant to
Chapter 3.01 (commencing with Section 1568.01), a residential care
facility for the elderly licensed pursuant to Chapter 3.2 (commencing
with Section 1569), or a facility licensed pursuant to the
California Child Day Care Facilities Act (Chapter 3.4 (commencing
with Section 1596.70)), which includes day care centers, as described
in Chapter 3.5 (commencing with Section 1596.90), family day care
homes, as described in Chapter 3.6 (commencing with Section 1597.30),
and employer-sponsored child care centers, as described in Chapter
3.65 (commencing with Section 1597.70).
(9) An alcoholism or drug abuse recovery or treatment facility as
defined in Section 11834.02.
(10) A person providing services authorized pursuant to Section
2731 of the Business and Professions Code.
(11) A clinic licensed pursuant to Section 1204 or 1204.1.
(12) A nonrelative extended family member, as defined in Section
362.7 of the Welfare and Institutions Code.
(13) A facility providing home care services in which only Indian
children who are eligible under the federal Indian Child Welfare Act
(25 U.S.C. Sec. 1901 et seq.) are placed and which satisfies either
of the following:
(A) An extended family member of the Indian child, as defined in
Section 1903 of Title 25 of the United States Code.
(B) A foster home that is licensed, approved, or specified by the
Indian child's tribe pursuant to Section 1915 of Title 25 of the
United States Code.
(14) Any other individual or entity providing services similar to
those described in this chapter, as determined by the director.
(c) In the event of a conflict between this chapter and a
provision listed in subdivision (b), the provision in subdivision (b)
shall control. controls.
SEC. 287. Section 1796.23 of the Health and Safety Code is amended
to read:
1796.23. (a) Each person initiating a background examination to
be a registered home care aide shall submit his or her fingerprints
to the Department of Justice by electronic transmission in a manner
approved by the department, unless exempt under subdivision (d). Each
person initiating a background examination to be a registered home
care aide shall also submit to the department a signed declaration
under penalty of perjury regarding any prior criminal convictions
pursuant to Section 1522 and a completed home care aide application.
(b) A law enforcement agency or other local agency authorized to
take fingerprints may charge a reasonable fee to offset the costs of
fingerprinting for the purposes of this chapter. The fee revenues
shall be deposited in the Fingerprint Fees Account.
(c) The Department of Justice shall use the fingerprints to search
the state and Federal Bureau of Investigation
criminal offender record information pursuant to Section 1522.
(d) A person who is a current licensee or employee in a facility
licensed by the department, a certified foster parent, a certified
administrator, or a registered TrustLine provider need not submit
fingerprints to the department, and may transfer his or her current
criminal record clearance or exemption pursuant to paragraph (1) of
subdivision (h) of Section 1522. The person shall instead submit to
the department, along with the person's registration application, a
copy of the person's identification card described in Section 1796.22
and sign a declaration verifying the person's identity.
SEC. 288. Section 1796.25 of the Health and Safety Code is amended
to read:
1796.25. (a) (1) If the department finds that the home care aide
applicant or the registered home care aide has been convicted of a
crime, other than a minor traffic violation, the department shall
deny the home care aide application, or revoke the registered home
care aide's registration unless the director grants an exemption
pursuant to subdivision (g) of Section 1522.
(2) If the department finds that the home care aide applicant or
registered home care aide has an arrest as described in subdivision
(a) of Section 1522, the department may deny the registration
application or registration renewal application, or revoke the
registered home care aide's registration, if the home care aide or
registered home care aide may pose a risk to the health and safety of
any person who is or may become a client and the department complies
with subdivision (e) of Section 1522.
(3) The department may deny the home care aide application or the
renewal application of a registered home care aide, or revoke the
home care aide registration, if the department discovers that it had
previously revoked a license or certificate of approval to be a
certified family home, a certified administrator, or a registered
TrustLine trustline provider held by
the home care aide applicant or registered home care aide, or that it
had excluded the home care aide applicant or registered home care
aide from a licensed facility.
(4) The department may deny the home care aide application or
registered home care aide registration renewal application,
application for placement or retention upon the
home care aide registry registry, or
revoke the registered home care aide's registration
registration, if the department discovers that
it had previously denied the home care aide applicant's or registered
home care aide's application for a license from the department or
certificate of approval to be a certified family home, a certified
administrator, or a registered TrustLine
trustline provider.
(b) (1) If the department revokes or denies a home care aide
application or registered home care aide's renewal application
pursuant to subdivision (a), the department shall advise the home
care aide applicant or registered home care aide, by written
notification, of the right to appeal. The home care aide applicant or
registered home care aide shall have 15 days from the date of the
written notification to appeal the denial or revocation.
(2) Upon receipt by the department of the appeal, the appeal shall
be set for hearing. The hearing shall be conducted in accordance
with Section 1551.
(c) If the home care aide application or registered home care aide
renewal application has been is
denied, the home care aide applicant or registered home care aide
shall not reapply until he or she meets the timeframe set forth in
Sections 1796.40 and 1796.41.
SEC. 289. Section 1796.26 of the Health and Safety Code is amended
to read:
1796.26. (a) (1) The department may revoke or deny a registered
home care aide's registration or request for registration renewal if
any of the following apply to the registered home care aide:
(A) He or she procured or attempted to procure his or her
registered home care aide registration or renewal by fraud or
misrepresentation.
(B) He or she has a criminal conviction, other than a minor
traffic violation, unless an exemption is granted pursuant to Section
1522.
(C) He or she engages or has engaged in conduct which
that is inimical to the health, morals, welfare,
or safety of the people of the State of California or an individual
receiving or seeking to receive home care services.
(2) An individual whose registration has been revoked shall not
reapply until he or she meets the timeframe as set forth in Section
1796.40 or 1796.41.
(3) An individual whose criminal record exemption has been denied
shall not reapply for two years from the date of the exemption
denial.
(4) The hearing to revoke or deny the registered home care aide
registration or registration renewal request shall be conducted in
accordance with Section 1551.
(b) (1) The registered home care aide's registration shall be
considered forfeited under the following conditions:
(A) The registered home care aide has had a license or certificate
of approval revoked, suspended, or denied as authorized under
Section 1534, 1550, 1568.082, 1569.50, 1596.608, or 1596.885.
(B) The registered home care aide has been denied employment,
residence, or presence in a facility or client's home based on action
resulting from an administrative hearing pursuant to Section 1558,
1568.092, 1569.58, or 1596.8897.
(C) The registered home care aide fails to maintain a current
mailing address with the department.
(D) The registered home care aide's registration is not renewed.
(E) The registered home care aide surrenders his or her
registration to the department.
(F) The registered home care aide dies.
(2) An individual whose registered home care aide registration has
been forfeited shall not reapply until he or she meets the timeframe
set forth by the department in Sections 1796.40 and 1796.41.
(c) A registered home care aide's registration shall not be
transferred or sold to another individual or entity.
SEC. 290. Section 1796.29 of the Health and Safety Code is amended
to read:
1796.29. The department shall do both of the following in the
administration of the home care aide registry:
(a) Establish and maintain on the department's Internet Web site
the registry of registered home care aides and home care aide
applicants.
(1) To expedite the ability of a consumer to search and locate a
registered home care aide or home care aide applicant, the Internet
Web site shall enable consumers to look up the registration status by
providing the registered home care aide's or home care aide
applicant's name, registration number, registration status,
registration expiration date, and, if applicable, the home care
organization with which the affiliated home care aide is associated.
(2) The Internet Web site shall not provide any additional,
individually identifiable information about a registered home care
aide or home care aide applicant. The department may request and may
maintain additional information for registered home care aides or
home care aide applicants, as necessary for the administration of
this chapter, which that shall not be
publicly available on the home care aide registry.
(b) Update the home care registry upon receiving notification from
a home care organization that an affiliated home care aide is no
longer employed by the home care organization.
SEC. 291. Section 1796.34 of the Health and Safety Code is amended
to read:
1796.34. (a) A person or a private or public organization, with
the exception of any person who performs in-home supportive services
through the In-Home Supportive Services program pursuant to Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of the Welfare and Institutions Code, or Section 14132.95,
14132.952, or 14132.956 of the Welfare and Institutions Code, and the
exceptions provided for in subdivision (b), shall not do any of the
following, unless he, she, or it is licensed pursuant to
this chapter:
(1) Own, manage, or represent himself, herself or itself to be a
home care organization by name, advertising, soliciting,
solicitation, or any other presentments to the
public, or in the context of services within the scope of this
chapter, imply that he, she, or it is licensed to provide those
services or to make any reference to employee bonding in relation to
those services.
(2) Use the terms "home care organization," "home care," "in-home
care," or any combination of those terms, within its name.
(b) This section does not apply to either of the following:
(1) Any person who performs in-home supportive services through
the In-Home Supportive Services program pursuant to Article 7
(commencing with Section 12300) of Chapter 3 of Part 3 of Division 9
of, or Section 14132.95, 14132.952, or 14132.956 of, the Welfare and
Institutions Code.
(2) An employment agency, as defined in Section 1812.5095 of the
Civil Code, that procures, offers, refers, provides, or attempts to
provide an independent home care aide who provides home care to
clients.
SEC. 292. Section 1796.37 of the Health and Safety Code is amended
to read:
1796.37. (a) The department may issue a home care organization
license to a home care organization applicant that satisfies the
requirements set forth in this chapter, including all of the
following:
(1) Files a complete home care organization application, including
the fees required pursuant to Section 1796.49.
(2)
Submits proof of general and professional liability insurance in the
amount of at least one million dollars ($1,000,000) per occurrence
and three million dollars ($3,000,000) in the aggregate.
(3) Submits proof of a valid workers' compensation policy covering
its affiliated home care aides. The proof shall consist of the
policy number, the effective and expiration dates of the policy, and
the name and address of the policy carrier.
(4) Submits proof of an employee dishonesty bond, including
third-party coverage, with a minimum limit of ten thousand dollars
($10,000). This proof shall be submitted at each subsequent renewal.
(5) Provides the department, upon request, with a complete list of
its affiliated home care aides, and proof that each satisfies the
requirements of Sections 1796.43, 1796.44, and 1796.45.
(6) Passes a background examination, as required pursuant to
Section 1796.33.
(7) Completes a department orientation.
(8) Does not have any outstanding fees or civil penalties due to
the department.
(9) Discloses prior or present service as an administrator,
general partner, corporate officer officer,
or director of, or discloses that he or she has held or holds a
beneficial ownership of 10 percent or more in, any of the following:
(A) A community care facility, as defined in Section 1502.
(B) A residential care facility, as defined in Section 1568.01.
(C) A residential care facility for the elderly, as defined in
Section 1569.2.
(D) A child day care facility, as defined in Section 1596.750.
(E) A day care center, as described in Chapter 3.5 (commencing
with Section 1596.90).
(F) A family day care home, as described in Chapter 3.6
(commencing with Section 1597.30).
(G) An employer-sponsored child care center, as described in
Chapter 3.65 (commencing with Section 1597.70).
(H) A home care organization licensed pursuant to this chapter.
(10) Discloses any revocation or other disciplinary action taken,
or in the process of being taken, against a license held or
previously held by the entities specified in paragraph (9).
(11) Provides evidence that every member of the board of
directors, if applicable, understands his or her legal duties and
obligations as a member of the board of directors and that the home
care organization's operation is governed by laws and regulations
that are enforced by the department.
(12) Provides any other information as may be required by the
department for the proper administration and enforcement of this
chapter.
(13) Cooperates with the department in the completion of the home
care organization license application process. Failure of the home
care organization licensee to cooperate may result in the withdrawal
of the home care organization license application. "Failure to
cooperate" means that the information described in this chapter and
in any rules and regulations promulgated pursuant to this chapter has
not been provided, or not provided in the form requested by the
department, or both.
(b) A home care organization licensee shall renew the home care
organization license every two years. The department may renew a home
care organization license if the licensee satisfies the requirements
set forth in this chapter, including all of the following:
(1) Files a complete home care organization license renewal
application, including the nonrefundable fees required pursuant to
Section 1796.49, both of which shall be postmarked on or before the
expiration of the license.
(2) Submits proof of general and professional liability insurance
in the amount of at least one million dollars ($1,000,000) per
occurrence and three million dollars ($3,000,000) in the aggregate.
(3) Submits proof of a valid workers' compensation policy covering
its affiliated home care aides. The proof shall consist of the
policy number, the effective and expiration dates of the policy, and
the name and address of the policy carrier.
(4) Submits proof of an employee dishonesty bond, including
third-party coverage, with a minimum limit of ten thousand dollars
($10,000).
(5) Does not have any outstanding fees or civil penalties due to
the department.
(6) Provides any other information as may be required by the
department for the proper administration and enforcement of this
chapter.
(7) Cooperates with the department in the completion of the home
care organization license renewal process. Failure of the home care
organization licensee to cooperate may result in the withdrawal of
the home care organization license renewal application. "Failure to
cooperate" means that the information described in this chapter and
in any rules and regulations promulgated pursuant to this chapter has
not been provided, or not provided in the form requested by the
department, or both.
(c) (1) The department shall notify a licensed home care
organization in writing of its registration expiration date and the
process of renewal.
(2) Written notification pursuant to this subdivision shall be
mailed to the registered home care organization's mailing address of
record at least 60 days before the registration expiration date.
SEC. 293. Section 1796.38 of the Health and Safety Code is amended
to read:
1796.38. The department may deny an application for licensure or
suspend or revoke any license issued pursuant to this chapter,
pursuant to Sections 1550.5 and 1551 and in the manner provided in
this chapter on any of the following grounds:
(a) Violation by the licensee of this chapter or of the rules and
regulations promulgated under this chapter.
(b) Aiding, abetting, or permitting the violation of this chapter
or of the rules and regulations promulgated under this chapter.
(c) Conduct which that is inimical
to the health, morals, welfare, or safety of either an individual
receiving home care services or the people of the State of
California.
(d) The conviction of a licensee, or other person mentioned in
Section 1522, at any time before or during licensure, of a crime
as defined described in Section 1522.
(e) Engaging in acts of financial malfeasance concerning the
operation of a home care organization.
SEC. 294. Section 1796.41 of the Health and Safety Code is amended
to read:
1796.41. (a) (1) If the department determines that a person was
issued a license pursuant to this chapter or Chapter 1 (commencing
with Section 1200), Chapter 2 (commencing with Section 1250), Chapter
3 (commencing with Section 1500), Chapter 3.01 (commencing with
Section 1568.01), Chapter 3.2 (commencing with Section 1569), Chapter
3.4 (commencing with Section 1596.70), Chapter 3.5 (commencing with
Section 1596.90), Chapter 3.6 (commencing with Section 1597.30), or
Chapter 3.65 (commencing with Section 1597.70), and the prior license
was revoked within the preceding two years, the department shall
exclude the person from acting as, and require the home care
organization to remove him or her from his or her position as, a
member of the board of directors, an executive director, or an
officer of a licensee of any home care organizations licensed by the
department pursuant to this chapter.
(2) If the department determines that a person was previously
issued a certificate of approval by a foster family agency that was
revoked by the department pursuant to subdivision (b) of Section 1534
within the preceding two years, the department shall exclude the
person from acting as, and require the home care organization to
remove him or her from his or her position as, a member of the board
of directors, an executive director, or an officer of a licensee of,
any home care organizations licensed by the department pursuant to
this chapter.
(b) If the department determines that the person had previously
applied for a license under any of the chapters listed in paragraph
(1) of subdivision (a) and the application was denied within the last
year, the department shall exclude the person from acting as, and
require the home care organization to remove him or her from his or
her position as, a member of the board of directors, an executive
director, or an officer of a licensee of any home care organizations
licensed by the department pursuant to this chapter as follows:
(1) In cases where in which the home
care organization applicant petitioned for a hearing, the department
shall exclude the person from acting as, and require the home care
organization to remove him or her from his or her position as, a
member of the board of directors, an executive director, or an
officer of a licensee of, any home care organizations licensed by the
department pursuant to this chapter until one year has elapsed from
the effective date of the decision and order of the department
upholding a denial.
(2) In cases where in which the
department informed the home care organization applicant of his or
her right to petition for a hearing and the home care organization
applicant did not petition for a hearing, the department shall
exclude the person from acting as, and require the home care
organization to remove him or her from his or her position as, a
member of the board of directors, an executive director, or an
officer of a licensee of, any home care organizations licensed by the
department pursuant to this chapter until one year has elapsed from
the date of the notification of the denial and the right to petition
for a hearing.
(c) If the department determines that the person had previously
applied for a certificate of approval with a foster family agency and
the department ordered the foster family agency to deny the
application pursuant to subdivision (b) of Section 1534, the
department shall exclude the person from acting as, and require the
home care organization to remove him or her from his or her position
as, a member of the board of directors, an executive director, or an
officer of a licensee of, any home care organizations licensed by the
department pursuant to this chapter and as follows:
(1) In cases where in which the home
care organization applicant petitioned for a hearing, the department
shall exclude the person from acting as, and require the home care
organization to remove him or her from his or her position as, a
member of the board of directors, an executive director, or an
officer of a licensee of, any home care organizations licensed by the
department pursuant to this chapter until one year has elapsed from
the effective date of the decision and order of the department
upholding a denial.
(2) In cases where in which the
department informed the home care organization applicant of his or
her right to petition for a hearing and the home care organization
applicant did not petition for a hearing, the department shall
exclude the person from acting as, and require the home care
organization to remove him or her from his or her position as, a
member of the board of directors, an executive director, or an
officer of a licensee of, any home care organizations licensed by the
department pursuant to this chapter until one year has elapsed from
the date of the notification of the denial and the right to petition
for a hearing.
(d) Exclusion or removal of an individual pursuant to this section
shall not be considered an order of exclusion for purposes of
Section 1796.25 or any other law.
(e) The department may determine not to exclude a person from
acting as acting, or require that he or
she be removed from his or her position
position, as a member of the board of directors, an executive
director, or an officer of a licensee of, any home care organizations
licensed by the department pursuant to this chapter if it has been
determined that the reasons for the denial of the application or
revocation of the facility license or certificate of approval were
due to circumstances or conditions that either have been corrected or
are no longer in existence.
SEC. 295. Section 1796.44 of the Health and Safety Code is amended
to read:
1796.44. (a) A licensee shall ensure that prior to providing home
care services, an affiliated home care aide shall complete the
training requirements specified in this section.
(b) An affiliated home care aide shall complete a minimum of five
hours of entry-level training prior to presence with a client, as
follows:
(1) Two hours of orientation training regarding his or her role as
caregiver and the applicable terms of employment.
(2) Three hours of safety training, including basic safety
precautions, emergency procedures, and infection control.
(c) In addition to the requirements in subdivision (b), an
affiliated home care aide shall complete a minimum of five hours of
annual training. The annual training shall relate to core
competencies and be population specific, which shall include, but not
be limited to, the following areas:
(1) Clients' rights and safety.
(2) How to provide for , and respond to , a
client's daily living needs.
(3) How to report, prevent, and detect abuse and neglect.
(4) How to assist a client with personal hygiene and other home
care services.
(5) If transportation services are provided, how to safely
transport a client.
(d) The entry-level training and annual training described in
subdivisions (b) and (c) may be completed through an online training
program.
SEC. 296. Section 1796.45 of the Health and Safety Code is amended
to read:
1796.45. (a) Affiliated home care aides hired on or after
January 1, 2016, shall submit to an examination 90 days prior to
employment employment, or within seven
days after employment employment, to
determine that the individual is free of active tuberculosis disease.
(b) For purposes of this section, "examination" means a test for
tuberculosis infection that is recommended by the federal Centers for
Disease Control and Prevention (CDC) and that is
licensed by the federal Food and Drug Administration (FDA) and, if
that test is positive, an X-ray of the lungs. The aide shall not work
as an affiliated home care aide unless the licensee obtains
documentation from a licensed medical professional that there is no
risk of spreading the disease.
(c) After submitting to an examination, an affiliated home care
aide whose test for tuberculosis infection is negative shall be
required to undergo an examination at least once every two years.
Once an affiliated home care aide has a documented positive test for
tuberculosis infection that has been followed by an X-ray, the
examination is no longer required.
(d) After each examination, an affiliated home care aide shall
submit, and the home care organization shall keep on file, a
certificate from the examining practitioner showing that the
affiliated home care aide was examined and found free from active
tuberculosis disease.
(e) The examination is a condition of initial and continuing
employment with the home care organization.
(f) An affiliated home care aide who transfers employment from one
home care organization to another shall be deemed to meet the
requirements of subdivision (a) or (c) if the affiliated home care
aide can produce a certificate showing that he or she submitted to
the examination within the past two years and was found to be free of
active tuberculosis disease, or if it is verified by the home care
organization previously employing him or her that it has a
certificate on file that contains that showing and a copy of the
certificate is provided to the new home care organization prior to
the affiliated home care aide beginning employment.
SEC. 297. Section 4730.65 of the Health and Safety Code is amended
to read:
4730.65. (a) Notwithstanding Sections 4730, 4730.1, and 4730.2,
or any other law, the governing body of the Orange County Sanitation
District shall be a board of directors composed of all of the
following:
(1) One member of the city council of each city located wholly or
partially within the district's boundaries, except the City of Yorba
Linda, provided, however, a city within the Orange County Sanitation
District, the sewered portion of which city lies entirely within
another sanitary district, shall have no representation on the board.
(2) One member of the county board of supervisors.
(3) One member of the governing body of each sanitary district,
the whole or part of which is included in the Orange County
Sanitation District.
(4) One member of the governing body of a public agency empowered
to and engaged in the collection, transportation, treatment, or
disposal of sewage and which that was a
member agency of a sanitation district consolidated into the Orange
County Sanitation District.
(5) One member of the governing body of the Yorba Linda Water
District.
(b) The governing body of the county and each city, sanitary
district, and public agency that is a member agency having a
representative on the board of directors of the Orange County
Sanitation District, may designate one of its members to act in the
place of its regular member in his or her absence or his or her
inability to act.
(c) No An action shall not
be taken at any meeting of the Orange County Sanitation District's
board of directors unless a majority of all authorized members of the
board of directors is in attendance.
(d) A majority of the members of the board of directors present
shall be is required to approve or
otherwise act on any matter except as otherwise required by law.
SEC. 298. Section 4766.5 of the Health and Safety Code, as added
by Section 21 of Chapter 158 of the Statutes of 2005, is amended and
renumbered to read:
4766.5. 4766.7. A district may
destroy a record pursuant to Chapter 7 (commencing with Section
60200) of Division 1 of Title 6 of the Government Code.
SEC. 299. Section 8650.5 of the Health and Safety Code, as added
by Section 36 of Chapter 436 of the Statutes of 2001, is repealed.
8650.5. An affidavit executed by a person who is the owner of the
plot by virtue of the laws of intestate succession or by his or her
attorney-in-fact, setting forth the fact of the death of the owner,
the absence of a disposition of the plot by the owner in his or her
will by a specific devise, the name of the person or persons who have
rights to the plot under the intestate succession laws of the state,
and the consent of that person or those persons to the sale of the
plot by the cemetery authority, shall constitute complete
authorization to the cemetery authority to permit any sale of the
unoccupied portions of the plot.
SEC. 300. The heading of Article 3 (commencing with Section 11140)
of Chapter 3 of Division 10 of the Health and Safety Code is
repealed.
Article 3. Registration of Dealers and Users of Piperidine
SEC. 301. The heading of Article 2 (commencing with Section
11760.5) of Chapter 1 of Part 2 of Division 10.5 of the Health and
Safety Code, as added by Chapter 679 of the Statutes of 1979, is
repealed.
Article 2. Definitions
SEC. 302. The heading of Article 6 (commencing with Section 11780)
of Chapter 2 of Part 2 of Division 10.5 of the Health and Safety
Code is repealed.
Article 6. State Advisory Board
SEC. 303. Division 10.10 (commencing with Section 11999.30) of the
Health and Safety Code is repealed.
SEC. 304. Section 13143.5 of the Health and Safety Code, as added
by Chapter 1204 of the Statutes of 1973, is amended and renumbered to
read:
13143.5. 13143.3 Neither
the The State Fire Marshal nor
or any local public entity shall not
charge any fee for enforcing the provisions of Section 13143 or
regulations adopted pursuant thereto with respect to facilities
providing nonmedical board, room, and care for six or less children
which are required to be licensed under the provisions of Chapter 2
(commencing with Section 1250) of Division 2.
SEC. 305. The heading of Chapter 3 (commencing with Section 16500)
of Division 12.5 of the Health and Safety Code, as added by Section
2 of Chapter 953 of the Statutes of 1989, is amended and renumbered
to read:
CHAPTER 3. 3.5. SCHOOL BUILDINGS
SEC. 306. Section 16500 of the Health and Safety Code is amended
to read:
16500. The office of the State Architect shall
adopt guidelines applicable to substandard conditions of school
buildings, as defined in Section 17283 of the Education Code, which
guidelines shall take into consideration the unique design, use,
safety needs, and construction of the school buildings.
SEC. 307. The heading of Article 5.5 (commencing with Section
25159.10) of Chapter 6.5 of Division 20 of the Health and Safety
Code, as added by Section 1 of Chapter 1591 of the Statutes of 1985,
is amended and renumbered to read:
Article 5.5. 5.6. The Toxic
Injection Well Control Act of 1985
SEC. 308. Section 25163.3 of the Health and Safety Code is amended
to read:
25163.3. A person who initially collects hazardous waste at a
remote site and transports that hazardous waste to a consolidation
site operated by the generator and who complies with the notification
requirements of subdivision (d) of Section 25110.10 shall be exempt
from the manifest and transporter registration requirements of
Sections 25160 and 25163 with regard to the hazardous waste if all of
the following conditions are met:
(a) The hazardous waste is a non-RCRA hazardous waste, or the
hazardous waste or its transportation is otherwise exempt from, or is
not otherwise regulated pursuant to, the federal act.
(b) The conditions and requirements of Section 25121.3 are met.
(c) The regulations adopted by the department pertaining to
personnel training requirements for generators are complied with for
all personnel handling the hazardous waste during transportation from
the remote site to the consolidation site.
(d) The hazardous waste is transported by employees of the
generator or by trained contractors under the control of the
generator, in vehicles that are under the control of the generator,
or by registered hazardous waste transporters. The generator shall
assume liability for a spill of hazardous waste being transported
under this section by the generator, or a contractor in a vehicle
under the control of the generator or contractor. Nothing in
this This subdivision bars
does not bar any agreement to insure, hold harmless, or
indemnify a party to the agreement for any liability under this
section or otherwise bars any cause of action a generator would
otherwise have against any other party.
(e) The hazardous waste is not held at any interim location, other
than another remote site operated by the same generator, for more
than eight hours, unless that holding is required by other provisions
of law.
(f) Not more than 275 gallons or 2,500 pounds, whichever is
greater, of hazardous waste is transported in any single shipment,
except for the following:
(1) A generator who is a public utility, local publicly owned
utility, or municipal utility district may transport up to 1,600
gallons of hazardous wastewater from the dewatering of one or more
utility vaults, or up to 500 gallons of another liquid hazardous
waste in a single shipment.
(2) A generator who is a public utility, local publicly owned
utility, or municipal utility district may transport up to 5,000
gallons of mineral oil from a transformer, circuit breakers, or
capacitors, owned by the generator, in a single shipment if the oil
does not exhibit the characteristic of toxicity pursuant to the test
specified in subparagraph (B) of paragraph (2) of subdivision (a) of
Section 66261.24 of Title 22 of the California Code of Regulations.
(3) (A) A generator who is a public utility, local publicly owned
utility, or municipal utility district may transport up to 5,000
gallons of hazardous wastewater from the dewatering of a utility
vault in an emergency situation.
(B) For the purposes of this paragraph "emergency situation" means
that utility vault dewatering necessitates immediate response to
avoid endangerment to human health, public safety, or the
environment, under one or more of the following circumstances:
(i) A vehicle hits a utility pole or stationary utility equipment
and knocks down a transformer that spills oil on a public area.
(ii) A spill occurs at or near a vault rendering the contents
potentially hazardous and crews need to remove the liquid to
decontaminate the vault and to access critical equipment to avoid a
service outage.
(iii) A spill occurs at or near a vault that renders the contents
potentially hazardous and rainwater flowing into the vault threatens
to cause an overflow that will spill into the surrounding area.
(iv) Groundwater intrusion threatens the electrical equipment
inside the vault and the reliability of the electrical system.
(v) Heavy rain events, due to the rate of rainfall,
threatens threaten the cables and equipment
inside the vault.
(C) In transporting hazardous waste pursuant to this paragraph,
the generator shall only collect hazardous waste from one utility
vault and shall not consolidate hazardous waste from multiple sites.
(g) A shipping paper containing all of the following information
accompanies the hazardous waste while in transport, except as
provided in subdivision (h):
(1) A list of the hazardous wastes being transported.
(2) The type and number of containers being used to transport each
type of hazardous waste.
(3) The quantity, by weight or volume, of each type of hazardous
waste being transported.
(4) The physical state, such as solid, powder, liquid, semiliquid,
or gas, of each type of hazardous waste being transported.
(5) The location of the remote site where the hazardous waste is
initially collected.
(6) The location of any interim site where the hazardous waste is
held en route to the consolidation site.
(7) The name, address, and telephone number of the generator, and,
if different, the address and telephone number of the consolidation
site to which the hazardous waste is being transported.
(8) The name and telephone number of an emergency response
contact, for use in the event of a spill or other release.
(9) The name of the individual or individuals who transport the
hazardous waste from the remote site to the consolidation site.
(10) The date that the generator first begins to actively manage
the hazardous waste at the remote site, the date that the shipment
leaves the remote site where the hazardous waste is initially
collected, and the date that the shipment arrives at the
consolidation site.
(h) A shipping paper is not required if the total quantity of the
shipment does not exceed 10 pounds of hazardous waste, except that a
shipping paper is required to transport any quantity of extremely or
acutely hazardous waste.
(i) All shipments conform with all applicable requirements of the
United States Department of Transportation for hazardous materials
shipments.
SEC. 309. Section 25262 of the Health and Safety Code is amended
to read:
25262. (a) A responsible party for a hazardous materials release
site may request the committee at any time to designate an
administering agency to oversee a site investigation and remedial
action at the site. The committee shall designate an administering
agency as responsible for the site within 45 days of the date the
request is received. A request to designate an administering agency
may be denied only if the committee makes one of the following
findings:
(1) No single agency in state or local government has the
expertise needed to adequately oversee a site investigation and
remedial action at the site.
(2) Designating an administering agency will have the effect of
reversing a regulatory or enforcement action initiated by an agency
that has jurisdiction over the site, a facility on the site, or an
activity at the site.
(3) Designating an administering agency will prevent a regulatory
or enforcement action required by federal law or regulations.
(4) The administering agency and the responsible party are local
agencies formed, in whole or in part, by the same political
subdivision.
(b) A responsible party who requests the designation of an
administering agency for a hazardous materials release site shall
provide the committee with a brief description of the site, an
analysis of the known or suspected nature of the release or
threatened release that is the subject of required site investigation
or remedial action, a description of the type of facility from which
the release occurred or the type of activity that caused the
release, a specification of the regulatory or enforcement actions
that have been taken, or are pending, with respect to the release,
and a statement of which agency the responsible party believes should
be designated as administering agency for the site.
(c) (1) The committee shall take all of the following factors
into account in determining which agency to designate as
administering agency for a site:
(A) The type of release that is the subject of site investigation
and remedial action.
(B) The nature of the threat that the release poses to human
health and safety or to the environment.
(C) The source of the release, the type of facility or activity
from which the release occurred, the regulatory programs that govern
the facility or activity involved, and the agency or agencies that
administer those regulatory programs.
(D) The regulatory history of the site, the types of regulatory
actions or enforcement actions that have been taken with respect to
the site or the facility or activity from which the release occurred,
and the experience and involvement that various agencies have had
with the site.
(E) The capabilities and expertise of the agencies that are
candidates for designation as the administering agency for the site
and the degree to which those capabilities and that expertise are
applicable to the type of release at the site, the nature of the
threat that the release poses to health and safety or the environment
and the probable remedial measures that will be required.
(2) After weighing the factors described in paragraph (1) as they
apply to the site, the committee shall use the criteria specified in
subparagraphs (A), (B), (C), and (D) as guidelines for designating
the administering agency. If more than one of the criteria apply to
the site, the committee shall use its best judgment, taking into
account the known facts concerning the hazardous materials release at
the site and its regulatory history, in determining which agency may
best serve as the administering agency. The criteria are as follows:
(A) The administering agency shall be the Department of Toxic
Substances Control if one of the following applies:
(i) The department has issued an order, or otherwise initiated
action, with respect to the release at the site pursuant to Section
25355, 25355.5, or 25358.3.
(ii) The department has issued an order for corrective action at
the site pursuant to Section 25187.
(iii) The source of the release is a facility or hazardous waste
management unit or an activity that is, or was, regulated by the
department pursuant to Chapter 6.5 (commencing with Section 25100).
(iv) The department is conducting, or has conducted, oversight of
the site investigation and remedial action at the site at the
request of the responsible party.
(B) The administering agency shall be the California regional
water quality control board for the region in which the site is
located, if one of the following applies:
(i) The California regional water quality control board has
issued a cease and desist order pursuant to Section 13301, or a
cleanup and abatement order pursuant to Section 13304 of the Water
Code in connection with the release at the site.
(ii) The source of the release is a facility or an activity that
is subject to waste discharge requirements issued by the California
regional water quality control board pursuant to Section 13263 of the
Water Code or that is regulated by the California regional water
quality control board pursuant to Article 5.5
5.6 (commencing with Section 25159.10) of, or Article 9.5
(commencing with Section 25208) of, Chapter 6.5, or pursuant to
Chapter 6.67 (commencing with Section 25270).
(iii) The California regional water quality control board has
jurisdiction over the site pursuant to Chapter 5.6 (commencing with
Section 13390) of Division 7 of the Water Code.
(C) The administering agency shall be the Department of Fish and
Game if the release has polluted or contaminated the waters of the
state and the department has taken action against the responsible
party pursuant to Section 2014 or 12015 of, or Article 1 (commencing
with Section 5650) of Chapter 2 of Part 1 of Division 6 of, the Fish
and Game Code, subsection (f) of Section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended,
(42 U.S.C. Sec. 9607 (f)), or Section 311 of the Federal Water
Pollution Act, as amended (33 U.S.C. Sec. 1321).
(D) The administering agency shall be a local agency if any one
of the following circumstances is applicable:
(i) The source of the release at the site is an underground
storage tank, as defined in subdivision (y) of Section 25281, the
local agency is the agency described in subdivision (i) of Section
25281, and there is no evidence of any extensive groundwater
contamination at the site.
(ii) The local agency has accepted responsibility for overseeing
the site investigation or remedial action at the site and a state
agency is not involved.
(iii) The local agency has agreed to oversee the site
investigation or remedial action at the site and is certified, or has
been approved, by a state agency to conduct that oversight.
(d) A responsible party for a hazardous materials release site
may request the designation of an administering agency for the site
pursuant to this section only once. The action of the committee on
the request is a final action and is not subject to further
administrative or judicial review.
SEC. 310. The heading of Article 8 (commencing with Section
25299.80) of Chapter 6.75 of Division 20 of the Health and Safety
Code is repealed.
Article 8. Long-Term Study
SEC. 311. The heading of Article 12 (commencing with Section
25299.97) of Chapter 6.75 of Division 20 of the Health and Safety
Code, as added by Section 7 of Chapter 814 of the Statutes of 1997,
is repealed.
Article 12. Drinking Water Well Protection
SEC. 312. Section 25299.97 of the Health and Safety Code, as
amended by Section 134 of Chapter 745 of the Statutes of 2001, is
repealed.
25299.97. (a) For the purposes of this article, the following
definitions shall apply:
(1) "Public drinking water well" means a wellhead that provides
drinking water to a public water system, as that term is defined in
Section 116275, that is regulated by the State Department of Health
Services and that is subject to Section 116455.
(2) "MTBE" means methyl tertiary-butyl ether.
(3) "GIS mapping system" means a geographic information system
that collects, stores, retrieves, analyzes, and displays
environmental geographic data in a data base that is accessible to
the public.
(4) "Motor vehicle fuel" includes gasoline, natural gasoline,
blends of gasoline and alcohol or gasoline and oxygenates and any
inflammable liquid, by whatever name the liquid may be known or sold,
which is used or usable for propelling motor vehicles operated by
the explosion type engine. It does not include kerosine, liquefied
petroleum gas, or natural gas, in liquid or gaseous form.
(5) "Oxygenated motor vehicle fuel" is motor vehicle fuel, as
defined in paragraph (4), that meets the federal definition for
"Oxygenated Fuel" as defined in Section 7545(m) of Title 42 of the
United States Code.
(6) "Oxygenate" means an organic compound containing oxygen that
has been approved by the United States Environmental Protection
Agency as a gasoline additive to meet the requirements for an
"oxygenated fuel" pursuant to Section 7545 of Title 42 of the United
States Code.
(b) The State Water Resources Control Board shall upgrade the data
base created by Section 25299.39.1. This upgrade shall include the
establishment of a statewide GIS mapping system as described in this
section only upon an appropriation by the Legislature for this
purpose.
(c) (1) For purposes of subdivision (b), the board shall create a
GIS Mapping and Data Management Advisory Committee. The committee
shall give the board advice on location standards, protocols,
metadata, and the appropriate data to expand the data base to create
a cost-effective GIS mapping system that will provide the appropriate
information to allow agencies to better protect public drinking
water wells and, if feasible, nearby aquifers that are reasonably
expected to be used as drinking water, from contamination by motor
vehicle fuel from underground storage tanks and intrastate and
interstate pipelines that are regulated by the State Fire Marshal
pursuant to the California Pipeline Safety Act of 1981, Chapter 5.5
(commencing with Section 51010.5) of Part 1 of Division 1 of Title 5
of the Government Code.
(2) The advisory committee shall include, at a minimum, members
from appropriate state and local agencies, affected industry and
business, the water agencies that provide drinking water in Santa
Monica, the water agencies that provide drinking water in the Santa
Clara Valley, nonprofit environmental groups dedicated to the
conservation and preservation of natural resources, and underground
storage tank owners.
(d) (1) The board shall create two pilot projects, the Santa
Monica Groundwater Pilot Project and the Santa Clara Valley
Groundwater Pilot Project, which shall terminate on July 1, 1999.
(2) The board shall create the pilot projects with the advice of
the advisory committee so as to expedite and prioritize the upgrading
of the data base for those regions of the state where groundwater
provides, or would be called on in an emergency to provide, a
significant portion of the region's drinking water.
(3) The board shall use the pilot projects to define and assess
the parameters of the data base, identify data needs, develop
opportunities to electronically link data bases and electronic
submission of information, offer access to the public via the
Internet, streamline existing processes, and work out the details for
data management and a GIS mapping system as described in this
article.
(4) The pilot projects shall study appropriate modification to
public water systems and response times.
(e) To upgrade the data base as required by this section, the
board, in consultation with the advisory committee, shall do all of
the following:
(1) Coordinate with the Department of Water Resources and the
State Department of Health Services to obtain the location of
existing drinking water wells and appropriate water resource and
quality data to meet the requirements of this article.
(2) Coordinate with local agencies authorized to implement this
chapter to obtain the location of all underground storage tanks that
store motor vehicle fuel that are within 1,000 feet of a public
drinking water well.
(3) Coordinate with local agencies authorized to implement this
chapter to add the location of all known releases of motor vehicle
fuel from underground storage tanks that are within 1,000 feet of a
drinking water well.
(4) Coordinate with the State Fire Marshal to add the location and
leak history of all pipelines or segments of pipelines that
transport motor vehicle fuel and that are regulated by the State Fire
Marshal pursuant to Chapter 5.5 (commencing with Section 51010) of
Part 1 of Division 1 of Title 5 of the Government Code that are
within 1,000 feet of an existing public drinking water well.
(f) The board may expend up to four hundred thousand dollars
($400,000) from the Underground Storage Tank Cleanup Fund for the
purposes set forth in Section 25299.36 to fund the GIS mapping system
projects referred to in this section.
SEC. 313. Section 25299.97 of the Health and Safety Code, as
amended by Section 135 of Chapter 745 of the Statutes of 2001, is
amended to read:
25299.97. (a) For the purposes of this article, the following
definitions shall apply:
(1) "Public drinking water well" means a wellhead that provides
drinking water to a public water system, as that term is defined in
Section 116275, that is regulated by the State Department of
Health Services Water Resources Control Board
and that is subject to Section 116455.
(2) "MTBE" means methyl tertiary-butyl ether.
(3) "GIS mapping system" means a geographic information system
that collects, stores, retrieves, analyzes, and displays
environmental geographic data in a data base that is accessible to
the public.
(4) "Motor vehicle fuel" includes gasoline, natural gasoline,
blends of gasoline and alcohol or gasoline and oxygenates
oxygenates, and any inflammable liquid, by
whatever name the liquid may be known or sold, which
that is used or usable for propelling motor
vehicles operated by the explosion type engine. It does not include
kerosine, liquefied petroleum gas, or natural gas, in liquid or
gaseous form.
(5) "Oxygenated motor vehicle fuel" is motor vehicle fuel, as
defined in paragraph (4), that meets the federal definition for
"Oxygenated Fuel" as defined fuel
" in Section 7545(m) of Title 42 of the United States Code.
(6) "Oxygenate" means an organic compound containing oxygen that
has been approved by the United States Environmental Protection
Agency as a gasoline additive to meet the requirements for an
"oxygenated fuel" pursuant to Section 7545 of Title 42 of the United
States Code.
(b) The State Water Resources Control Board shall upgrade the data
base created by Section 25299.39.1.
25296.35. This upgrade shall include the establishment of a
statewide GIS mapping system as described in this section only upon
an appropriation by the Legislature for this purpose.
(c) (1) For purposes of subdivision (b), the board shall create a
GIS Mapping and Data Management Advisory Committee. The committee
shall give the board advice on location standards, protocols,
metadata, and the appropriate data to expand the data base to create
a cost-effective GIS mapping system that will provide the appropriate
information to allow agencies to better protect public drinking
water wells and, if feasible, nearby aquifers that are reasonably
expected to be used as drinking water, from contamination by motor
vehicle fuel from underground storage tanks and intrastate and
interstate pipelines that are regulated by the State Fire Marshal
pursuant to the California Pipeline Safety Act of 1981, Chapter 5.5
(commencing with Section 51010.5) of Part 1 of Division 1 of Title 5
of the Government Code.
(2) The advisory committee shall include, at a minimum, members
from appropriate state and local agencies, affected industry and
business, the water agencies that provide drinking water in Santa
Monica, the water agencies that provide drinking water in the Santa
Clara Valley, nonprofit environmental groups dedicated to the
conservation and preservation of natural resources, and underground
storage tank owners.
(d) (1) The board shall create two pilot projects, the Santa
Monica Groundwater Pilot Project and the Santa Clara Valley
Groundwater Pilot Project, which shall terminate on July 1, 1999.
(2) The board shall create the pilot projects with the advice of
the advisory committee so as to expedite and prioritize the upgrading
of the data base for those regions of the state where groundwater
provides, or would be called on in an emergency to provide, a
significant portion of the region's drinking water.
(3) The board shall use the pilot projects to define and assess
the parameters of the data base, identify data needs, develop
opportunities to electronically link data bases and electronic
submission of information, offer access to the public via the
Internet, streamline existing processes, and work out the details for
data management and a GIS mapping system as described in this
article.
(4) The pilot project projects shall
study appropriate notification to public water systems and response
times.
(e) To upgrade the data base as required by this section, the
board, in consultation with the advisory committee, shall do all of
the following:
(1) Coordinate with the Department of Water Resources and the
State Department of Public Health Services
to obtain the location of existing drinking water wells and
appropriate water resource and quality data to meet the requirements
of this article.
(2) Coordinate with local agencies authorized to implement this
chapter to obtain the location of all underground storage tanks that
store motor vehicle fuel that are within 1,000 feet of a public
drinking water well.
(3) Coordinate with local agencies authorized to implement this
chapter to add the location of all known releases of motor vehicle
fuel from underground storage tanks that are within 1,000 feet of a
drinking water well.
(4) Coordinate with the State Fire Marshal to add the location and
leak history of all pipelines or segments of pipelines that
transport motor vehicle fuel and that are regulated by the State Fire
Marshal pursuant to Chapter 5.5 (commencing with Section 51010) of
Part 1 of Division 1 of Title 5 of the Government Code that are
within 1,000 feet of an existing public drinking water well.
(f) The board may expend up to four hundred thousand dollars
($400,000) from the Underground Storage Tank Cleanup Fund for the
purposes set forth in Section 25299.36 to fund the GIS mapping system
projects referred to in this section.
SEC. 314. Section 25507.2 of the Health and Safety Code is amended
to read:
25507.2. Unless otherwise required by a local
ordinance, the unified program agency shall exempt a business
operating an unstaffed facility located at least one-half mile from
the nearest occupied structure from Sections 25508.2 and 25511, and
shall subject the business to Sections 25505, 25506, and 25507 only
as specified in this section, if the business is not otherwise
subject to the requirements of applicable federal law, and all of the
following requirements are met:
(a) The types and quantities of materials onsite are limited to
one or more of the following:
(1) One thousand standard cubic feet of compressed inert gases
(asphyxiation and pressure hazards only).
(2) Five hundred gallons of combustible liquid used as a fuel
source.
(3) Corrosive liquids, not to exceed 500 pounds of extremely
hazardous substances, used as electrolytes, and in closed containers.
(4) Five hundred gallons of lubricating and hydraulic fluids.
(5) One thousand two hundred gallons of hydrocarbon gas used as a
fuel source.
(6) Any quantity of mineral oil contained within electrical
equipment, such as transformers, bushings, electrical switches, and
voltage regulators, if the spill prevention control and
countermeasure plan has been prepared for quantities that meet or
exceed 1,320 gallons.
(b) The facility is secured and not accessible to the public.
(c) Warning signs are posted and maintained for hazardous
materials pursuant to the California Fire Code.
(d) (1) Notwithstanding Sections 25505 and 25507, a one-time
business plan, except for the emergency response plan and training
elements specified in paragraphs (3) and (4) of subdivision (a) of
Section 25505, is submitted to the statewide information management
system. This one-time business plan submittal is subject to a
verification inspection by the unified program agency and the unified
program agency may assess a fee not to exceed the actual costs of
processing and for inspection, if an inspection is conducted.
(2) If the information contained in the one-time submittal of the
business plan changes and the time period of the change is longer
than 30 days, the business plan shall be resubmitted within 30 days
to the statewide information management system to reflect any change
in the business plan. A fee not to exceed the actual costs of
processing and inspection, if conducted, may be assessed by the
unified program agency.
SEC. 315. Section 25997 of the Health and Safety Code, as added by
Section 1 of Chapter 51 of the Statutes of 2010, is amended and
renumbered to read:
25997. 25996.1. Any
A person who violates 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
that fine and imprisonment.
SEC. 316. Section 25997.1 of the Health and Safety Code is amended
and renumbered to read:
25997.1. 25996.3. The provisions of
this chapter are in addition to, and not in lieu of, any other laws
protecting animal welfare, including the Penal Code. This chapter
shall not be construed to limit any state law or regulation
protecting the welfare of animals, nor shall anything in this chapter
prevent a local governing body from adopting and enforcing its own
animal welfare laws and regulations.
SEC. 317. Section 33492.78 of the Health and Safety Code is
amended to read:
33492.78. (a) Section 33607.5 shall does
not apply to an agency created pursuant to this article. For
purposes of Sections 42238.02, 84750.5, and 84751 of the Education
Code, funds allocated pursuant to this section shall be treated as if
they were allocated pursuant to Section 33607.5.
(1) This section shall apply applies
to each redevelopment project area created pursuant to a
redevelopment plan that contains the provisions required by Section
33670 and is created pursuant to this article. All the amounts
calculated pursuant to this section shall be calculated after the
amount required to be deposited in the Low and Moderate Income
Housing Fund pursuant to Sections 33334.2, 33334.3, and 33334.6, as
modified by Section 33492.76, has been deducted from the total amount
of tax-increment funds received by the agency in the applicable
fiscal year.
(2) The payments made pursuant to this section shall be
are in addition to any amounts the school
district or districts and community college district or districts
receive pursuant to subdivision (a) of Section 33670. The agency
shall reduce its payments pursuant to this section to an affected
school or community college district by any amount the agency has
paid, directly or indirectly, pursuant to Section 33445, 33445.5, or
33446, or any provision of law other than this section for, or in
connection with, a public facility owned or leased by that affected
school or community college district.
(3) (A) Of the total amount paid each year pursuant to this
section to school districts, 43.9 percent shall be considered to be
property taxes for the purposes of paragraph (1) of subdivision (j)
of Section 42238.02 of the Education Code, and 56.1 percent shall not
be considered to be property taxes for the purposes of that section,
and shall be available to be used for educational facilities.
(B) Of the total amount paid each year pursuant to this section to
community college districts, 47.5 percent shall be considered to be
property taxes for the purposes of Section 84751 of the Education
Code, and 52.5 percent shall not be considered to be property taxes
for the purposes of that section, and shall be available to be used
for educational facilities.
(C) Of the total amount paid each year pursuant to this section to
county offices of education, 19 percent shall be considered to be
property taxes for the purposes of paragraph (1) of subdivision (c)
of Section 2575 of the Education Code, and 81 percent shall not be
considered to be property taxes for the purposes of that section, and
shall be available to be used for educational facilities.
(D) Of the total amount paid each year pursuant to this section to
special education, 19 percent shall be considered to be property
taxes for the purposes of paragraph (1) of subdivision (j) of Section
42238.02 of the Education Code, and 81 percent shall not be
considered to be property taxes for the purposes of that section, and
shall be available to be used for educational facilities.
(4) Local
education educational agencies that use funds
received pursuant to this section for educational facilities shall
spend these funds at schools that are any one of the following:
(A) Within the project area.
(B) Attended by students from the project area.
(C) Attended by students generated by projects that are assisted
directly by the redevelopment agency.
(D) Determined by a local education
educational agency to be of benefit to the project area.
(b) Commencing with the first fiscal year in which the agency
receives tax increments, and continuing through the last fiscal year
in which the agency receives tax increments, a redevelopment agency
created pursuant to this article shall pay to each affected school
and community college district an amount equal to the product of 25
percent times the percentage share of total property taxes collected
that are allocated to each affected school or community college
district, including any amount allocated to each district pursuant to
Sections 97.03 and 97.035 of the Revenue and Taxation Code times the
total of the tax increments received by the agency after the amount
required to be deposited in the Low and Moderate Income Housing Fund
has been deducted.
(c) Commencing with the 11th fiscal year in which the agency
receives tax increments and continuing through the last fiscal year
in which the agency receives tax increments, a redevelopment agency
created pursuant to this article shall pay to each affected school
and community college district, in addition to the amounts paid
pursuant to subdivision (b), an amount equal to the product of 21
percent times the percentage share of total property taxes collected
that are allocated to each affected school or community college
district, including any amount allocated to each district pursuant to
Sections 97.03 and 97.035 of the Revenue and Taxation Code times the
total of the first adjusted tax increments received by the agency
after the amount required to be deposited in the Low and Moderate
Income Housing Fund has been deducted. The first adjusted tax
increments received by the agency shall be calculated by applying the
tax rate against the amount of assessed value by which the current
year assessed value exceeds the first adjusted base year assessed
value. The first adjusted base year assessed value is the assessed
value of the project area in the 10th fiscal year in which the agency
receives tax increment.
(d) Commencing with the 31st fiscal year in which the agency
receives tax increments and continuing through the last fiscal year
in which the agency receives tax increments, a redevelopment agency
shall pay to the affected school and community college districts, in
addition to the amounts paid pursuant to subdivisions (b) and (c), an
amount equal to 14 percent times the percentage share of total
property taxes collected that are allocated to each affected school
or community college district, including any amount allocated to each
district pursuant to Sections 97.03 and 97.035 of the Revenue and
Taxation Code times the total of the second adjusted tax increments
received by the agency after the amount required to be deposited in
the Low and Moderate Income Housing Fund has been deducted. The
second adjusted tax increments received by the agency shall be
calculated by applying the tax rate against the amount of assessed
value by which the current year assessed value exceeds the second
adjusted base year assessed value. The second adjusted base year
assessed value is the assessed value of the project area in the 30th
fiscal year in which the agency receives tax increments.
(e) (1) The Legislature finds and declares both of the following:
(A) The payments made pursuant to this section are necessary in
order to alleviate the financial burden and detriment that affected
school and community college districts may incur as a result of the
adoption of a redevelopment plan, and payments made pursuant to this
section will benefit redevelopment project areas.
(B) The payments made pursuant to this section are the exclusive
payments that are required to be made by a redevelopment agency to
affected school and community college districts during the term of a
redevelopment plan.
(2) Notwithstanding any other provision of law,
a redevelopment agency shall not be required, either directly or
indirectly, as a measure to mitigate a significant environmental
effect or as part of any settlement agreement or judgment brought in
any action to contest the validity of a redevelopment plan pursuant
to Section 33501, to make any other payments to affected school or
community college districts, or to pay for public facilities that
will be owned or leased to an affected school or community college
district.
(f) As used in this section, a "local education
educational agency" includes a school district, a
community college district, or a county office of education.
SEC. 318. Section 34177 of the Health and Safety Code is amended
to read:
34177. Successor agencies are required to do all of the
following:
(a) Continue to make payments due for enforceable obligations.
(1) On and after February 1, 2012, and until a Recognized
Obligation Payment Schedule becomes operative, only payments required
pursuant to an enforceable obligations payment schedule shall be
made. The initial enforceable obligation payment schedule shall be
the last schedule adopted by the redevelopment agency under Section
34169. However, payments associated with obligations excluded from
the definition of enforceable obligations by paragraph (2) of
subdivision (d) of Section 34171 shall be excluded from the
enforceable obligations payment schedule and be removed from the last
schedule adopted by the redevelopment agency under Section 34169
prior to the successor agency adopting it as its enforceable
obligations payment schedule pursuant to this subdivision. The
enforceable obligation payment schedule may be amended by the
successor agency at any public meeting and shall be subject to the
approval of the oversight board as soon as the board has sufficient
members to form a quorum. In recognition of the fact that the timing
of the California Supreme Court's ruling in the case California
Redevelopment Association v. Matosantos (2011) 53 Cal.4th 231 delayed
the preparation by successor agencies and the approval by oversight
boards of the January 1, 2012, through June 30, 2012, Recognized
Obligation Payment Schedule, a successor agency may amend the
Enforceable Obligation Payment Schedule to authorize the continued
payment of enforceable obligations until the time that the January 1,
2012, through June 30, 2012, Recognized Obligation Payment Schedule
has been approved by the oversight board and by the Department of
Finance. The successor agency may utilize reasonable estimates and
projections to support payment amounts for enforceable obligations if
the successor agency submits appropriate supporting documentation of
the basis for the estimate or projection to the Department of
Finance and the auditor-controller.
(2) The Department of Finance and the Controller shall each have
the authority to require any documents associated with the
enforceable obligations to be provided to them in a manner of their
choosing. Any taxing entity, the department, and the Controller shall
each have standing to file a judicial action to prevent a violation
under this part and to obtain injunctive or other appropriate relief.
(3) Commencing on the date the Recognized Obligation Payment
Schedule is valid pursuant to subdivision (l), only those payments
listed in the Recognized Obligation Payment Schedule may be made by
the successor agency from the funds specified in the Recognized
Obligation Payment Schedule. In addition, after it becomes valid, the
Recognized Obligation Payment Schedule shall supersede the Statement
of Indebtedness, which shall no longer be prepared nor have any
effect under the Community Redevelopment Law (Part 1 (commencing with
Section 33000)).
(4) Nothing in the The act adding
this part is to shall not be construed
as preventing a successor agency, with the prior approval of the
oversight board, as described in Section 34179, from making payments
for enforceable obligations from sources other than those listed in
the Recognized Obligation Payment Schedule.
(5) From February 1, 2012, to July 1, 2012, a successor agency
shall have no does not have authority
and is hereby prohibited from accelerating payment or making any
lump-sum payments that are intended to prepay loans unless
such the accelerated repayments were required
prior to the effective date of this part.
(b) Maintain reserves in the amount required by indentures, trust
indentures, or similar documents governing the issuance of
outstanding redevelopment agency bonds.
(c) Perform obligations required pursuant to any enforceable
obligation.
(d) Remit unencumbered balances of redevelopment agency funds to
the county auditor-controller for distribution to the taxing
entities, including, but not limited to, the unencumbered balance of
the Low and Moderate Income Housing Fund of a former redevelopment
agency. In making the distribution, the county auditor-controller
shall utilize the same methodology for allocation and distribution of
property tax revenues provided in Section 34188.
(e) Dispose of assets and properties of the former redevelopment
agency as directed by the oversight board; provided, however, that
the oversight board may instead direct the successor agency to
transfer ownership of certain assets pursuant to subdivision (a) of
Section 34181. The disposal is to be done expeditiously and in a
manner aimed at maximizing value. Proceeds from asset sales and
related funds that are no longer needed for approved development
projects or to otherwise wind down the affairs of the agency, each as
determined by the oversight board, shall be transferred to the
county auditor-controller for distribution as property tax proceeds
under Section 34188. The requirements of this subdivision
shall do not apply to a successor agency that
has been issued a finding of completion by the Department of Finance
pursuant to Section 34179.7.
(f) Enforce all former redevelopment agency rights for the benefit
of the taxing entities, including, but not limited to, continuing to
collect loans, rents, and other revenues that were due to the
redevelopment agency.
(g) Effectuate transfer of housing functions and assets to the
appropriate entity designated pursuant to Section 34176.
(h) Expeditiously wind down the affairs of the redevelopment
agency pursuant to the provisions of this part and in accordance with
the direction of the oversight board.
(i) Continue to oversee development of properties until the
contracted work has been completed or the contractual obligations of
the former redevelopment agency can be transferred to other parties.
Bond proceeds shall be used for the purposes for which bonds were
sold unless the purposes can no longer be achieved, in which case,
the proceeds may be used to defease the bonds.
(j) Prepare a proposed administrative budget and submit it to the
oversight board for its approval. The proposed administrative budget
shall include all of the following:
(1) Estimated amounts for successor agency administrative costs
for the upcoming six-month fiscal period.
(2) Proposed sources of payment for the costs identified in
paragraph (1).
(3) Proposals for arrangements for administrative and operations
services provided by a city, county, city and county, or other
entity.
(k) Provide administrative cost estimates, from its approved
administrative budget that are to be paid from property tax revenues
deposited in the Redevelopment Property Tax Trust Fund, to the county
auditor-controller for each six-month fiscal period.
(l) (1) Before each six-month fiscal period, prepare a Recognized
Obligation Payment Schedule in accordance with the requirements of
this paragraph. For each recognized obligation, the Recognized
Obligation Payment Schedule shall identify one or more of the
following sources of payment:
(A) Low and Moderate Income Housing Fund.
(B) Bond proceeds.
(C) Reserve balances.
(D) Administrative cost allowance.
(E) The Redevelopment Property Tax Trust Fund, but only to the
extent no other funding source is available or when payment from
property tax revenues is required by an enforceable obligation or by
the provisions of this part.
(F) Other revenue sources, including rents, concessions, asset
sale proceeds, interest earnings, and any other revenues derived from
the former redevelopment agency, as approved by the oversight board
in accordance with this part.
(2) A Recognized Obligation Payment Schedule shall not be deemed
valid unless all of the following conditions have been met:
(A) A Recognized Obligation Payment Schedule is prepared by the
successor agency for the enforceable obligations of the former
redevelopment agency. The initial schedule shall project the dates
and amounts of scheduled payments for each enforceable obligation for
the remainder of the time period during which the redevelopment
agency would have been authorized to obligate property tax increment
had the a redevelopment agency not been dissolved.
(B) The Recognized Obligation Payment Schedule is submitted to and
duly approved by the oversight board. The successor agency shall
submit a copy of the Recognized Obligation Payment Schedule to the
county administrative officer, the county auditor-controller, and the
Department of Finance at the same time that the successor agency
submits the Recognized Obligation Payment Schedule to the oversight
board for approval.
(C) A copy of the approved Recognized Obligation Payment Schedule
is submitted to the county auditor-controller, the Controller's
office, and the Department of Finance, and is posted on the successor
agency's Internet Web site.
(3) The Recognized Obligation Payment Schedule shall be forward
looking to the next six months. The first Recognized Obligation
Payment Schedule shall be submitted to the Controller's office and
the Department of Finance by April 15, 2012, for the period of
January 1, 2012, to June 30, 2012, inclusive. This Recognized
Obligation Payment Schedule shall include all payments made by the
former redevelopment agency between January 1, 2012, through January
31, 2012, and shall include all payments proposed to be made by the
successor agency from February 1, 2012, through June 30, 2012. Former
redevelopment agency enforceable obligation payments due, and
reasonable or necessary administrative costs due or incurred, prior
to January 1, 2012, shall be made from property tax revenues received
in the spring of 2011 property tax distribution, and from other
revenues and balances transferred to the successor agency.
(m) The Recognized Obligation Payment Schedule for the period of
January 1, 2013, to June 30, 2013, shall be submitted by the
successor agency, after approval by the oversight board, no later
than September 1, 2012. Commencing with the Recognized Obligation
Payment Schedule covering the period July 1, 2013, through December
31, 2013, successor agencies shall submit an oversight board-approved
Recognized Obligation Payment Schedule to the Department of Finance
and to the county auditor-controller no fewer than 90 days before the
date of property tax distribution. The Department of Finance shall
make its determination of the enforceable obligations and the amounts
and funding sources of the enforceable obligations no later than 45
days after the Recognized Obligation Payment Schedule is submitted.
Within five business days of the department's determination, a
successor agency may request additional review by the department and
an opportunity to meet and confer on disputed items. The meet and
confer period may vary; an untimely submittal of a Recognized
Obligation Payment Schedule may result in a meet and confer period of
less than 30 days. The department shall notify the successor agency
and the county auditor-controllers as to the outcome of its review at
least 15 days before the date of property tax distribution.
(1) The successor agency shall submit a copy of the Recognized
Obligation Payment Schedule to the Department of Finance
electronically, and the successor agency shall complete the
Recognized Obligation Payment Schedule in the manner provided for by
the department. A successor agency shall be is
in noncompliance with this paragraph if it only submits to the
department an electronic message or a letter stating that the
oversight board has approved a Recognized Obligation Payment
Schedule.
(2) If a successor agency does not submit a Recognized Obligation
Payment Schedule by the deadlines provided in this subdivision, the
city, county, or city and county that created the redevelopment
agency shall be subject to a civil penalty equal to ten thousand
dollars ($10,000) per day for every day the schedule is not submitted
to the department. The civil penalty shall be paid to the county
auditor-controller for allocation to the taxing entities under
Section 34183. If a successor agency fails to submit a Recognized
Obligation Payment Schedule by the deadline, any creditor of the
successor agency or the Department of Finance or any affected taxing
entity shall have standing to and may request a writ of mandate to
require the successor agency to immediately perform this duty. Those
actions may be filed only in the County of Sacramento and shall have
priority over other civil matters. Additionally, if an agency does
not submit a Recognized Obligation Payment Schedule within 10 days of
the deadline, the maximum administrative cost allowance for that
period shall be reduced by 25 percent.
(3) If a successor agency fails to submit to the department an
oversight board-approved Recognized Obligation Payment Schedule that
complies with all requirements of this subdivision within five
business days of the date upon which the Recognized Obligation
Payment Schedule is to be used to determine the amount of property
tax allocations, the department may determine if any amount should be
withheld by the county auditor-controller for payments for
enforceable obligations from distribution to taxing entities, pending
approval of a Recognized Obligation Payment Schedule. The county
auditor-controller shall distribute the portion of any of the sums
withheld pursuant to this paragraph to the affected taxing entities
in accordance with paragraph (4) of subdivision (a) of Section 34183
upon notice by the department that a portion of the withheld balances
are in excess of the amount of enforceable obligations. The county
auditor-controller shall distribute withheld funds to the successor
agency only in accordance with a Recognized Obligation Payment
Schedule approved by the department. County auditor-controllers shall
lack the authority to withhold any other amounts from the
allocations provided for under Section 34183 or 34188 unless required
by a court order.
(4) (A) The Recognized Obligation Payment Schedule payments
required pursuant to this subdivision may be scheduled beyond the
existing Recognized Obligation Payment Schedule cycle upon a showing
that a lender requires cash on hand beyond the Recognized Obligation
Payment Schedule cycle.
(B) When a payment is shown to be due during the Recognized
Obligation Payment Schedule period, but an invoice or other billing
document has not yet been received, the successor agency may utilize
reasonable estimates and projections to support payment amounts for
enforceable obligations if the successor agency submits appropriate
supporting documentation of the basis for the estimate or projection
to the department and the auditor-controller.
(C) A Recognized Obligation Payment Schedule may also include
appropriation of moneys from bonds subject to passage during the
Recognized Obligation Payment Schedule cycle when an enforceable
obligation requires the agency to issue the bonds and use the
proceeds to pay for project expenditures.
(n) Cause a postaudit of the financial transactions and records of
the successor agency to be made at least annually by a certified
public accountant.
SEC. 319. Section 39945 of the Health and Safety Code is amended
to read:
39945. (a) For purposes of this chapter, "unsafe tire" means any
tire considered unsafe in accordance with standard industry practices
due to tire tread wear, tread irregularity, or damage. Examples
include any tire with an exposed ply or cord, a sidewall crack, a
bulge, a knot, or a ply separation.
(b) For purposes of a regulation adopted pursuant to Division 25.5
(commencing with Section 38500) that requires an automotive service
provider to check and inflate a vehicle's tires while performing
automotive maintenance or repair service, a tire pressure gauge used
by the provider to inflate a tire pursuant to that regulation shall
be accurate within a range of plus or minus two pounds per square
inch of pressure (2 psi).
(c) An automotive service provider shall not be required to check
and inflate a vehicle's tire pursuant to subdivision (b) if that tire
is determined to be an unsafe tire.
(d) This section chapter shall remain
in effect only until January 1, 2018, and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2018, deletes or extends that date.
SEC. 320. Section 42301.16 of the Health and Safety Code is
amended to read:
42301.16. (a) In addition to complying with the requirements of
this chapter, a permit system established by a district pursuant to
Section 42300 shall ensure that any agricultural source that is
required to obtain a permit pursuant to Title I (42 U.S.C. Sec. 7401
et seq.) or Title V (42 U.S.C. Sec. 7661 et seq.) of the federal
Clean Air Act is required by district regulation to obtain a permit
in a manner that is consistent with the federal requirements.
(b) Except as provided in subdivision (c), a district shall
require an agricultural source of air pollution to obtain a permit
unless it makes all of the following findings in a public hearing:
(1) The source is subject to a permit requirement pursuant to
Section 40724.6.
(2) A permit is not necessary to impose or enforce reductions of
commissions emissions of air pollutants
that the district show shows cause or
contribute to the violation of a state or federal ambient
air quality standard.
(3) The requirement for the source or category of sources to
obtain a permit would impose a burden on those sources that is
significantly more burdensome than permits required for other similar
sources of air pollution.
(c) Prior to requiring a permit for an agricultural source of air
pollution with actual emissions that are less than one-half of any
applicable emissions threshold for a major source in the
district, district for any air contaminant, but
excluding fugitive dust, a district shall, in a public hearing, make
all of the following findings:
(1) The source is not subject to a permit requirement pursuant to
Section 40724.6.
(2) A permit is necessary to impose or enforce reductions of
emission emissions of air pollutants
that the district show shows cause or
contribute to a violation of a state or federal ambient air quality
standard.
(3) The requirement for a source or category of sources to obtain
a permit would not impose a burden on those sources that is
significantly more burdensome than permits required for other similar
sources of air pollution.
SEC. 321. Section 44246 of the Health and Safety Code is repealed.
44246. (a) For each school district that is required to submit a
trip reduction plan to the south coast district, the south coast
district shall waive any fee that would otherwise be imposed for the
submission or review of a trip reduction plan or for the submission
or review of any alternative compliance plan, and shall instead
recover that amount from the funds collected by the south coast
district pursuant to Section 44243.
(b) The south coast district shall annually calculate the amount
necessary to recover the costs of school district plan reviews, and
the Mobile Source Air Pollution Reduction Review Committee shall
allocate that amount to the south coast district from the funds
collected pursuant to subdivision (c) of Section 44243.
(c) This section shall remain in effect until January 1, 2010, or
until south coast district Rule 2202 is repealed in its entirety,
whichever first occurs, unless a later enacted statute that is
enacted before that date and before south coast district Rule 2202 is
repealed, deletes or extends that date.
SEC. 322. Section 44525.5 of the Health and Safety Code is
repealed.
44525.5. (a) The authority may also charge reasonable application
and project fees to reimburse the authority for costs incurred in
administering applications for grants and loans authorized by
subdivision (e) of Section 44526.
(b) This section shall not become operative if Senate Bill 1986 of
the 1999-2000 Regular Session is enacted after Assembly Bill 779 of
the 1999-2000 Regular Session and adds subdivision (g) to Section
44526.
SEC. 323. Section 44525.7 of the Health and Safety Code, as
amended by Section 11 of Chapter 643 of the Statutes of 2009, is
repealed.
44525.7. Commencing in 2002, and annually thereafter, the
authority shall submit a report to the Legislature regarding the
program described in subdivision (h) of Section 44526.
SEC. 324. Section 50561 of the Health and Safety Code is amended
to read:
50561. (a) The department may approve an extension of an existing
rental housing development loan, the reinstatement of a qualifying
unpaid matured loan, the subordination of a department loan to new
debt, or an investment of tax credit equity as long as the rental
housing development is being operated in a manner consistent with the
regulatory agreement and the development requires an extension in
order to continue to operate in a manner consistent with this
chapter. Each extension shall be for a period of not less than 10
years and each extension shall not exceed 55 years, or 58 years if
needed to match the term of tax credit restrictions. The interest
rate shall be 3 percent simple interest. All loan payments shall be
deferred for the full
term of the loan, except for residual receipts payments. These
residual receipts payments shall be structured to avoid reducing the
amount of payments on local public agency loans resulting solely from
changes in the payment terms on the department's loan, and not
resulting from fees or other payments to the borrower, and shall
otherwise be consistent with the provisions of the department's
Uniform Multifamily Regulations or successor regulations. The
department may charge a monitoring fee to cover the aggregate
monitoring costs it incurs in years that the loan is extended and
charge a transaction fee to cover its costs for processing
restructuring transactions. The department may waive or defer some or
all fees, if it determines that a particular development or class of
developments does not have the ability to make these payments. In
determining the fees and payments to be charged, the department shall
seek to share monitoring activities with other regulatory agencies
and to minimize the impact on tenants with the lowest incomes and on
the capacity of the developments to support private debt or secure
tax credit investments.
(b) To the minimum extent necessary to support new debt to pay for
rehabilitation, rents for assisted units in these developments may
be adjusted. This rehabilitation shall be determined by the
department to be demonstrably necessary, based on third-party
assessment and on the department's own inspection. Assisted units in
developments with a specific, department-approved plan to undertake
the necessary rehabilitation, at a level that equals or exceeds the
minimum per-unit rehabilitation cost standards under the low-income
housing tax credit program, may be adjusted as follows:
(1) For developments originally financed under the bond-funded
component of the Rental Housing Construction Program pursuant to
Section 50771.1, and the Family Housing Demonstration Program, rents
may be increased up to a maximum of 30 percent of 60 percent of area
median income, for units designated in the development's original
regulatory agreement as lower income units, and up to a maximum of 30
percent of 35 percent of area median income, for units designated in
the development's original regulatory agreement as very low income
units.
(2) For developments originally financed under other programs,
rents for at least 35 percent of the assisted units, or as specified
in the original regulatory agreement governing the development,
whichever is greater, shall be restricted to the midlevel target used
by the Multifamily Housing Program. Rents for the balance of the
assisted units may be increased up to a maximum of 30 percent of 60
percent of area median income. For purposes of this paragraph,
"midlevel target used by the Multifamily Housing Program" shall mean
either of the following:
(A) For counties with an area median income of 110 percent or less
of state median income, it shall mean 30 percent of 30 percent of
state median income, expressed as a percentage of area median income.
(B) For counties with an area median income that exceeds 110
percent of the state median income, it shall mean,
mean 30 percent of 35 percent of state median income,
expressed as a percentage of area median income.
(c) Rent increases for tenants living in assisted units at the
time of restructuring pursuant to this chapter shall be limited as
follows:
(1) For existing tenants with incomes not exceeding 35 percent of
area median income, increases shall be limited to 5 percent per year,
until the rents reach the levels set under subdivision (b).
(2) For existing tenants with incomes exceeding 35 percent of area
median income, increases shall be limited to 10 percent per year,
until they reach the levels specified in paragraphs (1) and (2) of
subdivision (b) of Section 50561.
(3) It is the intent of the Legislature that rent increases for
existing tenants authorized by this subdivision shall not be greater
than necessary to ensure the financial feasibility of the project.
The projected maximum rent for tenants in assisted units, as
determined by subdivision (b), shall not exceed 50 percent of the
household's actual income. This requirement shall be applied using
maximum rent levels and household incomes determined at the time of
restructuring or at the time of the department's approval of the
restructuring.
(4) If the refinance of a loan results in a rent increase, the
project sponsor shall provide tenants with the following
notifications:
(A) Notice six months prior to the scheduled rent increase with an
estimate of the amount of the increase.
(B) Notice 90 days prior to the actual increase with the exact
amount of the new rent.
(d) If existing tenants move, the rent for these units may be
increased immediately up to the level specified in paragraphs (1) and
(2) of subdivision (b). The income limit for new tenants shall
correspond with the rent limit set pursuant to paragraphs (1) and (2)
of subdivision (b).
(e) Once rents achieve the levels set forth in paragraphs (1) and
(2) of subdivision (b), income levels and rent limits shall be
calculated consistent with the calculation methodology used under the
Low Income Housing Tax Credit program and the Multifamily Housing
Program, and rent increases shall be based on increases in the area
median income.
(f) Eligible households displaced as a result of rehabilitation
pursuant to this section shall be accorded first priority in
occupying comparable units in the development from which they were
displaced, subsequent to rehabilitation. Tenants of rental housing
developments repaired with assistance provided under this chapter who
are temporarily or permanently displaced as a result of
rehabilitation or other repair work, shall be entitled to relocation
benefits pursuant to, and subject to, the requirements of Section
7260 of the Government Code. Sponsors of assisted rental housing
developments shall be responsible for providing the benefits and
assistance. The costs of the benefits and the assistance provided to
tenants shall be eligible for funding by a loan provided pursuant to
this section.
(g) The guidelines adopted by the department pursuant to
subdivision (h) of Section 50560 shall be patterned after the
regulations governing the Multifamily Housing Program, including the
Uniform Multifamily Regulations, except that the department may adopt
different standards for the following factors:
(1) Commercial vacancy loss assumptions must reflect project
operating history.
(2) Debt service coverage ratios.
(3) Payment terms and principal amount of senior debt, considering
financial market conditions, including costs and department risk, as
determined by the department.
(4) Developer fee limitations shall be consistent with California
Tax Credit Allocation Committee regulations for inclusion in the
basis for projects receiving 9 percent tax credits, for projects
receiving the special rent increases contemplated by this chapter,
and, consistent with the requirements of other funding sources, for
projects not receiving special rent increases.
(5) Replacement reserve deposit amounts must be based on projected
costs over 20 years, adjusted for inflation, and as shown in an
independent replacement reserve analysis.
(h) It is the intent of the Legislature in enacting this section
that the department shall manage its reserves for the original Rental
Housing Construction Program in a manner that will allow for the
continuation of benefits to current low-income tenants for the
longest period of time possible up to the term of the original
regulatory agreement or the depletion of the annuity funds, whichever
occurs first. Accordingly, rents for those households in units
subsidized by the annuity fund established pursuant to Section 50748
may be increased to 30 percent of household income. Any
A household affected by the rent increase
permitted by this subdivision shall be given at least 90 days
advanced notice of the increase.
(i) (1) The department shall, within available resources, post on
its Internet Web site information regarding household incomes and
rents for developments approved for restructuring.
(2) The information shall be provided within six months of a
restructuring and, thereafter, no less than every three years.
(3) The information shall include the following or similar
information:
(A) The monthly rent of each household at the time of
restructuring.
(B) The current monthly rent of each household.
(C) The annual income of each household as a percentage of area
median income at the time of restructuring.
(D) The current income of each household as a percentage of area
median income.
SEC. 325. Section 51505 of the Health and Safety Code is amended
to read:
51505. (a) In addition to the downpayment assistance program
authorized by Section 51504, and notwithstanding any provision of
Section 51504 to the contrary, the agency shall provide downpayment
assistance from the funds set aside pursuant to subparagraph (D) of
paragraph (7) of subdivision (a) of Section 53533 for the purposes of
the portion of the Extra Credit Teacher Home Purchase Program
provided for in subdivision (g) of Section 8869.84 of the Government
Code and any other school personnel home ownership assistance
programs as set forth by the California Debt Limit Allocation
Committee, as operated by the agency. Notwithstanding the foregoing,
the agency may, but is not required to, provide downpayment
assistance pursuant to this section to any local issuer participating
in the Extra Credit Teacher Home Purchase Program and any other
school personnel home ownership assistance programs as set forth by
the California Debt Limit Allocation Committee.
(b) (1) Downpayment assistance for purposes of this section shall
be subject to, and shall meet the requirements of, the Extra Credit
Teacher Home Purchase Program and any other school personnel home
ownership programs as set forth by the California Debt Limit
Allocation Committee, and shall include, but not be limited to,
deferred payment, low interest rate loans.
(2) Except as provided in paragraphs (3) and (5), payment of
principal and interest is deferred until the time that the home is
sold or refinanced.
(3) The agency may, in its discretion, permit the downpayment
assistance loan to be subordinated to refinancing if it determines
that the borrower has demonstrated hardship, subordination is
required to avoid foreclosure, and the new loan meets the agency's
underwriting requirements. The agency may permit subordination on
those terms and conditions as it determines are reasonable, but
subordination is not permitted if the borrower has sufficient equity
to repay the loan.
(4) This downpayment assistance shall meet the requirements of
paragraph (3) of, and subparagraph (A) of paragraph (4) of
of, subdivision (a) of,
of Section 51504.
(5) The amount of the downpayment assistance shall not be due and
payable upon sale of the home if the first mortgage loan is insured
by the Federal Housing Administration (FHA) or if the first mortgage
loan is, or has been, transferred to the FHA, or if the requirement
is otherwise contrary to regulations of the United States Department
of Housing and Urban Development governing FHA insured first mortgage
loans.
(c) Loans made pursuant to this section may include a provision
whereby interest, principal, or both, of the loan is forgiven upon
conditions to be established by the agency, or any other provision
designed to carry out the purposes of the Extra Credit Teacher Home
Purchase Program and any other school personnel home ownership
programs as set forth by the California Debt Limit Allocation
Committee.
(d) Downpayment assistance pursuant to this section shall not
exceed the greater of seven thousand five hundred dollars ($7,500) or
3 percent of the home sales price. However, the agency may, with the
concurrence of the California Debt Limit Allocation Committee,
establish higher assistance limits where as
necessary to ensure sufficient assistance to allow program
participation in high cost areas.
SEC. 326. The heading of Chapter 3 (commencing with Section
101000) of Part 2 of Division 101 of the Health and Safety Code is
repealed.
CHAPTER 3. ADDITIONAL ADMINISTRATIVE PROVISIONS (RESERVED)
SEC. 327. The heading of Article 5 (commencing with Section
101150) of Chapter 2 of Part 3 of Division 101 of the Health and
Safety Code, as added by Section 3 of Chapter 415 of the Statutes of
1995, is repealed.
Article 5. Municipal and County Laboratories
SEC. 328. The heading of Chapter 4 (commencing with Section
101325) of Part 3 of Division 101 of the Health and Safety Code, as
added by Section 3 of Chapter 415 of the Statutes of 1995, is
repealed.
CHAPTER 4. ACTIONS AGAINST PUBLIC ENTITIES
SEC. 329. Section 101661 of the Health and Safety Code is amended
to read:
101661. (a) The authority, in addition to any other powers
granted to the authority pursuant to this chapter, shall have the
following powers:
(1) To have the duties, privileges, immunities, rights,
liabilities, and limitations of a local unit of government within the
state.
(2) To have perpetual existence.
(3) To adopt, have, and use a seal, and to alter it at its
pleasure.
(4) To sue and be sued in the name of the authority in all actions
and proceedings in all courts and tribunals of competent
jurisdiction.
(5) To purchase, lease, trade, exchange, or otherwise acquire,
maintain, hold, improve, mortgage, lease, sell, and dispose of real
and personal property of any kind necessary or convenient to perform
its functions and fully exercise its powers.
(6) To appoint and employ a chief executive officer and other
officers and employees that may be necessary or appropriate,
including legal counsel, to establish their compensation, provide for
their health, retirement, and other employment benefits, and to
define the power and duties of officers and employees.
(7) (A) To incur indebtedness and to borrow money and issue bonds
evidencing the same, including the authority to issue, from time to
time, notes and revenue bonds in principal amounts that the authority
determines to be necessary to provide sufficient funds for achieving
any of its purposes, including, but not limited to, assumption or
refinancing of debt service for capital projects eligible for
Medi-Cal supplemental payments pursuant to Section 14085.5 of the
Welfare and Institutions Code, the payment of interest on notes and
bonds of the authority, the establishment of reserves to secure these
notes and bonds, and all other expenditures of the authority
incident to and necessary or convenient to carry out its purposes and
powers.
(B) Any notes, bonds, or other securities issued, and the income
from them, including any profit from the sale thereof, shall at all
times be free from taxation by the state or any agency, political
subdivision, or instrumentality of the state.
(C) Notwithstanding the provisions of subparagraph (A), for any
indebtedness, notes, bonds, or other securities that require voter
approval pursuant to state law, the prior approval of the board of
supervisors shall be required. Notwithstanding the required prior
approval of the board of supervisors, any indebtedness incurred, or
notes, bonds, or other securities issued pursuant to this
subparagraph shall be the indebtedness, notes, bonds, or securities
of the authority and not of the county, and the credit of the county
shall not be pledged or relied upon in any manner in order to incur
the indebtedness, or issue the notes, bonds, or other securities,
unless the board of supervisors explicitly authorizes the use of the
county's credit. The authority shall reimburse the county for all
costs associated with the county's consideration of the indebtedness,
notes, bonds, or securities, and the authority shall defend,
indemnify, and hold harmless the county from any and all liability,
costs, or expenses arising from or related to the indebtedness,
notes, bonds, or securities.
(8) To pursue its own credit rating.
(9) To enter into any contract or agreement consistent with this
chapter or the laws of this state, and to authorize the chief
executive officer to enter into contracts, execute all instruments,
and do all things necessary or convenient in the exercise of the
powers granted in this chapter, and to secure the payment of bonds.
(10) To purchase supplies, equipment, materials, property, and
services.
(11) To establish policies relating to its purposes.
(12) To acquire or contract to acquire, rights-of-way, easements,
privileges, and property, and to construct, equip, maintain, and
operate any and all works or improvements wherever located that are
necessary, convenient, or proper to carry out any of the provisions,
objects, or purposes of this chapter, and to complete, extend, add
to, repair, or otherwise improve any works or improvements acquired
by it.
(13) To contract for and to accept gifts, grants, and loans of
funds, property, or other aid in any form from the federal
government, the state, a state agency, or other source, or
combination thereof, and to comply, subject to this chapter, with the
terms and conditions thereof.
(14) To invest surplus money in its own treasury, manage
investments, and engage third-party investment managers, in
accordance with state law.
(15) To arrange for guarantees or insurance of its bonds, notes,
or other obligations by the federal or state government or by a
private insurer, and to pay the premiums thereof.
(16) To engage in managed care contracting, joint ventures,
affiliations with other health care facilities, other health care
providers and payers, management agreements, or to participate in
alliances, purchasing consortia, health insurance pools, accountable
care organizations, alternative delivery systems, or other
cooperative arrangements, with any public or private entity.
(17) To enter into joint powers agreements pursuant to Chapter 5
(commencing with Section 6500) of Division 7 of Title 1 of the
Government Code.
(18) To establish nonprofit, for profit, or other entities
necessary to carry out the duties of the authority.
(19) To elect to transfer funds to the state and incur certified
public expenditures in support of the Medi-Cal program and other
programs for which federal financial participation is available.
(20) To use a computerized management information system,
including an electronic health records system, in connection with the
administration of its facilities.
(21) To request that the board of supervisors levy a tax on behalf
of the authority. If the board of supervisors approves the proposal
to levy the tax, the board shall call the election to seek voter
approval and place the appropriate measure on the ballot for that
election. The proceeds of these taxes shall be tax proceeds of the
authority and not of the county. The authority shall reimburse the
county for all costs associated with the county's consideration of
these taxes, and shall defend, indemnify, and hold harmless the
county from any liability, costs, or expenses arising from or related
to the imposition of these taxes.
(22) To contract with the county for the provision of indigent
care services on behalf of the county. The contract shall specify
that county policies consistent with the county's obligations under
Section 17000 of the Welfare and Institutions Code shall be
applicable. Notwithstanding any other provision of this chapter, the
authority shall not undertake any of the county's obligations under
Section 17000 of the Welfare and Institutions Code, nor shall the
authority have an entitlement to receive any revenue for the
discharge of the county's obligations, without a written agreement
with the county.
(23) To engage in other activities that may be in the best
interests of the authority and the persons served by the authority,
as determined by the board of trustees, in order to respond to
changes in the health care industry.
(b) The authority shall conform to the following requirements:
(1) Be a government entity separate and apart for all purposes
from the county and any other public entity, and shall not be
considered to be an agency, division, or department of the county or
any other public entity. The authority shall not be governed by, or
subject to, the policies or operational rules of the county or any
other public entity.
(2) Be subject to state and federal taxation laws that are
applicable to public entities generally, except that the authority
may, to the extent permitted by federal law, apply for an exemption
from social security taxation if there is a mutual agreement with the
exclusive representatives of the affected employees.
(3) Comply with the Meyers-Milias-Brown Act (Chapter 10
(commencing with Section 3500) of Division 4 of Title 1 of the
Government Code), the Public Records Act (Chapter 3.5 (commencing
with Section 6250) of Division 7 of Title 1 of the Government Code),
and the Ralph M. Brown Act (Chapter 10 9
(commencing with Section 3500) 54950)
of Division 4 2 of Title
1 5 of the Government Code).
(4) To the extent the authority is permitted by federal law to
participate in the Public Employees' Retirement System, assume the
assets and liabilities for Public Employees' Retirement System
benefits, consistent with the requirements of Section 20508 and other
applicable provisions of Part 3 (commencing with Section 20000) of
Division 5 of Title 2 of the Government Code and assume workers'
compensation liabilities and other employee benefits and liabilities
with respect to employees of the authority, unless otherwise agreed
to by the authority, the county, and the governing board.
(5) Carry professional and general liability insurance or programs
to the extent sufficient to cover its activities.
(6) Comply with the requirements of Sections 53260 and 53261 of
the Government Code.
(7) Meet all local, state, and federal data reporting
requirements.
(8) Be subject to the jurisdiction of the Public Employment
Relations Board.
(c) Open sessions of the authority shall
constitute official proceedings authorized by law within the meaning
of Section 47 of the Civil Code. The privileges set forth in that
section with respect to official proceedings shall
apply to open sessions of the authority.
(d) The authority shall be is a
public agency for purposes of eligibility with respect to grants and
other funding and loan guarantee programs. Contributions to the
authority shall be are tax deductible
to the extent permitted by state and federal law. Nonproprietary
income of the authority shall be is
exempt from state income taxation.
(e) The authority shall is not
be a "person" subject to suit under the Cartwright
Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division
7 of the Business and Professions Code).
(f) The statutory authority of a board of supervisors to prescribe
rules that authorize a county hospital to integrate its services
with those of other providers into a system of community service that
offers free choice of hospitals to those requiring hospital care, as
set forth in Section 14000.2 of the Welfare and Institutions Code,
shall apply to the authority and the board of
trustees.
(g) Unless otherwise agreed to by the authority and the board of
supervisors, or the authority and a governing board, an obligation of
the authority, statutory, contractual or otherwise, shall
be is the obligation solely of the authority and
shall not be the obligation of
the county or any other entity, and any contract executed by and
between the county and the authority, or any other entity and the
authority, shall contain a provision that liabilities or obligations
of the authority with respect to its activities pursuant to the
contract shall be the liabilities or obligations of the authority and
shall not be or become the liabilities or obligations of the county
or the other entity, respectively.
(h) An obligation of the authority, statutory, contractual or
otherwise, shall be is the obligation
solely of the authority and shall not be
the obligation of the state.
(i) In the event of a change of license ownership, the board of
trustees shall comply with the obligations of governing bodies of
general acute care hospitals generally as set forth in Section 70701
of Title 22 of the California Code of Regulations, as currently
written or subsequently amended, as well as the terms and conditions
of the license. The authority shall be is
the responsible party with respect to compliance with these
obligations, terms, and conditions.
(j) (1) Provisions of the Evidence Code, the Government Code,
including the Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code), the
Civil Code, the Business and Professions Code, and other applicable
law pertaining to the confidentiality of peer review activities of
peer review bodies shall apply to the peer review
activities of the authority. Peer review proceedings shall
constitute an official proceeding authorized by law within
the meaning of Section 47 of the Civil Code and those privileges set
forth in that section with respect to official proceedings
shall apply to peer review proceedings of the authority. If
the authority is required by law or contractual obligation to submit
to the state or federal government peer review information or
information relevant to the credentialing of a participating
provider, that submission shall does
not constitute a waiver of confidentiality. The laws pertaining to
the confidentiality of peer review activities shall be together
construed as extending, to the extent permitted by law, the maximum
degree of protection of confidentiality.
(2) Notwithstanding any other law, Section 1461 shall
apply applies to hearings on reports of hospital
medical audit or quality assurance committees.
(k) (1) Any A transfer by the county
to the authority, or by the governing board to the authority, of the
maintenance, operation, and management or ownership of the medical
center or the other health care facility, respectively, whether or
not the transfer includes the surrendering by the county or the
governing board of any existing general acute care hospital license
and corresponding application for a change of ownership of the
license, shall does not affect the
eligibility of the county or the governing board to undertake, and
shall authorize
authorizes the authority, subject to applicable
requirements, to do, any of the following:
(A) With the written consent of the county, participate in and
receive allocations pursuant to the California Health Care for
Indigents Program pursuant to Chapter 5 (commencing with Section
16940) of Part 4.7 of Division 9 of the Welfare and Institutions
Code, or similar programs, as may be identified or earmarked by the
county for indigent health care services of the type provided by the
medical center.
(B) With the written consent of the county, participate in and
receive allocations of local revenue fund amounts provided pursuant
to Chapter 6 (commencing with Section 17600) of Part 5 of Division 9
of the Welfare and Institutions Code as may be identified or
earmarked by the county for indigent health care services of the type
provided by the medical center.
(C) Participate in the financing of, and receive, Medicaid
disproportionate share hospital payments available to a county
hospital or designated public hospital, or any other successor or
modified payment or funding that is intended to assist hospitals that
serve a disproportionate share of low-income patients with special
needs. The allocation of Medicaid disproportionate share hospital
payments shall be made in consultation with the State Department of
Health Care Services and other designated safety net hospitals.
(D) Participate in the financing of, and receive, Medi-Cal
supplemental reimbursements, including, but not limited to, payments
made pursuant to Sections 14105.96, 14105.965, 14166.4, and 14182.15
of the Welfare and Institutions Code, payments described in paragraph
(4) of subdivision (b) of Section 14301.4 of the Welfare and
Institutions Code, and payments made available to a county provider
or designated public hospital, or governmental entity with which it
is affiliated, under any other successor or modified Medicaid payment
system.
(E) Participate in the financing of, and receive, safety net care
pool funding, stabilization funding, delivery system reform incentive
pool payments, and any other funding available to a county provider
or designated public hospital, or governmental entities with which it
is affiliated under the Medicaid demonstration project authorized
pursuant to Article 5.2 (commencing with Section 14166) and Article
5.4 (commencing with Section 14180) of Chapter 7 of Part 3 of
Division 9 of the Welfare and Institutions Code, or under any other
successor or modified Medicaid demonstration project or Medicaid
payment system. The allocation of safety net care pool funds shall be
made in consultation with the State Department of Health Care
Services and other designated safety net hospitals.
(F) Participate in the financing, administration, and provision of
services under the Low Income Health Program authorized pursuant to
Part 3.6 (commencing with Section 15909) of Division 9 of the Welfare
and Institutions Code, or under any other successor or modified
Medicaid demonstration project or Medicaid payment system if the
authority enters into an agreement with the county concerning the
provision of services by, and payment for these services to, the
county.
(G) Participate in and receive direct grant and payment
allocations pursuant to Article 5.228 (commencing with Section
14169.1) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code, or under any other successor or modified direct
grant and payment systems funded by hospital or other provider fee
assessments.
(H) Receive Medi-Cal capital supplements pursuant to Section
14085.5 of the Welfare and Institutions Code. Notwithstanding any
other provision of law, supplemental payments shall be made to the
medical center under Section 14085.5 of the Welfare and Institutions
Code for the debt service costs incurred by the county, and, if
applicable, by the authority to the extent that debt service
responsibility is refinanced, transferred to, or otherwise assumed
by, directly or indirectly, the authority.
(I) Receive any other funds that would otherwise be available to a
county provider or designated public hospital, or governmental
entity with which it is affiliated.
(2) A transfer described in paragraph (1) shall not otherwise
disqualify the county or the governing board, or in the case of a
change in license ownership, the authority, from participating in any
of the following:
(A) Local, state, and federal funding sources either specific to
county or district hospitals, county or district ambulatory care
clinics, designated public hospitals, or government entities with
which they are affiliated, for which there are special provisions
specific to those hospitals, ambulatory care clinics, or government
entities.
(B) Funding programs in which the county or the governing board,
by themselves or on behalf of the medical center or the other health
care facility, respectively, had participated prior to the creation
of the authority, or would otherwise be qualified to participate in
had the authority not been created, and the maintenance, operation,
and management or ownership of the medical center and the other
health care facility not been transferred by the county and the
governing board to the authority pursuant to this chapter.
(l) The authority, the county, and the governing board, or any
combination thereof, may engage in marketing, advertising, and
promotion of the medical and health care services made available to
the community by the authority.
(m) The board of trustees shall have has
authority over procurement and contracts for the authority. The
board of trustees shall adopt written rules, regulations, and
procedures with regard to these functions. Contracts by and between
the authority and any public agency, and contracts by and between the
authority and providers of health care, goods, or services, may be
let on a nonbid basis and shall be exempt from Chapter 2 (commencing
with Section 10290) of Part 2 of Division 2 of the Public Contract
Code. Notwithstanding any other provision of this section, the
authority shall not subcontract work performed by classifications
represented by employee organizations without mutual agreement
between the authority and the exclusive representatives, except that
a subcontract entered into prior to the formation of the authority
may remain in effect until its termination or completion and may be
modified or renewed to a later termination or completion date upon
agreement between the authority and the exclusive representatives of
the affected classifications.
(n) The authority shall be responsible for human resource
functions, including, but not limited to, position classification,
compensation, recruitment, selection, hiring, discipline,
termination, grievance, equal opportunity, performance management,
probationary periods, training, promotion, and maintenance of
records. The board of trustees shall adopt written rules,
regulations, and procedures with regard to these functions. Until the
time that the board of trustees adopts its own rules, regulations,
or procedures with regard to these functions, the existing rules,
regulations, and procedures set forth in any memorandum of
understanding described in subparagraph (D) of
paragraph (1) (3) of subdivision (d) of
Section 101658 shall apply. If the memoranda do
not provide for the exercise of these functions, the rules,
regulations, and procedures of the county shall
apply.
(o) The authority may contract with the county or the governing
board for services and personnel upon mutually agreeable terms.
(p) Notwithstanding Article 4.7 (commencing with Section 1125) of
Chapter 1 of Division 4 of Title 1 of the Government Code, related to
incompatible activities, a member of the authority's administrative
staff shall not be considered to be engaged in activities
inconsistent and incompatible with his or her duties as a result of
prior employment or affiliation with the county or the governing
board.
(q) The board of trustees and the officers and employees of the
authority are public employees for purposes of Division 3.6
(commencing with Section 810) of Title 1 of the Government Code,
relating to claims and actions against public entities and public
employees, and shall be protected by the immunities applicable to
public entities and public employees governed by Part 2 (commencing
with Section 814) of Division 3.6 of Title 1 of the Government Code,
except as provided by other statutes or regulations that apply
expressly to the authority.
(r) Except for Part 3 (commencing with Section 20000) of Division
5 of Title 2 of the Government Code, this chapter shall prevail over
any inconsistent statutes governing employees of the authority,
including, but not limited to, the Meyers-Milias-Brown Act (Chapter
10 (commencing with Section 3500) of Division 1 of Title 1 of the
Government Code).
SEC. 330. Section 101850 of the Health and Safety Code is amended
to read:
101850. The Legislature finds and declares the following:
(a) (1) Due to the challenges facing the Alameda Health System
arising from changes in the public and private health industries, the
Alameda County Board of Supervisors has determined that a transfer
of governance of the Alameda Health System to an independent
governing body, a hospital authority, is needed to improve the
efficiency, effectiveness, and economy of the community health
services provided at the medical center. The board of supervisors has
further determined that the creation of an independent hospital
authority strictly and exclusively dedicated to the management,
administration, and control of the medical center, in a manner
consistent with the county's obligations under Section 17000 of the
Welfare and Institutions Code, is the best way to fulfill its
commitment to the medically indigent, special needs, and general
populations of Alameda County. To accomplish this, it is necessary
that the board of supervisors be given authority to create a hospital
authority. Because there is no general law under which this
authority could be formed, the adoption of a special act and the
formation of a special authority is required.
(2) The following definitions shall apply for
purposes of this section:
(A) "The county" means the County of Alameda.
(B) "Governing board" means the governing body of the hospital
authority.
(C) "Hospital authority" means the separate public agency
established by the Board of Supervisors of Alameda County to manage,
administer, and control the Alameda Health System.
(D) "Medical center" means the Alameda Health System, which was
formerly known as the Alameda County Medical Center.
(b) The board of supervisors of the county may, by ordinance,
establish a hospital authority separate and apart from the county for
the purpose of effecting a transfer of the management,
administration, and control of the medical center in accordance with
Section 14000.2 of the Welfare and Institutions Code. A hospital
authority established pursuant to this chapter shall be strictly and
exclusively dedicated to the management, administration, and control
of the medical center within parameters set forth in this chapter,
and in the ordinance, bylaws, and contracts adopted by the board of
supervisors that shall not be in conflict with this chapter, Section
1442.5 of this code, or Section 17000 of the Welfare and Institutions
Code.
(c) A hospital authority established pursuant to this chapter
shall be governed by a board that is appointed, both initially and
continually, by the Board of Supervisors of the County of Alameda.
This hospital authority governing board shall reflect both the
expertise necessary to maximize the quality and scope of care at the
medical center in a fiscally responsible manner and the diverse
interest that the medical center serves. The enabling ordinance shall
specify the membership of the hospital authority governing board,
the qualifications for individual members, the manner of appointment,
selection, or removal of governing board members, their terms of
office, and all other matters that the board of supervisors deems
necessary or convenient for the conduct of the hospital authority's
activities.
(d) The mission of the hospital authority shall be the management,
administration, and other control, as determined by the board of
supervisors, of the group of public hospitals, clinics, and programs
that comprise the medical center, in a manner that ensures
appropriate, quality, and cost-effective medical care as required of
counties by Section 17000 of the Welfare and Institutions Code, and,
to the extent feasible, other populations, including special
populations in the County of Alameda.
(e) The board of supervisors shall adopt bylaws for the medical
center that set forth those matters related to the operation of the
medical center by the hospital authority that the board of
supervisors deems necessary and appropriate. The bylaws shall become
operative upon approval by a majority vote of the board of
supervisors. Any changes or amendments to the bylaws shall be by
majority vote of the board of supervisors.
(f) The hospital authority created and appointed pursuant to this
section is a duly constituted governing body within the meaning of
Section 1250 of this code and Section 70035 of Title 22 of
the California Code of Regulations as currently written or
subsequently amended.
(g) Unless otherwise provided by the board of supervisors by way
of resolution, the hospital authority is empowered, or the board of
supervisors is empowered on behalf of the hospital authority, to
apply as a public agency for one or more licenses for the provision
of health care pursuant to statutes and regulations governing
licensing as currently written or subsequently amended.
(h) In the event of a change of license ownership, the governing
body of the hospital authority shall comply with the obligations of
governing bodies of general acute care hospitals generally as set
forth in Section 70701 of Title 22 of the California Code of
Regulations, as currently written or subsequently amended, as well as
the terms and conditions of the license. The hospital authority
shall be is the responsible party with
respect to compliance with these obligations, terms, and conditions.
(i) (1) Any A transfer by the county
to the hospital authority of the administration, management, and
control of the medical center, whether or not the transfer includes
the surrendering by the county of the existing general acute care
hospital license and corresponding application for a change of
ownership of the license, shall does
not affect the eligibility of the county, or in the case of a change
of license ownership, the hospital authority, to do any of the
following:
(A) Participate in, and receive allocations pursuant to, the
California Healthcare for the Indigents Program (CHIP).
(B) Receive supplemental reimbursements from the Emergency
Services and Supplemental Payments Fund created pursuant to Section
14085.6 of the Welfare and Institutions Code.
(C) Receive appropriations from the Medi-Cal Inpatient Payment
Adjustment Fund without relieving the county of its obligation to
make intergovernmental transfer payments related to the Medi-Cal
Inpatient Payment Adjustment Fund pursuant to Section 14163 of the
Welfare and Institutions Code.
(D) Receive Medi-Cal capital supplements pursuant to Section
14085.5 of the Welfare and Institutions Code.
(E) Receive any other funds that would otherwise be available to a
county hospital.
(2) Any A transfer described in
paragraph (1) shall does not otherwise
disqualify the county, or in the case of a change in license
ownership, the hospital authority, from participating in any of the
following:
(A) Other funding sources either specific to county hospitals or
county ambulatory care clinics or for which there are special
provisions specific to county hospitals or to county ambulatory care
clinics.
(B) Funding programs in which the county, on behalf of the medical
center and the Alameda County Health Care Services Agency, had
participated prior to the creation of the hospital authority, or
would otherwise be qualified to participate in had the hospital
authority not been created, and administration, management, and
control not been transferred by the county to the hospital authority,
pursuant to this chapter.
(j) A hospital authority created pursuant to this chapter shall be
a legal entity separate and apart from the county and shall file the
statement required by Section 53051 of the Government Code. The
hospital authority shall be a government entity separate and apart
from the county, and shall not be considered to be an agency,
division, or department of the county. The hospital authority shall
not be governed by, nor be subject to, the charter of the county and
shall not be subject to policies or operational rules of the county,
including, but not limited to, those relating to personnel and
procurement.
(k) (1) Any A contract executed by
and between the county and the hospital authority shall provide that
liabilities or obligations of the hospital authority with respect to
its activities pursuant to the contract shall be the liabilities or
obligations of the hospital authority, and shall not become the
liabilities or obligations of the county.
(2) Any liabilities Liabilities or
obligations of the hospital authority with respect to the liquidation
or disposition of the hospital authority's assets upon termination
of the hospital authority shall not become the liabilities or
obligations of the county.
(3) Any An obligation of the
hospital authority, statutory, contractual, or otherwise, shall be
the obligation solely of the hospital authority and shall not be the
obligation of the county or the state.
( l ) (1) Notwithstanding any other provision of this
section, any a transfer of the
administration, management, or assets of the medical center, whether
or not accompanied by a change in licensing, shall
does not relieve the county of the ultimate
responsibility for indigent care pursuant to Section 17000 of the
Welfare and Institutions Code or any obligation pursuant to Section
1442.5 of this code.
(2) Any A contract executed by and
between the county and the hospital authority shall provide for the
indemnification of the county by the hospital authority for
liabilities as specifically set forth in the contract, except that
the contract shall include a provision that the county shall remain
liable for its own negligent acts.
(3) Indemnification by the hospital authority shall not be
construed as divesting the county from its ultimate responsibility
for compliance with Section 17000 of the Welfare and Institutions
Code.
(m) Notwithstanding the provisions of this section relating to the
obligations and liabilities of the hospital authority, a transfer of
control or ownership of the medical center shall confer onto the
hospital authority all the rights and duties set forth in state law
with respect to hospitals owned or operated by a county.
(n) (1) A transfer of the maintenance, operation, and management
or ownership of the medical center to the hospital authority shall
comply with the provisions of Section 14000.2 of the Welfare and
Institutions Code.
(2) A transfer of maintenance, operation, and management or
ownership to the hospital authority may be made with or without the
payment of a purchase price by the hospital authority and otherwise
upon the terms and conditions that the parties may mutually agree,
which terms and conditions shall include those found necessary by the
board of supervisors to ensure that the transfer will constitute an
ongoing material benefit to the county and its residents.
(3) A transfer of the maintenance, operation, and management to
the hospital authority shall not be construed as empowering the
hospital authority to transfer any ownership interest of the county
in the medical center except as otherwise approved by the board of
supervisors.
(o) The board of supervisors shall retain control over the use of
the medical center physical plant and facilities except as otherwise
specifically provided for in lawful agreements entered into by the
board of supervisors. Any lease agreement or other agreement between
the county and the hospital authority shall provide that county
premises shall not be sublet without the approval of the board of
supervisors.
(p) The statutory authority of a board of supervisors to prescribe
rules that authorize a county hospital to integrate its services
with those of other hospitals into a system of community service that
offers free choice of hospitals to those requiring hospital care, as
set forth in Section 14000.2 of the Welfare and Institutions Code,
shall apply to the hospital authority upon a transfer of maintenance,
operation, and management or ownership of the medical center by the
county to the hospital authority.
(q) The hospital authority shall have the power to
may acquire and possess real or personal
property and may dispose of real or personal property other than that
owned by the county, as may be necessary for the performance of its
functions. The hospital authority shall have the power to
may sue or be sued, to employ personnel, and to
contract for services required to meet its obligations. Before
January 1, 2024, the hospital authority shall not enter into a
contract with any other person or entity, including, but not limited
to, a subsidiary or other entity established by the authority, to
replace services being provided by physicians and surgeons who are
employed by the hospital authority and in a recognized collective
bargaining unit as of March 31, 2013, with services provided by that
other person or entity without clear and convincing evidence that the
needed medical care can only be delivered cost effectively by that
other person or entity. Prior to entering into a contract for any of
those services, the authority shall negotiate with the representative
of the recognized collective bargaining unit of its physician and
surgeon employees over the decision to privatize and, if unable to
resolve any dispute through negotiations, shall submit the matter to
final binding arbitration.
(r) Any agreement between the county and the hospital authority
shall provide that all existing services provided by the medical
center shall continue to be provided to the county through the
medical center subject to the policy of the county and consistent
with the county's obligations under Section 17000 of the Welfare and
Institutions Code.
(s) A hospital authority to which the maintenance, operation, and
management or ownership of the medical center is transferred shall be
a "district" within the meaning set forth in the County Employees
Retirement Law of 1937 (Chapter 3 (commencing with Section 31450) of
Part 3 of Division 4 of Title 3 of the Government Code). Employees of
a hospital authority are eligible to participate in the County
Employees Retirement System to the extent permitted by law, except as
described in Section 101851.
(t) Members of the governing board of the hospital authority shall
not be vicariously liable for injuries caused by the act or omission
of the hospital authority to the extent that protection applies to
members of governing boards of local public entities generally under
Section 820.9 of the Government Code.
(u) The hospital authority shall be a public agency subject to the
Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500)
of Division 4 of Title 1 of the Government Code).
(v) Any transfer of functions from county employee classifications
to a hospital authority established pursuant to this section shall
result in the recognition by the hospital authority of the employee
organization that represented the classifications performing those
functions at the time of the transfer.
(w) (1) In exercising its powers to employ personnel, as set forth
in subdivision (p), the hospital authority shall implement, and the
board of supervisors shall adopt, a personnel transition plan. The
personnel transition plan shall require all of the following:
(A) Ongoing communications to employees and recognized employee
organizations regarding the impact of the transition on existing
medical center employees and employee classifications.
(B) Meeting and conferring on all of the following issues:
(i) The timeframe for which the transfer of personnel shall occur.
The timeframe shall be subject to modification by the board of
supervisors as appropriate, but in no event shall it exceed one year
from the effective date of transfer of governance from the board of
supervisors to the hospital authority.
(ii) A specified period of time during which employees of the
county impacted by the transfer of governance may elect to be
appointed to vacant positions with the Alameda County Health Care
Services Agency for which they have tenure.
(iii) A specified period of time during which employees of the
county impacted by the transfer of governance may elect to be
considered for reinstatement into positions with the county for which
they are qualified and eligible.
(iv) Compensation for vacation leave and compensatory leave
accrued while employed with the county in a manner that grants
affected employees the option of either transferring balances or
receiving compensation to the degree permitted employees laid off
from service with the county.
(v) A transfer of sick leave accrued while employed with the
county to hospital authority employment.
(vi) The recognition by the hospital authority of service with the
county in determining the rate at which vacation accrues.
(vii) The possible preservation of seniority, pensions, health
benefits, and other applicable accrued benefits of employees of the
county impacted by the transfer of governance.
(2) Nothing in this This subdivision
shall not be construed as prohibiting the hospital
authority from determining the number of employees, the number of
full-time equivalent positions, the job descriptions, and the nature
and extent of classified employment positions.
(3) Employees of the hospital authority are public employees for
purposes of Division 3.6 (commencing with Section 810) of Title 1 of
the Government Code relating to claims and actions against public
entities and public employees.
(x) Any hospital authority created pursuant to this section shall
be bound by the terms of the memorandum of understanding executed by
and between the county and health care and management employee
organizations that is in
effect as of the date this legislation becomes operative in the
county. Upon the expiration of the memorandum of understanding, the
hospital authority shall have has sole
authority to negotiate subsequent memorandums of understanding with
appropriate employee organizations. Subsequent memorandums of
understanding shall be approved by the hospital authority.
(y) The hospital authority created pursuant to this section may
borrow from the county and the county may lend the hospital authority
funds or issue revenue anticipation notes to obtain those funds
necessary to operate the medical center and otherwise provide medical
services.
(z) The hospital authority shall be is
subject to state and federal taxation laws that are applicable
to counties generally.
(aa) The hospital authority, the county, or both, may engage in
marketing, advertising, and promotion of the medical and health care
services made available to the community at the medical center.
(ab) The hospital authority shall is
not be a "person" subject to suit under the
Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2
of Division 7 of the Business and Professions Code).
(ac) Notwithstanding Article 4.7 (commencing with Section 1125) of
Chapter 1 of Division 4 of Title 1 of the Government Code related to
incompatible activities, a member of the hospital authority
administrative staff shall not be considered to be engaged in
activities inconsistent and incompatible with his or her duties as a
result of employment or affiliation with the county.
(ad) (1) The hospital authority may use a computerized management
information system in connection with the administration of the
medical center.
(2) Information maintained in the management information system or
in other filing and records maintenance systems that is confidential
and protected by law shall not be disclosed except as provided by
law.
(3) The records of the hospital authority, whether paper records,
records maintained in the management information system, or records
in any other form, that relate to trade secrets or to payment rates
or the determination thereof, or which relate to contract
negotiations with providers of health care, shall not be subject to
disclosure pursuant to the California Public Records Act (Chapter 5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code). The transmission of the records, or the information
contained therein in an alternative form, to the board of
supervisors shall doe s not
constitute a waiver of exemption from disclosure, and the records and
information once transmitted shall be subject to this same
exemption. The information, if compelled pursuant to an order of a
court of competent jurisdiction or administrative body in a manner
permitted by law, shall be limited to in-camera review, which, at the
discretion of the court, may include the parties to the proceeding,
and shall not be made a part of the court file unless sealed.
(ae) (1) Notwithstanding any other law, the governing board may
order that a meeting held solely for the purpose of discussion or
taking action on hospital authority trade secrets, as defined in
subdivision (d) of Section 3426.1 of the Civil Code, shall be held in
closed session. The requirements of making a public report of
actions taken in closed session and the vote or abstention of every
member present may be limited to a brief general description devoid
of the information constituting the trade secret.
(2) The governing board may delete the portion or portions
containing trade secrets from any documents that were finally
approved in the closed session that are provided to persons who have
made the timely or standing request.
(3) Nothing in this This
section shall not be construed as preventing the governing
board from meeting in closed session as otherwise provided by law.
(af) Open sessions of the hospital authority shall
constitute official proceedings authorized by law within
the meaning of Section 47 of the Civil Code. The privileges set forth
in that section with respect to official proceedings shall
apply to open sessions of the hospital authority.
(ag) The hospital authority shall be is
a public agency for purposes of eligibility with respect to
grants and other funding and loan guarantee programs. Contributions
to the hospital authority shall be are
tax deductible to the extent permitted by state and federal law.
Nonproprietary income of the hospital authority shall be
is exempt from state income taxation.
(ah) Contracts by and between the hospital authority and the state
and contracts by and between the hospital authority and providers of
health care, goods, or services may be let on a nonbid basis and
shall be exempt from Chapter 2 (commencing with Section 10290) of
Part 2 of Division 2 of the Public Contract Code.
(ai) (1) Provisions of the Evidence Code, the Government Code,
including the California Public Records Act (Chapter 5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code), the Civil Code, the Business and Professions Code,
and other applicable law pertaining to the confidentiality of peer
review activities of peer review bodies shall
apply to the peer review activities of the hospital authority. Peer
review proceedings shall constitute an official
proceeding authorized by law within the meaning of Section 47 of the
Civil Code and those privileges set forth in that section with
respect to official proceedings shall apply to peer review
proceedings of the hospital authority. If the hospital authority is
required by law or contractual obligation to submit to the state or
federal government peer review information or information relevant to
the credentialing of a participating provider, that submission
shall does not constitute a waiver of
confidentiality. The laws pertaining to the confidentiality of peer
review activities shall be together construed as extending, to the
extent permitted by law, the maximum degree of protection of
confidentiality.
(2) Notwithstanding any other law, Section 1461 shall
apply applies to hearings on the reports of
hospital medical audit or quality assurance committees.
(aj) The hospital authority shall carry general liability
insurance to the extent sufficient to cover its activities.
(ak) In the event the board of supervisors determines that the
hospital authority should no longer function for the purposes as set
forth in this chapter, the board of supervisors may, by ordinance,
terminate the activities of the hospital authority and expire the
hospital authority as an entity.
(al) A hospital authority which that
is created pursuant to this section , but which
does not obtain the administration, management, and control
of the medical center or which has those duties
and responsibilities revoked by the board of supervisors ,
shall not be empowered with the powers enumerated in this section.
(am) (1) The county shall establish baseline data reporting
requirements for the medical center consistent with the Medically
Indigent Health Care Reporting System (MICRS) program established
pursuant to Section 16910 of the Welfare and Institutions Code and
shall collect that data for at least one year prior to the final
transfer of the medical center to the hospital authority established
pursuant to this chapter. The baseline data shall include, but not be
limited to, all of the following:
(A) Inpatient days by facility by quarter.
(B) Outpatient visits by facility by quarter.
(C) Emergency room visits by facility by quarter.
(D) Number of unduplicated users receiving services within the
medical center.
(2) Upon transfer of the medical center, the county shall
establish baseline data reporting requirements for each of the
medical center inpatient facilities consistent with data reporting
requirements of the Office of Statewide Health Planning and
Development, including, but not limited to, monthly average daily
census by facility for all of the following:
(A) Acute care, excluding newborns.
(B) Newborns.
(C) Skilled nursing facility, in a distinct part.
(3) From the date of transfer of the medical center to the
hospital authority, the hospital authority shall provide the county
with quarterly reports specified in paragraphs (1) and (2) and any
other data required by the county. The county, in consultation with
health care consumer groups, shall develop other data requirements
that shall include, at a minimum, reasonable measurements of the
changes in medical care for the indigent population of Alameda County
that result from the transfer of the administration, management, and
control of the medical center from the county to the hospital
authority.
(an) A hospital authority established pursuant to this section
shall comply with the requirements of Sections 53260 and 53261 of the
Government Code.
(ao) This section shall become operative January 1, 2015.
SEC. 331. Section 101853 of the Health and Safety Code is amended
to read:
101853. (a) Pursuant to this chapter, the board of supervisors
may establish by ordinance the Kern County Hospital Authority, which
shall be a public agency that is a local unit of government separate
and apart from the county and any other public entity for all
purposes. The authority established pursuant to this chapter shall
file the statement required by Section 53051 of the Government Code,
and is a public entity for purposes of Division 3.6 (commencing with
Section 810) of Title 1 of the Government Code.
(b) The purpose of the authority shall be
is to do all of the following:
(1) Provide management, administration, and other controls
consistent with this chapter as needed to operate the medical center
and maintain its status as a designated public hospital, as defined
in subdivision (d) of Section 14166.1 of the Welfare and Institutions
Code, and for the operation of additional programs, clinics and
other facilities, care organizations, health care service and
physician practice plans, and delivery systems that may be affiliated
or consolidated with the medical center, to ensure the viability of
the health care safety net in the county in a manner consistent with
the county's requirements under Section 17000 of the Welfare and
Institutions Code.
(2) Provide management, administration, and other controls
consistent with this chapter to negotiate and enter into contracts to
provide or arrange, or provide directly, on a fee-for-service,
capitated, or other basis, health care services to individuals
including, but not limited to, those covered under Subchapters XVIII
(commencing with Section 1395), XIX (commencing with Section 1396),
and XXI (commencing with Section 1397aa) of Chapter 7 of Title 42 of
the United States Code, those entitled to coverage under private
group coverage, private individual coverage, including
including, without limitation, coverage through
Covered California, other publicly supported programs, those employed
by public agencies or private businesses, and uninsured or indigent
individuals.
(c) Subject to the requirements of this chapter, the authority
shall have has and be
is charged with authority for the management,
administration, and control of the medical center and other
health-related resources. The State Department of Health Care
Services shall take all necessary steps to ensure all of the
following:
(1) The authority is permitted to operate the medical center.
(2) The medical center continues its status as a designated public
hospital to at least the same extent as it would be designated in
the absence of its transfer to the authority pursuant to this
chapter.
(3) The authority may participate as a contributing public agency
for all of the purposes specified in Section 433.51 of Title 42 of
the Code of Federal Regulations, to the extent permitted by federal
law.
(d) The board of supervisors, in the enabling ordinance, shall
establish the terms and conditions of the transfer to the authority
from the county, including, but not limited to, all of the following:
(1) Any A transfer of real and
personal property, assets, and liabilities, including, but not
limited to, liabilities of the medical center determined and assigned
by the county for county funds previously advanced, but not repaid
or otherwise recovered, to fund the operations of the medical center.
(2) Transfer of employees, including any necessary personnel
transition plan, as specified in Section 101853.1, allocation of
credit for funded pension assets and responsibility for any unfunded
pension liabilities under the Kern County Employees' Retirement
Association or other retirement plans, and funding of the accrued
benefits of employees of the authority in the event of withdrawal
from the plan or dissolution of the authority. Any
An allocation of credit for funded pension assets and
responsibility for any unfunded pension
liabilities with respect to the Kern County Employees' Retirement
Association must shall be approved by
its governing board of retirement after consideration of legal and
actuarial analysis, and no such an
allocation may shall not be made that
would jeopardize the qualified status of the Kern County Employees'
Retirement Association under the federal Internal Revenue Code.
(3) Maintenance, operation, and management or ownership of the
medical center.
(4) Transfer of licenses.
(5) Any other matters as the board of supervisors deems necessary,
appropriate, or convenient for the conduct of the authority's
activities.
(e) (1) Notwithstanding any other law, a transfer of maintenance,
operation, and management or ownership or lease of the medical center
to the authority may be made, with or without the payment of a
purchase price by the authority, and otherwise upon the terms and
conditions as found necessary by the board of supervisors and
specified in the enabling ordinance to ensure that the transfer will
constitute an ongoing material benefit to the county and its
residents.
(2) A transfer of the maintenance, operation, and management, or
ownership or lease of the medical center to the authority shall not
be construed as empowering the authority to transfer any ownership
interest of the county in any portion of the medical center ,
except as otherwise approved by the board of supervisors.
(3) The authority shall not transfer the maintenance, operation,
and management or ownership or lease of the medical center to any
other person or entity without the prior written approval of the
board of supervisors. This paragraph shall
does not prevent the county, by ordinance, from allowing the
disposal of obsolete or surplus equipment, supplies, or furnishings
of the medical center by the authority.
(4) With respect to the maintenance, operation, and management or
ownership or lease of the medical center, the authority shall conform
to both of the following requirements:
(A) Comply with any applicable requirements of Section 14000.2 of
the Welfare and Institutions Code.
(B) Comply with any applicable requirements of Section 1442.5.
(5) The board of supervisors may retain control of the medical
center physical plant and facilities, as specifically provided for in
the enabling ordinance or other lawful agreements entered into by
the board of supervisors. Any lease agreement between the county and
the authority shall provide that county premises shall not be sublet
without the approval of the board of supervisors.
(6) Notwithstanding any other provision of this chapter, and
whether or not accompanied by a change in licensing, the authority's
responsibility for the maintenance, operation, and management of the
medical center, or any ownership or leasehold interest of the
authority in the medical center, does not relieve the county of the
ultimate responsibility for indigent care pursuant to Section 17000
of the Welfare and Institutions Code.
(7) For purposes of Article 12 (commencing with Section 17612.1)
of Chapter 6 of Part 5 of Division 9 of the Welfare and Institutions
Code, and the definition set forth in subdivision (f) of Section
17612.2 of the Welfare and Institutions Code, the medical center,
excluding components that provide predominately public health
services, and the county are affiliated governmental entities.
(f) The board of supervisors may contract with the authority for
the provision of indigent care services on behalf of the county. The
contract shall specify that county policies, as may be modified from
time to time and consistent with the county's obligations under
Section 17000 of the Welfare and Institutions Code, shall be
applicable. Notwithstanding any other provision of this chapter, the
authority shall not undertake any of the county's obligations under
Section 17000 of the Welfare and Institutions Code, nor shall the
authority have an entitlement to receive any revenue for the
discharge of the county's obligations, without a written agreement
with the county. Any A contract
executed by and between the county and the authority shall provide
for the indemnification of the county by the authority for
liabilities as specifically set forth in the contract, except that
the contract shall include a provision that the county shall
remain remains liable for its own negligent
acts. Indemnification by the authority shall
does not divest the county from its ultimate responsibility for
compliance with Section 17000 of the Welfare and Institutions Code.
(g) Unless otherwise agreed to by the authority and the board of
supervisors, an obligation of the authority, statutory, contractual,
or otherwise, shall be is the
obligation solely of the authority and shall
is not be the obligation of the county or
any other entity, and any a contract
executed by and between the county and the authority, or any other
entity and the authority, shall contain a provision that liabilities
or obligations of the authority with respect to its activities
pursuant to the contract shall be are
the liabilities or obligations of the authority and shall
not be or are not and will not become the
liabilities or obligations of the county or the other entity,
respectively. An obligation of the authority, statutory, contractual,
or otherwise, shall is not be
the obligation of the state.
(h) The authority shall is not
be a "person" subject to suit under the Cartwright
Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division
7 of the Business and Professions Code).
(i) The authority is not subject to the jurisdiction of a local
agency formation commission pursuant to the Cortese-Knox-Hertzberg
Local Government Reorganization Act of 2000 (Division 3 (commencing
with Section 56000) of Title 5 of the Government Code), or any
successor statute.
(j) The authority is a "district" within the meaning set forth in
the County Employees Retirement Law of 1937 (Chapter 3 (commencing
with Section 31450) of Part 3 of Division 4 of Title 3 of the
Government Code). Employees of the authority are eligible to become
members or maintain membership, as applicable, in the Kern County
Employees' Retirement Association, to the extent described in
subdivision (g) of Section 101853.1.
(k) Any A
determination with respect to the manner in which the authority
qualifies as a governmental plan sponsor under Section 414(d) of the
Internal Revenue Code shall be limited to relevant employee benefits
purposes of that code only, and shall not change or otherwise modify
the authority's status as a public agency that is a unit of local
government for other purposes specified in this chapter.
SEC. 332. Section 101853.1 of the Health and Safety Code is
amended to read:
101853.1. (a) In exercising its powers to employ personnel, the
authority shall implement, and the board of supervisors shall adopt,
a personnel transition plan. The personnel transition plan shall
require all of the following:
(1) Ongoing communication to employees and recognized employee
organizations regarding the impact of the transition on existing
medical center, county, and other health care facility employees and
employee classifications.
(2) Meeting and conferring with representatives of affected
bargaining unit employees on both of the following issues:
(A) A timeframe for which the transfer of personnel shall occur.
(B) Specified periods of time during which county or medical
center employees affected by the establishment of the authority may
elect to be considered for appointment and exercise reinstatement
rights, if applicable, to funded, equivalent, vacant county positions
for which they are qualified and eligible. An employee who first
elects to remain with the county may subsequently seek reinstatement
with the authority within 30 days of the election to remain with the
county and shall be subject to the requirements of this article.
(3) Acknowledgment that the authority, to the extent permitted by
federal and state law, shall be bound by the terms of the memoranda
of understanding executed between the county and its exclusive
employee representatives that are in effect on the date the county
adopts the enabling ordinance pursuant to this chapter. Subsequent
memoranda of understanding with exclusive employee representatives
shall be subject to approval only by the board of governors.
(4) Communication to the Board of Retirement of the Kern County
Employees' Retirement Association or other retirement plan of any
personnel transition plan, memoranda of understanding, or other
arrangements that are related to the participation of the authority's
employees or the addition of new employees in the retirement plan.
(b) Implementation of this chapter shall
is not be a cause for the modification of
the medical center or county employment benefits. Upon the execution
of the enabling ordinance, employees of the medical center or county
on the date of execution, who become authority employees, shall
retain their existing or equivalent classifications and job
descriptions upon transfer to the authority, comparable pension
benefits (if permissible pursuant to relevant plan terms), and their
existing salaries and other benefits that include, but are not
limited to, accrued and unused vacation, sick leave, personal leave,
health care, retiree health benefits, and deferred compensation
plans. The transfer of an employee from the medical center or county
shall does not constitute a termination
of employment for purposes of Section 227.3 of the Labor Code, or
employee benefit plans and arrangements maintained by the medical
center or county, except as otherwise provided in the enabling
ordinance or personnel transition plan, nor shall it
and it shall not be counted as a break in
uninterrupted employment for purposes of Section 31641 of the
Government Code with respect to the Kern County Employees' Retirement
Association, or state service for purposes of the Public Employees'
Retirement System (Part 3 (commencing with Section 20000) of Division
5 of Title 2 of the Government Code).
(c) Subject to applicable state law, the authority shall recognize
the exclusive employee representatives of those authority employees
who are transferred from the county or medical center to the
authority pursuant to this chapter.
(d) In order to stabilize labor and employment relations and
provide continuity of care and services to the people of the county,
and notwithstanding any other law, the authority shall do all of the
following for a period of 24 months after the effective date of the
transfer of the medical center to the authority:
(1) Continue to recognize each exclusive employee representative
of each bargaining unit.
(2) Continue to provide the same level of employee benefits to
authority employees, whether the obligation to provide those benefits
arise out of a memorandum of understanding, or other agreements or
law.
(3) Extend and continue to be bound by any existing memoranda of
understanding covering the terms and conditions of employment for
employees of the authority, including the level of wages and
benefits, and any county rules, ordinances, or policies specifically
identified and incorporated by reference in a memoranda of
understanding for 24 months or through the term of the memorandum of
understanding, whichever shall be the longer, unless modified by
mutual agreement with each of the exclusive employee representatives.
The authority shall continue to provide those pension benefits
specified in any memoranda of agreement as long as doing so does not
conflict with any Kern County Employee Retirement Association plan
provisions, or federal or state law including the County Employees
Retirement Law of 1937 (Chapter 3 (commencing with Section 31450) of
Part 3 of Division 4 of Title 3 of the Government Code and the
federal Internal Revenue Code).
(4) Meet and confer with the exclusive employee representatives to
develop processes and procedures to address employee disciplinary
action taken against permanent employees. If the authority
terminates, suspends, demotes, or reduces the pay of a permanent
employee for disciplinary reasons, those actions shall only be for
cause consistent with state law, and an employee shall be afforded
applicable due process protections granted to public employees under
state law. Permanent employees laid off by the authority within six
months of the date the ordinance is adopted shall remain on the
county reemployment list for two years. Inclusion on the county
reemployment list is not a guarantee of reemployment. For the
purposes of this paragraph, the term "permanent employees" excludes
probationary employees, temporary employees, seasonal employees,
provisional employees, extra help employees, and per diem employees.
(5) To the extent layoffs occur, and provided that all other
previously agreed upon factors are equal, ensure that seniority shall
prevail. The authority shall meet and confer with the exclusive
employee representatives to address layoff procedures and the manner
in which, and the extent to which, seniority shall be measured for
employees who transfer from the medical center or county.
(e) Permanent employees of the medical center or county on the
effective date of the transfer of the medical center to the
authority, shall be deemed qualified for employment in equivalent
positions at the authority, and no other qualifications shall be
required except as otherwise required by state or federal law.
Probationary employees on
the effective date of the transfer, as set forth in this
paragraph, shall retain their probationary status and rights and
shall not be required to serve a new probationary or extend their
probationary period by reason of the transfer. To the extent
possible, employees who transfer to equivalent positions at the
authority shall retain their existing classifications and job
descriptions, but if there is a dispute over this issue, the
authority agrees to meet and confer with the exclusive employee
representatives of the transferred employees.
(f) Employees who transfer from the medical center or county to
the authority shall retain the seniority they earned at the medical
center or county and any benefits or privileges based on the
seniority.
(g) Notwithstanding any other law, employees of the authority may
participate in the Kern County Employees' Retirement Association,
operated pursuant to the County Employees Retirement Law of 1937
(Chapter 3 (commencing with Section 31450) of Part 3 of Division 4 of
Title 3 of the Government Code) as set forth below. However, the
authority and employees of the authority, or certain designated parts
thereof, shall not participate in the Kern County Employees'
Retirement Association if the board of retirement, in its sole
discretion, determines that their participation could jeopardize the
Kern County Employees' Retirement Association's tax-qualified or
governmental plan status under federal law, or if a contract or
related contract amendment proposed by the authority contains any
benefit provisions that are not specifically authorized by Chapters 3
(commencing with Section 31450) and 3.9 (commencing with Section
31899) of Part 3 of Division 4 of Title 3 of the Government Code or
Article 4 (commencing with Section 7522) of Chapter 21 of Division 7
of Title 1 of the Government Code, and that the board determines
would adversely affect the administration of the system. There shall
not be any individual employee elections regarding participation in
the Kern County Employees' Retirement Association or other retirement
plans except to the extent such the
retirement plans provide for elective employee salary deferral
contributions in accordance with federal Internal Revenue Code rules.
(1) Employees transferred from the county or medical center to the
authority who are subject to a memorandum of understanding between
the authority and an exclusive employee representative, as described
in paragraphs (2) and (3) of subdivision (d), and who were members of
the Kern County Employees' Retirement Association at the time of
their transfer of employment, shall continue to be a member of the
Kern County Employees' Retirement Association, retaining service
credit earned to the date of transfer, to the extent provided for in
the applicable memorandum of understanding.
(2) Employees transferred from the county or medical center to the
authority who are subject to a memorandum of understanding between
the authority and an exclusive employee representative, as described
in paragraphs (2) and (3) of subdivision (d), and who were not
members of the Kern County Employees' Retirement Association at the
time of their transfer of employment, shall subsequently become a
member of the Kern County Employees' Retirement Association only to
the extent provided for in the applicable memorandum of
understanding.
(3) Employees transferred from the county or medical center to the
authority who are not subject to a memorandum of understanding
between the authority and an exclusive employee representative, as
described in paragraphs (2) and (3) of subdivision (d), and who were
members of the Kern County Employees' Retirement Association at the
time of their transfer of employment, shall continue to be a member
of the Kern County Employees' Retirement Association, retaining
service credit earned to the date of transfer, as provided in the
enabling ordinance or the personnel transition plan.
(4) Employees transferred from the county or medical center to the
authority who are not subject to a memorandum of understanding
between the authority and an exclusive employee representative, as
described in paragraphs (2) and (3) of subdivision (d), and who were
not members of the Kern County Employees' Retirement Association at
the time of their transfer of employment, shall subsequently become a
member of the Kern County Employees' Retirement Association only to
the extent provided in the enabling ordinance or the personnel
transition plan.
(5) Employees hired by the authority on or after the effective
date of the enabling ordinance shall become a member of the Kern
County Employees' Retirement Association only to the extent provided
in the enabling ordinance or personnel transition plan described in
subdivision (a), or, if subject to a memorandum of understanding
between the authority and an exclusive employee representative as
described in paragraphs (2) and (3) of subdivision (d), to the extent
provided for in the applicable memorandum of understanding.
(6) Notwithstanding any other law, for purposes of the
California Public Employees' Pension Reform Act of 2013 (Article 4
(commencing with Section 7522) of Chapter 21 of Division 7 of Title 1
of the Government Code), an individual who was employed by the
county or the medical center when it was a constituent department of
the county, and is a member of the Kern County Employees' Retirement
Association or the Public Employees' Retirement System, as set forth
in Part 3 (commencing with Section 20000) of Division 5 of Title 2 of
the Government Code, prior to January 1, 2013, and who transfers,
directly or after a break in service of less than six months, to the
authority, in which the individual continues to be a member of either
the Kern County Employees' Retirement Association or the Public
Employees' Retirement System, as applicable, shall not be deemed to
be a new employee or a new member within the meaning of Section
7522.04 of the Government Code, and shall continue to be subject to
the same defined benefit formula, as defined in Section 7522.04 of
the Government Code, to which the member was subject immediately
prior to the transfer.
(h) This chapter shall does not
prohibit the authority from contracting with the Public Employees'
Retirement System, in accordance with the requirements of Section
20508 and any other applicable provisions of Part 3 (commencing with
Section 20000) of Division 5 of Title 2 of the Government Code, for
the purpose of providing employee participation in that system, or
from establishing an alternative or supplemental retirement system or
arrangement, including, but not limited to, deferred compensation
arrangements, to the extent permitted by law and subject to any
applicable agreement between the authority and the exclusive employee
representatives, and as provided in the enabling ordinance or the
personnel transition plan. Notwithstanding any other law, the
authority and employees of the authority shall not participate in the
Public Employees' Retirement System if the Board of Administration
of the Public Employees' Retirement System, in its sole discretion,
determines that their participation could jeopardize the Public
Employees' Retirement System's tax-qualified or governmental plan
status under federal law, or if a contract or related contract
amendment proposed by the authority contains any benefit provisions
that are not specifically authorized by Part 3 (commencing with
Section 20000) of Division 5 of Title 2 of the Government Code, and
that the board determines would adversely affect the administration
of the system.
(i) Provided that this is not inconsistent with anything in this
chapter, this chapter does not prohibit the authority from
determining the number of employees, the number of full-time
equivalent positions, job descriptions, the nature and extent of
classified employment positions, and salaries of employees.
SEC. 333. Section 101855 of the Health and Safety Code is amended
to read:
101855. (a) The authority, in addition to any other powers
granted pursuant to this chapter, shall have
has the following powers:
(1) To have the duties, privileges, immunities, rights,
liabilities, and limitations of a local unit of government within the
state.
(2) To have perpetual existence, subject to Article 5 (commencing
with Section 101856).
(3) To adopt, have, and use a seal, and to alter it at its
pleasure.
(4) To sue and be sued in the name of the authority in all actions
and proceedings in all courts and tribunals of competent
jurisdiction.
(5) To purchase, lease, trade, exchange, or otherwise acquire,
maintain, hold, improve, mortgage, lease, sell, and dispose of real
and personal property of any kind necessary or convenient to perform
its functions and fully exercise its powers.
(6) To appoint and employ a chief executive officer and other
officers and employees that may be necessary or appropriate,
including legal counsel, to establish their compensation, provide for
their health, retirement, and other employment benefits, and to
define the power and duties of officers and employees.
(7) (A) To incur indebtedness and to borrow money and issue bonds
evidencing the same, including the authority to issue, from time to
time, notes and revenue bonds in principal amounts that the authority
determines to be necessary to provide sufficient funds for achieving
any of its purposes, including, but not limited to, assumption or
refinancing of debt service for capital projects eligible for
Medi-Cal supplemental payments pursuant to Section 14085.5 of the
Welfare and Institutions Code, or any successor or modified Medi-Cal
debt service reimbursement program, the payment of interest on notes
and bonds of the authority, the establishment of reserves to secure
those notes and bonds, and all other expenditures of the authority
incident to and necessary or convenient to carry out its purposes and
powers.
(B) Any notes, bonds, or other securities issued, and the income
from them, including any profit from the sale thereof, shall at all
times be free from taxation by the state or any agency, political
subdivision, or instrumentality of the state.
(C) Notwithstanding the provisions of subparagraph (A), for any
indebtedness, notes, bonds, or other securities that require voter
approval pursuant to state law, the prior approval of the board of
supervisors shall be required. Notwithstanding the required prior
approval of the board of supervisors, any indebtedness incurred, or
notes, bonds, or other securities issued pursuant to this
subparagraph shall be the indebtedness, notes, bonds, or securities
of the authority and not of the county, and the credit of the county
shall not be pledged or relied upon in any manner in order to incur
the indebtedness, or issue the notes, bonds, or other securities,
unless the board of supervisors explicitly authorizes the use of the
county's credit. The authority shall reimburse the county for all
costs associated with the county's consideration of the indebtedness,
notes, bonds, or securities, and the authority shall defend,
indemnify, and hold harmless the county from any and all liability,
costs, or expenses arising from or related to the indebtedness,
notes, bonds, or securities.
(D) Nothing in this This section
shall does not preclude the authority
from repayment of its debts or other liabilities, using funds that
are not otherwise encumbered.
(8) To pursue its own credit rating.
(9) To enter into a contract or agreement consistent with this
chapter or the laws of this state, including, but not limited to,
contracting with any public or private entity or person for
management or other services and personnel, and to authorize the
chief executive officer to enter into contracts, execute all
instruments, and do all things necessary or convenient in the
exercise of the powers granted in this chapter.
(10) To purchase supplies, equipment, materials, property, and
services.
(11) To establish policies relating to its purposes.
(12) To acquire or contract to acquire, rights-of-way, easements,
privileges, and property, and to construct, equip, maintain, and
operate any and all works or improvements wherever located that are
necessary, convenient, or proper to carry out any of the provisions,
objects, or purposes of this chapter, and to complete, extend, add
to, repair, or otherwise improve any works or improvements acquired
by it.
(13) To participate in, contract for, and to accept, gifts,
grants, and loans of funds, property, or other aid or finance
opportunity in any form from the federal government, the state, a
state agency, or other source, or combination thereof, as otherwise
would be available to a public, government, or private entity, and to
comply, subject to this chapter, with the terms and conditions
thereof.
(14) To invest surplus money in its own treasury, manage
investments, and engage third-party investment managers, in
accordance with state law.
(15) To arrange for guarantees or insurance of its bonds, notes,
or other obligations by the federal or state government or by a
private insurer, and to pay the premiums thereof.
(16) To engage in managed care contracting, joint ventures,
affiliations with other health care facilities, other health care
providers and payers, management agreements, or to participate in
alliances, purchasing consortia, health insurance pools, accountable
care organizations, alternative delivery systems, or other
cooperative arrangements, with any public or private entity.
(17) To enter into joint powers agreements pursuant to Chapter 5
(commencing with Section 6500) of Division 7 of Title 1 of the
Government Code. Notwithstanding any other law, the authority may
enter into a joint powers agreement as described in Section 6523.5 of
the Government Code as though that section applied to hospitals and
other health care facilities in the County of Kern.
(18) To establish nonprofit, for-profit, or other entities
necessary to carry out the duties of the authority.
(19) To elect to transfer funds to the state and incur certified
public expenditures in support of the Medi-Cal program and other
programs for which federal financial participation is available.
(20) To use a computerized management information system,
including an electronic health records system, in connection with its
operations, including, without limitation , the
administration of its facilities.
(21) To request that the board of supervisors levy a tax on behalf
of the authority. If the board of supervisors approves the proposal
to levy the tax, it shall call the election to seek voter approval
and place the appropriate measure on the ballot for that election.
The proceeds of these taxes shall be tax proceeds of the authority
and not of the county. The authority shall reimburse the county for
all costs associated with the county's consideration of those taxes,
and shall defend, indemnify, and hold harmless the county from any
liability, costs, or expenses arising from or related to the
imposition of these taxes.
(22) Notwithstanding the provisions of this chapter relating to
the obligations and liabilities of the authority, or any other law, a
transfer of control or ownership of the medical center to the
authority pursuant to this chapter shall confer onto the authority
all the rights, privileges, and authority set forth in state law to
own, operate, and provide coverage and services through hospitals,
clinics and other health facilities, health programs, care
organizations, physician practice plans, delivery systems, health
care service plans, and other coverage mechanisms that may be owned
or operated by a county.
(23) To engage in other activities that may be in the best
interests of the authority and the persons served by the authority,
as determined by the board of governors, in order to respond to
changes in the health care industry.
(b) The authority shall conform to the following requirements:
(1) (A) Be a government agency that is a local unit of government
separate and apart for all purposes from the county and any other
public entity, and shall not be considered to be an agency, division,
or department of the county or any other public entity. The
authority shall not be governed by or subject to the civil service
requirements of the county. Except as otherwise provided for in the
enabling ordinance consistent with this chapter, and as set forth in
Section 101853.1 relating to the personnel transition plan, the
authority shall is not be
governed by, or subject to, other policies or operational
rules of the county, medical center, or any other public entity,
including, but not limited to, those relating to personnel and
procurement.
(B) The board of governors shall adopt written rules, regulations,
and procedures with regard to basic human resource functions not
inconsistent with memoranda of understanding covering employees
represented by employee organizations or the provisions of this
chapter. Until the time that the board of governors adopts its own
rules, regulations, or procedures with regard to these functions, the
existing rules, regulations, and procedures set forth in any
memoranda of understanding described in Section 101853.1, and the
rules and regulations adopted by the county and described in
paragraph (4), shall continue to apply.
(2) Be subject to state and federal taxation laws that are
applicable to public entities generally.
(3) Except as otherwise specifically provided in this chapter,
comply with the Meyers-Milias-Brown Act (Chapter 10 (commencing with
Section 3500) of Division 4 of Title 1 of the Government Code), the
California Public Records Act (Chapter 3.5 (commencing
with Section 6250) of Division 7 of Title 1 of the Government Code),
and the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950)
of Part 1 of Division 2 of Title 5 of the Government Code).
(4) Be subject to the jurisdiction of the Public Employment
Relations Board. Until the authority adopts rules and regulations
pursuant to subdivision (a) of Section 3507 of the Government Code,
the existing rules adopted by the county and contained in the county'
s employer-employee relations resolution, as amended, shall apply,
modified to account for the creation of the authority, and provided
further that the resolution shall not contain any incorporation of
the county's civil service rules or county ordinances unless
specifically addressed in this chapter.
(5) Carry professional and general liability insurance or programs
to the extent sufficient to cover its activities.
(6) Comply with the requirements of Sections 53260 and 53261 of
the Government Code.
(7) Maintain financial and accounting records.
(8) Meet all local, state, and federal data reporting
requirements.
(c) Subject to any restrictions applicable to public agencies, and
subject to any limitations or conditions set forth in the enabling
ordinance adopted by the board of supervisors, the authority may
borrow money from the county, repay debt it owes to the county, and
use the borrowed funds to provide for its operating and capital
needs. The county may lend the authority funds or issue revenue
anticipation notes to obtain those funds necessary to meet its
operating or capital needs.
(d) Open sessions of the authority shall
constitute official proceedings authorized by law within the meaning
of Section 47 of the Civil Code. The privileges set forth in that
section with respect to official proceedings shall
apply to open sessions of the authority.
(e) (1) Notwithstanding any other law, the board of governors may
order that a meeting held solely for the purpose of discussion or
taking action on authority trade secrets, as defined in subdivision
(d) of Section 3426.1 of the Civil Code, or to consider and take
action on matters pertaining to contracts and contract negotiations
concerning all matters related to rates of payment for health care
services arranged or provided by the authority, shall be held in
closed session. Trade secrets , for purposes of this
chapter shall chapter, also include
information for which the secrecy of the information is necessary for
the authority to initiate a new service, program, marketing
strategy, business plan, or technology, or to add a benefit or
product, and premature disclosure of the trade secret would create a
substantial probability of depriving the authority of a substantial
economic benefit or opportunity.
(2) The requirements of making a public report of actions taken in
closed session and the vote or abstention of every member present
may be limited to a brief general description devoid of the
information constituting the trade secret or concerning the matters
related to rates of payment.
(3) Those records Records
of the authority that reveal the authority's trade secrets are
exempt from disclosure pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code), or any similar local law requiring the
disclosure of public records. This exemption shall apply for a period
of two years after the service, program, marketing strategy,
business plan, technology, benefit, or product that is the subject of
the trade secret is formally adopted by the governing body of the
authority, provided that the service, program, marketing strategy,
business plan, technology, benefit, or product continues to be a
trade secret. The board of governors may delete the portion or
portions containing trade secrets from any documents that were
finally approved in the closed session that are provided to persons
who have made the timely or standing request.
(4) This chapter shall does not
prevent the board of governors from meeting in closed session as
otherwise provided by law.
(f) Notwithstanding any other law, those records of the authority
and of the county that reveal the authority's rates of payment for
health care services arranged or provided by the authority or its
deliberative processes, strategies, discussions, communications, or
any other portion of the negotiations with providers of health care
services or Medi-Cal, health care plans, or other payers for rates of
payment, shall not be required to be disclosed pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code), or any
similar local law requiring the disclosure of public records.
However, three years after a contract or amendment to a contract is
fully executed, the portion of the contract or amendment containing
the rates of payment shall be open to inspection.
(g) The authority shall be is a
public agency that is a local unit of government for purposes of
eligibility with respect to grants and other funding and loan
guarantee programs. Contributions to the authority shall be
are tax deductible to the extent permitted by
state and federal law. Nonproprietary income of the authority
shall be is exempt from state income
taxation.
(h) Unless otherwise provided by the board of supervisors by way
of resolution, the authority is empowered, or the board of
supervisors is empowered on behalf of the authority, to apply as a
public agency for one or more licenses for the provision of health
care or the operation of a health care service plan pursuant to
statutes and regulations governing licensing as currently written or
subsequently amended.
(i) The statutory authority of a board of supervisors to prescribe
rules that authorize a county hospital to integrate its services
with those of other providers into a system of community service that
offers free choice of hospitals to those requiring hospital care, as
set forth in Section 14000.2 of the Welfare and Institutions Code,
shall apply to the authority and the board of
governors.
(j) (1) Except as otherwise provided in this chapter, provisions
of the Evidence Code, the Government Code, including the
California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code), the
Civil Code, the Business and Professions Code, and other applicable
law pertaining to the confidentiality of peer review activities of
peer review bodies shall apply to the peer review
activities of the authority, or any peer review body, as defined in
paragraph (1) of subdivision (a) of Section 805 of the Business and
Professions Code, formed pursuant to the powers granted to the
authority. The laws pertaining to the confidentiality of peer review
activities shall be together construed as extending, to the extent
permitted by law, the maximum degree of protection of
confidentiality.
(2) Notwithstanding Article 9 (commencing with Section 11120) of
Chapter 1 of Part 1 of Division 3 of Title 2 of, and Chapter 9
(commencing with Section 54950) of Part 1 of Division 2 of Title 5
of, the Government Code, or any other provision of law, any peer
review body formed pursuant to the powers granted to the authority,
may, at its discretion and without notice to the public, meet in
closed session, so long as the purpose of the meeting is the peer
review body's discharge of its responsibility to evaluate and improve
the quality of care rendered by health facilities and health
practitioners. The peer review body and its members shall receive, to
the fullest extent, all immunities, privileges, and protections
available to those peer review bodies, their individual members, and
persons or entities assisting in the peer review process, including
those afforded by Section 1157 of the Evidence Code and Section 1370.
Peer review proceedings shall constitute an official proceeding
authorized by law within the meaning of Section 47 of the Civil Code
and those privileges set forth in that section with respect to
official proceedings shall apply to peer review proceedings of the
authority.
(3) Notwithstanding the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code), or Article 9 (commencing with Section 11120) of
Chapter 1 of Part 1 of Division 3 of Title 2 of, and Chapter 9
(commencing with Section 54950) of Part 1 of Division 2 of Title 5
of, the Government Code, or any other provision of state or local law
requiring disclosure of public records, those records of a peer
review body formed pursuant to the powers granted to the authority,
shall not be required to be disclosed. The records and proceedings of
the peer review body and its individual members shall receive, to
the fullest extent, all immunities, privileges, and protections
available to those
records and proceedings, including those afforded by Section 1157 of
the Evidence Code and Section 1370 of the Health and Safety
Code .
(4) If the authority is required by law or contractual obligation
to submit to the state or federal government peer review information
or information relevant to the credentialing of a participating
provider, that submission shall does
not constitute a waiver of confidentiality.
(5) Notwithstanding any other law, Section 1461 shall
apply applies to hearings on reports of hospital
medical audit or quality assurance committees.
(k) Except as expressly provided by other provisions of this
section, all exemptions and exclusions from disclosure as public
records pursuant to this chapter and the California Public Records
Act, including, but not limited to, those pertaining to trade secrets
and information withheld in the public interest, shall be
are fully applicable to the authority, and for
the board of supervisors, and all state and local agencies with
respect to all writings that the authority is required to prepare,
produce, or submit, and which shall not constitute a waiver of
exemption from disclosure.
(l) The authority and the county, or any combination thereof, may
engage in marketing, advertising, and promotion of the medical and
health care services made available to the community by the
authority.
(m) The board of governors shall have has
authority over procurement and contracts for the authority. The
board of governors shall adopt written rules, regulations, and
procedures with regard to these functions. Contracts by and between
the authority and a public agency, and contracts by and between the
authority and providers of health care, goods, or services, may be
let on a nonbid basis and shall be exempt from Chapter 2 (commencing
with Section 10290) of Part 2 of Division 2 of the Public Contract
Code.
(n) The authority may contract with the county for services and
personnel upon mutually agreeable terms.
(o) Notwithstanding Article 4.7 (commencing with Section 1125) of
Chapter 1 of Division 4 of Title 1 of the Government Code, related to
incompatible activities, Section 1099 of the Government Code,
related to incompatible offices, or any other law, a member of the
authority's administrative staff shall not be considered to hold an
incompatible office or to be engaged in activities inconsistent and
incompatible with his or her duties as a result of his or her
employment or affiliation with the county or an agency of the county.
(p) The board of governors and the officers and employees of the
authority are public employees for purposes of Division 3.6
(commencing with Section 810) of Title 1 of the Government Code,
relating to claims and actions against public entities and public
employees, and shall be protected by the immunities applicable to
public entities and public employees governed by Part 2 (commencing
with Section 814) of Division 3.6 of Title 1 of the Government Code,
except as provided by other statutes or regulations that apply
expressly to the authority.
SEC. 334. Section 101855.1 of the Health and Safety Code is
amended to read:
101855.1. (a) Transfer by the county to the authority of the
maintenance, operation, and management or ownership of the medical
center, whether or not the transfer includes the surrendering by the
county of the existing general acute care hospital license and
corresponding application for a change of ownership of the license,
shall does not affect the eligibility
of the county to undertake, and shall authorize
authorizes the authority, subject to applicable
requirements, to do any of the following:
(1) With the written consent of the county, participate in and
receive allocations pursuant to the California Health Care for
Indigents Program pursuant to Chapter 5 (commencing with Section
16940) of Part 4.7 of Division 9 of the Welfare and Institutions
Code, or similar programs, as may be identified or earmarked by the
county for indigent health care services of the type provided by the
medical center.
(2) With the written consent of the county, participate in and
receive allocations of local revenue fund amounts provided pursuant
to Chapter 6 (commencing with Section 17600) of Part 5 of Division 9
of the Welfare and Institutions Code as may be identified or
earmarked by the county for indigent health care services of the type
provided by the medical center.
(3) Participate in the financing of, as applicable, and receive,
Medicaid disproportionate share hospital payments available to a
county hospital or designated public hospital, or any other successor
or modified payment or funding that is intended to assist hospitals
that serve a disproportionate share of low-income patients with
special needs. The allocation of Medicaid disproportionate share
hospital payments shall be made in consultation with the State
Department of Health Care Services and other designated safety net
hospitals.
(4) Participate in the financing of, as applicable, and receive,
Medi-Cal payments and supplemental reimbursements, including, but not
limited to, payments made pursuant to Sections 14105.96, 14105.965,
14166.4, 14182.15, and 14199.2 of the Welfare and Institutions Code,
payments described in paragraph (4) of subdivision (b) of Section
14301.4 of, and Section 14301.5 of, the Welfare and Institutions
Code, and payments made available to a county provider or designated
public hospital, or governmental entity with which it is affiliated,
under any other successor or modified Medicaid payment system.
(5) Participate in the financing of, as applicable, and receive,
safety net care pool funding, stabilization funding, delivery system
reform incentive pool payments, and any other funding available to a
county provider or designated public hospital, or governmental
entities with which it is affiliated under the Medicaid demonstration
project authorized pursuant to Article 5.2 (commencing with Section
14166) and Article 5.4 (commencing with Section 14180) of Chapter 7
of Part 3 of Division 9 of the Welfare and Institutions Code, or
under any other successor or modified Medicaid demonstration project
or Medicaid payment system. The allocation of safety net care pool
funds shall be made in consultation with the State Department of
Health Care Services and other designated safety net hospitals.
(6) Participate in the financing, administration, and provision of
services under the Low Income Health Program authorized pursuant to
Part 3.6 (commencing with Section 15909) of Division 9 of the Welfare
and Institutions Code, or under any other successor or modified
Medicaid demonstration project or Medicaid payment system if the
authority enters into an agreement with the county concerning the
provision of services by, and payment for these services to, the
county.
(7) Participate in and receive direct grant and payment
allocations pursuant to Article 5.230 (commencing with Section
14169.50) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code, or under any other successor or modified direct
grant and payment systems funded by hospital or other provider fee
assessments.
(8) Receive Medi-Cal capital supplements pursuant to Section
14085.5 of the Welfare and Institutions Code, or any other successor
or modified Medi-Cal debt service reimbursement program.
Notwithstanding any other law, supplemental payments shall be made to
the medical center under those programs for the debt service costs
incurred by the county, and, if applicable, by the authority to the
extent that debt service responsibility is refinanced, transferred
to, or otherwise assumed by, directly or indirectly, the authority.
(9) Receive any other funds, or preference in the assignment of
health care plan enrollees, that would otherwise be available to a
county health plan, provider, or designated public hospital, or
governmental entity with which it is affiliated.
(b) The transfer of the medical center to the authority pursuant
to this chapter shall does not
otherwise disqualify the county or the authority from participating
in any of the following:
(1) Local, state, and federal funding sources either specific to
county or other publicly owned or operated health care service plans,
hospitals, or other health care providers, including, but not
limited to, ambulatory care clinics, health systems, practices,
designated public hospitals, or governmental entities with which they
are affiliated, for which there are special provisions specific to
those plans, hospitals, ambulatory care clinics, health systems,
practices, other health care providers or governmental entities with
which they are affiliated.
(2) All funding programs in which the county, by itself or on
behalf of the medical center center,
had participated prior to the creation of the authority, or would
otherwise be qualified to participate in had the authority not been
created, and the maintenance, operation, and management or ownership
of the medical center not been transferred to the authority pursuant
to this chapter.
SEC. 335. Chapter 6 (commencing with Section 101860) of Part 4 of
Division 101 of the Health and Safety Code, as added by Section 2 of
Chapter 925 of the Statutes of 1997, is repealed.
SEC. 336. Section 102430 of the Health and Safety Code, as added
by Section 7 of Chapter 334 of the Statutes of 2014, is amended to
read:
102430. (a) The second section of the certificate of live birth
as specified in subdivision (b) of Section 102425, the electronic
file of birth information collected pursuant to subparagraphs (B) to
(F), inclusive, of paragraph (2) of subdivision (a) of Section
102426, the birth mother linkage collected pursuant to Section
102425.2, and the second section of the certificate of fetal death as
specified in Section 103025, shall be are
confidential. Access to the confidential portion of any
certificate of live birth or fetal death, the electronic file of
birth information collected pursuant to subparagraphs (B) to (F),
inclusive, of paragraph (2) of subdivision (a) of Section 102426, and
the birth mother linkage collected pursuant to Section 102425.2
shall be limited to the following:
(1) Department staff.
(2) Local registrar's staff and local health department staff when
approved by the local registrar or local health officer,
respectively.
(3) The county coroner.
(4) Persons with a valid scientific interest as determined by the
State Registrar, who are engaged in demographic,
epidemiological epidemiological, or other
similar studies related to health, and who agree to maintain
confidentiality as prescribed by this part and by regulation of the
State Registrar.
(5) The parent who signed the certificate or, if no parent signed
the certificate, the mother.
(6) The person named on the certificate.
(7) Any A person who has petitioned
to adopt the person named on the certificate of live birth, subject
to Section 102705 of the Health and Safety Code and Sections 9200 and
9203 of the Family Code.
(b) (1) The department shall maintain an accurate record of all
persons who are given access to the confidential portion of the
certificates. The record shall include all of the following:
(A) The name of the person authorizing access.
(B) The name, title, and organizational affiliation of persons
given access.
(C) The dates of access.
(D) The specific purpose for which the information is
to be used.
(2) The record of access shall be open to public inspection during
normal operating hours of the department.
(c) All research proposed to be conducted using the confidential
medical and social information on the birth certificate or fetal
death certificate shall first be reviewed by the appropriate
committee constituted for the protection of human subjects that is
approved by the federal Department of Health and Human Services and
has a general assurance pursuant to Part 46 of Title 45 of the Code
of Federal Regulations. Information shall not be released until the
request for information has been reviewed by the Vital Statistics
Advisory Committee and the committee has recommended to the State
Registrar that the information shall be released.
(d) This section shall become operative on January 1, 2016.
SEC. 337. The heading of Chapter 2 (commencing with Section
104145) of Part 1 of Division 103 of the Health and Safety Code is
amended to read:
CHAPTER 2. CANCER (RESERVED)
SEC. 338. Section 111825 of the Health and Safety Code is amended
to read:
111825. (a) Any A person who
violates any a provision of this part
or any a regulation adopted pursuant to
this part shall, if convicted, be subject to imprisonment for not
more than one year in a county jail or a fine of not more than one
thousand dollars ($1,000), or both the imprisonment and fine.
(b) Notwithstanding subdivision (a), any a
person who violates Section 111865 by removing, selling, or
disposing of an embargoed food, drug, device, or cosmetic without the
permission of an authorized agent of the department or court shall,
if convicted, be subject to imprisonment for not more than one year
in a county jail or a fine of not more than ten thousand dollars
($10,000), or both the fine and imprisonment.
(c) (1) Notwithstanding subdivision (a), any
a person who purchases or sells a foreign dangerous drug
or medical device, an illegitimate product, as defined in Section
360eee(8) of Title 21 of the United States Code, or a
suspect product, as defined in Section 360eee(21) of Title 21 of the
United States Code, that is not approved or otherwise authorized by
the United States Food and Drug Administration or that is obtained
outside of the licensed supply chain regulated by the United States
Food and Drug Administration, California State Board of Pharmacy, or
State Department of Public Health is guilty of a misdemeanor and
subject to imprisonment for not more than one year in a county jail,
a fine of not more than ten thousand dollars ($10,000) per
occurrence, or both the imprisonment and fine.
(2) This subdivision does not apply to those individuals
determined by the United States Food and Drug Administration to have
acted in compliance with the requirements under Part H (commencing
with Section 360eee) of Subchapter V of Chapter 9 of Title 21 of the
United States Code with regard to the illegitimate or suspect
products.
(d) If the violation is committed after a previous conviction
under this section that has become final, or if the violation is
committed with intent to defraud or mislead, or if the person
committed a violation of Section 110625 or 111300 that was
intentional or that was intended to cause injury, the person shall be
subject to imprisonment for not more than one year in a county jail,
imprisonment in the state prison, or a fine of not more than ten
thousand dollars ($10,000), or both the imprisonment and fine.
(e) This section does not preclude punishment under any other law
that provides for a greater punishment.
SEC. 339. Section 115880 of the Health and Safety Code is amended
to read:
115880. (a) The department shall, by regulation and in
consultation with the board, local health officers, and the public,
establish, maintain, and amend as necessary, minimum standards for
the sanitation of public beaches, including, but not limited to, the
removal of refuse, as it determines are reasonably necessary for the
protection of the public health and safety.
(b) Prior to final adoption or amendment by the department, the
regulations and standards required by this section shall undergo an
external comprehensive review process similar to the process set
forth in Section 57004 of the Health and Safety Code
.
(c) The regulations shall, at a minimum, do all of the following:
(1) Require the testing of the waters adjacent to all public
beaches for microbiological contaminants, including, but not limited
to, total coliform, fecal coliform, and enterococci bacteria. The
department may require the testing of waters adjacent to all public
beaches for microbiological indicators other than those set forth in
this paragraph, or a subset of those set forth in this paragraph, if
the department affirmatively establishes, based on the best available
scientific studies and the weight of the evidence, that the
alternative indicators are as protective of the public health.
(2) Establish protective minimum standards for total coliform,
fecal coliform, and enterococci bacteria, or for other
microbiological indicators that the department determines are
appropriate for testing pursuant to paragraph (1).
(3) Require that the waters adjacent to public beaches are tested
for total coliform, fecal coliform, and enterococci bacteria, or for
other microbiological indicators that the department determines are
appropriate for testing pursuant to paragraph (1). Except as set
forth in subdivision (e), testing shall be conducted on at least a
weekly basis from April 1 to October 31, inclusive, of each year
beginning in 2012, if both of the following apply:
(A) The beach is visited by more than 50,000 people annually.
(B) The beach is located on an area adjacent to a storm drain that
flows in the summer.
(d) Notwithstanding subdivision (a), if a local health officer
demonstrates or has demonstrated through side-by-side testing over a
beach season that the use of United States Environmental Protection
Agency method 1609 or 1611, or any equivalent or improved rapid
detection method published by the United States Environmental
Protection Agency for use in beach water quality assessment or
approved as an alternative test procedure pursuant to Part 136 of
Title 40 of the Code of Federal Regulations, to determine the level
of enterococci bacteria as a single indicator provides a reliable
indication of overall microbiological contamination conditions at one
or more beach locations within that health officer's jurisdiction,
the department may authorize the use of that testing method at those
beach locations instead of other testing methods. In making that
determination, the department shall take into account whether an
alternative indicator or subset of indicators, with the associated
test method, can provide results more quickly, thereby reducing the
period of time the public is at risk while waiting for contamination
to be confirmed.
(e) The monitoring frequency and locations established pursuant to
this section and related regulations may be reduced or altered only
after the testing required pursuant to paragraph (3) of subdivision
(c) reveals levels of microbiological contaminants that do not
exceed, for a period of two years, the minimum protective standards
established pursuant to this section.
(f) The local health officer shall be is
responsible for testing the waters adjacent to, and
coordinating the testing of, all public beaches within his or her
jurisdiction.
(g) The local health officer may meet the testing requirements of
this section by utilizing test results from other parties conducting
microbiological contamination testing of the waters under his or her
jurisdiction.
(h) This section does not require a wastewater treatment agency or
other party conducting microbiological contamination testing of the
waters under his or her jurisdiction, who provides those test results
to a local health officer pursuant to this section, to use United
States Environmental Protection Agency method 1609 or 1611, or any
equivalent or improved rapid detection method published by the United
States Environmental Protection Agency for use in beach water
quality assessment or approved as an alternative test procedure
pursuant to Part 136 of Title 40 of the Code of Federal Regulations,
for total maximum daily load implementation, waste discharge
requirements, or other monitoring programs required to be implemented
pursuant to Division 7 (commencing with Section 13000) of the Water
Code.
(i) Any city or county may adopt standards for the sanitation of
public beaches within its jurisdiction that are stricter than the
standards adopted by the department pursuant to this section.
SEC. 340. Section 116283 of the Health and Safety Code, as amended
by Section 11 of Chapter 298 of the Statutes of 2009, is repealed.
116283. This chapter shall apply to a food facility that is
regulated pursuant to the California Retail Food Code only if the
human consumption includes drinking of water.
SEC. 341. Section 116612 of the Health and Safety Code, as added
by Section 11 of Chapter 814 of the Statutes of 1997, is repealed.
116612. On or before January 1, 1999, the California Drinking
Water and Toxic Enforcement Act Scientific Advisory Panel shall make
a recommendation to the Office of Environmental Health Hazard
Assessment on whether MTBE should be listed as a carcinogenic or
reproductive toxin, as set forth in Section 12000 and following of
Title 22 of the California Code of Regulations.
SEC. 342. Section 116612 of the Health and Safety Code, as added
by Section 3 of Chapter 815 of the Statutes of 1997, is amended to
read:
116612. On or before January 1, 1999, the California Drinking
Water and Toxic Enforcement Act Scientific Advisory Panel
scientific advisory panel shall make a
recommendation to the Office of Environmental Health Hazard
Assessment on whether MTBE should be listed as a carcinogenic or
reproductive toxin as set forth in Section 12000 and
following of Title 22 Chapter 1 (commencing with
Section 25102) of Division 4 of Title 27 of the California Code
of Regulations.
SEC. 343. Section 119316 of the Health and Safety Code is amended
to read:
119316. (a) A mobile body art facility shall meet all the
applicable requirements in Article 1 (commencing with Section 119300)
to Article 4 (commencing with Section 119312), inclusive
inclusive, and Article 6 (commencing with
Section 119319), unless specifically exempted by this article.
(b) A mobile body art facility that is either a special purpose
commercial modular and coach, as defined by Section 18012.5, or a
commercial modular coach, as defined by Section 18001.8, shall be
certified by the Department of Housing and Community Development,
consistent with Chapter 4 (commencing with Section 18025) of Part 2
of Division 13, and regulations promulgated pursuant to that chapter.
(c) The Department of Motor Vehicles occupational licensing
requirements, Division 5 (commencing with Section 11100) of the
Vehicle Code, shall also apply to these mobile body
art facilities.
(d) The local enforcement agency shall approve all equipment
installation prior to operation.
SEC. 344. Section 120155 of the Health and Safety Code, as amended
by Section 174 of Chapter 130 of the Statutes of 2007, is amended
and renumbered to read:
120155. 120160. (a) Any
manufacturer or distributor of the influenza vaccine, or nonprofit
health care service plan that exclusively contracts with a single
medical group in a specified geographic area to provide, or to
arrange for the provision of, medical services to its enrollees,
shall report the information described in subdivision (c) relating to
the supply of the influenza vaccine to the department upon notice
from the department.
(b) Within each county or city health jurisdiction, entities that
have possession of, or have a legal right to obtain possession of,
the influenza vaccine, or entities that are conducting or intend to
conduct influenza clinics for the public, their residents, or their
employees, except those entities described in subdivision (a), shall
cooperate with the local health officer in determining local
inventories of influenza vaccine, including providing inventory,
orders, and distribution lists in a timely manner, when necessary.
(c) The information reported pursuant to subdivision (a) shall
include, but is not limited to, the amount of the influenza vaccine
that has been shipped, and the name, address, and, if applicable, the
telephone number of the recipient.
(d) Subdivisions (a), (b), and (c) shall
do not apply to a physician and surgeon practice, unless the
practice is an occupational health provider who conducts influenza
vaccination campaigns on behalf of a corporation.
(e) It is the intent of the Legislature in enacting this section
to assist small physician and surgeon practices, nursing facilities,
and other health care providers that provide care for patients at
risk of illness or death from influenza by facilitating the sharing
of vaccine supplies, if necessary, between providers within a local
jurisdiction.
(f) If a business believes that the information required by this
section involves the release of a trade secret, the business shall
nevertheless disclose the information to the department, and shall
notify the department in writing of that belief at the time of
disclosure. As used in this section, "trade secret" has the meanings
given to it by Section 6254.7 of the Government Code and Section
1060 1061 of the Evidence Code. Any
information, including identifying information, including, but not
limited to, the name of the agent or contact person of an entity that
receives the influenza vaccine from a manufacturer or distributor,
or nonprofit health care service plan described in subdivision (a),
and the receiving entity's address and telephone number, that is
reported pursuant to this section shall not be disclosed by the
department to anyone, except to an officer or employee of the county,
city, city and county, or the state in connection with the official
duties of that officer or employee to protect the public health.
SEC. 345. Section 120393 of the Health and Safety Code is amended
to read:
120393. (a) The State Department of Public Health shall post
educational information, in accordance with the latest
recommendations of the federal Centers for Disease Control
and Prevention, regarding influenza disease and the availability of
influenza vaccinations on the department's Internet Web site. It is
the intent of the Legislature to increase the average number of
Californians who receive an influenza vaccination.
(b) The educational information posted on the department's
Internet Web site pursuant to subdivision (a) shall include, but not
be limited to, all of the following:
(1) The health benefits of an influenza vaccination.
(2) That the influenza vaccination may be a covered benefit for
those with health insurance coverage.
(3) That influenza vaccinations may be available for a minimal
fee to those individuals who do not have health insurance coverage.
(4) The locations where free or low-cost vaccinations are
available.
(c) The department may use additional available resources to
educate the public about the information described in subdivision
(b), including public service announcements, media events, public
outreach to individuals and groups who are susceptible to influenza,
and any other preventive and wellness education efforts recommended
by public health officials.
SEC. 346. Section 121025 of the Health and Safety Code is amended
to read:
121025. (a) Public health records relating to human
immunodeficiency virus (HIV) or acquired immunodeficiency syndrome
(AIDS), containing personally identifying information, that were
developed or acquired by a state or local public health agency, or an
agent of that agency, shall be are
confidential and shall not be disclosed, except as otherwise provided
by law for public health purposes or pursuant to a written
authorization by the person who is the subject of the record or by
his or her guardian or conservator.
(b) In accordance with subdivision (g) of Section 121022, a state
or local public health agency, or an agent of that agency, may
disclose personally identifying information in public health records,
as described in subdivision (a), to other local, state, or federal
public health agencies or to corroborating medical researchers, when
the confidential information is necessary to carry out the duties of
the agency or researcher in the investigation, control, or
surveillance of disease, as determined by the state or local public
health agency.
(c) Any disclosures authorized by subdivision (a), (b), or this
subdivision shall include only the information necessary for the
purpose of that disclosure and shall be made only upon the agreement
that the information will be kept confidential as described in
subdivision (a). Except as provided in paragraphs (1) to (3),
inclusive, or as otherwise provided by law, any disclosure authorized
by subdivision (a) or (b) shall not be made without written
authorization as described in subdivision (a). Any unauthorized
further disclosure shall be subject to the penalties described in
subdivision (e).
(1) Notwithstanding any other law, the following disclosures
shall be are authorized for the purpose
of enhancing the completeness of reporting to the federal Centers
for Disease Control and Prevention (CDC) of HIV/AIDS and coinfection
with tuberculosis, syphilis, gonorrhea, chlamydia, hepatitis B,
hepatitis C, and meningococcal infection:
(A) The local public health agency HIV surveillance staff may
further disclose the information to the health care provider who
provides HIV care to the HIV-positive person who is the subject of
the record for the purpose of assisting in compliance with
subdivision (a) of Section 121022.
(B) Local public health agency tuberculosis control staff may
further disclose the information to state public health agency
tuberculosis control staff, who may further disclose the information,
without disclosing patient identifying information, to the CDC, to
the extent the information is requested by the CDC and permitted by
subdivision (b), for purposes of the investigation, control, or
surveillance of HIV and tuberculosis coinfections.
(C) Local public health agency sexually transmitted disease
control staff may further disclose the information to state public
health agency sexually transmitted disease control staff, who may
further disclose the information, without disclosing patient
identifying information, to the CDC, to the extent it is requested by
the CDC and permitted by subdivision (b), for the purposes of the
investigation, control, or surveillance of HIV and syphilis,
gonorrhea, or chlamydia coinfection.
(D) For purposes of the investigation, control, or surveillance of
HIV and its coinfection with hepatitis B, hepatitis C, and
meningococcal infection, local public health agency communicable
disease staff may further disclose the information to state public
health agency staff, who may further disclose the information,
without disclosing patient identifying information, to the CDC to the
extent the information is requested by the CDC and permitted by
subdivision (b).
(2) Notwithstanding any other law, the following disclosures
shall be are authorized for the purpose
of facilitating appropriate HIV/AIDS medical care and treatment:
(A) State public health agency HIV surveillance staff, AIDS Drug
Assistance Program staff, and care services staff may further
disclose the information to local public health agency staff, who may
further disclose the information to the HIV-positive person who is
the subject of the record, or the health care provider who provides
his or her HIV care, for the purpose of proactively offering and
coordinating care and treatment services to him or her.
(B) AIDS Drug Assistance Program staff and care services staff in
the State Department of Public Health may further disclose the
information directly to the HIV-positive person who is the subject of
the record or the health care provider who provides his or her HIV
care, for the purpose of proactively offering and coordinating care
and treatment services to him or her.
(C) Local public health agency staff may further disclose acquired
or developed information to the HIV-positive person who is the
subject of the record or the health care provider who provides his or
her HIV care for the purpose of proactively offering and
coordinating care and treatment services to him or her.
(3) Notwithstanding any other law, for the purpose of facilitating
appropriate medical care and treatment of persons coinfected with
HIV and tuberculosis, syphilis, gonorrhea, chlamydia, hepatitis B,
hepatitis C, or meningococcal infection, local public health agency
sexually transmitted disease control, communicable disease control,
and tuberculosis control staff may further disclose the information
to state or local public health agency sexually transmitted disease
control, communicable disease control, and tuberculosis control
staff, the HIV-positive person who is the subject of the record, or
the health care provider who provides his or her HIV, tuberculosis,
hepatitis B, hepatitis C, meningococcal infection, and sexually
transmitted disease care.
(4) For the purposes of paragraphs (2) and (3), "staff"
shall does not include nongovernmental entities,
but shall include state and local contracted employees who work
within state and local public health departments.
(d) A confidential public health record, as defined in subdivision
(c) of Section 121035, shall not be disclosed, discoverable, or
compelled to be produced in any civil, criminal, administrative, or
other proceeding.
(e) (1) A person who negligently discloses the content of a
confidential public health record, as defined in subdivision (c) of
Section 121035, to a third party, except pursuant to a written
authorization, as described in subdivision (a), or as otherwise
authorized by law, shall be subject to a civil penalty in an amount
not to exceed five thousand dollars ($5,000), plus court costs, as
determined by the court. The penalty and costs shall be paid to the
person whose record was disclosed.
(2) A person who willfully or maliciously discloses the content of
any confidential public health record, as defined in subdivision (c)
of Section 121035, to a third party, except pursuant to a written
authorization, or as otherwise authorized by law, shall be subject to
a civil penalty in an amount not less than five thousand dollars
($5,000) and not more than twenty-five thousand dollars ($25,000),
plus court costs, as determined by the court. The penalty and costs
shall be paid to the person whose confidential public health record
was disclosed.
(3) A person who willfully, maliciously, or negligently discloses
the content of a confidential public health record, as defined in
subdivision (c) of Section 121035, to a third party, except pursuant
to a written authorization, or as otherwise authorized by law, that
results in economic, bodily, or psychological harm to the person
whose confidential public health record was disclosed, is guilty of a
misdemeanor, punishable by imprisonment in a county jail for a
period not to exceed one year, or a fine of not to exceed twenty-five
thousand dollars ($25,000), or both, plus court costs, as determined
by the court. The penalty and costs shall be paid to the person
whose confidential public health record was disclosed.
(4) A person who commits an act described in paragraph (1), (2),
or (3), shall be (3) is liable to the
person whose confidential public health record was disclosed for all
actual damages for economic, bodily, or psychological harm that is a
proximate result of the act.
(5) Each violation of this section is a separate and actionable
offense.
(6) This section does not limit or expand the right of an injured
person whose confidential public health record was disclosed to
recover damages under any other applicable law.
(f) In the event that a confidential public health record, as
defined in subdivision (c) of Section 121035, is disclosed, the
information shall not be used to determine employability,
employability or insurability of a person.
SEC. 347. Section 123223 of the Health and Safety Code is amended
to read:
123223. (a) The Children's Medical Services Rebate Fund is
hereby created as a special fund in the State Treasury.
(b) All rebates for the delivery of health care, medical
supplies, pharmaceuticals, including blood replacement products, and
equipment for clients enrolled in the state funded Genetically
Handicapped Person's Persons Program,
Chapter 2 (commencing with Section 125125) of Part 5, and the
California Children's Services Program, Article 5 (commencing with
Section 123800) of Chapter 3 of Part 2, and, notwithstanding Section
16305.7 of the Government Code, interest earned on these moneys,
shall be deposited in the Children's Medical Services Rebate Fund
exclusively to cover costs related to services, and the
administration of services, provided through the Genetically
Handicapped Person's Persons Program
and California Children's Services Program.
(c) Notwithstanding Section 13340 of the Government Code, moneys
in the Children's Medical Services Rebate Fund shall be
are continuously appropriated without regard to
fiscal year to the State Department of Health Care
Services and available for expenditure for those purposes specified
under this section.
SEC. 348. Section 124995 of the Health and Safety Code is amended
to read:
124995. The following programs shall comply with the regulations
established pursuant to the Hereditary Disorders Act
(Section 27): Act, as defined in Section 27:
(a) The California Children's Services Program under Article 5
(commencing with Section 123800) of Chapter 3 of Part 2.
(b) Prenatal testing programs for newborns under Sections 125050
to 125065, inclusive.
(c) Medical testing programs for newborns under the Maternal and
Child Health Program Act (Section 27). Act,
as defined in Section 27.
(d) Programs of the genetic disease unit under Section 125000.
(e) Child health and disability prevention programs
under Article 6 (commencing with Section 124025) of Chapter 3 of Part
2 and Section 120475.
(f) Genetically handicapped person's programs
Handicapped Persons Program under Article 1 (commencing
with Section 125125) of Chapter 2.
(g) Medi-Cal Benefits Program under Article 4 (commencing with
Section 14131) of Chapter 7 of Part 3 of Division 9 of the Welfare
and Institutions Code.
SEC. 349. Section 125125 of the Health and Safety Code is amended
to read:
125125. This article shall be known and may be cited as the
Holden-Moscone-Garamendi Genetically Handicapped Person's
Persons Program.
SEC. 350. Section 125130 of the Health and Safety Code is amended
to read:
125130. (a) The Director of Health Care
Services shall establish and administer a program for the medical
care of persons with genetically handicapping conditions, including
cystic fibrosis, hemophilia, sickle cell disease, Huntington's
disease, Friedreich's Ataxia, Joseph's disease, Von Hippel-Landau
syndrome, and the following hereditary metabolic disorders:
phenylketonuria, homocystinuria, branched chain amino acidurias,
disorders of propionate and methylmalonate metabolism, urea cycle
disorders, hereditary orotic aciduria, Wilson's Disease,
galactosemia, disorders of lactate and pyruvate metabolism,
tyrosinemia, hyperornithinemia, and other genetic organic acidemias
that require specialized treatment or service available from only a
limited number of program-approved sources.
The
(b) The program shall also
provide access to social support services, that may help ameliorate
the physical, psychological, and economic problems attendant to
genetically handicapping conditions, in order that the genetically
handicapped person may function at an optimal level commensurate with
the degree of impairment.
The
(c) The medical and social
support services may be obtained through physicians and surgeons
, genetically handicapped person's program
Genetically Handicapped Persons Program specialized centers,
and other providers that qualify pursuant to the regulations of the
department to provide the services. "Medical care," as used in this
section, is limited to noncustodial medical and support services.
The
(d) The director shall adopt
regulations that are necessary for the implementation of this
article.
SEC. 351. Section 125160 of the Health and Safety Code is amended
to read:
125160. The department shall receive and expend all funds made
available to it by the federal government, the state, its political
subdivisions or from other sources for the purposes of this article.
Payment for genetically handicapped person's program
the Genetically Handicapped Persons Program
shall be made by the department.
SEC. 352. Section 125175 of the Health and Safety Code is amended
to read:
125175. The health care benefits and services specified in this
article, to the extent that the benefits and services are neither
provided under any other federal or state law nor provided nor
available under other contractual or legal entitlements of the
person, shall be provided to any patient who is a resident of this
state and is made eligible by this article. After the patient has
utilized the contractual or legal entitlements, the payment liability
under Section 125165 or Section 125166, whichever shall be
applicable at the time, Section 125166 shall
then be applied to the remaining cost of genetically handicapped
person's persons ' services.
SEC. 353. Section 125190 of the Health and Safety Code is amended
to read:
125190. Notwithstanding any other provision of
law, the department is considered to be the purchaser, but not the
dispenser or distributor, of blood factor products under the
Genetically Handicapped Person's Persons
Program. The department may receive manufacturers' discounts,
rebates, or refunds based on the quantities purchased under the
Genetically Handicapped Person's Persons
Program. The discounts, rebates, or refunds received pursuant
to this section shall be separate from any agreements for discounts,
rebates, or refunds negotiated pursuant to Section 14105.3 of the
Welfare and Institutions Code or any other program.
SEC. 354. Section 125191 of the Health and Safety Code is amended
to read:
125191. (a) The department may enter into contracts with one or
more manufacturers on a negotiated or bid basis as the purchaser, but
not the dispenser or distributor, of factor replacement therapies
under the Genetically Handicapped Person's
Persons Program for the purpose of enabling the department to
obtain the full range of available therapies and services required
for clients with hematological disorders at the most favorable price
and to enable the department, notwithstanding any other
provision of state law, to obtain discounts, rebates, or
refunds from the manufacturers based upon the large quantities
purchased under the program. Nothing in this
This subdivision shall does not
interfere with the usual and customary distribution practices of
factor replacement therapies. In order to achieve maximum cost
savings, the Legislature hereby determines that an expedited contract
process under this section is necessary. Therefore, a contract under
this subdivision may be entered into on a negotiated basis and
shall be is exempt from Chapter 2
(commencing with Section 10290) of Part 2 of Division 2 of the Public
Contract Code and Chapter 6 (commencing with Section 14825) of Part
5.5 of Division 3 of Title 2 of the Government Code.
Contracts entered pursuant to this subdivision shall be confidential
and shall be exempt from disclosure under the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code).
(b) (1) Factor replacement therapy manufacturers shall calculate
and pay interest on late or unpaid rebates. The interest
shall does not apply to any prior period
adjustments of unit rebate amounts or department utilization
adjustments. Manufacturers shall calculate and pay interest on late
or unpaid rebates for quarters that begin on or after the effective
date of the act that added this subdivision.
(2) Following the final resolution of any dispute regarding the
amount of a rebate, any underpayment by a manufacturer shall be paid
with interest calculated pursuant to paragraph (4), and any
overpayment, together with interest at the rate calculated pursuant
to paragraph (4), shall be credited by the department against future
rebates due.
(3) Interest pursuant to paragraphs (1) and (2) shall begin
accruing 38 calendar days from the date of mailing the invoice,
including supporting utilization data sent to the manufacturer.
Interest shall continue to accrue until the date of mailing of the
manufacturer's payment.
(4) Interest rates and calculations pursuant to paragraphs (1) and
(2) shall be identical to interest rates and calculations set forth
in the federal Centers for Medicare and Medicaid Services' Medicaid
Drug Rebate Program Releases or regulations.
(c) If the department has not received a rebate payment, including
interest, within 180 days of the date of mailing of the invoice,
including supporting utilization data, a factor replacement therapy
manufacturer's contract with the department shall be deemed to be in
default and the contract may be terminated in accordance with the
terms of the contract. This subdivision does not limit the department'
s right to otherwise terminate a contract in accordance with the
terms of that contract.
(d) The department may enter into contracts on a bid or negotiated
basis with manufacturers, distributors, dispensers, or suppliers of
pharmaceuticals, appliances, durable medical equipment, medical
supplies, and other product-type health care services and
laboratories for the purpose of obtaining the most favorable prices
to the state and to assure adequate access and quality of the product
or service. In order to achieve maximum cost savings, the
Legislature hereby determines that an expedited contract process
under this subdivision is necessary. Therefore, contracts under this
subdivision may be entered into on a negotiated basis and shall be
exempt from Chapter 2 (commencing with Section 10290) of Part 2 of
Division 2 of the Public Contract Code and Chapter 6 (commencing with
Section 14825) of Part 5.5 of Division 3 of Title 2 of
the Government Code.
(e) The department may contract with one or more manufacturers of
each multisource prescribed product or supplier of outpatient
clinical laboratory services on a bid or negotiated basis. Contracts
for outpatient clinical laboratory services shall require that the
contractor be a clinical laboratory licensed or certified by the
State of California or certified under Section 263a of Title 42 of
the United States Code. Nothing in this This
subdivision shall not be construed as prohibiting
the department from contracting with less than all manufacturers or
clinical laboratories, including just one manufacturer or clinical
laboratory, on a bid or negotiated basis.
SEC. 355. The heading of Part 8 (commencing with Section 125700)
of Division 106 of the Health and Safety Code is amended to read:
PART 8. ADULT HEALTH (Reserved)
SEC. 356. Chapter 4 (commencing with Section 128200) of Part 3 of
Division 107 of the Health and Safety Code, as added by Section 9 of
Chapter 415 of the Statutes of 1995, is repealed.
SEC. 357. The heading of Article 4 (commencing with Section
128454) of Chapter 5 of Part 3 of Division 107 of the Health and
Safety Code, as added by Section 5 of Chapter 437 of the Statutes of
2003, is amended and renumbered to read:
Article 4. 3.5. Licensed Mental
Health Service Provider Education Program
SEC. 358. Section 130060 of the Health and Safety Code is amended
to read:
130060. (a) (1) After January 1, 2008, any general acute care
hospital building that is determined to be a potential risk of
collapse or pose significant loss of life shall only be used for
nonacute care hospital purposes, unless an extension of this deadline
has been granted and either of the following occurs before the end
of the extension:
(A) A replacement building has been constructed and a certificate
of occupancy has been granted by the office for the replacement
building.
(B) A retrofit has been performed on the building and a
construction final has been obtained by the office.
(2) An extension of the deadline may be granted by the office upon
a demonstration by the owner that compliance will result in a loss
of health care capacity that may not be provided by other general
acute care hospitals within a reasonable proximity. In its request
for an extension of the deadline, a hospital shall state why the
hospital is unable to comply with the January 1, 2008, deadline
requirement.
(3) Prior to granting an extension of the January 1, 2008,
deadline pursuant to this section, the office shall do all of the
following:
(A) Provide public notice of a hospital's request for an extension
of the deadline. The notice, at a minimum, shall be posted on the
office's Internet Web site, and shall include the facility's name and
identification number, the status of the request, and the beginning
and ending dates of the comment period, and shall advise the public
of the opportunity to submit public comments pursuant to subparagraph
(C). The office shall also provide notice of all requests for the
deadline extension directly to interested parties upon request of the
interested parties.
(B) Provide copies of extension requests to interested parties
within 10 working days to allow interested parties to review and
provide comment within the 45-day comment period. The copies shall
include those records that are available to the public pursuant to
the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code).
(C) Allow the public to submit written comments on the extension
proposal for a period of not less than 45 days from the date of the
public notice.
(b) (1) It is the intent of the Legislature, in enacting this
subdivision, to facilitate the process of having more hospital
buildings in substantial compliance with this chapter and to take
nonconforming general acute care hospital inpatient buildings out of
service more quickly.
(2) The functional contiguous grouping of hospital buildings of a
general acute care hospital, each of which provides, as the primary
source, one or more of the hospital's eight basic services as
specified in subdivision (a) of Section 1250, may receive a five-year
extension of the January 1, 2008, deadline specified in subdivision
(a) of this section pursuant to this subdivision for both structural
and nonstructural requirements. A functional contiguous grouping
refers to buildings containing one or more basic hospital services
that are either attached or connected in a way that is acceptable to
the State Department of Health Care Services. These buildings may be
either on the existing site or a new site.
(3) To receive the five-year extension, a single building
containing all of the basic services or at least one building within
the contiguous grouping of hospital buildings shall have obtained a
building permit prior to 1973 and this building shall be evaluated
and classified as a nonconforming, Structural Performance Category-1
(SPC-1) building. The classification shall be submitted to and
accepted by the Office of Statewide Health Planning and Development.
The identified hospital building shall be is
exempt from the requirement in subdivision (a) until January 1,
2013, if the hospital agrees that the basic service or services that
were provided in that building shall be provided, on or before
January 1, 2013, as follows:
(A) Moved into an existing conforming Structural Performance
Category-3 (SPC-3), Structural Performance Category-4 (SPC-4), or
Structural Performance Category-5 (SPC-5) and Non-Structural
Performance Category-4 (NPC-4) or Non-Structural Performance
Category-5 (NPC-5) building.
(B) Relocated to a newly built compliant SPC-5 and NPC-4 or NPC-5
building.
(C) Continued in the building if the building is retrofitted to a
SPC-5 and NPC-4 or NPC-5 building.
(4) A five-year extension is also provided to a post-1973 building
if the hospital owner informs the Office of Statewide Health
Planning and Development that the building is classified as SPC-1,
SPC-3, or SPC-4 and will be closed to general acute care inpatient
service use by January 1, 2013. The basic services in the building
shall be relocated into a SPC-5 and NPC-4 or NPC-5 building by
January 1, 2013.
(5) SPC-1 buildings, other than the building identified in
paragraph (3) or (4), in the contiguous grouping of hospital
buildings shall is also be
exempt from the requirement in subdivision (a) until
January 1, 2013. However, on or before January 1, 2013, at a minimum,
each of these buildings shall be retrofitted to a SPC-2 and NPC-3
building, or no longer be used for general acute care hospital
inpatient services.
(c) On or before March 1, 2001, the office shall establish a schedule
of interim work progress deadlines that hospitals shall be required
to meet to be eligible for the extension specified in subdivision
(b). To receive this extension, the hospital building or buildings
shall meet the year 2002 nonstructural requirements.
(d) A hospital building that is eligible for an extension pursuant
to this section shall meet the January 1, 2030, nonstructural and
structural deadline requirements if the building is to be used for
general acute care inpatient services after January 1, 2030.
(e) Upon compliance with subdivision (b), the hospital shall be
issued a written notice of compliance by the office. The office shall
send a written notice of violation to hospital owners that fail to
comply with this section. The office shall make copies of these
notices available on its Internet Web site.
(f) (1) A hospital that has received an extension of the January
1, 2008, deadline pursuant to subdivision (a) or (b) may request an
additional extension of up to two years for a hospital building that
it owns or operates and that meets the criteria specified in
paragraph (2), (3), or (5).
(2) The office may grant the additional extension if the hospital
building subject to the extension meets all of the following
criteria:
(A) The hospital building is under construction at the time of the
request for extension under this subdivision and the purpose of the
construction is to meet the requirements of subdivision (a) to allow
the use of the building as a general acute care hospital building
after the extension deadline granted by the office pursuant to
subdivision (a) or (b).
(B) The hospital building plans were submitted to the office and
were deemed ready for review by the office at least four years prior
to the applicable deadline for the building. The hospital shall
indicate, upon submission of its plans, the SPC-1 building or
buildings that will be retrofitted or replaced to meet the
requirements of this section as a result of the project.
(C) The hospital received a building permit for the construction
described in subparagraph (A) at least two years prior to the
applicable deadline for the building.
(D) The hospital submitted a construction timeline at least two
years prior to the applicable deadline for the building demonstrating
the hospital's intent to meet the applicable deadline. The timeline
shall include all of the following:
(i) The projected construction start date.
(ii) The projected construction completion date.
(iii) Identification of the contractor.
(E) The hospital is making reasonable progress toward meeting the
timeline set forth in subparagraph (D), but factors beyond the
hospital's control make it impossible for the hospital to meet the
deadline.
(3) The office may grant the additional extension if the hospital
building subject to the extension meets all of the following
criteria:
(A) The hospital building is owned by a health care district that
has, as owner, received the extension of the January 1, 2008,
deadline, but where the hospital is operated by an
unaffiliated third-party lessee pursuant to a facility lease that
extends at least through December 31, 2009. The district shall file a
declaration with the office with a request for an extension stating
that, as of the date of the filing, the district has lacked, and
continues to lack, unrestricted access to the subject hospital
building for seismic planning purposes during the term of the lease,
and that the district is under contract with the county to maintain
hospital services when the hospital comes under district control. The
office shall not grant the extension if an unaffiliated third-party
lessee will operate the hospital beyond December 31, 2010.
(B) The hospital building plans were submitted to the office and
were deemed ready for review by the office at least four years prior
to the applicable deadline for the building. The hospital shall
indicate, upon submission of its plans, the SPC-1 building or
buildings that will be retrofitted or replaced to meet the
requirements of this section as a result of the project.
(C) The hospital received a building permit for the construction
described in subparagraph (B) by December 31, 2011.
(D) The hospital submitted, by December 31, 2011, a construction
timeline for the building demonstrating the hospital's intent and
ability to meet the deadline of December 31, 2014. The timeline shall
include all of the following:
(i) The projected construction start date.
(ii) The projected construction completion date.
(iii) Identification of the contractor.
(E) The hospital building is under construction at the time of the
request for the extension, the purpose of the construction is to
meet the requirements of subdivision (a) to allow the use of the
building as a general acute care hospital building after the
extension deadline granted by the office pursuant to subdivision (a)
or (b), and the hospital is making reasonable progress toward meeting
the timeline set forth in subparagraph (D).
(F) The hospital granted an extension pursuant to this paragraph
shall submit an additional status report to the office, equivalent to
that required by subdivision (c) of Section 130061, no later than
June 30, 2013.
(4) An extension granted pursuant to paragraph (3) shall
be is applicable only to the health care
district applicant and its affiliated hospital while the hospital is
operated by the district or an entity under the control of the
district.
(5) The office may grant the additional extension if the hospital
building subject to the extension meets all of the following
criteria:
(A) The hospital owner submitted to the office, prior to June 30,
2009, a request for review using current computer modeling utilized
by the office and based upon software developed by the Federal
Emergency Management Agency (FEMA), referred to as Hazards US, and
the building was deemed SPC-1 after that review.
(B) The hospital building plans for the building are submitted to
the office and deemed ready for review by the office prior to July 1,
2010. The hospital shall indicate, upon submission of its plans, the
SPC-1 building or buildings that shall be retrofitted or replaced to
meet the requirements of this section as a result of the project.
(C) The hospital receives a building permit from the office for
the construction described in subparagraph (B) prior to January 1,
2012.
(D) The hospital submits, prior to January 1, 2012, a construction
timeline for the building demonstrating the hospital's intent and
ability to meet the applicable deadline. The timeline shall include
all of the following:
(i) The projected construction start date.
(ii) The projected construction completion date.
(iii) Identification of the contractor.
(E) The hospital building is under construction at the time of the
request for the extension, the purpose of the construction is to
meet the requirements of subdivision (a) to allow the use of the
building as a general acute care hospital building after the
extension deadline granted by the office pursuant to subdivision (a)
or (b), and the hospital is making reasonable progress toward meeting
the timeline set forth in subparagraph (D).
(F) The hospital owner completes construction such that the
hospital meets all criteria to enable the office to issue a
certificate of occupancy by the applicable deadline for the building.
(6) A hospital located in the County of Sacramento, San Mateo, or
Santa Barbara or the City of San Jose that has received an additional
extension pursuant to paragraph (2) or (5) may request an additional
extension until September 1, 2015, to obtain either a certificate of
occupancy from the office for a replacement building, or a
construction final from the office for a building on which a retrofit
has been performed.
(7) A hospital denied an extension pursuant to this subdivision
may appeal the denial to the Hospital Building Safety Board.
(8) The office may revoke an extension granted pursuant to this
subdivision for any hospital building where the work of construction
is abandoned or suspended for a period of at least one year, unless
the hospital demonstrates in a public document that the abandonment
or suspension was caused by factors beyond its control.
(g) (1) Notwithstanding subdivisions (a), (b), (c), and (f), and
Sections 130061.5 and 130064, a hospital that has received an
extension of the January 1, 2008, deadline pursuant to subdivision
(a) or (b) also may request an additional extension of up to seven
years for a hospital building that it owns or operates. The office
may grant the extension subject to the hospital meeting the
milestones set forth in paragraph (2).
(2) The hospital building subject to the extension shall meet all
of the following milestones, unless the hospital building is
reclassified as SPC-2 or higher as a result of its Hazards US score:
(A) The hospital owner submits to the office, no later than
September 30, 2012, a letter of intent stating whether it intends to
rebuild, replace, or retrofit the building, or remove all general
acute care beds and services from the building, and the amount of
time necessary to complete the construction.
(B) The hospital owner submits to the office, no later than
September 30, 2012, a schedule detailing why the requested extension
is necessary, and specifically how the hospital intends to meet the
requested deadline.
(C) The hospital owner submits to the office, no later than
September 30, 2012, an application ready for review seeking
structural reassessment of each of its SPC-1 buildings using current
computer modeling based upon software developed by FEMA, referred to
as Hazards US.
(D) The hospital owner submits to the office, no later than
January 1, 2015, plans ready for review consistent with the letter of
intent submitted pursuant to subparagraph (A) and the schedule
submitted pursuant to subparagraph (B).
(E) The hospital owner submits a financial report to the office at
the time the plans are submitted pursuant to subparagraph (D). The
report shall demonstrate the hospital owner's financial capacity to
implement the construction plans submitted pursuant to subparagraph
(D).
(F) The hospital owner receives a building permit consistent with
the letter of intent submitted pursuant to subparagraph (A) and the
schedule submitted pursuant to subparagraph (B), no later than July
1, 2018.
(3) To evaluate public safety and determine whether to grant an
extension of the deadline, the office shall consider the structural
integrity of the hospital's SPC-1 buildings based on its Hazards US
scores, community access to essential hospital services, and the
hospital owner's financial capacity to meet the deadline as
determined by either a bond rating of BBB or below or the financial
report on the hospital owner's financial capacity submitted pursuant
to subparagraph (E) of paragraph (2). The criteria contained in this
paragraph shall be considered by the office in its determination of
the length of an extension or whether an extension should be granted.
(4) The extension or subsequent adjustments granted pursuant to
this subdivision may not exceed the amount of time that is reasonably
necessary to complete the construction specified in paragraph (2).
(5) If the circumstances underlying the request for extension
submitted to the office pursuant to paragraph (2) change, the
hospital owner shall notify the office as soon as practicable, but in
no event later than six months after the hospital owner discovered
the change of circumstances. The office may adjust the length of the
extension granted pursuant to paragraphs (2) and (3) as necessary,
but in no event longer than the period specified in paragraph (1).
(6) A hospital denied an extension pursuant to this subdivision
may appeal the denial to the Hospital Building Safety Board.
(7) The office may revoke an extension granted pursuant to this
subdivision for any hospital building when it is determined that any
information submitted pursuant to this section was falsified, or if
the hospital failed to meet a milestone set forth in paragraph (2),
or where when the work of construction
is abandoned or suspended for a period of at least six months, unless
the hospital demonstrates in a publicly available document that the
abandonment or suspension was caused by factors beyond its control.
(8) Regulatory submissions made by the office to the California
Building Standards Commission to implement this section shall be
deemed to be emergency regulations and shall be adopted as emergency
regulations.
(9) The hospital owner that applies for an extension pursuant to
this subdivision shall pay the office an additional fee, to be
determined by the office, sufficient to cover the additional
reasonable costs incurred by the office for maintaining the
additional reporting requirements established under this section,
including, but not limited to, the costs of reviewing and verifying
the extension documentation submitted pursuant to this subdivision.
This additional fee shall not include any cost for review of the
plans or other duties related to receiving a building or occupancy
permit.
(10) This subdivision shall become operative on the date that the
State Department of Health Care Services receives all necessary
federal approvals for a 2011-12 fiscal year hospital quality
assurance fee program that includes three hundred twenty million
dollars ($320,000,000) in fee revenue to pay for health care coverage
for children, which is made available as a result of the legislative
enactment of a 2011-12 fiscal year hospital quality assurance fee
program.
SEC. 359. Section 136000 of the Health and Safety Code is amended
to read:
136000. (a) (1) The Office of Patient Advocate is hereby
established within the California Health and Human Services Agency,
to provide assistance to, and advocate on behalf of, health care
consumers. The goal of the office shall be to coordinate amongst,
provide assistance to, and collect data from, all of the state agency
consumer assistance or patient assistance programs and call centers,
to better enable health care consumers to access the health care
services to which they are eligible under the law, including, but not
limited to, commercial and Exchange coverage, Medi-Cal, Medicare,
and federal veterans health benefits. Notwithstanding any provision
of this division, each regulator and health coverage program shall
retain its respective authority, including its authority to resolve
complaints, grievances, and appeals.
(2) The office shall be headed by a patient advocate appointed by
the Governor. The patient advocate shall serve at the pleasure of the
Governor.
(b) (1) The duties of the office shall include, but not be limited
to, all of the following:
(A) Coordinate and work in consultation with state agency and
local, nongovernment health care consumer or patient assistance
programs and health care ombudsperson programs.
(B) Produce a baseline review and annual report to be made
publically available on the office's Internet Web site by July 1,
2015, and annually thereafter, of health care consumer or patient
assistance help centers, call centers, ombudsperson, or other
assistance centers operated by the Department of Managed Health Care,
the State Department of Health Care Services, the
Department of Insurance, and the Exchange, that includes, at a
minimum, all of the following:
(i) The types of calls received and the number of calls.
(ii) The call center's role with regard to each type of call,
question, complaint, or grievance.
(iii) The call center's protocol for responding to requests for
assistance from health care consumers, including any performance
standards.
(iv) The protocol for referring or transferring calls outside the
jurisdiction of the call center.
(v) The call center's methodology of tracking calls, complaints,
grievances, or inquiries.
(C) (i) Collect, track, and analyze data on problems and
complaints by, and questions from, consumers about health care
coverage for the purpose of providing public information about
problems faced and information needed by consumers in obtaining
coverage and care. The data collected shall include demographic data,
source of coverage, regulator, type of problem or issue or
comparable types of problems or issues, and resolution of complaints,
including timeliness of resolution. Notwithstanding Section 10231.5
of the Government Code, the office shall submit a report by July 1,
2015, and annually thereafter to the Legislature. The report shall be
submitted in compliance with Section 9795 of the Government Code.
The format may be modified annually as needed based upon comments
from the Legislature and stakeholders.
(ii) For the purpose of publically reporting information as
required in subparagraph (B) and this subparagraph about the problems
faced by consumers in obtaining care and coverage, the office shall
analyze data on consumer complaints and grievances resolved by the
agencies listed in subdivision (c), including demographic data,
source of coverage, insurer or plan, resolution of complaints, and
other information intended to improve health care and coverage for
consumers.
(D) Make recommendations, in consultation with stakeholders, for
improvement or standardization of the health consumer assistance
functions, referral process, and data collection and analysis.
(E) Develop model protocols, in consultation with consumer
assistance call centers and stakeholders, that may be used by call
centers for responding to and referring calls that are outside the
jurisdiction of the call center, program, or regulator.
(F) Compile an annual publication, to be made publically available
on the office's Internet Web site, of a quality of care report card,
including, but not limited, to health care service plans, preferred
provider organizations, and medical groups.
(G) Make referrals to the appropriate state agency, whether
further or additional actions may be appropriate, to protect the
interests of consumers or patients.
(H) Assist in the development of educational and informational
guides for consumers and patients describing their rights and
responsibilities and informing them on effective ways to exercise
their rights to secure and access health care coverage, produced by
the Department of Managed Health Care, the State
Department of Health Care Services, the Exchange, and the
California Department of Insurance, and to endeavor to make
those materials easy to read and understand and available in all
threshold languages, using an appropriate literacy level and in a
culturally competent manner.
(I) Coordinate with other state and federal agencies engaged in
outreach and education regarding the implementation of federal health
care reform, and to assist in these duties, may provide or assist in
the provision of grants to community-based consumer assistance
organizations for these purposes.
(J) If appropriate, refer consumers to the appropriate regulator
of their health coverage programs for filing complaints or
grievances.
(2) The office shall employ necessary staff. The office may employ
or contract with experts when necessary to carry out the functions
of the office. The patient advocate shall make an annual budget
request for the office that shall be identified in the annual Budget
Act.
(3) The patient advocate shall annually issue a public report on
the activities of the office, and shall appear before the appropriate
policy and fiscal committees of the Senate and Assembly, if
requested, to report and make recommendations on the activities of
the office.
(4) The office shall adopt standards for the organizations with
which it contracts pursuant to this section to ensure compliance with
the privacy and confidentiality laws of this state, including, but
not limited to, the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code). The office shall conduct privacy trainings as
necessary, and regularly verify that the organizations have measures
in place to ensure compliance with this provision.
(c) The Department of Managed Health Care, the State
Department of Health Care Services, the Department of Insurance, the
Exchange, and any other public health coverage programs shall provide
to the office data concerning call centers to meet the reporting
requirements in subparagraph (B) of paragraph (1) of subdivision (b)
and consumer complaints and grievances to meet the reporting
requirements in clause (i) of subparagraph (C) of paragraph (1) of
subdivision (b).
(d) For purposes of this section, the following definitions apply:
(1) "Consumer" or "individual" includes the individual or his or
her parent, guardian, conservator, or authorized representative.
(2) "Exchange" means the California Health Benefit Exchange
established pursuant to Title 22 (commencing with Section 100500) of
the Government Code.
(3) "Health care" includes services provided by any of the health
care coverage programs.
(4) "Health care service plan" has the same meaning as that set
forth in subdivision (f) of Section 1345. Health care service plan
includes "specialized health care service plans," including
behavioral health plans.
(5) "Health coverage program" includes the Medi-Cal program,
Healthy Families Program, tax subsidies and premium credits under the
Exchange, the Basic Health Program, if enacted, county health
coverage programs, and the Access for Infants and Mothers Program.
(6) "Health insurance" has the same meaning as set forth in
Section 106 of the Insurance Code.
(7) "Health insurer" means an insurer that issues policies of
health insurance.
(8) "Office" means the Office of Patient Advocate.
(9) "Threshold languages" has the same meaning as for Medi-Cal
managed care.
SEC. 360. Section 926.1 of the Insurance Code is amended to read:
926.1. As used in this article, the following terms shall have
the following meanings:
(a) "Area median income" (AMI) means either of the following:
(1) The median family income for the Metropolitan Statistical Area
(MSA), if a person or geography is located in an MSA, or for the
metropolitan division, if a person or geography is located in an MSA
that has been subdivided into metropolitan divisions.
(2) The statewide nonmetropolitan median family income, if a
person or geography is located outside an MSA.
(b) "Community development investment" means an investment where
all or a portion of the investment has as its primary purpose
community development for, or that directly benefits, California low-
or moderate-income individuals, families, or communities. "Community
development investment" includes, but is not limited to, investments
in California in the following:
(1) Affordable housing, including multifamily rental and ownership
housing, for low- or moderate-income individuals or families.
(2) Community facilities or community services providers
(including providers of education, health, or social services)
directly benefiting low- or moderate-income individuals, families, or
communities.
(3) Economic development that demonstrates benefits, including,
but not limited to, job creation, retention, or improvement, or
provision of needed capital, to low- or moderate-income,
moderate-income individuals, families, or
communities, including urban or rural communities, or businesses or
nonprofit community service organizations that serve these
communities.
(4) Activities that revitalize or stabilize low- or
moderate-income communities.
(5) Investments in or through California Organized Investment
Network (COIN)-certified community development financial institutions
(CDFIs) and investments made pursuant to the requirements of
federal, state, or local community development investment programs or
community development investment tax incentive programs, including
green investments, if these investments directly benefit low- or
moderate-income individuals, families, and communities and are
consistent with this article.
(6) Community development infrastructure investments.
(7) Investments in a commercial property or properties located in
low- or moderate-income geographical areas and are consistent with
this article.
(c) "Community development infrastructure" means California public
debt (including all debt issued by the State of California or a
California state or local government agency) where all or a portion
of the debt has as its primary purpose community development for, or
that directly benefits, low- or moderate-income communities and is
consistent with subdivision (b).
(d) "Geography" means a census tract delineated by the United
States Bureau of the Census in the most recent decennial census.
(e) "Green investments" means investments that emphasize renewable
energy projects, economic development, and affordable housing
focused on infill sites so as to reduce the degree of automobile
dependency and promote the use and reuse of existing urbanized lands
supplied with infrastructure for the purpose of accommodating new
growth and jobs. "Green investments" also means investments that can
help communities grow through new capital investment in the
maintenance and rehabilitation of existing infrastructure so that the
reuse and reinvention of city centers and existing transportation
corridors and community space, including projects offering energy
efficiency improvements and renewable energy generation, including,
but not limited to, solar and wind power, mixed-use development,
affordable housing opportunities, multimodal transportation systems,
and transit-oriented development, can advance economic development,
jobs, and housing.
(f) "High-impact investments" means investments that are
innovative, responsive to community needs, not routinely provided by
insurers, or have a high degree of positive impact on the economic
welfare of low- or moderate-income individuals, families, or
communities in urban or rural areas of California.
(g) "Insurer" means an admitted insurer as defined in Section 24,
including the State Compensation Insurance Fund, or a domestic
fraternal benefit society as defined in Section 10990.
(h) "Investment" means a lawful equity or debt investment, or
loan, or deposit obligation, or other investment or investment
transaction allowed by the Insurance Code.
(i) "Low-income" means an individual income that is less
than 50 percent of the AMI, or a median family income that is less
than 50 percent of the AMI in the case of a geographical area.
(j) "MSA" means a metropolitan statistical area as defined by the
Director of the Office of Management and Budget.
(k) "Moderate-income" means an individual income that is at least
50 percent but less than 80 percent of the AMI, or a median family
income that is at least 50 percent but less than 80 percent of the
AMI in the case of a geographical area.
(l) "Nonmetropolitan area" means any area that is not located in
an MSA.
SEC. 361. Section 926.2 of the Insurance Code is amended to read:
926.2. (a) (1) Each admitted insurer with annual premiums written
in California equal to or in excess of one hundred million dollars
($100,000,000) for any reporting year shall provide information to
the commissioner on all of its community development investments,
community development infrastructure investments, and green
investments in California. This information shall be reported by July
1, 2016, on investments made or held during the calendar years 2013,
2014, and 2015 and list, if applicable, investments that are
high-impact, green, or rural. The information reported by insurers
may include investments both held and originated, the percentage of
any investment that qualifies, and why an investment qualifies. This
information shall be provided as part of the required filing pursuant
to Section 900 or 11131, or through a data call, or by other means
as determined by the commissioner. The California Organized
Investment Network (COIN) shall provide insurers with information on
why investments, if any, were found not to be qualified by the
commissioner.
(2) Nothing in this This subdivision
shall does not preclude an insurer
that is a member of an insurance holding company system, as defined
in Article 4.7 (commencing with Section 1215) of Chapter 2, from
complying with paragraph (1) through a single filing on behalf of the
entire group of affiliated companies, provided that the data so
filed accurately reflects the investments made by each of the
affiliates, and accurately attributes, by National Association of
Insurance Commissioners (NAIC) number or other identifier required by
the commissioner, which of the investments were made by each
affiliated company.
(3) This subdivision shall does not
preclude an insurer from satisfying the requirements of paragraph (1)
through a filing made by a community development financial
institution, provided all of the following conditions are met:
(A) The insurer has no less than a 10 percent ownership interest
in a COIN-certified community development financial institution.
(B) The insurer makes community development investments and
community development infrastructure investments in and through the
community development financial institution.
(C) The community development financial institution accurately
files the information required by paragraph (1) with the commissioner
on behalf of the insurer and accurately attributes, by NAIC number
or other identifier required by the commissioner, which investments,
including the dollar amounts of the investments, were made by each
insurer on whose behalf the community development financial
institution is reporting.
(b) The commissioner shall, by December 31, 2016, provide all of
the following:
(1) Information on the department's Internet Web site on the
aggregate insurer community development investments and community
development infrastructure investments. Insurers that make
high-impact investments that are defined as innovative, responsive to
community needs, not routinely provided by insurers, or have a high
degree of positive impact on the economic welfare of low- or
moderate-income individuals, families, or communities in urban or
rural areas of California shall be identified.
(2) Information on the department's Internet Web site on the
actions taken by COIN to analyze the data by insurers for the purpose
of creating and identifying potential investment opportunities,
including the development of investment opportunity bulletins. This
information shall state the efforts made by COIN to market and expand
outreach to communities.
(c) The department shall also, by December 31, 2016, provide
information on the department's Internet Web site regarding the
aggregate amount of California public debt (including all debt issued
by the State of California or a California state or local government
agency) purchased by insurers as reported to the department in their
NAIC annual statement filing pursuant to Section 900 or 11131.
(d) The department shall also, by December 31, 2016, provide on
its Internet Web site the aggregate amount of identified California
investments, as reported to the NAIC in the annual statement filed
pursuant to Section 900 or Section 11131.
(e) The department shall also by December 31, 2016, provide
information on its Internet Web site regarding the aggregate amount
of identified California insurer investments in green investments.
(f) This article shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.
SEC. 362. Section 1215.8 of the Insurance Code is amended to read:
1215.8. (a) All information, documents, and copies thereof
obtained by or disclosed to the commissioner or any other person in
the course of an examination or investigation made pursuant to
Sections 1215.4 and 1215.5, and all information reported pursuant to
Section 1215.4, shall be kept confidential, is not subject to
disclosure by the commissioner pursuant to the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code), is not subject to subpoena, and
is not subject to discovery from the commissioner or admissible into
evidence in any private civil action if obtained from the
commissioner in any manner. This information shall not be made public
by the commissioner or any other person except to insurance
departments of other states without the prior written consent of the
insurance company to which it pertains, unless the commissioner,
after giving the insurer and its affiliates who would be affected
thereby notice and opportunity to be heard, determines that the
interests of policyholders, shareholders, or the public will be
served by the publication thereof, in which event he or she may
publish all or any part thereof in a manner as he or she may deem
appropriate.
(b) In order to assist in the performance of the commissioner's
duties, the commissioner:
(1) May, upon request, be required to share documents, materials,
or other information, including the confidential and privileged
documents, materials, or information subject to subdivision (a), with
other state, federal, and international regulatory agencies, with
the NAIC National Association of Insurance
Commissioners (NAIC) and its affiliates and subsidiaries, and
with state, federal, and international law enforcement authorities,
including members of any supervisory college described in Section
1215.7; provided that the recipient agrees in writing to maintain the
confidentiality and privileged status of the documents, materials,
or other information, and has verified in writing the legal authority
to maintain confidentiality.
(2) Notwithstanding paragraph (1), may only share confidential and
privileged documents, materials, or information reported pursuant to
subdivision (m) of Section 1215.4 with commissioners of states
having statutes or regulations substantially similar to subdivision
(a) and who have agreed in writing not to disclose the information.
(3) May receive documents, materials, or information, including
otherwise confidential and privileged documents, materials, or
information, from the NAIC and its affiliates and subsidiaries and
from regulatory and law enforcement officials of other foreign or
domestic jurisdictions, and shall maintain as confidential or
privileged any documents, materials, or information received with
notice or the understanding that it is confidential or privileged
under the laws of the jurisdiction that is the source of the
documents, materials, or information.
(4) May enter into written agreements with the NAIC governing
sharing and use of information provided pursuant to this subdivision
consistent with this subdivision that shall do the following:
(A) Specify procedures and protocols regarding the confidentiality
and security of information shared with the NAIC and its affiliates
and subsidiaries pursuant to this subdivision, including procedures
and protocols for sharing by the NAIC with other state, federal, or
international regulators.
(B) Specify that ownership of information shared with the NAIC and
its affiliates and subsidiaries pursuant to this subdivision remains
with the commissioner and the NAIC's use of the information is
subject to the direction of the commissioner.
(C) Require prompt notice to be given to an insurer whose
confidential information in the possession of the NAIC pursuant to
this subdivision is subject to a request or subpoena to the NAIC for
disclosure or production.
(D) Require the NAIC and its affiliates and subsidiaries to
consent to intervention by an insurer in any judicial or
administrative action in which the NAIC and its affiliates and
subsidiaries may be required to disclose confidential information
about the insurer shared with the NAIC and its affiliates and
subsidiaries pursuant to this subdivision.
(c) The sharing of information by the commissioner pursuant to
this subdivision shall not constitute a delegation of regulatory
authority or rulemaking, and the commissioner is solely responsible
for the administration, execution, and enforcement of the provisions
of this article.
(d) No A waiver of any applicable
privilege or claim of confidentiality in the documents, materials, or
information shall does not occur as a
result of disclosure to the commissioner under this section or as a
result of sharing as authorized in subdivision (c).
(e) Documents, materials, or other information filed in the
possession or control of the NAIC pursuant to this subdivision
shall be are confidential by law and
privileged, shall are not be
subject to subpoena, and shall are
not be subject to discovery or admissible in
evidence in any private civil action.
SEC. 363. Section 10112.26 of the Insurance Code is amended to
read:
10112.26. (a) A health insurer that issues, sells, renews, or
offers a specialized health insurance policy covering dental services
shall, no later than September 30, 2015, and each year thereafter,
file a report, which shall be known as the MLR annual report, with
the department that is organized by market and product type and
contains the same information required in the 2013 federal Medical
Loss Ratio (MLR) Annual Reporting Form (CMS-10418).
(b) The MLR reporting year shall be for the calendar year during
which dental coverage is provided by the plan. All terms used in the
MLR annual report shall have the same meaning as used in the federal
Public Health Service Act (42 U.S.C. Sec. 300gg-18) and Part 158
(commencing with Section 158.101) of Title 45 of the Code
of Federal Regulations.
(c) If the commissioner decides to conduct an examination, as
described in Section 730, because the commissioner finds it necessary
to verify the health insurer's representations in the MLR annual
report, the department shall provide the health insurer with a
notification 30 days before the commencement of the examination.
(d) The health insurer shall have 30 days from the date of
notification to electronically submit to the department all requested
records, books, and papers specified in subdivision (a) of Section
733. The commissioner may extend the time for a health insurer to
comply with this subdivision upon a finding of good cause.
(e) The department shall make available to the public all of the
data provided to the department pursuant to this section.
(f) This section does not apply to an insurance policy issued,
sold, renewed, or offered for health care services or coverage
provided in the Medi-Cal program (Chapter 7 (commencing with Section
14000) of Part 3 of Division 9 of the Welfare and Institutions Code),
the Healthy Families Program (Part 6.2 (commencing with Section
12693) of Division 2 of the Insurance Code), the Access for Infants
and Mothers Program (Part 6.3 (commencing with Section 12695) of
Division 2 of the Insurance Code), the California Major Risk Medical
Insurance Program (Part 6.5 (commencing with Section 12700) of
Division 2 of the Insurance Code), or the Federal Temporary High Risk
Insurance Pool (Part 6.6 (commencing with Section 12739.5) of
Division 2 of the Insurance Code), to the extent consistent with the
federal Patient Protection and Affordable Care Act (Public Law
111-148).
(g) This section shall does not
apply to disability insurance for covered benefits in the single
specialized area of dental-only health care that pays benefits on a
fixed benefit, cash payment only basis.
(h) It is the intent of the Legislature that the data reported
pursuant to this section be considered by the Legislature in adopting
a medical loss ratio standard for specialized health insurance
policies that cover dental services that would take effect no later
than January 1, 2018.
(i) Until January 1, 2018, the department may issue guidance to
health insurers of specialized health insurance policies subject to
this section regarding compliance with this section. This guidance
shall not be subject to the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2
of the Government Code). Any guidance
Guidance issued pursuant to this subdivision shall be
is effective only until the department adopts
regulations pursuant to the Administrative Procedure Act. The
department shall consult with the Department of Managed Health Care
in issuing guidance pursuant to this subdivision.
SEC. 364. Section 10112.35 of the Insurance Code is amended to
read:
10112.35. (a) An insurer providing individual coverage in the
Exchange shall cooperate with requests from the Exchange to
collaborate in the development of, and participate in the
implementation of, the Medi-Cal program's premium and cost-sharing
payments under Sections 14102 and 14148.65 of the Welfare and
Institutions Code for eligible Exchange insureds.
(b) An insurer providing individual coverage in the Exchange shall
not charge, bill, ask, or require an insured receiving benefits
under Section 14102 or Section 14148.65 of the
Welfare and Institutions Code to make any premium or cost-sharing
payments for any services that are subject to premium or cost-sharing
payments by the State Department of Health Care Services under
Section 14102 or Section 14148.65 of the Welfare
and Institutions Code.
(c) For purposes of this section, "Exchange" means the California
Health Benefit Exchange established pursuant to Title 22 (commencing
with Section 100500) of the Government Code.
SEC. 365. Section 10123.196 of the Insurance Code is amended to
read:
10123.196. (a) An individual or group policy of disability
insurance issued, amended, renewed, or delivered on or after January
1, 2000, through December 31, 2015, inclusive, that provides coverage
for hospital, medical, or surgical expenses, shall provide coverage
for the following, under the same terms and conditions as applicable
to all benefits:
(1) A disability insurance policy that provides coverage for
outpatient prescription drug benefits shall include coverage for a
variety of federal Food and Drug Administration (FDA)
approved (FDA)-approved prescription
contraceptive methods, as designated by the insurer. If an insured's
health care provider determines that none of the methods designated
by the disability insurer is medically appropriate for the insured's
medical or personal history, the insurer shall, in the alternative,
provide coverage for some other FDA approved
FDA-approved prescription contraceptive method prescribed by
the patient's health care provider.
(2) Coverage with respect to an insured under this subdivision
shall be identical for an insured's covered spouse and covered
nonspouse dependents.
(b) (1) A group or individual policy of disability insurance,
except for a specialized health insurance policy, that is issued,
amended, renewed, or delivered on or after January 1, 2016, shall
provide coverage for all of the following services and contraceptive
methods for women:
(A) Except as provided in subparagraphs (B) and (C) of paragraph
(2), all FDA-approved contraceptive drugs, devices, and other
products for women, including all FDA-approved contraceptive drugs,
devices, and products available over the counter, as prescribed by
the insured's provider.
(B) Voluntary sterilization procedures.
(C) Patient education and counseling on contraception.
(D) Followup services related to the drugs, devices, products, and
procedures covered under this subdivision, including, but not
limited to, management of side effects, counseling for continued
adherence, and device insertion and removal.
(2) (A) Except for a grandfathered health plan, a disability
insurer subject to this subdivision shall not impose a deductible,
coinsurance, copayment, or any other cost-sharing requirement on the
coverage provided pursuant to this subdivision.
(B) Where If the FDA has approved
one or more therapeutic equivalents of a contraceptive drug, device,
or product, a disability insurer is not required to cover all of
those therapeutically equivalent versions in accordance with this
subdivision, as long as at least one is covered without cost sharing
in accordance with this subdivision.
(C) If a covered therapeutic equivalent of a drug, device, or
product is not available, or is deemed medically inadvisable by the
insured's provider, a disability insurer shall provide coverage,
subject to an insurer's utilization management procedures, for the
prescribed contraceptive drug, device, or product without cost
sharing. Any request by a contracting provider shall be responded to
by the disability insurer in compliance with Section 10123.191.
(3) Except as otherwise authorized under this section, an insurer
shall not impose any restrictions or delays on the coverage required
under this subdivision.
(4) Coverage with respect to an insured under this subdivision
shall be identical for an insured's covered spouse and covered
nonspouse dependents.
(c) Nothing in this This
section shall not be construed to deny or restrict in any
way any existing right or benefit provided under law or by contract.
(d) Nothing in this This section
shall not be construed to require an individual or group
disability insurance policy to cover experimental or investigational
treatments.
(e) Notwithstanding any other provision of this section, a
religious employer may request a disability insurance policy without
coverage for contraceptive methods that are contrary to the religious
employer's religious tenets. If so requested, a disability insurance
policy shall be provided without coverage for contraceptive methods.
(1) For purposes of this section, a "religious employer" is an
entity for which each of the following is true:
(A) The inculcation of religious values is the purpose of the
entity.
(B) The entity primarily employs persons who share the religious
tenets of the entity.
(C) The entity serves primarily persons who share the religious
tenets of the entity.
(D) The entity is a nonprofit organization pursuant to Section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as
amended.
(2) Every religious employer that invokes the exemption provided
under this section shall provide written notice to any prospective
employee once an offer of employment has been made, and prior to that
person commencing that employment, listing the contraceptive health
care services the employer refuses to cover for religious reasons.
(f) Nothing in this This section
shall not be construed to exclude coverage for
contraceptive supplies as prescribed by a provider, acting within his
or her scope of practice, for reasons other than contraceptive
purposes, such as decreasing the risk of ovarian cancer or
eliminating symptoms of menopause, or for contraception that is
necessary to preserve the life or health of an insured.
(g) This section shall only apply only
applies to disability insurance policies or contracts that are
defined as health benefit plans pursuant to subdivision (a) of
Section 10198.6, except that for accident only, specified disease, or
hospital indemnity coverage, coverage for benefits under this
section shall apply applies to the
extent that the benefits are covered under the general terms and
conditions that apply to all other benefits under the policy or
contract. Nothing in this This section
shall not be construed as imposing a new benefit mandate
on accident only, specified disease, or hospital indemnity insurance.
(h) For purposes of this section, the following definitions apply:
(1) "Grandfathered health plan" has the meaning set forth in
Section 1251 of PPACA.
(2) "PPACA" means the federal Patient Protection and Affordable
Care Act (Public Law 111-148), as amended by the federal Health Care
and Education Reconciliation Act of 2010 (Public Law 111-152), and
any rules, regulations, or guidance issued thereunder.
(3) With respect to policies of disability insurance issued,
amended, or renewed on or after January 1, 2016, "health care
provider" means an individual who is certified or licensed pursuant
to Division 2 (commencing with Section 500) of the Business and
Professions Code, or an initiative act referred to in that division,
or Division 2.5 (commencing with Section 1797) of the Health and
Safety Code.
SEC. 366. Section 10123.21 of the Insurance Code, as added by
Section 2 of Chapter 419 of the Statutes of 2005, is amended and
renumbered to read:
10123.21. 10123.22. (a) A health
insurer shall not deny coverage that is otherwise available under the
health insurance policy for the costs of solid organ or other tissue
transplantation services based upon the insured or policyholder
being infected with the human immunodeficiency virus.
(b) Notwithstanding any other provision of law, in the provision
of benefits required by this section, a health insurer may utilize
case management, managed care, or utilization review, subject to the
terms and conditions of the policy and consistent with sound clinical
processes and guidelines.
SEC. 367. Section 10192.18 of the Insurance Code is amended to
read:
10192.18. (a) Application forms shall include the following
questions designed to elicit information as to whether, as of the
date of the application, the applicant currently has Medicare
supplement, Medicare Advantage, Medi-Cal coverage, or another health
insurance policy or certificate in force or whether a Medicare
supplement policy or certificate is intended to replace any other
disability policy or certificate presently in force. A supplementary
application or other form to be signed by the applicant and agent
containing those questions and statements may be used.
(Statements)
(1) You do not need more than one Medicare supplement policy.
(2) If you purchase this policy, you may want to evaluate your
existing health coverage and decide if you need multiple coverages.
(3) You may be eligible for benefits under Medi-Cal and may not
need a Medicare supplement policy.
(4) If after purchasing this policy you become eligible for
Medi-Cal, the benefits and premiums under your Medicare supplement
policy can be suspended, if requested, during your entitlement to
benefits under Medi-Cal for 24 months. You must request this
suspension within 90 days of becoming eligible for Medi-Cal. If you
are no longer entitled to Medi-Cal, your suspended Medicare
supplement policy or if that is no longer available, a substantially
equivalent policy, will be reinstituted if requested within 90 days
of losing Medi-Cal eligibility. If the Medicare supplement policy
provided coverage for outpatient prescription drugs and you enrolled
in Medicare Part D while your policy was suspended, the reinstituted
policy will not have outpatient prescription drug coverage, but will
otherwise be substantially equivalent to your coverage before the
date of the suspension.
(5) If you are eligible for, and have enrolled in, a Medicare
supplement policy by reason of disability and you later become
covered by an employer or union-based group health plan, the benefits
and premiums under your Medicare supplement policy can be suspended,
if requested, while you are covered under the employer or
union-based group health plan. If you suspend your Medicare
supplement policy under these circumstances and later lose your
employer or union-based group health plan, your suspended Medicare
supplement policy or if that is no longer available, a substantially
equivalent policy, will be reinstituted if requested within 90 days
of losing your employer or union-based group health plan. If the
Medicare supplement policy provided coverage for outpatient
prescription drugs and you enrolled in Medicare Part D while your
policy was suspended, the reinstituted policy will not have
outpatient prescription drug coverage, but will otherwise be
substantially equivalent to your coverage before the date of the
suspension.
(6) Counseling services are available in this state to provide
advice concerning your purchase of Medicare supplement insurance and
concerning medical assistance through the Medi-Cal program, including
benefits as a qualified Medicare beneficiary (QMB) and a specified
low-income Medicare beneficiary (SLMB). If you want to discuss buying
Medicare supplement insurance with a trained insurance counselor,
call the California Department of Insurance's toll-free telephone
number 1-800-927-HELP, and ask how to contact your local Health
Insurance Counseling and Advocacy Program (HICAP) office. HICAP is a
service provided free of charge by the State of California.
(Questions)
If you lost or are losing other health insurance coverage and
received a notice from your prior insurer saying you were eligible
for guaranteed issue of a Medicare supplement
insurance policy or that you had certain rights
to buy such a policy, you may be guaranteed acceptance in one or more
of our Medicare supplement plans. Please include a copy of the
notice from your prior insurer with your application. PLEASE ANSWER
ALL QUESTIONS.
Please mark Yes or No below with an "X."]
To the best of your knowledge,
(1) (a) Did you turn 65 years of age in the last 6 months
months?
Yes____ No____
(b) Did you enroll in Medicare Part B in the last 6
months months?
Yes____ No____
(c) If yes, what is the effective date
date? ___________________
(2) Are you covered for medical assistance through California's
Medi-Cal program program?
NOTE TO APPLICANT: If you have a share of cost under the Medi-Cal
program, please answer NO to this question.
Yes____ No____
If yes,
(a) Will Medi-Cal pay your premiums for this Medicare supplement
policy policy?
Yes____ No____
(b) Do you receive benefits from Medi-Cal OTHER THAN payments
toward your Medicare Part B premium premium?
Yes____ No____
(3) (a) If you had coverage from any Medicare plan other than
original Medicare within the past 63 days (for example, a Medicare
Advantage plan or a Medicare HMO or PPO), fill in your start and end
dates below. If you are still covered under this plan, leave "END"
blank.
START __/__/__ END __/__/__
(b) If you are still covered under the Medicare plan, do you
intend to replace your current coverage with this new Medicare
supplement policy policy?
Yes____ No____
(c) Was this your first time in this type of Medicare
plan plan?
Yes____ No____
(d) Did you drop a Medicare supplement policy to enroll in the
Medicare plan plan?
Yes____ No____
(4) (a) Do you have another Medicare supplement policy in
force force?
Yes____ No____
(b) If so, with what company, and what plan do you have optional
for direct mailers] mailers ]
?
Yes____ No____
(c) If so, do you intend to replace your current Medicare
supplement policy with this policy policy?
Yes____ No____
(5) Have you had coverage under any other health insurance within
the past 63 days days? (For example, an
employer, union, or individual plan)
Yes____ No____
(a) If so, with what companies and what kind of policy
policy?
________________________________________________
________________________________________________
________________________________________________
________________________________________________
(b) What are your dates of coverage under the other
policy policy?
START __/__/__ END __/__/__
(If you are still covered under the other policy, leave "END"
blank.) "
(b) Agents shall list any other health insurance policies they
have sold to the applicant as follows:
(1) List policies sold that are still in force.
(2) List policies sold in the past five years that are no longer
in force.
(c) In the case of a direct response issuer, a copy of the
application or supplemental form, signed by the applicant, and
acknowledged by the issuer, shall be returned to the applicant by the
issuer upon delivery of the policy.
(d) Upon determining that a sale will involve replacement of
Medicare supplement coverage, any issuer, other than a direct
response issuer, or its agent, shall furnish the applicant, prior to
issuance for delivery of the Medicare supplement policy or
certificate, a notice regarding replacement of Medicare supplement
coverage. One copy of the notice signed by the applicant and the
agent, except where the coverage is sold without an agent, shall be
provided to the applicant and an additional signed copy shall be
retained by the issuer as provided in Section 10508. A direct
response issuer shall deliver to the applicant at the time of the
issuance of the policy the notice regarding replacement of Medicare
supplement coverage.
(e) The notice required by subdivision (d) for an issuer shall be
in the form specified by the commissioner, using, to the extent
practicable, a model notice prepared by the National Association of
Insurance Commissioners for this purpose. The replacement notice
shall be printed in no less than 12-point type in substantially the
following form:
Insurer's name and address]
NOTICE TO APPLICANT REGARDING REPLACEMENT OF MEDICARE SUPPLEMENT
COVERAGE OR MEDICARE ADVANTAGE
SAVE THIS NOTICE! IT MAY BE IMPORTANT IN THE FUTURE.
If you intend to cancel or terminate existing Medicare supplement
or Medicare Advantage insurance and replace it with coverage issued
by company name], please review the new coverage carefully and
replace the existing coverage ONLY if the new coverage materially
improves your position. DO NOT CANCEL YOUR PRESENT COVERAGE UNTIL YOU
HAVE RECEIVED YOUR NEW POLICY AND ARE SURE THAT YOU WANT TO KEEP IT.
If you decide to purchase the new coverage, you will have 30 days
after you receive the policy to return it to the insurer, for any
reason, and receive a refund of your money.
If you want to discuss buying Medicare supplement or Medicare
Advantage coverage with a trained insurance counselor, call the
California Department of Insurance's toll-free telephone number
1-800-927-HELP, and ask how to contact your local Health Insurance
Counseling and Advocacy Program (HICAP) office. HICAP is a service
provided free of charge by the State of California.
STATEMENT TO APPLICANT FROM THE INSURER AND AGENT: I have reviewed
your current health insurance coverage. To the best of my knowledge,
the replacement of insurance involved in this transaction does not
duplicate coverage or, if applicable, Medicare Advantage coverage
because you intend to terminate your existing Medicare supplement
coverage or leave your Medicare Advantage plan. In addition, the
replacement coverage contains benefits that are clearly and
substantially greater than your current benefits for the following
reasons:
__ Additional benefits that are: ______
__ No change in benefits, but lower premiums.
__ Fewer benefits and lower premiums.
__ Plan has outpatient prescription drug coverage and applicant is
enrolled in Medicare Part D.
__ Disenrollment from a Medicare Advantage plan. Reasons for
disenrollment:
__ Other reasons specified here: ______
1. Note: If the issuer of the Medicare supplement policy being
applied for does not impose, or is otherwise prohibited from
imposing, preexisting condition limitations, please skip to statement
3 below. Health conditions that you may presently have (preexisting
conditions) may not be immediately or fully covered under the new
policy. This could result in denial or delay of a claim for benefits
under the new policy, whereas a similar claim might have been payable
under your present policy.
2. State law provides that your replacement Medicare supplement
policy may not contain new preexisting conditions, waiting periods,
elimination periods, or probationary periods. The insurer will waive
any time periods applicable to preexisting conditions, waiting
periods, elimination periods, or probationary periods in the new
coverage for similar benefits to the extent that time was spent
(depleted) under the original policy.
3. If you still wish to terminate your present policy and replace
it with new coverage, be certain to truthfully and completely answer
any and all questions on the application concerning your medical and
health history. Failure to include all material medical information
on an application requesting that information may provide a basis for
the insurer to deny any future claims and to refund your premium as
though your policy had never been in force. After the application has
been completed and before you sign it, review it carefully to be
certain that all information has been properly recorded. If the
policy or certificate is guaranteed issue, this paragraph need not
appear.]
DO NOT CANCEL YOUR PRESENT POLICY UNTIL YOU HAVE RECEIVED YOUR NEW
POLICY AND ARE SURE THAT YOU WANT TO KEEP IT.
_________________________________________________
(Signature of Agent, Broker, or Other
Representative)
_________________________________________________
(Signature of Applicant)
_________________________________________________
(Date)
(f) No An issuer, broker, agent, or
other person shall not cause an insured to replace a
Medicare supplement insurance policy unnecessarily. In recommending
replacement of any Medicare supplement insurance, an agent shall make
reasonable efforts to determine the appropriateness to the potential
insured.
(g) An issuer shall not require, request, or obtain health
information as part of the application process for an applicant who
is eligible for guaranteed issuance of, or open enrollment for, any
Medicare supplement coverage pursuant to Section 10192.11 or
10192.12, except for purposes of paragraph (1) or (2) of subdivision
(a) of Section 10192.11 when the applicant is first enrolled in
Medicare Part B. The application form shall include a clear and
conspicuous statement that the applicant is not required to provide
health information during a period where guaranteed issue or open
enrollment applies, as specified in Section 10192.11 or 10192.12,
except for purposes of paragraph (1) or (2) of subdivision (a) of
Section 10192.11 when the applicant is first enrolled in Medicare
Part B, and shall inform the applicant of those periods of guaranteed
issuance of Medicare supplement coverage. This subdivision
shall does not prohibit an issuer from requiring
proof of eligibility for a guaranteed issuance of Medicare
supplement coverage.
SEC. 368. Section 10753.06.5 of the Insurance Code is amended to
read:
10753.06.5. (a) With respect to small employer health benefit
plans offered outside the Exchange, after a small employer submits a
completed application, the carrier shall, within 30 days, notify the
employer of the employer's actual rates in accordance with Section
10753.14. The employer shall have has
30 days in which to exercise the right to buy coverage at the quoted
rates.
(b) Except as required under subdivision (c), when a small
employer submits a premium payment, based on the quoted rates, and
that payment is delivered or postmarked, whichever occurs earlier,
within the first 15 days of a month, coverage shall become effective
no later than the first day of the following month. When that payment
is neither delivered nor postmarked until after the 15th day of a
month, coverage shall become effective no later than the first day of
the second month following delivery or postmark of the payment.
(c) (1) With respect to a small employer health benefit plan
offered through the Exchange, a carrier shall apply coverage
effective dates consistent with those required under Section 155.720
of Title 45 of the Code of Federal Regulations and paragraph
(2) of subdivision (e) of Section 10965.3.
(2) With respect to a small employer health benefit plan offered
outside the Exchange for which an individual applies during a special
enrollment period described in paragraph (3) of subdivision (b) of
Section 10753.05, the following provisions shall apply:
(A) Coverage under the plan shall become effective no later than
the first day of the first calendar month beginning after the date
the carrier receives the request for special enrollment.
(B) Notwithstanding subparagraph (A), in the case of a birth,
adoption, or placement for adoption, coverage under the plan shall
become effective on the date of birth, adoption, or placement for
adoption.
(d) During the first 30 days of coverage, the small employer shall
have the option of changing coverage to a different health benefit
plan offered by the same carrier. If a small employer notifies the
carrier of the change within the first 15 days of a month, coverage
under the new health benefit plan shall become effective no later
than the first day of the following month. If a small employer
notifies the carrier of the change after the 15th day of a month,
coverage under the new health benefit plan shall become effective no
later than the first day of the second month following notification.
(e) All eligible employees and dependents listed on a small
employer's completed application shall be covered on the effective
date of the health benefit plan.
SEC. 369. The heading of Chapter 17 (commencing with Section
12693.99) of Part 6.2 of Division 2 of the Insurance Code is
repealed.
CHAPTER 17. REPEAL
SEC. 370. Section 12880.4 of the Insurance Code is amended to
read:
12880.4. (a) Whenever the commissioner shall have reason to
believe that a person has engaged or is engaging in this state in a
violation of this article, part, and
that a proceeding by the commissioner in respect thereto would be to
the interest of the public, he or she shall issue and serve upon that
person an order to show cause containing a statement of the charges
in that respect, a statement of that person's potential liability
under this part, and a notice of a hearing thereon to be held at a
time and place fixed therein, which shall not be less than 30 days
after the service thereof, for the purpose of determining whether the
commissioner should issue an order to that person to pay the penalty
imposed by Section 12880.3 and to cease and desist those methods,
acts, or practices, or any of them, that violate this
article. part.
(b) If the charges or any of them are found to be justified, the
commissioner shall issue and cause to be served upon that person an
order requiring that person to pay the penalty imposed by Section
12880.3 and to cease and desist from engaging in those methods, acts,
or practices found to be in violation of this part.
(c) The hearing shall be conducted in accordance with the
Administrative Procedure Act (Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code),
except that the hearings may be conducted by an administrative law
judge in the administrative law bureau when the proceedings involve a
common question of law or fact with another proceeding arising under
other Insurance Code sections that may be conducted by
administrative law bureau administrative law judges. The commissioner
and the appointed administrative law judge shall have all the powers
granted under the Administrative Procedure Act.
(d) The person shall be is entitled
to have the proceedings and the order reviewed by means of any remedy
provided by Section 12940 or by the Administrative Procedure Act.
SEC. 371. Section 1019 of the Labor Code is amended to read:
1019. (a) It shall be is unlawful
for an employer or any other person or entity to engage in, or to
direct another person or entity to engage in, unfair
immigration-related practices against any person for the purpose of,
or with the intent of, retaliating against any person for exercising
any right protected under this code or by any local ordinance
applicable to employees. Exercising a right protected by this code or
local ordinance includes the following:
(1) Filing a complaint or informing any person of an employer's or
other party's alleged violation of this code or local ordinance, so
long as the complaint or disclosure is made in good faith.
(2) Seeking information regarding whether an employer or other
party is in compliance with this code or local ordinance.
(3) Informing a person of his or her potential rights and remedies
under this code or local ordinance, and assisting him or her in
asserting those rights.
(b) (1) As used in this chapter, "unfair immigration-related
practice" means any of the following practices, when undertaken for
the retaliatory purposes prohibited by subdivision (a):
(A) Requesting more or different documents than are required under
Section 1324a(b) of Title 8 of the United States Code, or a refusal
to honor documents tendered pursuant to that section that on their
face reasonably appear to be genuine.
(B) Using the federal E-Verify system to check the employment
authorization status of a person at a time or in a manner not
required under Section 1324a(b) of Title 8 of the United States Code,
or not authorized under any memorandum of understanding governing
the use of the federal E-Verify system.
(C) Threatening to file or the filing of a false police report, or
a false report or complaint with any state or federal agency.
(D) Threatening to contact or contacting immigration authorities.
(2) "Unfair immigration-related practice" does not include conduct
undertaken at the express and specific direction or request of the
federal government.
(c) Engaging in an unfair immigration-related practice against a
person within 90 days of the person's exercise of rights protected
under this code or local ordinance applicable to employees shall
raise a rebuttable presumption of having done so in retaliation for
the exercise of those rights.
(d) (1) An employee or other person who is the subject of an
unfair immigration-related practice prohibited by this section, or a
representative of that employee or person, may bring a civil action
for equitable relief and any applicable damages or penalties.
(2) Upon a finding by a court of applicable jurisdiction of a
violation of this section, upon application by a party or
on its own motion, a court may do the following:
(A) For a first violation, order the appropriate government
agencies to suspend all licenses that are held by the violating party
for a period of up to 14 days. On receipt of the court's order and
notwithstanding any other law, the appropriate agencies shall suspend
the licenses according to the court's order.
(B) For a second violation, order the appropriate government
agencies to suspend all licenses that are held by the violating party
for a period of up to 30 days. On receipt of the court's order and
notwithstanding any other law, the appropriate agencies shall
immediately suspend the licenses.
(C) For a third or subsequent violation, order the appropriate
government agencies to suspend for a period of up to 90 days all
licenses that are held by the violating party. On receipt of the
court's order and notwithstanding any other law, the appropriate
agencies shall immediately suspend the licenses.
(3) In determining whether a suspension of all licenses is
appropriate under this subdivision, the court shall consider whether
the employer knowingly committed an unfair immigration-related
practice, the good faith efforts of the employer to resolve any
alleged unfair immigration-related practice after receiving notice of
the violations, as well as the harm other employees of the employer,
or employees of other employers on a multiemployer job site, will
suffer as a result of the suspension of all licenses.
(4) An employee or other person who is the subject of an unfair
immigration-related practice prohibited by this section, and who
prevails in an action authorized by this section, shall recover his
or her reasonable attorney's fees and costs, including any expert
witness costs.
(e) As used in this chapter:
(1) "License" means any agency permit, certificate, approval,
registration, or charter that is required by law and that is issued
by any agency for the purposes of operating a business in this state
and that is specific to the business location or locations where the
unfair immigration-related practice occurred. "License" does not
include a professional license.
(2) "Violation" means each incident when an unfair
immigration-related practice was committed, without reference to the
number of employees involved in the incident.
SEC. 372. Section 1311.5 of the Labor Code is amended to read:
1311.5. (a) This section shall be known and may be cited as the
Child Labor Protection Act of 2014.
(a)
(b) The statute of limitations for claims arising under
this code shall be tolled until an individual allegedly aggrieved by
an unlawful practice attains the age of majority. This subdivision
is declaratory of existing law.
(b)
(c) In addition to other remedies available, an
individual who is discharged, threatened with discharge, demoted,
suspended, retaliated against, subjected to an adverse action, or in
any other manner discriminated against in the terms or conditions of
his or her employment because the individual filed a claim or civil
action alleging a violation of this code that arose while the
individual was a minor, whether the claim or civil action was filed
before or after the individual reached the age of majority,
shall be is entitled to treble damages.
(c)
(d) A class "A" violation, as defined in subdivision
(a) of Section 1288, that involves a minor 12 years of age or younger
shall be subject to a civil penalty in an amount not less than
twenty-five thousand dollars ($25,000) and not exceeding fifty
thousand dollars ($50,000) for each violation.
SEC. 373. Section 1741.1 of the Labor Code is amended to read:
1741.1. (a) The period for service of assessments shall be tolled
for the period of time required by the Director of Industrial
Relations to determine whether a project is a public work, including
a determination on administrative appeal, if applicable, pursuant to
subdivisions (b) and (c) of Section 1773.5. The period for service of
assessments shall also be tolled for the period of time that a
contractor or subcontractor fails to provide in a timely manner
certified payroll records pursuant to a request from the Labor
Commissioner or a joint labor-management committee under Section
1776, or an approved labor compliance program under Section 1771.5 or
1771.7.
(b) (1) The body awarding the contract for a public
work shall furnish, within 10 days after receipt of a written request
from the Labor Commissioner, a copy of the valid notice of
completion for the public work filed in the office of the county
recorder, or a document evidencing the awarding body's acceptance of
the public work on a particular date, whichever occurs later, by
first-class mail addressed to the office of the Labor Commissioner
that is listed on the written request. If, at the time of receipt of
the Labor Commissioner's written request, a valid notice of
completion has not been filed by the awarding body in the office of
the county recorder and there is no document evidencing the awarding
body's acceptance of the public work on a particular date, the
awarding body shall so notify the office of the Labor Commissioner
that is listed on the written request. Thereafter, the awarding body
shall furnish copies of the applicable document within 10 days after
filing a valid notice of completion with the county recorder's
office, or within 10 days of the awarding body's acceptance of the
public work on a particular date.
(2) If the awarding body fails to timely furnish the Labor
Commissioner with the documents identified in paragraph (1), the
period for service of assessments under Section 1741 shall be tolled
until the Labor Commissioner's actual receipt of the valid notice of
completion for the public work or a document evidencing the awarding
body's acceptance of the public work on a particular date.
(c) The tolling provisions in this section shall also apply to the
period of time for commencing an action brought by a joint
labor-management committee pursuant to Section 1771.2.
SEC. 374. Section 5406 of the Labor Code is amended to read:
5406. (a) Except as provided in Section 5406.5, 5406.6, or
5406.7, the period within which may be commenced proceedings for the
collection of the benefits provided by Article 4 (commencing with
Section 4700) of Chapter 2 of Part 2 is one year from:
(1) The date of death if death occurs within one year from date of
injury.
(2) The date of last furnishing of any benefits under Chapter 2
(commencing with Section 4550) of Part 2, if death occurs more than
one year from the date of injury.
(3) The date of death, where if
death occurs more than one year after the date of injury and
compensation benefits have been furnished.
(b) Proceedings shall not be commenced more than one year after
the date of death, nor more than 240 weeks from the date of injury.
SEC. 375. Section 6319 of the Labor Code is amended to read:
6319. (a) If, after an inspection or investigation, the division
issues a citation pursuant to Section 6317 or an order pursuant to
Section 6308, it shall, within a reasonable time after the
termination of the inspection or investigation, notify the employer
by certified mail of the citation or order, and that the employer has
15 working days from receipt of the notice within which to notify
the appeals board that he or she wishes to contest the citation or
order for any reason set forth in Section 6600 or 6600.5.
(b) Any An employer served by
certified mail with a notice of civil penalty may appeal to the
appeals board within 15 working days from receipt of that notice for
any reason set forth in Section 6600. If the citation is issued for a
violation involving the condition or operation of any machine,
device, apparatus, or equipment, and a person other than the employer
is obligated to the employer to repair the machine, device,
apparatus, or equipment and to pay any penalties assessed against the
employer, the other person may appeal to the appeals board within 15
working days of the receipt of the citation by the employer for any
reasons set forth in Section 6600.
(c) The director shall promulgate regulations covering the
assessment of civil penalties under this chapter which give due
consideration to the appropriateness of the penalty with respect to
the following factors:
(1) The size of the business of the employer being charged.
(2) The gravity of the violation.
(3) The good faith of the employer, including timely abatement.
(4) The history of previous violations.
(d) Notwithstanding subdivision (c), if serious injury, illness,
exposure, or death is caused by any a
serious, willful, or repeated violation, or by any
a failure to correct a serious violation within the time
permitted for its correction, the penalty shall not be reduced for
any a reason other than the size of the
business of the employer being charged. Whenever the division issues
a citation for a violation covered by this subdivision, it shall
notify the employer of its determination that serious injury,
illness, exposure or death was caused by the violation and shall,
upon request, provide the employer with a copy of the inspection
report.
(e) The employer shall is not
be liable for a civil penalty under this part for
any citation issued by a division representative providing consulting
services pursuant to Sections 6354 and 6355.
(f) Whenever a citation of a self-insured employer for a
willful, willful or repeat serious violation of
the standard adopted pursuant to Section 6401.7 becomes final, the
division shall notify the director so that a hearing may be held to
determine whether good cause exists to revoke the employer's
certificate of consent to self-insure as provided in Section 3702.
(g) Based upon the evidence, the division may propose appropriate
modifications concerning the characterization of violations and
corresponding modifications to civil penalties as a result thereof.
For serious violations, the division shall not grant a proposed
modification to civil penalties for abatement or credit for abatement
unless the employer has done any of the following:
(1) Abated the violation at the time of the initial inspection.
(2) Abated the violation at the time of a subsequent inspection
prior to the issuance of a citation.
(3) Submitted a signed statement under penalty of perjury and
supporting evidence, when necessary to prove abatement, in accordance
with subdivision (b) of Section 6320.
SEC. 376. Section 6404.5 of the Labor Code is amended to read:
6404.5. (a) The Legislature finds and declares that regulation of
smoking in the workplace is a matter of statewide interest and
concern. It is the intent of the Legislature in enacting this section
to prohibit the smoking of tobacco products in all (100 percent of)
enclosed places of employment in this state, as covered by this
section, thereby eliminating the need of local governments to enact
workplace smoking restrictions within their respective jurisdictions.
It is further the intent of the Legislature to create a uniform
statewide standard to restrict and prohibit the smoking of tobacco
products in enclosed places of employment, as specified in this
section, in order to reduce employee exposure to environmental
tobacco smoke to a level that will prevent anything other than
insignificantly harmful effects to exposed employees, and also to
eliminate the confusion and hardship that can result from enactment
or enforcement of disparate local workplace smoking restrictions.
Notwithstanding any other provision of this section, it is the intent
of the Legislature that any an area
not defined as a "place of employment" pursuant to subdivision (d) or
in which the smoking of tobacco products is not regulated pursuant
to subdivision (e) shall be is subject
to local regulation of smoking of tobacco products.
(b) No An employer shall
not knowingly or intentionally permit, and no
a person shall not engage in, the
smoking of tobacco products in an enclosed space at a place of
employment. "Enclosed space" includes lobbies, lounges, waiting
areas, elevators, stairwells, and restrooms that are a structural
part of the building and not specifically defined in subdivision (d).
(c) For purposes of this section, an employer who permits any
nonemployee access to his or her place of employment on a regular
basis has not acted knowingly or intentionally in violation of this
section if he or she has taken the following reasonable steps to
prevent smoking by a nonemployee:
(1) Posted clear and prominent signs, as follows:
(A) Where smoking is prohibited throughout the building or
structure, a sign stating "No smoking" shall be posted at each
entrance to the building or structure.
(B) Where smoking is permitted in designated areas of the building
or structure, a sign stating "Smoking is prohibited except in
designated areas" shall be posted at each entrance to the building or
structure.
(2) Has requested, when appropriate, that a nonemployee who is
smoking refrain from smoking in the enclosed workplace.
For purposes of this subdivision, "reasonable steps" does not
include (A) the physical ejection of a nonemployee from the place of
employment or (B) any requirement for making a request to a
nonemployee to refrain from smoking, under circumstances involving a
risk of physical harm to the employer or any employee.
(d) For purposes of this section, "place of employment" does not
include any of the following:
(1) Sixty-five percent of the guestroom accommodations in a hotel,
motel, or similar transient lodging establishment.
(2) Areas of the lobby in a hotel, motel, or other similar
transient lodging establishment designated for smoking by the
establishment. An establishment may permit smoking in a designated
lobby area that does not exceed 25 percent of the total floor area of
the lobby or, if the total area of the lobby is 2,000 square feet or
less, that does not exceed 50 percent of the total floor area of the
lobby. For purposes of this paragraph, "lobby" means the common
public area of an establishment in which registration and other
similar or related transactions, or both, are conducted and in which
the establishment's guests and members of the public typically
congregate.
(3) Meeting and banquet rooms in a hotel, motel, other transient
lodging establishment similar to a hotel or motel, restaurant, or
public convention center, except while food or beverage functions are
taking place, including setup, service, and cleanup activities, or
when the room is being used for exhibit purposes. At times when
smoking is not permitted in a meeting or banquet room pursuant to
this paragraph, the establishment may permit smoking in corridors and
prefunction areas adjacent to and serving the meeting or banquet
room if no employee is stationed in that corridor or area on other
than a passing basis.
(4) Retail or wholesale tobacco shops and private smokers'
lounges. For purposes of this paragraph:
(A) "Private smokers' lounge" means any enclosed area in or
attached to a retail or wholesale tobacco shop that is dedicated to
the use of tobacco products, including, but not limited to, cigars
and pipes.
(B) "Retail or wholesale tobacco shop" means any business
establishment the main purpose of which is the sale of tobacco
products, including, but not limited to, cigars, pipe tobacco, and
smoking accessories.
(5) Cabs of motortrucks, as defined in Section 410 of the Vehicle
Code, or truck tractors, as defined in Section 655 of the Vehicle
Code, if no nonsmoking employees are not
present.
(6) Warehouse facilities. For purposes of this paragraph,
"warehouse facility" means a warehouse facility with more than
100,000 square feet of total floorspace, and 20 or fewer full-time
employees working at the facility, but does not include any area
within a facility that is utilized as office space.
(7) Gaming clubs, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "gaming club" means any gaming
club, as defined in Section 19802 of the Business and Professions
Code, or bingo facility, as defined in Section 326.5 of the Penal
Code, that restricts access to minors under 18 years of age.
(8) Bars and taverns, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "bar" or "tavern" means a
facility primarily devoted to the serving of alcoholic beverages for
consumption by guests on the premises, in which the serving of food
is incidental. "Bar or tavern" includes those facilities located
within a hotel, motel, or other similar transient occupancy
establishment. However, when located within a building in conjunction
with another use, including a restaurant, "bar" or "tavern" includes
only those areas used primarily for the sale and service of
alcoholic beverages. "Bar" or "tavern" does not include the dining
areas of a restaurant, regardless of whether alcoholic beverages are
served therein.
(9) Theatrical production sites, if smoking is an integral part of
the story in the theatrical production.
(10) Medical research or treatment sites, if smoking is integral
to the research and treatment being conducted.
(11) Private residences, except for private residences licensed as
family day care homes, homes where
smoking is prohibited pursuant to Section 1596.795 of the Health and
Safety Code.
(12) Patient smoking areas in long-term health care facilities, as
defined in Section 1418 of the Health and Safety Code.
(13) Breakrooms designated by employers for smoking, provided that
all of the following conditions are met:
(A) Air from the smoking room shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking room shall not be
recirculated to other parts of the building.
(B) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
(C) The smoking room shall be located in a nonwork area where no
one, as part of his or her work responsibilities, is required to
enter. For purposes of this subparagraph, "work responsibilities"
does not include any custodial or maintenance work carried out in the
breakroom when it is unoccupied.
(D) There are sufficient nonsmoking breakrooms to accommodate
nonsmokers.
(14) Employers with a total of five or fewer employees, either
full time or part time, may permit smoking where all of the following
conditions are met:
(A) The smoking area is not accessible to minors.
(B) All employees who enter the smoking area consent to permit
smoking. No one, as part of his or her work responsibilities, shall
be required to work in an area where smoking is permitted. An
employer who is determined by the division to have used coercion to
obtain consent or who has required an employee to work in the smoking
area shall be subject to the penalty provisions of Section 6427.
(C) Air from the smoking area shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking area shall not be
recirculated to other parts of the building.
(D) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
This paragraph shall not be construed to (i) supersede or render
inapplicable any condition or limitation on smoking areas made
applicable to specific types of business establishments by any other
paragraph of this subdivision or (ii) apply in lieu of any otherwise
applicable paragraph of this subdivision that has become inoperative.
(e) Paragraphs (13) and (14) of subdivision (d) shall not be
construed to require employers to provide reasonable accommodation to
smokers, or to provide breakrooms for smokers or nonsmokers.
(f) (1) Except as otherwise provided in this subdivision, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), until the earlier of the following:
(A) January 1, 1998.
(B) The date of adoption of a regulation (i) by the Occupational
Safety and Health Standards Board reducing the permissible employee
exposure level to environmental tobacco smoke to a level that will
prevent anything other than insignificantly harmful effects to
exposed employees or (ii) by the federal Environmental Protection
Agency establishing a standard for reduction of permissible exposure
to environmental tobacco smoke to an exposure level that will prevent
anything other than insignificantly harmful effects to exposed
persons.
(2) If a regulation specified in subparagraph (B) of paragraph (1)
is adopted on or before January 1, 1998, smoking may thereafter be
permitted in gaming clubs and in bars and taverns, subject to full
compliance with, or conformity to, the standard in the regulation
within two years following the date of adoption of the regulation. An
employer failing to achieve compliance with, or conformity to, the
regulation within this two-year period shall prohibit smoking in the
gaming club, bar, or tavern until compliance or conformity is
achieved. If the Occupational Safety and Health Standards Board and
the federal Environmental Protection Agency both adopt regulations
specified in subparagraph (B) of paragraph (1) that are inconsistent,
the regulations of the Occupational Safety and Health Standards
Board shall be no less stringent than the regulations of the federal
Environmental Protection Agency.
(3) If a regulation specified in subparagraph (B) of paragraph (1)
is not adopted on or before January 1, 1998, the exemptions
specified in paragraphs (7) and (8) of subdivision (d) shall become
inoperative on and after January 1, 1998, until a regulation is
adopted. Upon adoption of such a regulation on or after January 1,
1998, smoking may thereafter be permitted in gaming clubs and in bars
and taverns, subject to full compliance with, or conformity to, the
standard in the regulation within two years following the date of
adoption of the regulation. An employer failing to achieve compliance
with, or conformity to, the regulation within this two-year period
shall prohibit smoking in the gaming club, bar, or tavern until
compliance or conformity is achieved. If the Occupational Safety and
Health Standards Board and the federal Environmental Protection
Agency both adopt regulations specified in subparagraph (B) of
paragraph (1) that are inconsistent, the regulations of the
Occupational Safety and Health Standards Board shall be no less
stringent than the regulations of the federal Environmental
Protection Agency.
(4) From January 1, 1997, to December 31, 1997, inclusive, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), subject to both of the following conditions:
(A) If practicable, the gaming club or bar or tavern shall
establish a designated nonsmoking area.
(B) If feasible, no an employee
shall not be required, in the performance of ordinary work
responsibilities, to enter any area in which smoking is permitted.
(g) The smoking prohibition set forth in this section
shall constitute constitutes a uniform statewide
standard for regulating the smoking of tobacco products in enclosed
places of employment and shall supersede
supersedes and render unnecessary the local enactment or
enforcement of local ordinances regulating the smoking of tobacco
products in enclosed places of employment. Insofar as the smoking
prohibition set forth in this section is applicable to all
(100-percent) places of employment within this state and, therefore,
provides the maximum degree of coverage, the practical effect of this
section is to eliminate the need of local governments to enact
enclosed workplace smoking restrictions within their respective
jurisdictions.
(h) Nothing in this This section
shall does not prohibit an employer
from prohibiting smoking in an enclosed place of employment for any
reason.
(i) The enactment of local regulation of smoking of tobacco
products in enclosed places of employment by local governments shall
be suspended only for as long as, and to the extent that, the
(100-percent) smoking prohibition provided for in this section
remains in effect. In the event this section is repealed or modified
by subsequent legislative or judicial action so that the
(100-percent) smoking prohibition is no longer applicable to all
enclosed places of employment in California, local governments shall
have the full right and authority to enforce previously enacted, and
to enact and enforce new, restrictions on the smoking of tobacco
products in enclosed places of employment within their jurisdictions,
including a complete prohibition of smoking. Notwithstanding any
other provision of this section, any an
area not defined as a "place of employment" or in which smoking is
not regulated pursuant to subdivision (d) or (e), shall be
is subject to local regulation of smoking of
tobacco products.
(j) Any A violation of the
prohibition set forth in subdivision (b) is an infraction, punishable
by a fine not to exceed one hundred dollars ($100) for a first
violation, two hundred dollars ($200) for a second violation within
one year, and five hundred dollars ($500) for a third and for each
subsequent violation within one year. This subdivision shall be
enforced by local law enforcement agencies, including, but not
limited to, local health departments, as determined by the local
governing body.
(k) Notwithstanding Section 6309, the division shall not be
required to respond to any complaint regarding the smoking of tobacco
products in an enclosed space at a place of employment, unless the
employer has been found guilty pursuant to subdivision (j) of a third
violation of subdivision (b) within the previous year.
( l ) If any a provision
of this act or the application thereof to any person or circumstances
is held invalid, that invalidity shall not affect other provisions
or applications of the act that can be given effect without the
invalid provision or application, and to this end the provisions of
this act are severable.
SEC. 377. Section 6625 of the Labor Code is amended to read:
6625. (a) (1) Except as provided in subdivision (b), the filing
of a petition for reconsideration shall suspend
suspends for a period of 10 days the order or decision
affected, insofar as it applies to the parties to the petition,
unless otherwise ordered by the appeals board.
(2) Except as provided in subdivision (b), the appeals
board board, upon the terms and conditions which
it by order directs, may stay, suspend, or postpone the order or
decision during the pendency of the reconsideration.
(b) The filing of a petition for, or the pendency of,
reconsideration of a final order or decision involving a citation
classified as serious, repeat serious, or willful serious
shall does not stay or suspend the requirement
to abate the hazards affirmed by the decision or order unless the
employer demonstrates by a preponderance of the evidence that a stay
or suspension of abatement will not adversely affect the health and
safety of employees. The employer must request a stay or suspension
of abatement by filing a written, verified petition with supporting
declarations within 10 days after the issuance of the order or
decision.
SEC. 378. Section 7873 of the Labor Code is amended to read:
7873. (a) As used in this section, "trade secret" means a trade
secret as defined in subdivision (d) of Section 6254.7 of the
Government Code or Section 1061 of the Evidence Code, and shall
include the schedule submitted to the division pursuant to
subdivision (b) of Section 7872 of this code, and the scheduling,
duration, layout, configuration, and type of work to be performed
during a turnaround. Upon completion of a turnaround, the scheduling
and duration of that turnaround shall no longer be considered a trade
secret. The wages, hours, benefits, job classifications, and
training standards for employees performing work for petroleum
refinery employers is not a trade secret.
(b) (1) If a petroleum refinery employer believes that information
submitted to the division pursuant to Section 7872 may involve the
release of a trade secret, the petroleum refinery employer shall
nevertheless provide this information to the division. The petroleum
refinery employer may, at the time of submission, identify all or a
portion of the information submitted to the division as trade secret
and, to the extent feasible, segregate records designated as trade
secret from the other records.
(2) Subject to subdivisions (c), (d), and (e), the division shall
not release to the public any information designated as a trade
secret by the petroleum refinery employer pursuant to paragraph (1).
(c) (1) Upon the receipt of a request for the release of
information to the public that includes information that the
petroleum refinery employer has notified the division is a trade
secret pursuant to paragraph (1) of subdivision (b), the division
shall notify the petroleum refinery employer in writing of the
request by certified mail, return receipt requested.
(2) The division shall release the requested information to the
public, unless both of the following occur:
(A) Within 30 days of receipt of the notice of the request for
information, the refinery petroleum refinery
employer files an action in an appropriate court for a
declaratory judgment that the information is subject to protection
under subdivision (b) and promptly notifies the division of that
action.
(B) Within 120 days of receipt of the notice of the request for
information, the refinery petroleum refinery
employer obtains an order prohibiting disclosure of the
information to the public and promptly notifies the division of that
action.
(3) This subdivision shall not be construed to allow a petroleum
refinery employer to refuse to disclose the information required
pursuant to this section to the division.
(d) (1) Except as provided in subdivision (c), any
information that has been designated as a trade secret by a
petroleum refinery employer shall not be released to any member of
the public, except that such this
information may be disclosed to other officers or employees of the
division when relevant in any a
proceeding of the division.
(2) If the person requesting the release of the information or the
petroleum refinery employer files an action to order or prohibit
disclosure of trade secret information, the person instituting the
proceeding shall name the person or the petroleum refinery employer
as a real party in interest.
(A) The petroleum refinery employer filing an action pursuant to
paragraph (2) of subdivision (c) shall provide notice of the action
to the person requesting the release of the information at the same
time that the defendant in the action is served.
(B) The person filing an action to compel the release of
information that includes information that the petroleum refinery
employer has notified the division is a trade secret pursuant to
paragraph (1) of subdivision (b) shall provide notice of the action
to the petroleum refinery employer that submitted the information at
the same time that the defendant in the action is served.
(3) The court shall award costs and reasonable attorneys' fees to
the party that prevails in litigation filed pursuant to this section.
The public agency shall not bear the court costs for any party named
in litigation filed pursuant to this section.
(e) This section shall not be construed to prohibit the exchange
of trade secrets between local, state, or federal public agencies or
state officials when those trade secrets are relevant and reasonably
necessary to the exercise of their authority.
(f) An officer or employee of the division who, by virtue of that
employment or official position, has possession of, or has access to,
trade secret information, and who, knowing that disclosure of the
information to the general public is prohibited by this section,
knowingly and willfully discloses the information in any manner to a
person he or she knows is not entitled to receive it, is guilty of a
misdemeanor. A contractor with the division and an employee of the
contractor, who has been furnished information as authorized by this
section, shall be considered an employee of the division for purposes
of this section.
SEC. 379. Section 19.8 of the Penal Code is amended to read:
19.8. (a) The following offenses are subject to subdivision (d)
of Section 17: Sections 193.8, 330, 415, 485, 490.7, 555, 602.13, and
853.7 of this code; subdivision (c) of Section 532b, and subdivision
(o) of Section 602 of this code; subdivision (b) of Section 25658
and Sections 21672, 25661, and 25662 of the Business and Professions
Code; Section 27204 of the Government Code; subdivision (c) of
Section 23109 and Sections 5201.1, 12500, 14601.1, 27150.1, 40508,
and 42005 of the Vehicle Code, and any other offense that the
Legislature makes subject to subdivision (d) of Section 17. Except
where a lesser maximum fine is expressly provided for a violation of
those sections, a violation that is an infraction is punishable by a
fine not exceeding two hundred fifty dollars ($250).
(b) Except in cases where a different punishment is prescribed,
every offense declared to be an infraction is punishable by a fine
not exceeding two hundred fifty dollars ($250)
($250).
(c) Except for the violations enumerated in subdivision (d) of
Section 13202.5 of the Vehicle Code, and Section 14601.1 of the
Vehicle Code based upon failure to appear, a conviction for an
offense made an infraction under subdivision (d) of Section 17 is not
grounds for the suspension, revocation, or denial of a license, or
for the revocation of probation or parole of the person convicted.
SEC. 380. Section 132.5 of the Penal Code, as amended by Section
223 of Chapter 62 of the Statutes of 2003, is amended to read:
132.5. (a) The Legislature supports and affirms the
constitutional right of every person to communicate on any subject.
This section is intended to preserve the right of every accused
person to a fair trial, the right of the people to due process of
law, and the integrity of judicial proceedings. This section is not
intended to prevent any person from disseminating any information or
opinion.
The Legislature hereby finds and declares that the disclosure for
valuable consideration of information relating to crimes by
prospective witnesses can cause the loss of credible evidence in
criminal trials and threatens to erode the reliability of verdicts.
The Legislature further finds and declares that the disclosure for
valuable consideration of information relating to crimes by
prospective witnesses creates an appearance of injustice that is
destructive of public confidence.
(b) A
person who is a witness to an event or occurrence that he or she
knows is a crime or who has personal knowledge of facts that he or
she knows or reasonably should know may require that person to be
called as a witness in a criminal prosecution shall not accept or
receive, directly or indirectly, any money or its equivalent in
consideration for providing information obtained as a result of
witnessing the event or occurrence or having personal knowledge of
the facts.
(c) Any A person who is a witness to
an event or occurrence that he or she reasonably should know is a
crime shall not accept or receive, directly or indirectly, any money
or its equivalent in consideration for providing information obtained
as a result of his or her witnessing the event or occurrence.
(d) The Attorney General or the district attorney of the county in
which an alleged violation of subdivision (c) occurs may institute a
civil proceeding. Where a final judgment is rendered in the civil
proceeding, the defendant shall be punished for the violation of
subdivision (c) by a fine equal to 150 percent of the amount received
or contracted for by the person.
(e) A violation of subdivision (b) is a misdemeanor punishable by
imprisonment for a term not exceeding six months in a county jail, a
fine not exceeding three times the amount of compensation requested,
accepted, or received, or both the imprisonment and fine.
(f) This section does not apply if more than one year has elapsed
from the date of any criminal act related to the information that is
provided under subdivision (b) or (c) unless prosecution has
commenced for that criminal act. If prosecution has commenced, this
section shall remain applicable until the final judgment in the
action.
(g) This section does not apply to any of the following
circumstances:
(1) Lawful compensation paid to expert witnesses, investigators,
employees, or agents by a prosecutor, law enforcement agency, or an
attorney employed to represent a person in a criminal matter.
(2) Lawful compensation provided to an informant by a prosecutor
or law enforcement agency.
(3) Compensation paid to a publisher, editor, reporter, writer, or
other person connected with or employed by a newspaper, magazine, or
other publication or a television or radio news reporter or other
person connected with a television or radio station, for disclosing
information obtained in the ordinary course of business.
(4) Statutorily authorized rewards offered by governmental
agencies or private reward programs offered by victims of crimes for
information leading to the arrest and conviction of specified
offenders.
(5) Lawful compensation provided to a witness participating in the
Witness Protection Relocation and Assistance
Program established pursuant to Title 7.5 (commencing with
Section 14020) of Part 4.
(h) For purposes of this section, "information" does not include a
photograph, videotape, audiotape, or any other direct recording of
an event or occurrence.
(i) For purposes of this section, "victims of crimes" shall be
construed in a manner consistent with Section 28 of Article I of the
California Constitution, and shall include victims, as defined in
subdivision (3) of Section 136.
SEC. 381. Section 264.2 of the Penal Code is amended to read:
264.2. (a) Whenever there is an alleged violation or violations
of subdivision (e) of Section 243, or Section 261, 261.5, 262, 273.5,
286, 288a, or 289, the law enforcement officer assigned to the case
shall immediately provide the victim of the crime with the "Victims
of Domestic Violence" card, as specified in subparagraph (G)
(H) of paragraph (9) of subdivision (c) of
Section 13701.
(b) (1) The law enforcement officer, or his or her agency, shall
immediately notify the local rape victim counseling center, whenever
a victim of an alleged violation of Section 261, 261.5, 262, 286,
288a, or 289 is transported to a hospital for any medical evidentiary
or physical examination. The hospital may notify the local rape
victim counseling center, when the victim of the alleged violation of
Section 261, 261.5, 262, 286, 288a, or 289 is presented to the
hospital for the medical or evidentiary physical examination, upon
approval of the victim. The victim has the right to have a sexual
assault counselor, as defined in Section 1035.2 of the Evidence Code,
and a support person of the victim's choosing present at any medical
evidentiary or physical examination.
(2) Prior to the commencement of any initial medical evidentiary
or physical examination arising out of a sexual assault, a victim
shall be notified orally or in writing by the medical provider that
the victim has the right to have present a sexual assault counselor
and at least one other support person of the victim's choosing.
(3) The hospital may verify with the law enforcement officer, or
his or her agency, whether the local rape victim counseling center
has been notified, upon the approval of the victim.
(4) A support person may be excluded from a medical evidentiary or
physical examination if the law enforcement officer or medical
provider determines that the presence of that individual would be
detrimental to the purpose of the examination.
SEC. 382. Section 295.2 of the Penal Code is amended to read:
295.2. The DNA and forensic identification database and
data bank databank and the Department of Justice
DNA Laboratory shall not be used as a source of genetic material for
testing, research, or experiments, by any person, agency, or entity
seeking to find a causal link between genetics and behavior or
health.
SEC. 383. Section 300.2 of the Penal Code, as added by Section 2
of Chapter 696 of the Statutes of 1998, is amended and renumbered to
read:
300.2. 300.4. The provisions of
this chapter are severable. If any provision of this chapter or its
application is held invalid, that invalidity shall not affect other
provisions or applications that can be given effect without the
invalid provision or application.
SEC. 384. Section 308 of the Penal Code is amended to read:
308. (a) (1) Every person, firm, or corporation that knowingly or
under circumstances in which it has knowledge, or should otherwise
have grounds for knowledge, sells, gives, or in any way furnishes to
another person who is under the age of 18 years any tobacco,
cigarette, or cigarette papers, or blunts
blunt wraps, or any other preparation of tobacco, or any other
instrument or paraphernalia that is designed for the smoking or
ingestion of tobacco, products prepared from tobacco, or any
controlled substance, is subject to either a criminal action for a
misdemeanor or to a civil action brought by a city attorney, a county
counsel, or a district attorney, punishable by a fine of two hundred
dollars ($200) for the first offense, five hundred dollars ($500)
for the second offense, and one thousand dollars ($1,000) for the
third offense.
Notwithstanding Section 1464 or any other law, 25 percent of each
civil and criminal penalty collected pursuant to this subdivision
shall be paid to the office of the city attorney, county counsel, or
district attorney, whoever is responsible for bringing the successful
action, and 25 percent of each civil and criminal penalty collected
pursuant to this subdivision shall be paid to the city or county for
the administration and cost of the community service work component
provided in subdivision (b).
Proof that a defendant, or his or her employee or agent, demanded,
was shown, and reasonably relied upon evidence of majority shall be
defense to any action brought pursuant to this subdivision. Evidence
of majority of a person is a facsimile of or a reasonable likeness of
a document issued by a federal, state, county, or municipal
government, or subdivision or agency thereof, including, but not
limited to, a motor vehicle operator's license, a registration
certificate issued under the federal Selective Service Act, or an
identification card issued to a member of the Armed Forces.
For purposes of this section, the person liable for selling or
furnishing tobacco products to minors by a tobacco vending machine
shall be the person authorizing the installation or placement of the
tobacco vending machine upon premises he or she manages or otherwise
controls and under circumstances in which he or she has knowledge, or
should otherwise have grounds for knowledge, that the tobacco
vending machine will be utilized by minors.
(2) For purposes of this section, "blunt wraps" means cigar papers
or cigar wrappers of all types that are designed for smoking or
ingestion of tobacco products and contain less than 50 percent
tobacco.
(b) Every person under the age of 18 years who purchases,
receives, or possesses any tobacco, cigarette, or cigarette papers,
or any other preparation of tobacco, or any other instrument or
paraphernalia that is designed for the smoking of tobacco, products
prepared from tobacco, or any controlled substance shall, upon
conviction, be punished by a fine of seventy-five dollars ($75) or 30
hours of community service work.
(c) Every person, firm, or corporation that sells, or deals in
tobacco or any preparation thereof, shall post conspicuously and keep
so posted in his, her, or their place of business at each point of
purchase the notice required pursuant to subdivision (b) of Section
22952 of the Business and Professions Code, and any person failing to
do so shall, upon conviction, be punished by a fine of fifty dollars
($50) for the first offense, one hundred dollars ($100) for the
second offense, two hundred fifty dollars ($250) for the third
offense, and five hundred dollars ($500) for the fourth offense and
each subsequent violation of this provision, or by imprisonment in a
county jail not exceeding 30 days.
(d) For purposes of determining the liability of persons, firms,
or corporations controlling franchises or business operations in
multiple locations for the second and subsequent violations of this
section, each individual franchise or business location shall be
deemed a separate entity.
(e) Notwithstanding subdivision (b), any person under 18 years of
age who purchases, receives, or possesses any tobacco, cigarette, or
cigarette papers, or any other preparation of tobacco, any other
instrument or paraphernalia that is designed for the smoking of
tobacco, or products prepared from tobacco is immune from prosecution
for that purchase, receipt, or possession while participating in
either of the following:
(1) An enforcement activity that complies with the guidelines
adopted pursuant to subdivisions (c) and (d) of Section 22952 of the
Business and Professions Code.
(2) An activity conducted by the State Department of Public
Health, a local health department, or a law enforcement agency for
the purpose of determining or evaluating youth tobacco purchase
rates.
(f) It is the Legislature's intent to regulate the subject matter
of this section. As a result, a city, county, or city and county
shall not adopt any ordinance or regulation inconsistent with this
section.
SEC. 385. Section 602 of the Penal Code is amended to read:
602. Except as provided in subdivisions (u), (v), and (x), and
Section 602.8, every person who willfully commits a trespass by any
of the following acts is guilty of a misdemeanor:
(a) Cutting down, destroying, or injuring any kind of wood or
timber standing or growing upon the lands of another.
(b) Carrying away any kind of wood or timber lying on those lands.
(c) Maliciously injuring or severing from the freehold of another
anything attached to it, or its produce.
(d) Digging, taking, or carrying away from any lot situated within
the limits of any incorporated city, without the license of the
owner or legal occupant, any earth, soil, or stone.
(e) Digging, taking, or carrying away from land in any city or
town laid down on the map or plan of the city, or otherwise
recognized or established as a street, alley, avenue, or park,
without the license of the proper authorities, any earth, soil, or
stone.
(f) Maliciously tearing down, damaging, mutilating, or destroying
any sign, signboard, or notice placed upon, or affixed to, any
property belonging to the state, or to any city, county, city and
county, town town, or village, or upon
any property of any person, by the state or by an automobile
association, which sign, signboard, or notice is intended to indicate
or designate a road or a highway, or is intended to direct travelers
from one point to another, or relates to fires, fire control, or any
other matter involving the protection of the property, or putting
up, affixing, fastening, printing, or painting upon any property
belonging to the state, or to any city, county, town, or village, or
dedicated to the public, or upon any property of any person, without
license from the owner, any notice, advertisement, or designation of,
or any name for any commodity, whether for sale or otherwise, or any
picture, sign, or device intended to call attention to it.
(g) Entering upon any lands owned by any other person whereon
oysters or other shellfish are planted or growing; or injuring,
gathering, or carrying away any oysters or other shellfish planted,
growing, or on any of those lands, whether covered by water or not,
without the license of the owner or legal occupant; or damaging,
destroying, or removing, or causing to be removed, damaged, or
destroyed, any stakes, marks, fences, or signs intended to designate
the boundaries and limits of any of those lands.
(h) (1) Entering upon lands or buildings owned by any other person
without the license of the owner or legal occupant, where signs
forbidding trespass are displayed, and whereon cattle, goats, pigs,
sheep, fowl, or any other animal is being raised, bred, fed, or held
for the purpose of food for human consumption; or injuring,
gathering, or carrying away any animal being housed on any of those
lands, without the license of the owner or legal occupant; or
damaging, destroying, or removing, or causing to be removed, damaged,
or destroyed, any stakes, marks, fences, or signs intended to
designate the boundaries and limits of any of those lands.
(2) In order for there to be a violation of this subdivision, the
trespass signs under paragraph (1) shall be displayed at intervals
not less than three per mile along all exterior boundaries and at all
roads and trails entering the land.
(3) This subdivision shall not be construed to preclude
prosecution or punishment under any other provision of
law, including, but not limited to, grand theft or any
provision that provides for a greater penalty or longer term of
imprisonment.
(i) Willfully opening, tearing down, or otherwise destroying any
fence on the enclosed land of another, or opening any gate, bar, or
fence of another and willfully leaving it open without the written
permission of the owner, or maliciously tearing down, mutilating, or
destroying any sign, signboard, or other notice forbidding shooting
on private property.
(j) Building fires upon any lands owned by another where signs
forbidding trespass are displayed at intervals not greater than one
mile along the exterior boundaries and at all roads and trails
entering the lands, without first having obtained written permission
from the owner of the lands or the owner's agent, or the person in
lawful possession.
(k) Entering any lands, whether unenclosed or enclosed by fence,
for the purpose of injuring any property or property rights or with
the intention of interfering with, obstructing, or injuring any
lawful business or occupation carried on by the owner of the land,
the owner's agent, or by the person in lawful
possession.
(l) Entering any lands under cultivation or enclosed by fence,
belonging to, or occupied by, another, or entering upon uncultivated
or unenclosed lands where signs forbidding trespass are displayed at
intervals not less than three to the mile along all exterior
boundaries and at all roads and trails entering the lands without the
written permission of the owner of the land, or
the owner's agent, or of the person in lawful
possession, and any of the following:
(1) Refusing or failing to leave the lands immediately upon being
requested by the owner of the land, the owner's agent, or by the
person in lawful possession to leave the lands.
(2) Tearing down, mutilating, or destroying any sign, signboard,
or notice forbidding trespass or hunting on the lands.
(3) Removing, injuring, unlocking, or tampering with any lock on
any gate on or leading into the lands.
(4) Discharging any firearm.
(m) Entering and occupying real property or structures of any kind
without the consent of the owner, the owner's agent, or the person
in lawful possession.
(n) Driving any vehicle, as defined in Section 670 of the Vehicle
Code, upon real property belonging to, or lawfully occupied by,
another and known not to be open to the general public, without the
consent of the owner, the owner's agent, or the person in lawful
possession. This subdivision shall does
not apply to any person described in Section 22350 of the Business
and Professions Code who is making a lawful service of process,
provided that upon exiting the vehicle, the person proceeds
immediately to attempt the service of process, and leaves immediately
upon completing the service of process or upon the request of the
owner, the owner's agent, or the person in lawful possession.
(o) Refusing or failing to leave land, real property, or
structures belonging to or lawfully occupied by another and not open
to the general public, upon being requested to leave by (1) a peace
officer at the request of the owner, the owner's agent, or the person
in lawful possession, and upon being informed by the peace officer
that he or she is acting at the request of the owner, the owner's
agent, or the person in lawful possession, or (2) the owner, the
owner's agent, or the person in lawful possession. The owner, the
owner's agent, or the person in lawful possession shall make a
separate request to the peace officer on each occasion when the peace
officer's assistance in dealing with a trespass is requested.
However, a single request for a peace officer's assistance may be
made to cover a limited period of time not to exceed 30 days and
identified by specific dates, during which there is a fire hazard or
the owner, owner's agent, or person in lawful possession is absent
from the premises or property. In addition, a single request for a
peace officer's assistance may be made for a period not to exceed 12
months when the premises or property is closed to the public and
posted as being closed. The requestor shall inform the law
enforcement agency to which the request was made when the assistance
is no longer desired, before the period not exceeding 12 months
expires. The request for assistance shall expire upon transfer of
ownership of the property or upon a change in the person in lawful
possession. However, this subdivision shall
does not be applicable apply to
persons engaged in lawful labor union activities which are permitted
to be carried out on the property by the
Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of
1975 (Part 3.5 (commencing with Section 1140) of Division 2 of the
Labor Code) or by the federal National Labor Relations Act. For
purposes of this section, land, real property, or structures owned or
operated by any housing authority for tenants
tenants, as defined under in
Section 34213.5 of the Health and Safety Code
Code, constitutes property not open to the general public;
however, this subdivision shall not apply to persons on the premises
who are engaging in activities protected by the California or United
States Constitution, or to persons who are on the premises at the
request of a resident or management and who are not loitering or
otherwise suspected of violating or actually violating any law or
ordinance.
(p) Entering upon any lands declared closed to entry as provided
in Section 4256 of the Public Resources Code, if the closed areas
shall have been posted with notices declaring the
closure, at intervals not greater than one mile along the exterior
boundaries or along roads and trails passing through the lands.
(q) Refusing or failing to leave a public building of a public
agency during those hours of the day or night when the building is
regularly closed to the public upon being requested to do so by a
regularly employed guard, watchperson, or custodian of the public
agency owning or maintaining the building or property, if the
surrounding circumstances would indicate to a reasonable person that
the person has no apparent lawful business to pursue.
(r) Knowingly skiing in an area or on a ski trail which
that is closed to the public and which
that has signs posted indicating the closure.
(s) Refusing or failing to leave a hotel or motel, where he or she
has obtained accommodations and has refused to pay for those
accommodations, upon request of the proprietor or manager, and the
occupancy is exempt, pursuant to subdivision (b) of Section 1940 of
the Civil Code, from Chapter 2 (commencing with Section 1940) of
Title 5 of Part 4 of Division 3 of the Civil Code. For purposes of
this subdivision, occupancy at a hotel or motel for a continuous
period of 30 days or less shall, in the absence of a written
agreement to the contrary, or other written evidence of a periodic
tenancy of indefinite duration, be exempt from Chapter 2 (commencing
with Section 1940) of Title 5 of Part 4 of Division 3 of the Civil
Code.
(t) (1) Entering upon private property, including contiguous land,
real property, or structures thereon belonging to the same owner,
whether or not generally open to the public, after having been
informed by a peace officer at the request of the owner, the owner's
agent, or the person in lawful possession, and upon being informed by
the peace officer that he or she is acting at the request of the
owner, the owner's agent, or the person in lawful possession, that
the property is not open to the particular person; or refusing or
failing to leave the property upon being asked to leave the property
in the manner provided in this subdivision.
(2) This subdivision shall apply applies
only to a person who has been convicted of a crime committed
upon the particular private property.
(3) A single notification or request to the person as set forth
above shall be valid and enforceable under this subdivision unless
and until rescinded by the owner, the owner's agent, or the person in
lawful possession of the property.
(4) Where the person has been convicted of a violent felony, as
described in subdivision (c) of Section 667.5, this subdivision
shall apply applies without time
limitation. Where the person has been convicted of any other felony,
this subdivision shall apply applies
for no more than five years from the date of conviction. Where the
person has been convicted of a misdemeanor, this subdivision
shall apply applies for no more than two years
from the date of conviction. Where the person was convicted for an
infraction pursuant to Section 490.1, this subdivision shall
apply applies for no more than one year from
the date of conviction. This subdivision shall
does not apply to convictions for any other infraction.
(u) (1) Knowingly entering, by an unauthorized person, upon any
airport operations area, passenger vessel terminal, or public transit
facility if the area has been posted with notices restricting access
to authorized personnel only and the postings occur not greater than
every 150 feet along the exterior boundary, to the extent, in the
case of a passenger vessel terminal, as defined in subparagraph (B)
of paragraph (3), that the exterior boundary extends shoreside. To
the extent that the exterior boundary of a passenger vessel terminal
operations area extends waterside, this prohibition shall
apply applies if notices have been posted in a
manner consistent with the requirements for the shoreside exterior
boundary, or in any other manner approved by the captain of the port.
(2) Any A person convicted of a
violation of paragraph (1) shall be punished as follows:
(A) By a fine not exceeding one hundred dollars ($100).
(B) By imprisonment in a county jail not exceeding six months, or
by a fine not exceeding one thousand dollars ($1,000), or by both
that fine and imprisonment, if the person refuses to leave the
airport or passenger vessel terminal after being requested to leave
by a peace officer or authorized personnel.
(C) By imprisonment in a county jail not exceeding six months, or
by a fine not exceeding one thousand dollars ($1,000), or by both
that fine and imprisonment, for a second or subsequent offense.
(3) As used in this subdivision, the following definitions shall
control:
(A) "Airport operations area" means that part of the airport used
by aircraft for landing, taking off, surface maneuvering, loading and
unloading, refueling, parking, or maintenance, where aircraft
support vehicles and facilities exist, and which is not for public
use or public vehicular traffic.
(B) "Passenger vessel terminal" means only that portion of a
harbor or port facility, as described in Section 105.105(a)(2) of
Title 33 of the Code of Federal Regulations, with a secured area that
regularly serves scheduled commuter or passenger operations. For the
purposes of this section, "passenger vessel terminal" does not
include any area designated a public access area pursuant to Section
105.106 of Title 33 of the Code of Federal Regulations.
(C) "Public transit facility" has the same meaning as specified in
Section 171.7.
(D) "Authorized personnel" means any person who has a valid
airport identification card issued by the airport operator or has a
valid airline identification card recognized by the airport operator,
or any person not in possession of an airport or airline
identification card who is being escorted for legitimate purposes by
a person with an airport or airline identification card. "Authorized
personnel" also means any person who has a valid port identification
card issued by the harbor operator, or who has a valid company
identification card issued by a commercial maritime enterprise
recognized by the harbor operator, or any other person who is being
escorted for legitimate purposes by a person with a valid port or
qualifying company identification card. "Authorized personnel" also
means any person who has a valid public transit employee
identification.
(E) "Airport" means any facility whose function is
to support commercial aviation.
(v) (1) Except as permitted by federal law, intentionally avoiding
submission to the screening and inspection of one's person and
accessible property in accordance with the procedures being applied
to control access when entering or reentering a sterile area of an
airport, passenger vessel terminal, as defined in subdivision (u), or
public transit facility, as defined in Section 171.5,
171.7, if the sterile area is posted with a
statement providing reasonable notice that prosecution may result
from a trespass described in this subdivision, is a violation of this
subdivision, punishable by a fine of not more than five hundred
dollars ($500) for the first offense. A second and subsequent
violation is a misdemeanor, punishable by imprisonment in a county
jail for a period of not more than one year, or by a fine not to
exceed one thousand dollars ($1,000), or by both that fine and
imprisonment.
(2) Notwithstanding paragraph (1), if a first violation of this
subdivision is responsible for the evacuation of an airport terminal,
passenger vessel terminal, or public transit facility and is
responsible in any part for delays or cancellations of scheduled
flights or departures, it is punishable by imprisonment of not more
than one year in a county jail.
(w) Refusing or failing to leave a battered women's shelter at any
time after being requested to leave by a managing authority of the
shelter.
(1) A person who is convicted of violating this subdivision shall
be punished by imprisonment in a county jail for not more than one
year.
(2) The court may order a defendant who is convicted of violating
this subdivision to make restitution to a battered woman in an amount
equal to the relocation expenses of the battered woman and her
children if those expenses are incurred as a result of trespass by
the defendant at a battered women's shelter.
(x) (1) Knowingly entering or remaining in a neonatal unit,
maternity ward, or birthing center located in a hospital or clinic
without lawful business to pursue therein, if the area has been
posted so as to give reasonable notice restricting access to those
with lawful business to pursue therein and the surrounding
circumstances would indicate to a reasonable person that he or she
has no lawful business to pursue therein. Reasonable notice is that
which would give actual notice to a reasonable person, and is posted,
at a minimum, at each entrance into the area.
(2) Any A person convicted of a
violation of paragraph (1) shall be punished as follows:
(A) As an infraction, by a fine not exceeding one hundred dollars
($100).
(B) By imprisonment in a county jail not exceeding one year, or by
a fine not exceeding one thousand dollars ($1,000), or by both that
fine and imprisonment, if the person refuses to leave the posted area
after being requested to leave by a peace officer or other
authorized person.
(C) By imprisonment in a county jail not exceeding one year, or by
a fine not exceeding two thousand dollars ($2,000), or by both that
fine and imprisonment, for a second or subsequent offense.
(D) If probation is granted or the execution or imposition of
sentencing is suspended for any person convicted under this
subdivision, it shall be a condition of probation that the person
participate in counseling, as designated by the court, unless the
court finds good cause not to impose this requirement. The court
shall require the person to pay for this counseling, if ordered,
unless good cause not to pay is shown.
(y) Except as permitted by federal law, intentionally avoiding
submission to the screening and inspection of one's person and
accessible property in accordance with the procedures being applied
to control access when entering or reentering a courthouse or a city,
county, city and county, or state building if entrances to the
courthouse or the city, county, city and county, or state building
have been posted with a statement providing reasonable notice that
prosecution may result from a trespass described in this subdivision.
SEC. 386. Section 626.9 of the Penal Code is amended to read:
626.9. (a) This section shall be known, and may be cited, as the
Gun-Free School Zone Act of 1995.
(b) Any A person who possesses a
firearm in a place that the person knows, or reasonably should know,
is a school zone, as defined in paragraph (1) of subdivision (e),
unless it is with the written permission of the school district
superintendent, his or her designee, or equivalent school authority,
shall be punished as specified in subdivision (f).
(c) Subdivision (b) does not apply to the possession of a firearm
under any of the following circumstances:
(1) Within a place of residence or place of business or on private
property, if the place of residence, place of business, or private
property is not part of the school grounds and the possession of the
firearm is otherwise lawful.
(2) When the firearm is an unloaded pistol, revolver, or other
firearm capable of being concealed on the person and is in a locked
container or within the locked trunk of a motor vehicle.
This section does not prohibit or limit the otherwise lawful
transportation of any other firearm, other than a pistol, revolver,
or other firearm capable of being concealed on the person, in
accordance with state law.
(3) When the person possessing the firearm reasonably believes
that he or she is in grave danger because of circumstances forming
the basis of a current restraining order issued by a court against
another person or persons who has or have been found to pose a threat
to his or her life or safety. This subdivision may not apply when
the circumstances involve a mutual restraining order issued pursuant
to Division 10 (commencing with Section 6200) of the Family Code
absent a factual finding of a specific threat to the person's life or
safety. Upon a trial for violating subdivision (b), the trier of a
fact shall determine whether the defendant was acting out of a
reasonable belief that he or she was in grave danger.
(4) When the person is exempt from the prohibition against
carrying a concealed firearm pursuant to Section 25615, 25625, 25630,
or 25645.
(d) Except as provided in subdivision (b), it shall be unlawful
for any person, with reckless disregard for the safety of another, to
discharge, or attempt to discharge, a firearm in a school zone, as
defined in paragraph (1) of subdivision (e).
The prohibition contained in this subdivision does not apply to
the discharge of a firearm to the extent that the conditions of
paragraph (1) of subdivision (c) are satisfied.
(e) As used in this section, the following definitions shall
apply:
(1) "School zone" means an area in, or on the grounds of, a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, or within a distance of 1,000 feet from the grounds
of the public or private school.
(2) "Firearm" has the same meaning as that term is given in
subdivisions (a) to (d), inclusive, of Section 16520.
(3) "Locked container" has the same meaning as that term is given
in Section 16850.
(4) "Concealed firearm" has the same meaning as that term is given
in Sections 25400 and 25610.
(f) (1) Any person who violates subdivision (b) by possessing a
firearm in, or on the grounds of, a public or private school
providing instruction in kindergarten or grades 1 to 12, inclusive,
shall be punished by imprisonment pursuant to subdivision (h) of
Section 1170 for two, three, or five years.
(2) Any person who violates subdivision (b) by possessing a
firearm within a distance of 1,000 feet from the grounds of a public
or private school providing instruction in kindergarten or grades 1
to 12, inclusive, shall be punished as follows:
(A) By imprisonment pursuant to subdivision (h) of Section 1170
for two, three, or five years, if any of the following circumstances
apply:
(i) If the person previously has been convicted of any felony, or
of any crime made punishable by any provision listed in Section
16580.
(ii) If the person is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Chapter 2 (commencing
with Section 29800) or Chapter 3 (commencing with Section 29900) of
Division 9 of Title 4 of Part 6 of this code or Section 8100 or 8103
of the Welfare and Institutions Code.
(iii) If the firearm is any pistol, revolver, or other firearm
capable of being concealed upon the person and the offense is
punished as a felony pursuant to Section 25400.
(B) By imprisonment in a county jail for not more than one year or
by imprisonment pursuant to subdivision (h) of Section 1170 for two,
three, or five years, in all cases other than those specified in
subparagraph (A).
(3) Any person who violates subdivision (d) shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170 for three,
five, or seven years.
(g) (1) Every person convicted under this section for a
misdemeanor violation of subdivision (b) who has been convicted
previously of a misdemeanor offense enumerated in Section 23515 shall
be punished by imprisonment in a county jail for not less than three
months, or if probation is granted or if the execution or imposition
of sentence is suspended, it shall be a condition thereof that he or
she be imprisoned in a county jail for not less than three months.
(2) Every person convicted under this section of a felony
violation of subdivision (b) or (d) who has been convicted previously
of a misdemeanor offense enumerated in Section 23515, if probation
is granted or if the execution of sentence is suspended, it shall be
a condition thereof that he or she be imprisoned in a county jail for
not less than three months.
(3) Every person convicted under this section for a felony
violation of subdivision (b) or (d) who has been convicted previously
of any felony, or of any crime made punishable by any provision
listed in Section 16580, if probation is granted or if the execution
or imposition of sentence is suspended, it shall be a condition
thereof that he or she be imprisoned in a county jail for not less
than three months.
(4) The court shall apply the three-month minimum sentence
specified in this subdivision, except in unusual cases where the
interests of justice would best be served by granting probation or
suspending the execution or imposition of sentence without the
minimum imprisonment required in this subdivision or by granting
probation or suspending the execution or imposition of sentence with
conditions other than those set forth in this subdivision, in which
case the court shall specify on the record and shall enter on the
minutes the circumstances indicating that the interests of justice
would best be served by this disposition.
(h) Notwithstanding Section 25605, any a
person who brings or possesses a loaded firearm upon the
grounds of a campus of, or buildings owned or operated for student
housing, teaching, research, or administration by, a public or
private university or college, that are contiguous or are clearly
marked university property, unless it is with the written permission
of the university or college president, his or her designee, or
equivalent university or college authority, shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170 for two,
three, or four years. Notwithstanding subdivision (k), a university
or college shall post a prominent notice at primary entrances on
noncontiguous property stating that firearms are prohibited on that
property pursuant to this subdivision.
(i) Notwithstanding Section 25605, any a
person who brings or possesses a firearm upon the grounds of a
campus of, or buildings owned or operated for student housing,
teaching, research, or administration by, a public or private
university or college, that are contiguous or are clearly marked
university property, unless it is with the written permission of the
university or college president, his or her designee, or equivalent
university or college authority, shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 for one, two, or three
years. Notwithstanding subdivision (k), a university or college shall
post a prominent notice at primary entrances on noncontiguous
property stating that firearms are prohibited on that property
pursuant to this subdivision.
(j) For purposes of this section, a firearm shall be deemed to be
loaded when there is an unexpended cartridge or shell, consisting of
a case that holds a charge of powder and a bullet or shot, in, or
attached in any manner to, the firearm, including, but not limited
to, in the firing chamber, magazine, or clip thereof attached to the
firearm. A muzzle-loader firearm shall be deemed to be loaded when it
is capped or primed and has a powder charge and ball or shot in the
barrel or cylinder.
(k) This section does not require that notice be posted regarding
the proscribed conduct.
( l ) This section does not apply to a duly appointed
peace officer as defined in Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2, a full-time paid peace officer of another
state or the federal government who is carrying out official duties
while in California, any person summoned by any of these officers to
assist in making arrests or preserving the peace while he or she is
actually engaged in assisting the officer, a member of the military
forces of this state or of the United States who is engaged in the
performance of his or her duties, a person holding a valid license to
carry the firearm pursuant to Chapter 4 (commencing with Section
26150) of Division 5 of Title 4 of Part 6, or an armored vehicle
guard, engaged in the performance of his or her duties, as defined in
subdivision (e) (d) of Section
7521 7582.1 of the Business and
Professions Code.
(m) This section does not apply to a security guard authorized to
carry a loaded firearm pursuant to Article 4 (commencing with Section
26000) of Chapter 3 of Division 5 of Title 4 of Part 6.
(n) This section does not apply to an existing shooting range at a
public or private school or university or college campus.
(o) This section does not apply to an honorably retired peace
officer authorized to carry a concealed or loaded firearm pursuant to
any of the following:
(1) Article 2 (commencing with Section 25450) of Chapter 2 of
Division 5 of Title 4 of Part 6.
(2) Section 25650.
(3) Sections 25900 to 25910, inclusive.
(4) Section 26020.
SEC. 387. Section 814 of the Penal Code is amended to read:
814. A warrant of arrest issued under Section 813 may be in
substantially the following form:
County of ____
The people of the State of California to any peace officer of said
State:
Complaint on oath having this day been laid before me that the
crime of ____ (designating it generally) has been committed and
accusing ____ (naming defendant) thereof, you are therefore commanded
forthwith to arrest the above named defendant and bring him or
her before me at ____ (naming the place), or in case of my
absence or inability to act, before the nearest or most accessible
magistrate in this county.
Dated at _____________ (place) this day of ,
20__.
______________________________________
(Signature and full official title of
______________
magistrate.)
SEC. 388. Section 830.14 of the Penal Code is amended to read:
830.14. (a) A local or regional transit agency or a joint powers
agency operating rail service identified in an implementation program
adopted pursuant to Article 10 (commencing with Section 130450) of
Chapter 4 of Division 12 of the Public Utilities Code may authorize
by contract designated persons as conductors performing fare
inspection duties who are employed by a railroad corporation that
operates public rail commuter transit services for that agency to act
as its agent in the enforcement of subdivisions (a) to (d),
inclusive, of Section 640 relating to the operation of the rail
service if they complete the training requirement specified in this
section.
(b) The governing board of the Altamont Commuter Express
Authority, a joint powers agency duly formed pursuant to Article 1
(commencing with Section 6500) of Chapter 5 of Division 7 of Title 1
of the Government Code, by and between the Alameda County
Congestion Management Agency, the Santa Clara County Transit
District, Valley Transportation Authority, and
the San Joaquin Regional Rail Commission, may contract with
designated persons to act as its agents in the enforcement of
subdivisions (a) to (d), inclusive, of Section 640 relating to the
operation of a public transportation system if these persons complete
the training requirement specified in this section.
(c) The governing board of the Peninsula Corridor Joint Powers
Board, a joint powers agency duly formed pursuant to Article 1
(commencing with Section 6500) of Chapter 5 of Division 7 of Title 1
of the Government Code, by and between the San Mateo County Transit
District, the Santa Clara County Transit District,
Valley Transportation Authority, and the City and County
of San Francisco, may appoint designated persons to act as its agents
in the enforcement of subdivisions (a) to (d), inclusive, of Section
640 relating to the operation of a public transportation system if
these persons complete the training requirement specified in this
section.
(d) The governing board of Foothill Transit, a joint powers agency
duly formed pursuant to Article 1 (commencing with Section 6500) of
Chapter 5 of Division 7 of Title 1 of the Government Code, by and
between the Cities of Arcadia, Azusa, Baldwin Park, Bradbury,
Claremont, Covina, Diamond Bar, Duarte, El Monte, Glendora, Industry,
Irwindale, La Habra Heights, La Puente, La Verne, Monrovia, Pomona,
San Dimas, South El Monte, Temple City, Walnut, West Covina, and the
County of Los Angeles, may resolve to contract with designated
persons to act as its agents in the enforcement of subdivisions (a)
to (d), inclusive, of Section 640 relating to the operation of a
public transportation system if these persons complete the training
requirement specified in this section.
(e) The governing board of the Sacramento Regional Transit
District, a transit district duly formed pursuant to Part 14
(commencing with Section 102000) of Division 10 of the Public
Utilities Code, may designate persons regularly employed by the
district as inspectors or supervisors to enforce subdivisions (a) to
(d), inclusive, of Section 640, relating to the operation of a public
transportation system, and any ordinance adopted by the district
pursuant to subdivision (a) of Section 102122 of the Public Utilities
Code, if these persons complete the training requirement specified
in this section.
(f) The governing board of a transit district, as defined in
subdivision (b) of Section 99170 of the Public Utilities Code, may
designate employees, except for union-represented employees employed
to drive revenue-generating transit vehicles, or security officers
contracted by the transit district, to enforce subdivisions (a) to
(d), inclusive, of Section 640, and Section 640.5, and violations of
Section 99170 of the Public Utilities Code.
(g) Persons authorized pursuant to this section to enforce
subdivisions (a) to (d), inclusive, of Section 640, or Section 640.5,
or Section 99170 of the Public Utilities Code, shall complete a
specialized fare compliance course that shall be provided by the
authorizing agency. This training course shall include, but not be
limited to, the following topics:
(1) An overview of barrier-free fare inspection concepts.
(2) The scope and limitations of inspector authority.
(3) Familiarization with the elements of the infractions
enumerated in subdivisions (a) to (d), inclusive, of Section 640,
and, as applicable, the crimes enumerated in Section 640.5, and
Section 99170 of the Public Utilities Code.
(4) Techniques for conducting fare checks, including inspection
procedures, demeanor, and contacting violators.
(5) Citation issuance and court appearances.
(6) Fare media recognition.
(7) Handling argumentative violators and diffusing conflict.
(8) The mechanics of law enforcement support and interacting with
law enforcement for effective incident resolution.
(h) Persons described in this section are public officers, not
peace officers, have no authority to carry firearms or any other
weapon while performing the duties authorized in this section, and
may not exercise the powers of arrest of a peace officer while
performing the duties authorized in this section. These persons may
be authorized by the agencies specified in this section to issue
citations involving infractions relating to the operation of the rail
service specified in this section.
(i) Nothing in this This
section shall does not affect the
retirement or disability benefits provided to employees described in
this section or be in violation of any collective bargaining
agreement between a labor organization and a railroad corporation.
(j) Notwithstanding any other provision of this section, the
primary responsibility of a conductor of a commuter passenger train
shall be functions related to safe train operation.
SEC. 389. The heading of Chapter 5a (commencing with Section 852)
of Title 3 of Part 2 of the Penal Code is amended and renumbered to
read:
CHAPTER 5a. 5A. UNIFORM ACT ON
FRESH PURSUIT
SEC. 390. Section 1191.15 of the Penal Code is amended to read:
1191.15. (a) The court may permit the victim of any crime, his or
her parent or guardian if the victim is a minor, or the next of kin
of the victim if the victim has died, to file with the court a
written, audiotaped, or videotaped statement, or statement stored on
a CD Rom, CD-ROM, DVD, or any other
recording medium acceptable to the court, expressing his or her views
concerning the crime, the person responsible, and the need for
restitution, in lieu of or in addition to the person personally
appearing at the time of judgment and sentence. The court shall
consider the statement filed with the court prior to imposing
judgment and sentence.
Whenever an audio or video statement or statement stored on a
CD Rom, CD-ROM, DVD, or other medium is
filed with the court, a written transcript of the statement shall
also be provided by the person filing the statement, and shall be
made available as a public record of the court after the judgment and
sentence have been imposed.
(b) Whenever a written, audio, or video statement or statement
stored on a CD Rom, CD-ROM, DVD, or
other medium is filed with the court, it shall remain sealed until
the time set for imposition of judgment and sentence except that the
court, the probation officer, and counsel for the parties may view
and listen to the statement not more than two court days prior to the
date set for imposition of judgment and sentence.
(c) No person may, and no court shall, A
person or a court shall not permit any person to duplicate,
copy, or reproduce by any audio or visual means
any a statement submitted to the court
under the provisions of this section.
(d) Nothing in this section shall be construed to prohibit the
prosecutor from representing to the court the views of the victim,
his or her parent or guardian, the next of kin, or the California
Victim Compensation and Government Claims Board.
(e) In the event the court permits an audio or video statement or
statement stored on a CD Rom, CD-ROM,
DVD, or other medium to be filed, the court shall not be responsible
for providing any equipment or resources needed to assist the victim
in preparing the statement.
SEC. 391. Section 2905 of the Penal Code is amended to read:
2905. (a) For purposes of this section, a "youth offender" is an
individual committed to the Department of Corrections and
Rehabilitation who is under 22 years of age.
(b) (1) The department shall conduct a youth offender
Institution Institutional Classification
Committee review at reception to provide special classification
consideration for every youth offender. The youth offender
Institutional Classification Committee shall consist of the staff
required by department regulations at any Institutional
Classification Committee, however at least one member shall be a
department staff member specially trained in conducting the reviews.
Training shall include, but not be limited to, adolescent and young
adult development and evidence-based interviewing processes employing
positive and motivational techniques.
(2) The purpose of the youth offender Institutional Classification
Committee review is to meet with the youth offender and assess the
readiness of a youth offender for a lower security level or placement
permitting increased access to programs and to encourage the youth
offender to commit to positive change and self-improvement.
(c) A youth offender shall be considered for placement at a lower
security level than corresponds with his or her classification score
or placement in a facility that permits increased access to programs
based on the Institutional Classification Committee review and
factors including, but not limited to, the following:
(1) Recent in-custody behavior while housed in juvenile or adult
facilities.
(2) Demonstrated efforts of progress toward self-improvement in
juvenile or adult facilities.
(3) Family or community ties supportive of rehabilitation.
(4) Evidence of commitment to working toward self-improvement with
a goal of being a law-abiding member of society upon release.
(d) If the department determines, based on the review described in
subdivisions (b) and (c) (c), that the
youth offender may be appropriately placed at a lower security
level, the department shall transfer the youth offender to a lower
security level facility. If the youth offender is denied a lower
security level, then he or she shall be considered for placement in a
facility that permits increased access to programs. If the
department determines a youth offender may appropriately be placed in
a facility permitting increased access to programs, the youth
offender shall be transferred to such a facility.
(e) If the youth offender demonstrates he or she is a safety risk
to inmates, staff, or the public, and does not otherwise demonstrate
a commitment to rehabilitation, the youth offender shall be
reclassified and placed at a security level that is consistent with
department regulations
and procedures.
(f) A youth offender who at his or her initial Youth
Offender youth offender Institutional
Classification Committee review is denied a lower security level than
corresponds with his or her placement score or did not qualify for
a placement permitting increased access to programs due to
previous incarceration history and was placed in the highest
security level shall nevertheless be eligible to have his or her
placement reconsidered pursuant to subdivisions (b) to (d),
inclusive, at his or her annual review until reaching 25 years of
age. If at an annual review it is determined that the youth offender
has had no serious rule violations for one year, the department shall
consider whether the youth would benefit from placement in a lower
level facility or placement permitting increased access to programs.
(g) The department shall review and, as necessary, revise existing
regulations and adopt new regulations regarding classification
determinations made pursuant to this section, and provide for
training for staff.
(h) This section shall become operative on July 1, 2015.
SEC. 392. Section 3016 of the Penal Code is amended to read:
3016. (a) The Secretary of the Department of Corrections and
Rehabilitation shall establish the Case Management Reentry Pilot
Program for offenders under the jurisdiction of the department who
have been sentenced to a term of imprisonment under Section 1170 and
are likely to benefit from a case management reentry strategy
designed to address homelessness, joblessness, mental disorders, and
developmental disabilities among offenders transitioning from prison
into the community. The purpose of the pilot program is to implement
promising and evidence-based practices and strategies that promote
improved public safety outcomes for offenders reentering society
after serving a term in state prison and while released to parole.
(b) The program shall be initiated in at least three counties over
three years, supported by department employees focusing primarily on
case management services for eligible parolees selected for the
pilot program. Department employees shall be experienced or trained
to work as social workers with a parole population. Selection of a
parolee for participation in the pilot program does not guarantee the
availability of services.
(c) Case management social workers shall assist offenders on
parole who are assigned to the program in managing basic needs,
including housing, job training and placement, medical and mental
health care, and any additional programming or responsibilities
attendant to the terms of the offender's reentry requirements. Case
management social workers also shall work closely with offenders to
prepare, monitor, revise, and fulfill individualized offender reentry
plans consistent with this section during the term of the program.
(d) Individualized offender reentry plans shall focus on
connecting offenders to services for which the offender is eligible
under existing federal, state, and local rules.
(e) Case management services shall be prioritized for offenders
identified as potentially benefiting from assistance with the
following:
(1) Food, including the immediate need and long-term planning for
obtaining food.
(2) Clothing, including the immediate need to obtain appropriate
clothing.
(3) Shelter, including obtaining housing consistent with the goals
of the most independent, least restrictive and potentially durable
housing in the local community and that are feasible for the
circumstances of each reentering offender.
(4) Benefits, including, but not limited to, the California Work
Opportunity and Responsibility to Kids program, general assistance,
benefits administered by the federal Social Security Administration,
Medi-Cal, and veterans benefits.
(5) Health services, including assisting parolee clients with
accessing community mental health, medical, and dental treatment.
(6) Substance abuse services, including assisting parolee clients
with obtaining community substance abuse treatment or related 12-step
program information and locations.
(7) Income, including developing and implementing a feasible plan
to obtain an income and employment reflecting the highest level of
work appropriate for a reentering offender's abilities and
experience.
(8) Identification cards, including assisting reentering offenders
with obtaining state identification cards.
(9) Life skills, including assisting with the development of
skills concerning money management, job interviewing, resume writing,
and activities of daily living.
(10) Activities, including working with reentering offenders in
choosing and engaging in suitable and productive activities.
(11) Support systems, including working with reentering offenders
on developing a support system, which may consist of prosocial
friends, family, and community groups and activities, such as
religious activities, recovery groups, and other social events.
(12) Academic and vocational programs, including assisting
reentering offenders in developing and implementing a realistic plan
to achieve an academic education, or vocational training, or both.
(13) Discharge planning, including developing postparole plans to
sustain parolees' achievements and goals to insure
ensure long-term community success.
(f) The department shall contract for an evaluation of the pilot
program that will assess its effectiveness in reducing recidivism
among offenders transitioning from prison into the community.
(g) The department shall submit a final report of the findings
from its evaluation of the pilot program to the Legislature and the
Governor no later than three years after the enactment of Assembly
Bill 1457 or Senate Bill 851 of the 2013-14 Regular Session. The
report shall be submitted in compliance with Section 9795 of the
Government Code.
(h) Implementation of this article is contingent on the
availability of funds and the pilot program may be limited in scope
or duration based on the availability of funds.
SEC. 393. Section 3043 of the Penal Code is amended to read:
3043. (a) (1) Upon request to the Department of Corrections and
Rehabilitation and verification of the identity of the requester,
notice of any hearing to review or consider the parole suitability or
the setting of a parole date for any prisoner in a state prison
shall be given by telephone, certified mail, regular mail, or
electronic mail, using the method of communication selected by the
requesting party, if that method is available, by the Board of Parole
Hearings at least 90 days before the hearing to any victim of any
crime committed by the prisoner, or to the next of kin of the victim
if the victim has died, to include the commitment crimes, determinate
term commitment crimes for which the prisoner has been paroled, and
any other felony crimes or crimes against the person for which the
prisoner has been convicted. The requesting party shall keep the
board apprised of his or her current contact information in order to
receive the notice.
(2) No later than 30 days prior to the date selected for the
hearing, any person, other than the victim, entitled to attend the
hearing shall inform the board of his or her intention to attend the
hearing and the name and identifying information of any other person
entitled to attend the hearing who will accompany him or her.
(3) No later than 14 days prior to the date selected for the
hearing, the board shall notify every person entitled to attend the
hearing confirming the date, time, and place of the hearing.
(b) (1) The victim, next of kin, members of the victim's family,
and two representatives designated as provided in paragraph (2) of
this subdivision have the right to appear, personally or by counsel,
at the hearing and to adequately and reasonably express his, her, or
their views concerning the prisoner and the case, including, but not
limited to to, the commitment crimes,
determinate term commitment crimes for which the prisoner has been
paroled, any other felony crimes or crimes against the person for
which the prisoner has been convicted, the effect of the enumerated
crimes on the victim and the family of the victim, the person
responsible for these enumerated crimes, and the suitability of the
prisoner for parole.
(2) Any A statement provided by a
representative designated by the victim or next of kin may cover any
subject about which the victim or next of kin has the right to be
heard heard, including any
recommendation regarding the granting of parole. The representatives
shall be designated by the victim or, in the event that the victim is
deceased or incapacitated, by the next of kin. They shall be
designated in writing for the particular hearing prior to the
hearing.
(c) A representative designated by the victim or the victim's next
of kin for purposes of this section may be any
an adult person selected by the victim or the family of
the victim. The board shall permit a representative designated by the
victim or the victim's next of kin to attend a particular hearing,
to provide testimony at a hearing, and to submit a statement to be
included in the hearing as provided in Section 3043.2, even though
the victim, next of kin, or a member of the victim's immediate family
is present at the hearing, and even though the victim, next of kin,
or a member of the victim's immediate family has submitted a
statement as described in Section 3043.2.
(d) The board, in deciding whether to release the person on
parole, shall consider the entire and uninterrupted statements of the
victim or victims, next of kin, immediate family members of the
victim, and the designated representatives of the victim or next of
kin, if applicable, made pursuant to this section and shall include
in its report a statement whether the person would pose a threat to
public safety if released on parole.
(e) In those cases where there are more than two immediate family
members of the victim who wish to attend any hearing covered in this
section, the board shall allow attendance of additional immediate
family members to include the following: spouse, children, parents,
siblings, grandchildren, and grandparents.
SEC. 394. Section 3063.1 of the Penal Code is amended to read:
3063.1. (a) Notwithstanding any other provision of law, and
except as provided in subdivision (d), parole may
shall not be suspended or revoked for commission of a
nonviolent drug possession offense or for violating any drug-related
condition of parole.
As an additional condition of parole for all such offenses or
violations, the Parole Authority shall require participation in and
completion of an appropriate drug treatment program. Vocational
training, family counseling and literacy training may be imposed as
additional parole conditions.
The Parole Authority may require any person on parole who commits
a nonviolent drug possession offense or violates any drug-related
condition of parole, and who is reasonably able to do so, to
contribute to the cost of his or her own placement in a drug
treatment program.
(b) Subdivision (a) does not apply to:
(1) Any parolee who has been convicted of one or more serious or
violent felonies in violation of subdivision (c) of Section 667.5 or
Section 1192.7.
(2) Any A parolee who, while on
parole, commits one or more nonviolent drug possession offenses and
is found to have concurrently committed a misdemeanor not related to
the use of drugs or any felony.
(3) Any A parolee who refuses drug
treatment as a condition of parole.
(c) Within seven days of a finding that the parolee has either
committed a nonviolent drug possession offense or violated any
drug-related condition of parole, the Department of Corrections and
Rehabilitation, Division of Adult Parole Operations shall notify the
treatment provider designated to provide drug treatment under
subdivision (a). Within 30 days thereafter the treatment provider
shall prepare an individualized drug treatment plan and forward it to
the Parole Authority and to the California Department of Corrections
and Rehabilitation, Division of Adult Parole Operations agent
responsible for supervising the parolee. On a quarterly basis after
the parolee begins drug treatment, the treatment provider shall
prepare and forward a progress report on the individual parolee to
these entities and individuals.
(1) If at any point during the course of drug treatment the
treatment provider notifies the Department of Corrections and
Rehabilitation, Division of Adult Parole Operations that the parolee
is unamenable to the drug treatment provided, but amenable to other
drug treatments or related programs, the Department of Corrections
and Rehabilitation, Division of Adult Parole Operations may act to
modify the terms of parole to ensure that the parolee receives the
alternative drug treatment or program.
(2) If at any point during the course of drug treatment the
treatment provider notifies the Department of Corrections and
Rehabilitation, Division of Adult Parole Operations that the parolee
is unamenable to the drug treatment provided and all other forms of
drug treatment provided pursuant to subdivision (b) of Section 1210
and the amenability factors described in subparagraph (B) of
paragraph (3) of subdivision (e) (f) of
Section 1210.1, the Department of Corrections and Rehabilitation,
Division of Adult Parole Operations may act to revoke parole. At the
revocation hearing, parole may be revoked if it is proved that the
parolee is unamenable to all drug treatment.
(3) Drug treatment services provided by subdivision (a) as a
required condition of parole may not exceed 12 months, unless the
Department of Corrections and Rehabilitation, Division of Adult
Parole Operations makes a finding supported by the record that the
continuation of treatment services beyond 12 months is necessary for
drug treatment to be successful. If that finding is made, the
Department of Corrections and Rehabilitation, Division of Adult
Parole Operations may order up to two six-month extensions of
treatment services. The provision of treatment services under this
act shall not exceed 24 months.
(d) (1) If parole is revoked pursuant to the provisions of this
subdivision, the defendant may be incarcerated pursuant to otherwise
applicable law without regard to the provisions of this section.
Parole shall be revoked if the parole violation is proved and a
preponderance of the evidence establishes that the parolee poses a
danger to the safety of others.
(2) If a parolee receives drug treatment under subdivision (a),
and during the course of drug treatment violates parole either by
committing an offense other than a nonviolent drug possession
offense, or by violating a non-drug-related condition of parole, and
the Department of Corrections and Rehabilitation, Division of Adult
Parole Operations acts to revoke parole, a hearing shall be conducted
to determine whether parole shall be revoked.
Parole may be modified or revoked if the parole violation is
proved.
(3) (A) If a parolee receives drug treatment under subdivision
(a), and during the course of drug treatment violates parole either
by committing a nonviolent drug possession offense, or a misdemeanor
for simple possession or use of drugs or drug paraphernalia, being
present where drugs are used, or failure to register as a drug
offender, or any activity similar to those listed in subdivision (d)
of Section 1210, or by violating a drug-related condition of parole,
and the Department of Corrections and Rehabilitation, Division of
Adult Parole Operations acts to revoke parole, a hearing shall be
conducted to determine whether parole shall be revoked. Parole shall
be revoked if the parole violation is proved and a preponderance of
the evidence establishes that the parolee poses a danger to the
safety of others. If parole is not revoked, the conditions of parole
may be intensified to achieve the goals of drug treatment.
(B) If a parolee receives drug treatment under subdivision (a),
and during the course of drug treatment for the second time violates
that parole either by committing a nonviolent drug possession
offense, or by violating a drug-related condition of parole, and the
Department of Corrections and Rehabilitation, Division of Adult
Parole Operations acts for a second time to revoke parole, a hearing
shall be conducted to determine whether parole shall be revoked. If
the alleged parole violation is proved, the parolee is not eligible
for continued parole under any provision of this section and may be
reincarcerated.
(C) If a parolee already on parole at the effective date of this
act violates that parole either by committing a nonviolent drug
possession offense, or a misdemeanor for simple possession or use of
drugs or drug paraphernalia, being present where drugs are used, or
failure to register as a drug offender, or any activity similar to
those listed in paragraph (1) of subdivision (d) of Section 1210, or
by violating a drug-related condition of parole, and the Department
of Corrections and Rehabilitation, Division of Adult Parole
Operations acts to revoke parole, a hearing shall be conducted to
determine whether parole shall be revoked. Parole shall be revoked if
the parole violation is proved and a preponderance of the evidence
establishes that the parolee poses a danger to the safety of others.
If parole is not revoked, the conditions of parole may be modified to
include participation in a drug treatment program as provided in
subdivision (a). This paragraph does not apply to any parolee who at
the effective date of this act has been convicted of one or more
serious or violent felonies in violation of subdivision (c) of
Section 667.5 or Section 1192.7.
(D) If a parolee already on parole at the effective date of this
act violates that parole for the second time either by committing a
nonviolent drug possession offense, or by violating a drug-related
condition of parole, and the parole authority acts for a second time
to revoke parole, a hearing shall be conducted to determine whether
parole shall be revoked. If the alleged parole violation is proved,
the parolee may be reincarcerated or the conditions of parole may be
intensified to achieve the goals of drug treatment.
(e) The term "drug-related condition of parole" shall include a
parolee's specific drug treatment regimen, and, if ordered by the
Department of Corrections and Rehabilitation, Division of Adult
Parole Operations pursuant to this section, employment, vocational
training, educational programs, psychological counseling, and family
counseling.
SEC. 395. Section 3440 of the Penal Code is amended to read:
3440. (a) Sterilization for the purpose of birth control,
including, but not limited to, during labor and delivery, of an
individual under the control of the department or a county and
imprisoned in the state prison or a reentry facility, community
correctional facility, county jail, or any other institution in which
an individual is involuntarily confined or detained under a civil or
criminal statute, is prohibited.
(b) Sterilization of an individual under the control of the
department or a county and imprisoned in the state prison or a
reentry facility, community correctional facility, county jail, or
any other institution in which an individual is involuntarily
confined or detained under a civil or criminal statute, through tubal
ligation, hysterectomy, oophorectomy, salpingectomy, or any other
means rendering an individual permanently incapable of reproducing,
is prohibited except in either of the following circumstances:
(1) The procedure is required for the immediate preservation of
the individual's life in an emergency medical situation.
(2) The sterilizing procedure is medically necessary, as
determined by contemporary standards of evidence-based medicine, to
treat a diagnosed condition, and all of the following requirements
are satisfied:
(A) Less invasive measures to address the medical need are
nonexistent, are refused by the individual, or are first attempted
and deemed unsuccessful by the individual, in consultation with his
or her medical provider.
(B) A second physician physician,
independent of, and not employed by, but authorized to provide
services to individuals in the custody of, and to receive payment for
those services from, the department or county department overseeing
the confinement of the individual individual,
conducts an in-person consultation with the individual and
confirms the need for a medical intervention resulting in
sterilization to address the medical need.
(C) Patient consent is obtained after the individual is made aware
of the full and permanent impact the procedure will have on his or
her reproductive capacity, that future medical treatment while under
the control of the department or county will not be withheld should
the individual refuse consent to the procedure, and the side effects
of the procedure.
(c) If a sterilization procedure is performed pursuant to
paragraph (1) or (2) of subdivision (b), presterilization and
poststerilization psychological consultation and medical followup,
including providing relevant hormone therapy to address surgical
menopause, shall be made available to the individual sterilized while
under the control of the department or the county.
(d) (1) The department shall, if a sterilization procedure is
performed on one or more individuals under its control, annually
publish on its Internet Web site data related to the number of
sterilizations performed, disaggregated by race, age, medical
justification, and method of sterilization.
(2) (A) Each county jail or other institution of confinement
shall, if a sterilization procedure is performed on one or more
individuals under its control, annually submit to the Board of State
and Community Corrections data related to the number of
sterilizations performed, disaggregated by race, age, medical
justification, and method of sterilization.
(B) The Board of State and Community Corrections shall annually
publish the data received pursuant to subparagraph (A) on its
Internet Web site.
(e) The department and all county jails or other institutions of
confinement shall provide notification to all individuals under their
custody and to all employees who are involved in providing health
care services of their rights and responsibilities under this
section.
(f) An employee of the department or of a county jail or other
institution of confinement who reports the sterilization of an
individual performed in violation of this section is entitled to the
protection available under subparagraphs (A) and (B) of paragraph (2)
of subdivision (a) of Section 6129, or under the California
Whistleblower Protection Act (Article 3 (commencing with Section
8547) of Chapter 6.5 of Division 1 of Title 2 of the Government Code)
or the Whistleblower Protection Act (Article 10 (commencing with
Section 9149.20) of Chapter 1.5 of Part 1 of Division 2 of Title 2 of
the Government Code).
SEC. 396. Section 4501 of the Penal Code is amended to read:
4501. (a) Except as provided in Section 4500, every person
confined in a the state prison of this
state who commits an assault upon the person of another with a deadly
weapon or instrument shall be guilty of a felony and shall be
imprisoned in the state prison for two, four, or six years to be
served consecutively.
(b) Except as provided in Section 4500, every person confined in
a th e state prison of this
state who commits an assault upon the person of another by any means
of force likely to produce great bodily injury shall be guilty of a
felony and shall be imprisoned in the state prison for two, four, or
six years to be served consecutively.
SEC. 397. Section 4852.08 of the Penal Code is amended to read:
4852.08. During the proceedings upon the petition, the petitioner
may be represented by counsel of his or her own
selection; if he has no such counsel selection. If the
petitioner does not have counsel, he or she shall be
represented by the public defender, if there is one in the county,
and if there is none, by the adult probation officer of the
county county, or if in the opinion of the court
the petitioner needs counsel, the court shall assign counsel to
represent him. him or her.
SEC. 398. Section 4852.11 of the Penal Code is amended to read:
4852.11. Any A peace officer shall
report to the court, upon receiving a request as provided in Section
4852.1, all known violations of law committed by
said the petitioner which may come to
his knowledge . Upon receiving satisfactory proof of
such a violation the court may deny the
petition and determine a new period of rehabilitation not to exceed
the original period of rehabilitation for the same crime. In that
event, before granting the petition, the court may
thereafter require the petitioner to fulfill all the
requirements provided to be fulfilled before the granting of the
certificate under the original petition.
SEC. 399. Section 4852.12 of the Penal Code is amended to read:
4852.12. (a) In any a proceeding
for the ascertainment and declaration of the fact of rehabilitation
under this chapter, the court, upon the filing of the application for
petition of rehabilitation, may request from the district attorney
an investigation of the residence of the petitioner, the criminal
record of the petitioner as shown by the records of the Department of
Justice, any representation made to the court by the applicant, the
conduct of the petitioner during his the
period of rehabilitation, including all matters mentioned in
Section 4852.11, and any other information the court may
deem deems necessary in making its
determination. If so requested, the The
district attorney shall , upon request of the court,
provide the court with a full and complete report of such
the investigations.
(b) In any proceeding for the ascertainment and declaration of the
fact of rehabilitation under this chapter of a person convicted of a
crime the accusatory pleading of which has been dismissed pursuant
to Section 1203.4, the district attorney, upon request of the court,
shall deliver to the court the criminal record of petitioner as shown
by the records of the Department of Justice. The district attorney
may investigate any representation made to the court by petitioner
and may file with the court a report of the investigation including
all matters known to the district attorney relating to the conduct
and of the petitioner, the place
and duration of residence of the
petitioner during the period of rehabilitation
rehabilitation, and all known violations of law committed
by the petitioner.
SEC. 400. Section 4852.14 of the Penal Code is amended to read:
4852.14. The clerk of the court shall immediately transmit
certified copies of the certificate of rehabilitation to the
Governor, to the Board of Prison Terms Parole
Hearings and the Department of Justice, and, in the case of
persons twice convicted of a felony, to the Supreme Court.
SEC. 401. Section 4852.18 of the Penal Code is amended to read:
4852.18. The Board of Prison Terms Parole
Hearings shall furnish to the clerk of the superior court of
each county a set of sample forms for a petition for certificate of
rehabilitation and pardon, a notice of filing of petition for
certificate of rehabilitation and pardon, and a certificate of
rehabilitation. The clerk of the court shall have a sufficient number
of these forms printed to meet the needs of the people of the
county, and shall make these forms available at no charge to persons
requesting them.
SEC. 402. Section 11105.05 of the Penal Code is repealed.
11105.05. Any information generated pursuant to the provisions of
paragraph (11) of subdivision (c) of Section 11105 shall be
destroyed at the end of the limitation period for the filing of a
civil action arising out of the screening or accreditation of persons
as current or prospective employees, concessionaires and contractors
and their subcontractors, agents and employees for Olympic Games
purposes. The knowing and willful failure to (1) notify the recipient
as required by Section 11105, or (2) to destroy any information as
required by this section, is a misdemeanor punishable in a county
jail not exceeding one year or by a fine not exceeding one thousand
dollars ($1,000) or both.
SEC. 403. Section 13510.5 of the Penal Code is amended to read:
13510.5. For the purpose of maintaining the level of competence
of state law enforcement officers, the commission shall adopt, and
may, from time to time amend, rules establishing minimum standards
for training of peace officers as defined in Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2, who are employed by any
railroad company, the California State Police Division,
the University of California Police Department,
police department, a California State University
police department, the Department of Alcoholic Beverage Control, the
Division of Investigation of the Department of Consumer Affairs, the
Wildlife Protection Branch of the Department of Fish and
Game, Wildlife, the Department of Forestry and
Fire Protection, including the Office of the State Fire Marshal, the
Department of Motor Vehicles, the California Horse Racing Board, the
Bureau of Food and Drug,
Drug Section of the State Department of Public Health, the
Division of Labor Law Standards
Enforcement, the Director of Parks and Recreation, the State
Department of Health Care Services, the Department of Toxic
Substances Control, the State Department of Social Services, the
State Department of State Hospitals, the State Department of
Developmental Services, the Office of Statewide Health Planning and
Development, and the Department of Justice. All rules shall be
adopted and amended pursuant to Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code.
SEC. 404. Section 13980 of the Penal Code is amended and
renumbered to read:
13980. 13908.]
13908. (a) The Office of Criminal Justice Planning
shall undertake a study to determine whether it would be feasible to
develop a state-operated center on computer forensics for the purpose
of collecting, compiling, and analyzing information, including
evidence seized in connection with criminal proceedings, in computer
formats to provide assistance to state and local law enforcement
agencies in the investigation and prosecution of crimes involving
computer technology.
(b) The office shall involve state and local law enforcement
agencies as well as representatives of the computer industry in the
development of the feasibility study required by this section.
(c) The office shall report its findings and conclusions to the
Legislature on or before June 30, 2000.
SEC. 405. The heading of Title 6.7 (commencing with Section 13990)
of Part 4 of the Penal Code is repealed.
TITLE 6.7. CALIFORNIA ALLIANCE TO COMBAT TRAFFICKING AND
SLAVERY (CALIFORNIA ACTS) TASK FORCE
SEC. 406. Section 18115 of the Penal Code is amended to read:
18115. (a) The court shall notify the Department of Justice when
a gun violence restraining order has been issued or renewed under
this division no later than one court day after issuing or renewing
the order.
(b) The court shall notify the Department of Justice when a gun
violence restraining order has been dissolved or terminated under
this division no later than five court days after dissolving or
terminating the order. Upon receipt of either a notice of dissolution
or a notice of termination of a gun violence restraining order, the
Department of Justice shall, within 15 days, note
document the updated status of any order issued under this division.
(c) The notices required to be submitted to the Department of
Justice pursuant to this section shall be submitted in an electronic
format, in a manner prescribed by the department.
(d) When notifying the Department of Justice pursuant to
subdivision (a) or (b), the court shall indicate in the notice
whether the person subject to the gun violence restraining order was
present in court to be informed of the contents of the order or if
the person failed to appear. The person's presence in court
shall constitute constitutes proof of service of
notice of the terms of the order.
(e) (1) Within one business day of service, a law enforcement
officer who served a gun violence restraining order shall submit the
proof of service directly into the California Restraining and
Protective Order System, including his or her name and law
enforcement agency, and shall transmit the original proof of service
form to the issuing court.
(2) Within one business day of receipt of proof of service by a
person other than a law enforcement officer, the clerk of the court
shall submit the proof of service of a gun violence restraining order
directly into the California Restraining and Protective Order
System, including the name of the person who served the order. If the
court is unable to provide this notification to the Department of
Justice by electronic transmission, the court shall, within one
business day of receipt, transmit a copy of the proof of service to a
local law enforcement agency. The local law enforcement agency shall
submit the proof of service directly into the California Restraining
and Protective Order System within one business day of receipt from
the court.
SEC. 407. Section 18150 of the Penal Code is amended to read:
18150. (a) (1) An immediate family member of a person or a law
enforcement officer may file a petition requesting that the court
issue an ex parte gun violence restraining order enjoining the
subject of the petition from having in his or her custody or control,
owning, purchasing, possessing, or receiving a firearm or
ammunition.
(2) For purposes of this subdivision, "immediate family member"
has the same meaning as in paragraph (3) of subdivision (b) of
Section 422.4.
(b) A court may issue an ex parte gun violence restraining order
if the petition, supported by an affidavit made in writing and signed
by the petitioner under oath, or an oral statement taken pursuant to
paragraph (2) of subdivision (a) of Section
18155, and any additional information provided to the court shows
that there is a substantial likelihood that both of the following are
true:
(1) The subject of the petition poses a significant danger, in the
near future, of causing personal injury to himself,
herself, or another by having in his or her custody or control,
owning, purchasing, possessing, or receiving a firearm as determined
by considering the factors listed in Section 18155.
(2) An ex parte gun violence restraining order is necessary to
prevent personal injury to the subject of the petition or another
because less restrictive alternatives either have been tried and
found to be ineffective, or are inadequate or inappropriate for the
circumstances of the subject of the petition.
(c) An affidavit supporting a petition for the issuance of an ex
parte gun violence restraining order shall set forth the facts
tending to establish the grounds of the petition, or the reason for
believing that they exist.
(d) An ex parte order under this chapter shall be issued or denied
on the same day that the petition is submitted to the court, unless
the petition is filed too late in the day to permit effective review,
in which case the order shall be issued or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
SEC. 408. Section 18155 of the Penal Code is amended to read:
18155. (a) (1) The court, before issuing an ex parte gun violence
restraining order, shall examine on oath, the petitioner and any
witness the petitioner may produce.
(2) In lieu of examining the petitioner and any witness the
petitioner may produce, the court may require the petitioner and any
witness to submit a written affidavit signed under oath.
(b) (1) In determining whether grounds for a gun violence
restraining order exist, the court shall consider all evidence of the
following:
(A) A recent threat of violence or act of violence by the subject
of the petition directed toward another.
(B) A recent threat of violence or act of violence by the subject
of the petition directed toward himself or herself.
(C) A violation of an emergency protective order issued pursuant
to Section 646.91 or Part 3 (commencing with Section 6240) of
Division 10 of the Family Code that is in effect at the time the
court is considering the petition.
(D) A recent violation of an unexpired protective order issued
pursuant to Part 4 (commencing with Section 6300) of Division 10 of
the Family Code, Section 136.2, Section 527.6 of the Code of Civil
Procedure, or Section 213.5 or 15657.03 of the Welfare and
Institutions Code.
(E) A conviction for any offense listed in Section 29805.
(F) A pattern of violent acts or violent threats within the past
12 months, including, but not limited to, threats of violence or acts
of violence by the subject of the petition directed toward himself,
herself, or another.
(2) In determining whether grounds for a gun violence restraining
order exist, the court may consider any other evidence of an
increased risk for violence, including, but not limited to, evidence
of any of the following:
(A) The unlawful and reckless use, display, or brandishing of a
firearm by the subject of the petition.
(B) The history of use, attempted use, or threatened use of
physical force by the subject of the petition against another person.
(C) Any A prior arrest of
the subject of the petition for a felony offense.
(D) Any A history of a violation by
the subject of the petition of an emergency protective order issued
pursuant to Section 646.91 or Part 3 (commencing with Section 6240)
of Division 10 of the Family Code.
(E) Any A history of a violation by
the subject of the petition of a protective order issued pursuant to
Part 4 (commencing with Section 6300) of Division 10 of the Family
Code, Section 136.2, Section 527.6 of the Code of Civil Procedure, or
Section 213.5 or 15657.03 of the Welfare and Institutions Code.
(F) Documentary evidence, including, but not limited to, police
reports and records of convictions, of either recent criminal
offenses by the subject of the petition that involve controlled
substances or alcohol or ongoing abuse of controlled substances or
alcohol by the subject of the petition.
(G) Evidence of recent acquisition of firearms, ammunition, or
other deadly weapons.
(3) For the purposes of this subdivision, "recent" means within
the six months prior to the date the petition was filed.
(c) If the court determines that there the
grounds to issue an ex parte gun violence restraining order
exist, it shall issue an ex parte gun violence restraining order that
prohibits the subject of the petition from having in his or her
custody or control, owning, purchasing, possessing, or receiving, or
attempting to purchase or receive, a firearm or ammunition, and
expires no later than 21 days from the date of the order.
SEC. 409. Section 18175 of the Penal Code is amended to read:
18175. (a) In determining whether to issue a gun violence
restraining order under this chapter, the court shall consider
evidence of the facts identified in paragraph (1) of subdivision (b)
of Section 18155 and may consider any other evidence of an increased
risk for violence, including, but not limited to, evidence of the
facts identified in paragraph (2) of subdivision (b) of Section
18155.
(b) At the hearing, the petitioner shall have the burden of
proving, by clear and convincing evidence, that both of the following
are true:
(1) The subject of the petition, or a person subject to an ex
parte gun violence restraining order, as applicable, poses a
significant danger of causing personal injury to himself,
herself, or another by having in his or her custody or control,
owning, purchasing, possessing, or receiving a firearm or ammunition.
(2) A gun violence restraining order is necessary to prevent
personal injury to the subject of the petition, or the person subject
to an ex parte gun violence restraining order, as applicable, or
another because less restrictive alternatives either have been tried
and found to be ineffective, or are inadequate or inappropriate for
the circumstances of the subject of the petition, or the person
subject to an ex parte gun violence restraining order, as applicable.
(c) (1) If the court finds that there is clear and convincing
evidence to issue a gun violence restraining order, the court shall
issue a gun violence restraining order that prohibits the subject of
the petition from having in his or her custody or control, owning,
purchasing, possessing, or receiving, or attempting to purchase or
receive, a firearm or ammunition.
(2) If the court finds that there is not clear and convincing
evidence to support the issuance of a gun violence restraining order,
the court shall dissolve any temporary emergency or ex parte gun
violence restraining order then in effect.
(d) The A gun violence restraining
order issued under this chapter shall have
has a duration of one year, subject to termination by further
order of the court at a hearing held pursuant to Section 18185 and
renewal by further order of the court pursuant to Section 18190.
SEC. 410. Section 27210 of the Penal Code is amended to read:
27210. (a) The producer and facility's manager of a gun show or
event shall prepare an annual event and security plan and schedule
that shall include, at a minimum, the following information for each
show or event:
(1) The type of show or event event,
including, but not limited to, antique or general firearms.
(2) The estimated number of vendors offering firearms for sale or
display.
(3) The estimated number of attendees.
(4) The number of entrances and exits at the gun show or event
site.
(5) The location, dates, and times of the show or event.
(6) The contact person and telephone number for both the producer
and the facility.
(7) The number of sworn peace officers employed by the producer or
the facility's manager who will be present at the show or event.
(8) The number of nonsworn security personnel employed by the
producer or the facility's manager who will be present at the show or
event.
(b) The annual event and security plan shall be submitted by
either the producer or the facility's manager to the Department of
Justice and the law enforcement agency with jurisdiction over the
facility.
(c) If significant changes have been made since the annual plan
was submitted, the producer shall, not later than 15 days before
commencement of the gun show or event, submit to the department, the
law enforcement agency with jurisdiction over the facility site, and
the facility's manager, a revised event and security plan, including
a revised list of vendors that the producer knows, or reasonably
should know, will be renting tables, space, or otherwise
participating in the gun show or event.
(d) The event and security plan shall be approved by the facility'
s manager before the event or show, after consultation with the law
enforcement agency with jurisdiction over the facility.
(e) No A gun show or
event shall not commence unless the requirements of
subdivisions (b), (c), and (d) are met.
SEC. 411. Section 30625 of the Penal Code is amended to read:
30625. Sections 30600, 30605, and 30610 shall
do not apply to the sale of an assault weapon or .50
BMG rifle to, purchase by, importation of,
or the purchase, importation, or possession of an
assault weapons weapon or a .50
BMG rifle by , the Department of Justice, police
departments, sheriffs' offices, marshals' offices, the Department of
Corrections and Rehabilitation, the Department of the California
Highway Patrol, district attorneys' offices, the Department of Fish
and Game, Wildlife, the Department of
Parks and Recreation, or the military or naval forces of this state
or of the United States, or any federal law enforcement agency for
use in the discharge of their official duties.
SEC. 412. The heading of Part 14 (commencing with Section 900) of
Division 2 of the Probate Code, as added by Section 14 of Chapter 79
of the Statutes of 1990, is repealed.
PART 14. APPPLICABILITY OF REPEALED OR AMENDED PROVISIONS
RELATING TO COMPENSATION OF ESTATE ATTORNEY AND PERSONAL
REPRESENTATIVE
SEC. 413. The heading of Article 1 (commencing with Section 7200)
of Chapter 3 of Part 1 of Division 7 of the Probate Code is repealed.
Article 1. Trial by Jury
SEC. 414. Section 10299 of the Public Contract Code, as added by
Section 33 of Chapter 71 of the Statutes of 2000, is repealed.
10299. (a) Notwithstanding any other provision of law, the
director may consolidate the needs of multiple state agencies for
information technology, goods and services, and, pursuant to the
procedures established in Chapter 3 (commencing with Section 12100),
establish contracts, master agreements, multiple award schedules,
cooperative agreements, including agreements with entities outside
the state, and other types of agreements that leverage the state's
buying power, for acquisitions authorized under Chapter 2 (commencing
with Section 10290), Chapter 3 (commencing with Section 12100), and
Chapter 3.6 (commencing with Section 12125). State agencies and local
agencies may contract with suppliers awarded the contracts without
further competitive bidding.
(b) The director may make the services of the department
available, upon the terms and conditions agreed upon, to any school
district empowered to expend public funds. These school districts
may, without further competitive bidding, utilize contracts, master
agreements, multiple award schedules, cooperative agreements, or
other types of agreements established by the department for use by
school districts for the acquisition of information technology,
goods, and services. The state shall incur no financial
responsibility in connection with the contracting of local agencies
under this section.
SEC. 415. Section 20427 of the Public Contract Code is amended to
read:
20427. At any time prior to publication and posting notice
inviting bids, the legislative body by resolution, may determine that
in the event that if the contractor,
contracting owners included, does not complete the work within the
time limit specified in the contract or within such
the further time as that
the legislative body shall have authorized,
the contractor or contracting owners, as the case may be, shall pay
to the city liquidated damages in the amount fixed by the legislative
body in said the resolution. The
amount so fixed is valid as liquidated damages unless manifestly
unreasonable under the circumstances existing at the time the
contract was made. If such this
determination is made, the plans or specifications and the contract
shall contain provisions in accordance therewith.
with that determination.
Any moneys received by the city on account of such
those liquidated damages shall be applied as
follows:
(1) If received prior to confirmation of the assessment,
such those moneys shall be applied as a
contribution against the assessment.
(2) If received after the confirmation of the assessment,
such those moneys shall be applied in the
manner provided in Section 5132.1 5132.05
of the Streets and Highways Code for the disposition of excess
acquisition funds.
(3) If a contribution has theretofore
previously been made or ordered by any agency, the legislative
body may order a refund to the contributing agency in the proportion
which said that the contribution bears
to the total costs and expenses of the work.
SEC. 416. Section 541.5 of the Public Resources Code is amended to
read:
541.5. (a) The department shall not close, or propose to close, a
state park in the 2012-13 or 2013-14 fiscal year. The commission and
the department shall recommend all necessary steps to establish a
sustainable funding strategy for the department to the Legislature on
or before January 1, 2015.
(b) There is hereby appropriated twenty million five hundred
thousand dollars ($20,500,000) to the department from the State Parks
and Recreation Fund, which shall be available for encumbrance until
June 30, 2016, and for liquidation until June 30, 2018, to be
expended as follows:
(1) Ten million dollars ($10,000,000) shall be available to
provide for matching funds pursuant to subdivision (c).
(2) Ten million dollars ($10,000,000) shall be available for the
department to direct funds to parks that remain at risk of closure or
that will keep parks open during the 2012-13 to 2015-16 fiscal
years, inclusive. Priority may be given to parks subject to a donor
or operating agreement or other contractual arrangement with the
department.
(3) Up to five hundred thousand dollars ($500,000) shall be
available for the department to pay for ongoing audits and
investigations as directed by the Joint Legislative Audit Committee,
the office of the Attorney General, the Department of Finance, or
other state agency.
(c) The department shall match on a dollar-for-dollar basis all
financial contributions contributed by a donor pursuant to an
agreement for the 2012-13 fiscal year for which the department
received funds as of July 31, 2013, and for agreements entered into
in the 2013-14 fiscal year. These matching funds shall be used
exclusively in the park unit subject to those agreements.
(d) The department shall notify the Joint Legislative Budget
Committee in writing not less than 30 days before the expenditure of
funds under this section of the funding that shall be expended, the
manner of the expenditure, and the recipient of the expenditure.
(e) The prohibition on the closure , or proposed
closure , of a state park in the 2012-13 or 2013-14 fiscal
year, pursuant to paragraph (a), does not limit or affect the
department's authority to enter into an operating agreement, pursuant
to Section 5080.42, during the 2012-13 or 2013-14 fiscal year, for
purposes of the operation of the entirety of a state park during the
2012-13 or 2013-14 fiscal year.
SEC. 417. Section 4598.1 of the Public Resources Code is amended
to read:
4598.1. (a) The purpose of this article is to encourage private
investments in, and improved long-term management of, timberlands and
resources within the state to promote carbon sequestration through
increased timber growth and inventory, reduced carbon emissions from
wildland fires by creating fire resiliency on private timberlands,
and the protection, maintenance, and enhancement of a productive and
stable forest resource system for the benefit of present and future
generations.
(b) The primary emphasis of the program established by this
article shall be upon increasing carbon sequestration in timberlands
and reducing carbon emissions from wildland fires; provided
that, consistent fires. Consistent with this
primary emphasis, the program shall also be managed to maintain or
improve all forest resources, such as fish and wildlife habitat and
soil resources, so that the overall effect of the program is to
improve the total forest resource system.
SEC. 418. Section 4598.6 of the Public Resources Code is amended
to read:
4598.6. To be eligible for participation in an agreement or grant
pursuant to Section 4598.5, the following conditions shall be met:
(a) The application requirements established by the board are
satisfied.
(b) The landowner is a smaller nonindustrial landowner, as defined
in Section 4598.3. Where the timberland is owned jointly by more
than one individual, group, association, or corporation, as joint
tenants, tenants in common, tenants by the entirety, or otherwise,
the joint owners shall be considered, for the purposes of this
article, as one landowner.
(c) The parcel or parcels of timberland to which the PTEIR shall
apply is either:
(1) Within a timber preserve zone established pursuant to Article
6.7 (commencing with Section 51100) of Part 1 of Division 1 of Title
5 of the Government Code; provided, that the parcel of
timberland is Code and not the subject of an
application for rezoning or immediate rezoning pursuant to Section
51120 of, or 51130 Article 4
(commencing with Section 51130) of Chapter 6.7 of Part 1 of Division
1 of Title 5, of the Government Code.
(2) Subject to a contract signed by the landowner
providing that in which the landowner agrees not
to develop the parcel
of timberland for uses incompatible with the PTEIR within 20
years following the execution of an agreement or the making of a
grant pursuant to Section 4598.5. The director shall record the
contract in the office of the county recorder in the county in which
the parcel of timberland is located and, upon recordation, the
contract shall be binding upon any person to whom the parcel of
timberland is sold, assigned, devised, or otherwise transferred by
agreement or operation of law.
SEC. 419. Section 4598.7 of the Public Resources Code is amended
to read:
4598.7. Payments or grants pursuant to this article may be made
for work that is also the subject of payments or other assistance
provided pursuant to federal law; provided, that payments
law. Payments or grants shall not be made
pursuant to this article to satisfy landowner cost share requirements
of, or repay loans received pursuant to, federal law; and
provided, further, that the law. The combined
state and federal payments or other assistance do
shall not together exceed the amount of the actual cost of
the PTEIR to the landowner.
SEC. 420. Section 5080.16 of the Public Resources Code is amended
to read:
5080.16. If the director determines that it is for
in the best interests of the state, the
director, upon giving notice to the State Park and Recreation
Commission, may negotiate or renegotiate a contract, including terms
and conditions, when one or more of the following conditions exist:
(a) The bid process as prescribed in this article has failed to
produce a best responsible bidder.
(b) The negotiation or renegotiation would constitute an extension
of an existing contract obtained through the process required by
this article and the extended contract would provide for substantial
and additional concession facilities, which would be constructed at
the sole expense of the concessionaire and which are set forth in the
general plan for the unit and are needed to accommodate existing or
projected increased public usage.
(c) Lands in the state park system administered by the department
and lands under the legal control of the prospective concessionaire
are so situated that the concession is dependent upon the use of
those public and private lands for the physical or economic success,
or both, of the concession.
(d) Whenever a A concession is
desired for particular interpretive purposes in a unit of the state
park system and the prospective concessionaire possesses special
knowledge, experience, skills, or ability appropriate to the
particular interpretive purposes.
(e) Whenever the The concession has
been severely and adversely impacted through no fault of the
concessionaire by an unanticipated calamity, park closure, major
construction, or other harmful event or action.
(f) Whenever the The estimated
administrative costs for the bid process exceed the projected annual
net rental revenue to the state.
SEC. 421. Section 5096.955 of the Public Resources Code, as added
by Section 14 of Chapter 178 of the Statutes of 2007, is amended and
renumbered to read:
5096.955. 5096.9545 (a) For the
purposes of any levee evaluation activities funded by the department,
the department shall not require a local cost-share for the
following levee evaluations:
(1) Evaluations of levees that are part of the facilities of the
State Plan of Flood Control.
(2) Evaluations of levees located in the Central Valley that are
not part of the State Plan of Flood Control, and that protect an
urban area, as defined by subdivision (k) of Section 5096.805.
(3) Evaluations of levees chosen to be performed by the department
as part of an effort to protect critical water conveyance
infrastructure through the Sacramento-San Joaquin Delta.
(b) The department shall identify the levees described in
paragraph (2) of subdivision (a) in the Bond Expenditure Disaster
Preparedness and Flood Prevention Plan described in Section
5096.821 5096.820 and notify the Governor and
the Legislature of the location of these levees.
SEC. 422. Section 6217.2 of the Public Resources Code, as added by
Section 5 of Chapter 326 of the Statutes of 1998, is repealed.
6217.2. Moneys in the Marine Life and Marine Reserve Management
Account created in the Resources Trust Fund pursuant to paragraph (2)
of subdivision (c) of Section 6217, shall be expended by the
Department of Fish and Game for the following purposes:
(a) To develop and implement fishery management plans.
(b) To fund research on marine life and marine fisheries.
(c) To fund peer reviews of research plans and fishery management
plans.
(d) To fund the evaluation, coordination, and management of marine
reserves and other marine managed areas.
SEC. 423. The heading of Chapter 6 (commencing with Section 12292)
of Division 10.5 of the Public Resources Code is repealed.
CHAPTER 6. MISCELLANEOUS PROVISIONS
SEC. 424. Section 14591.2 of the Public Resources Code is amended
to read:
14591.2. (a) The department may take disciplinary action against
any party responsible for directing, contributing to, participating
in, or otherwise influencing the operations of a certified or
registered facility or program. A responsible party includes, but is
not limited to, the certificate holder, registrant, officer,
director, or managing employee. Except as otherwise provided in this
division, the department shall provide a notice and hearing in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code before taking any
disciplinary action against a certificate holder.
(b) All of the following are grounds for disciplinary action, in
the form determined by the department in accordance with subdivision
(c):
(1) The responsible party engaged in fraud or deceit to obtain a
certificate or registration.
(2) The responsible party engaged in dishonesty, incompetence,
negligence, or fraud in performing the functions and duties of a
certificate holder or registrant.
(3) The responsible party violated this division or any regulation
adopted pursuant to this division, including, but not limited to,
any requirements concerning auditing, reporting, standards of
operation, or being open for business.
(4) The responsible party is convicted of any crime of moral
turpitude or fraud, any crime involving dishonesty, or any crime
substantially related to the qualifications, functions, or duties of
a certificate holder.
(c) The department may take disciplinary action pursuant to this
section, by taking any one of, or any combination of, the following:
(1) Immediate revocation of the certificate or registration, or
revocation of a certificate or registration as of a specific date in
the future.
(2) Immediate suspension of the certificate or registration for a
specified period of time, or suspension of the certificate or
registration as of a specific date in the future. Notwithstanding
subdivision (a), the department may impose a suspension of five days
or less through an informal notice, if the action is subject to a
stay on appeal, pending an informal hearing convened in accordance
with Article 10 (commencing with Section 11445.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code.
(3) Imposition on the certificate or registration of any condition
that the department determines would further the goals of this
division.
(4) Issuance of a probationary certificate or registration with
conditions determined by the department.
(5) Collection of amounts in restitution of any money improperly
paid to the certificate holder or registrant from the fund.
(6) Imposition of civil penalties pursuant to Section 14591.1.
(7) Suspension for a specified period of time or permanent
revocation of eligibility of a supermarket site, rural region
recycler, or a nonprofit convenience zone recycler to receive
handling fees at one or more of the certificate holder's certified
recycling centers.
(d) The department may do any of the following in taking
disciplinary action pursuant to this section:
(1) If a certificate holder or registrant holds certificates or is
registered to operate at more than one site or to operate in more
than one capacity at one location, such as an entity certified as
both a processor and a recycling center, the department may
simultaneously revoke, suspend, or impose conditions upon some, or
all , of, of the
certificates held by the responsible party.
(2) If the responsible party is an officer, director, partner,
manager, employee, or the owner of a controlling ownership interest
of another certificate holder or registrant, that other operator's
certificate or registration may also be revoked, suspended, or
conditioned by the department in the same proceeding, if the other
certificate holder or registrant is given notice of that proceeding,
or in a subsequent proceeding.
(3) (A) If, pursuant to notice and a hearing conducted by the
director or the director's designee in accordance with Article 10
(commencing with Section 11445.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code, the department
determines that the continued operation of a certified or registered
entity poses an immediate and significant threat to the fund, the
department may order the immediate suspension of the certificate
holder or registrant, pending revocation of the certificate or
registration, or the issuance of a probationary certificate imposing
reasonable terms and conditions. The department shall record the
testimony at the hearing and, upon request, prepare a transcript. For
purposes of this section, an immediate and significant threat to the
fund means any of the following:
(i) A loss to the fund of at least ten thousand dollars ($10,000)
during the six-month period immediately preceding the order of
suspension.
(ii) Missing or fraudulent records associated with a claim or
claims totaling at least ten thousand dollars ($10,000) during the
six-month period immediately preceding the order of suspension.
(iii) A pattern of deceit, fraud, or intentional misconduct in
carrying out the duties and responsibilities of a certificate holder
during the six-month period immediately preceding the order of
suspension. For purposes of this section, a pattern of deceit, fraud,
or intentional misconduct in carrying out the duties of a
certificate holder includes, but is not limited to, the destruction
or concealment of any records six months immediately preceding the
order of suspension.
(iv) At least three claims submitted for ineligible material in
violation of this division, including, but not limited to, a
violation of Section 14595.5, during the six-month period immediately
preceding the order of suspension.
(B) An order of suspension or probation may be issued to any or
all certified or registered facilities or programs operated by a
person or entity that the department determines to be culpable or
responsible for the loss or conduct identified pursuant to
subparagraph (A).
(C) The order of suspension or issuance of a probationary
certificate imposing terms or conditions shall become effective upon
written notice of the order to the certificate holder or registrant.
Within 20 days after notice of the order of suspension, the
department shall file an accusation seeking revocation of any or all
certificates or registrations held by the certificate holder or
registrant. The certificate holder or registrant may, upon receiving
the notice of the order of suspension or probation, appeal the order
by requesting a hearing in accordance with Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. A request for a hearing or appeal from an order of the
department does not stay the action of the department for which the
notice of the order is given. The department may combine hearings to
appeal an order of suspension and a hearing for the proposed
revocation of a certificate or registration into one proceeding.
(D) Nothing in this This section
shall does not prohibit the department
from immediately revoking a probationary certificate pursuant to
subdivision (b) of Section 14541 or from taking other disciplinary
action pursuant to Section 14591.2.
SEC. 425. Section 21080.35 of the Public Resources Code, as added
by Section 1 of Chapter 534 of the Statutes of 2001, is amended and
renumbered to read:
21080.35. 21080.34 For the purposes
of Section 21069, the phrase "carrying out or approving a project"
shall include the carrying out or approval of a plan for a project
that expands or enlarges an existing publicly owned airport by any
political subdivision, as described in Section 21661.6 of the Public
Utilities Code.
SEC. 426. Section 21082.3 of the Public Resources Code is amended
to read:
21082.3. (a) Any mitigation measures agreed upon in the
consultation conducted pursuant to Section 21080.3.2 shall be
recommended for inclusion in the environmental document and in an
adopted mitigation monitoring and reporting program, if determined to
avoid or lessen the impact pursuant to paragraph (2) of subdivision
(b), and shall be fully enforceable.
(b) If a project may have a significant impact on a tribal
cultural resource, the lead agency's environmental document shall
discuss both of the following:
(1) Whether the proposed project has a significant impact on an
identified tribal cultural resource.
(2) Whether feasible alternatives or mitigation measures,
including those measures that may be agreed to pursuant to
subdivision (a), avoid or substantially lessen the impact on the
identified tribal cultural resource.
(c) (1) Any information, including, but not limited to, the
location, description, and use of the tribal cultural resources, that
is submitted by a California Native American tribe during the
environmental review process shall not be included in the
environmental document or otherwise disclosed by the lead agency or
any other public agency to the public, consistent with subdivision
(r) of Section 6254 of, and Section 6254.10 of, the Government Code,
and subdivision (d) of Section 15120 of Title 14 of the California
Code of Regulations, without the prior consent of the tribe that
provided the information. If the lead agency publishes any
information submitted by a California Native American tribe during
the consultation or environmental review process, that information
shall be published in a confidential appendix to the environmental
document unless the tribe that provided the information consents, in
writing, to the disclosure of some or all of the information to the
public. This subdivision does not prohibit the confidential exchange
of the submitted information between public agencies that have lawful
jurisdiction over the preparation of the environmental document.
(2) (A) This subdivision does not prohibit the confidential
exchange of information regarding tribal cultural resources submitted
by a California Native American tribe during the consultation or
environmental review process among the lead agency, the California
Native American tribe, the project applicant, or the project
applicant's agent. Except as provided in subparagraph (B) or unless
the California Native American tribe providing the information
consents, in writing, to public disclosure, the project applicant or
the project applicant's legal advisers, using a reasonable degree of
care, shall maintain the confidentiality of the information exchanged
for the purposes of preventing looting, vandalism, or damage to
a tribal cultural resources and shall not disclose
to a third party confidential information regarding tribal cultural
resources.
(B) This paragraph does not apply to data or information that are
or become publicly available, are already in the lawful possession of
the project applicant before the provision of the information by the
California Native American tribe, are independently developed by the
project applicant or the project applicant's agents, or are lawfully
obtained by the project applicant from a third party that is not the
lead agency, a California Native American tribe, or another public
agency.
(3) This subdivision does not affect or alter the application of
subdivision (r) of Section 6254 of the Government Code, Section
6254.10 of the Government Code, or subdivision (d) of Section 15120
of Title 14 of the California Code of Regulations.
(4) This subdivision does not prevent a lead agency or other
public agency from describing the information in general terms in the
environmental document so as to inform the public of the basis of
the lead agency's or other public agency's decision without breaching
the confidentiality required by this subdivision.
(d) In addition to other provisions of this division, the lead
agency may certify an environmental impact report or adopt a
mitigated negative declaration for a project with a significant
impact on an identified tribal cultural resource only if one of the
following occurs:
(1) The consultation process between the California Native
American tribe and the lead agency has occurred as provided in
Sections 21080.3.1 and 21080.3.2 and concluded pursuant to
subdivision (b) of Section 21080.3.2.
(2) The California Native American tribe has requested
consultation pursuant to Section 21080.3.1 and has failed to provide
comments to the lead agency, or otherwise failed to engage, in the
consultation process.
(3) The lead agency has complied with subdivision (d) of Section
21080.3.1 and the California Native American tribe has failed to
request consultation within 30 days.
(e) If the mitigation measures recommended by the staff of the
lead agency as a result of the consultation process are not included
in the environmental document or if there are no agreed upon
mitigation measures at the conclusion of the consultation or if
consultation does not occur, and if substantial evidence demonstrates
that a project will cause a significant effect to a tribal cultural
resource, the lead agency shall consider feasible mitigation pursuant
to subdivision (b) of Section 21084.3.
(f) Consistent with subdivision (c), the lead agency shall publish
confidential information obtained from a California Native American
tribe during the consultation process in a confidential appendix to
the environmental document and shall include a general description of
the information, as provided in paragraph (4) of subdivision (c) in
the environmental document for public review during the public
comment period provided pursuant to this division.
(g) This section is not intended, and may not be construed, to
limit consultation between the state and tribal governments, existing
confidentiality provisions, or the protection of religious exercise
to the fullest extent permitted under state and federal law.
SEC. 427. Section 30103 of the Public Resources Code is amended to
read:
30103. (a) "Coastal zone" means that land and water area of the
State of California from the Oregon border to the border of the
Republic of Mexico, specified on the maps identified and set forth in
Section 17 of that chapter Chapter 1330
of the Statutes of the 1975-76 Regular Session
enacting this division, 1976, extending seaward
to the state's outer limit of jurisdiction, including all offshore
islands, and extending inland generally 1,000 yards from the mean
high tide line of the sea. In significant coastal estuarine, habitat,
and recreational areas it extends inland to the first major
ridgeline paralleling the sea or five miles from the mean high tide
line of the sea, whichever is less, and in developed urban areas the
zone generally extends inland less than 1,000 yards. The coastal zone
does not include the area of jurisdiction of the San Francisco Bay
Conservation and Development Commission, established pursuant to
Title 7.2 (commencing with Section 66600) of the Government Code, nor
any area contiguous thereto, including any river, stream, tributary,
creek, or flood control or drainage channel flowing into such area.
(b) The commission shall, within 60 days after its first meeting,
prepare and adopt a detailed map, on a scale of one inch equals
24,000 inches for the coastal zone and shall file a copy of the map
with the county clerk of each coastal county. The purpose of this
provision is to provide greater detail than is provided by the maps
identified in Section 17 of that chapter
Chapter 1330 of the Statutes of the 1975-76 Regular
Session enacting this division. 1976. The
commission may adjust the inland boundary of the coastal zone the
minimum landward distance necessary up to a maximum of 100 yards
except as otherwise provided in this subdivision, or the minimum
distance seaward necessary up to a maximum of 200 yards, to avoid
bisecting any single lot or parcel or to conform it to readily
identifiable natural or manmade features. Where a landward adjustment
is requested by the local government and agreed to by the property
owner, the maximum distance shall be 200 yards.
SEC. 428. Chapter 1 (commencing with Section 32600) of Division
22.8 of the Public Resources Code, as added by Section 1 of Chapter
788 of the Statutes of 1999, is repealed.
CHAPTER 1. GENERAL PROVISIONS
SEC. 429. Section 42356 of the Public Resources Code is amended to
read:
42356. For purposes of this chapter, the following definitions
apply:
(a) "ASTM" means the American Society for Testing and
Materials. ASTM International.
(b) (1) "ASTM standard specification" means one of the following:
(A) The ASTM Standard Specification for Compostable Plastics
D6400, as published in September 2004, except as provided in
subdivision (c) of Section 42356.1.
(B) The ASTM Standard Specification for Non-Floating Biodegradable
Plastics in the Marine Environment D7081, as published in August
2005, except as provided in subdivision (c) of Section 42356.1.
(C) The ASTM Standard Specification for Biodegradable Plastics
Used as Coatings on Paper and Other Compostable Substrates D6868, as
published in August 2003, except as specified in subdivision (c) of
Section 42356.1.
(2) "ASTM standard specification" does not include an ASTM
Standard Guide, a Standard Practice, or a Standard Test Method.
(c) "Department" means the Department of Resources Recycling and
Recovery.
(d) "Manufacturer" means a person, firm, association, partnership,
or corporation that produces a plastic product.
(e) "OK home compost" means conformity with the existing Vincotte
certification "OK Compost HOME certification" which, as of January 1,
2011, uses European Norm 13432 standard adapted to low-temperature
composting in accordance with the Vincotte program "OK 2-Home
Compostability of Products."
(f) "Plastic product" means a product made of plastic, whether
alone or in combination with other material, including, but not
limited to, paperboard. A plastic product includes, but is not
limited to, any of the following:
(1) (A) A consumer product.
(B) For purposes of this paragraph, "consumer product" means a
product or part of a product that is used, bought, or leased for use
by a person for any purpose.
(2) A package or a packaging component.
(3) A bag, sack, wrap, or other thin plastic sheet film product.
(4) A food or beverage container or a container component,
including, but not limited to, a straw, lid, or utensil.
(g) "Supplier" means a person who does one or more of the
following:
(1) Sells, offers for sale, or offers for promotional purposes, a
plastic product that is used.
(2) Takes title to a plastic product, produced either domestically
or in a foreign country, that is purchased for resale or promotional
purposes.
(h) "Vincotte certification" means a certification of a European
norm (EN) standard adopted by the Belgian-accredited inspection and
certification organization Vincotte.
SEC. 430. Section 42649.82 of the Public Resources Code is amended
to read:
42649.82. (a) (1) In addition to the requirements of Section
42649.3, on and after January 1, 2016, each jurisdiction shall
implement an organic waste recycling program that is appropriate for
that jurisdiction and designed specifically to divert organic waste
generated by businesses subject to Section 42649.81, whether or not
the jurisdiction has met the requirements of Section 41780.
(2) (A) A county board of supervisors of a rural county may adopt
a resolution, as prescribed in this paragraph, to make the rural
county exempt from the requirements of this section. If a rural
jurisdiction is a city, the city council may adopt a resolution, as
prescribed in this paragraph, to make the rural jurisdiction exempt
from this section. If a rural jurisdiction is a regional agency
comprised of jurisdictions that are located entirely within one or
more rural counties, the board of the regional agency may adopt a
resolution, as prescribed in this paragraph, to make the rural
jurisdiction is exempt from the requirements of
this section.
(B) A resolution adopted pursuant to subparagraph (A) shall
include findings as to the purpose of and need for the exemption.
(C) A resolution to exempt a rural jurisdiction pursuant to
subparagraph (A) shall be submitted to the department at least six
months before the operative date of the exemption.
(D) On or after January 1, 2020, if the department determines that
statewide disposal of organic waste has not been reduced to 50
percent of the level of disposal during the 2014 calendar year, all
exemptions authorized by this paragraph shall terminate unless the
department determines that applying this chapter to rural
jurisdictions will not result in significant additional reductions of
disposal of organic waste.
(b) If a jurisdiction, as of January 1, 2016, has in place an
organic waste recycling program that meets the requirements of this
section, it is not required to implement a new or expanded organic
waste recycling program.
(c) The organic waste recycling program required by this section
shall be directed at organic waste generators and may include, but is
not limited to, one or more of the following:
(1) Implementing a mandatory commercial organic waste recycling
policy or ordinance that addresses organic waste recycling.
(2) Requiring a mandatory commercial organic waste recycling
program through a franchise contract or agreement.
(3) Requiring
organic waste to go through a source separated or mixed processing
system that diverts material from disposal.
(d) (1) The organic waste recycling program shall do all of the
following:
(A) Identify all of the following:
(i) Existing organic waste recycling facilities within a
reasonable vicinity and the capacities available for materials to be
accepted at each facility.
(ii) Existing solid waste and organic waste recycling facilities
within the jurisdiction that may be suitable for potential expansion
or colocation of organic waste processing or recycling facilities.
(iii) Efforts of which the jurisdiction is aware that are underway
to develop new private or public regional organic waste recycling
facilities that may serve some or all of the organic waste recycling
needs of the commercial waste generators within the jurisdiction
subject to this chapter, and the anticipated timeframe for completion
of those facilities.
(iv) Closed or abandoned sites that might be available for new
organic waste recycling facilities.
(v) Other nondisposal opportunities and markets.
(vi) Appropriate zoning and permit requirements for the location
of new organic waste recycling facilities.
(vii) Incentives available, if any, for developing new organic
waste recycling facilities within the jurisdiction.
(B) Identify barriers to siting new or expanded compostable
materials handling operations, as defined in paragraph (12) of
subdivision (a) of Section 17852 of the Title 14
of the California Code of Regulations, and specify a plan to remedy
those barriers that are within the control of the local jurisdiction.
(C) Provide for the education of, outreach to, and monitoring of,
businesses. The program shall require the jurisdiction to notify a
business if the business is not in compliance with Section 42649.81.
(2) For purposes of subparagraph (A) of paragraph (1), an "organic
waste recycling facility" shall include compostable materials
handling operations, as defined in paragraph (12) of subdivision (a)
of Section 17852 of Title 14 of the California Code of Regulations,
and may include other facilities that recycle organic waste.
(e) The organic waste recycling program may include any one or
more of the following:
(1) Enforcement provisions that are consistent with the
jurisdiction's authority, including a structure for fines and
penalties.
(2) Certification requirements for self-haulers.
(3) Exemptions, on a case-by-case basis, from the requirements of
Section 42649.81 that are deemed appropriate by the jurisdiction for
any of the following reasons:
(A) Lack of sufficient space in multifamily complexes or
businesses to provide additional organic material recycling bins.
(B) The current implementation by a business of actions that
result in the recycling of a significant portion of its organic
waste.
(C) The business or group of businesses does not generate at least
one-half of a cubic yard of organic waste per week.
(D) Limited-term exemptions for extraordinary and unforeseen
events.
(E) (i) The business or group of businesses does not generate at
least one cubic yard of organic waste per week, if the local
jurisdiction provides the department with information that explains
the need for this higher exemption than that authorized by
subparagraph (C).
(ii) The information described in clause (i) shall be provided to
the department with the information provided pursuant to subdivision
(f).
(iii) This subparagraph shall not be operative on or after January
1, 2020, if the department, pursuant to paragraph (4) of subdivision
(a) of Section 42649.81, determines that statewide disposal of
organic waste has not been reduced to 50 percent of the level of
disposal during the 2014 calendar year.
(f) (1) Each jurisdiction shall provide the department with
information on the number of regulated businesses that generate
organic waste and, if available, the number that are recycling
organic waste. The jurisdiction shall include this information as
part of the annual report required pursuant to Section 41821.
(2) On and after August 1, 2017, in addition to the information
required by paragraph (1), each jurisdiction shall report to the
department on the progress achieved in implementing its organic waste
recycling program, including education, outreach, identification,
and monitoring, on its rationale for allowing exemptions, and, if
applicable, on enforcement efforts. The jurisdiction shall include
this information as part of the annual report required pursuant to
Section 41821.
(g) (1) The department shall review a jurisdiction's compliance
with this section as part of the department's review required by
Section 41825.
(2) The department also may review whether a jurisdiction is in
compliance with this section at any time that the department receives
information that a jurisdiction has not implemented, or is not
making a good faith effort to implement, an organic waste recycling
program.
(h) During a review pursuant to subdivision (g), the department
shall determine whether the jurisdiction has made a good faith effort
to implement its selected organic waste recycling program. For
purposes of this section, "good faith effort" means all reasonable
and feasible efforts by a jurisdiction to implement its organic waste
recycling program. During its review, the department may include,
but is not limited to, consideration of the following factors in its
evaluation of a jurisdiction's good faith effort:
(1) The extent to which businesses have complied with Section
42649.81, including information on the amount of disposal that is
being diverted from the businesses, if available, and on the number
of businesses that are complying with Section 42649.81.
(2) The recovery rate of the organic waste from the material
recovery facilities that are utilized by the businesses, all
information, methods, and calculations, and any additional
performance data, as requested by the department from the material
recovery facilities pursuant to Section 18809.4 of Title 14 of the
California Code of Regulations.
(3) The extent to which the jurisdiction is conducting education
and outreach to businesses.
(4) The extent to which the jurisdiction is monitoring businesses
and notifying those businesses that are not in compliance.
(5) The appropriateness of exemptions allowed by the jurisdiction.
(6) The availability of markets for collected organic waste
recyclables.
(7) Budgetary constraints.
(8) In the case of a rural jurisdiction, the effects of small
geographic size, low population density, or distance to markets.
(9) The availability, or lack thereof, of sufficient organic waste
processing infrastructure, organic waste recycling facilities, and
other nondisposal opportunities and markets.
(10) The extent to which the jurisdiction has taken steps that are
under its control to remove barriers to siting and expanding organic
waste recycling facilities.
SEC. 431. Section 42987 of the Public Resources Code is amended to
read:
42987. (a) (1) A qualified industry association or a successor
organization may establish a mattress recycling organization for
purposes of this chapter, which shall be composed of manufacturers,
renovators, and retailers and be certified pursuant to this section
to develop, implement, and administer the mattress recycling program
established pursuant to this chapter.
(2) Within 60 days of receipt of a request for certification, the
department shall notify the requesting qualified industry association
of the department's decision whether or not to certify that a
mattress recycling organization has been established by the qualified
industry association or successor organization and is composed of
manufacturers, renovators, and retailers for purposes of establishing
the mattress recycling plan.
(3) Prior to certification by the department, the department's
director shall appoint an advisory committee to be part of the
mattress recycling organization.
(A) The advisory committee may be comprised of members of the
environmental community, solid waste industry, and local
government, and government public and
private representatives involved in the collection, processing ,
and recycling of used mattresses, and other interested
parties.
(B) The mattress recycling organization shall consult the advisory
committee at least once during the development and implementation of
the plan required pursuant to Section 42987.1, and annually prior to
the submittal of both an annual report required pursuant to Section
42990.1 and an annual budget required pursuant to Section 42988.
(b) (1) Each manufacturer, retailer, and renovator shall register
with the mattress recycling organization.
(2) A retailer may register with the mattress recycling
organization as a manufacturer for a brand for which there is not a
registered manufacturer.
(c) On and after January 1, 2016, a retailer shall not sell,
distribute, or offer for sale a mattress in the state unless the
retailer is in compliance with this chapter and the manufacturer or
renovator of the mattress sold by the retailer is listed in
compliance with this chapter.
(d) On and after January 1, 2016, a manufacturer or renovator
shall not sell, offer for sale, or import a mattress in this state,
or sell or distribute a mattress to a distributor or retailer, unless
the manufacturer or renovator is in compliance with this chapter.
SEC. 432. Section 42987.1 of the Public Resources Code is amended
to read:
42987.1. On or before July 1, 2015, the mattress recycling
organization shall develop and submit to the department a plan for
recycling used mattresses in the state in an economically efficient
and practical manner that includes all of the following goals and
elements:
(a) Program objectives consistent with the state's solid waste
management hierarchy.
(b) The names of manufacturers, renovators, and brands covered
under the plan.
(c) A consultation process with affected stakeholders, including,
but not limited to, local government representatives, recyclers, and
solid waste industry representatives.
(d) Methods to increase the number of used mattresses diverted
from landfills, reduce the number of illegally dumped used
mattresses, and increase the quantity of used materials recovered
through this process and recycled for other uses.
(e) (1) The establishment and administration of a means for
funding the plan in a manner that distributes the mattress recycling
organization's costs uniformly over all mattresses sold in the state.
(2) The funding mechanism shall provide sufficient funding for the
mattress recycling organization to carry out the plan, including the
administrative, operational, and capital costs of the plan.
(f) The publishing of an annual report for each calendar year of
operation.
(g) Conducting research, as needed, related to improving used
mattress collection, dismantling, and recycling operations, including
pilot programs to test new processes, methods, or equipment on a
local, regional, or otherwise limited basis.
(h) A program performance measurement that shall collect program
data for the purpose of the annual report. The information shall
include:
(1) A methodology for estimating the amount of mattresses sold in
the state, state and used mattresses
available for collection in the state, and for quantifying the number
of used mattresses collected and recycled in the state.
(2) A methodology for determining mattresses sold in the state by
the manufacturers and renovators of the mattress recycling
organization.
(i) A description of methods used to coordinate activities with
existing used mattress collecting and recycling programs, including
existing nonprofit mattress recyclers, and with other relevant
parties as appropriate, with regard to the proper management or
recycling of discarded or abandoned mattresses, for purposes of
providing the efficient delivery of services and avoiding unnecessary
duplication of effort and expense.
(j) Entering into contracts or agreements, which may include
contracts and agreements with existing nonprofit or for-profit
recyclers, that are necessary and proper for the mattress recycling
organization to carry out these duties consistent with the terms of
this chapter.
(k) Establishment of Establishing
a financial incentive to encourage parties to collect for
recycling used mattresses discarded or illegally dumped in the state.
( l ) Ensuring, to the maximum extent possible, that
urban and rural local governments and participating permitted solid
waste facilities and authorized solid waste operations that accept
mattresses are provided with a mechanism for the recovery of
illegally disposed used mattresses that is funded at no additional
cost to the local government, solid waste facility, or solid waste
operation.
(m) Developing processes to collect used mattresses from
low-income communities for recycling in accordance with the poverty
line annually established by the Secretary of California Health and
Human Services pursuant to the federal Omnibus Budget Reconciliation
Act of 1981 (Public Law 97-35), as amended.
(n) Providing outreach efforts and education to consumers,
manufacturers, and retailers, for the purpose of promoting the
recycling of used mattresses and options available to consumers for
the free dropoff of used mattresses.
(o) A provision that allows an individual to drop off, at no
charge, a mattress at a recycler, renovator, mattress recycling
center, permitted solid waste facility, authorized solid waste
operation, or other municipal facility that accepts mattresses
consistent with state solid waste regulations, and that provides for
the payment to a municipal or solid waste facility or operation that
accepts mattresses an amount determined by the municipal or solid
waste facility or operation and the mattress recycling organization
to be reasonable for accepting, collecting, storing, transporting,
and handling used mattresses.
(p) Ensuring that the impact of Article XIII C of the California
Constitution is addressed for local governments participating in the
program.
(q) A report from the advisory committee, established pursuant to
paragraph (3) of subdivision (a) of Section 42987, which
that includes a summary of the consultative
process between the advisory committee and the mattress recycling
organization during the development of the plan, as well as any other
information deemed pertinent by the advisory committee to maximizing
the recovery and recycling of used mattresses in the state.
(r) Other information requested by the department that is
reasonably related to compliance with the recycling plan and that the
organization can reasonably compile.
SEC. 433. Section 42989.1 of the Public Resources Code is amended
to read:
42989.1. (a) Commencing 90 days after the date the department
approves the budget pursuant to Section 42988.1, each manufacturer,
renovator, retailer, or distributor that sells a mattress to a
consumer or to the ultimate end user of the mattress in the state
shall add the charge to the purchase price of the mattress and shall
remit the charge collected to the mattress recycling organization.
(b) In each transaction described in subdivision (a), the charge
shall be clearly visible as a separate line item on the
invoice, receipt, or functionally equivalent billing document
provided by the seller to the consumer as a separate line
item .
(c) The mattress recycling organization shall develop
reimbursement criteria to enable retailers to recover administrative
costs associated with collecting the charge.
(d) The mattress recycling organization shall determine the rules
and procedures that are necessary and proper to implement the
collection of the charge in a fair, efficient, and lawful manner.
SEC. 434. Section 44107 of the Public Resources Code is amended to
read:
44107. (a) A solid waste facility, as defined in Section 40194,
sending materials to a biomass conversion facility, shall ensure that
the materials are limited to those listed in subdivision (a) of
Section 40106. The enforcement agency may inspect solid waste
facilities and operations for compliance with this section.
(b) On or before April 1, 2016, and on or before April 1 of each
year thereafter, the operator or owner of a biomass conversion
facility shall provide an annual report to the department, in
writing, for the preceding year, containing all of the following
information:
(1) The name, address, and telephone number of the facility, the
operator, and the owner.
(2) The total amount and type of material accepted by the
facility.
(3) The name and address, or the physical location, of the source
of each type of material accepted by the facility. A facility that
cannot provide the name and address, or the physical location, of a
source of material accepted by the facility shall provide an
explanation why the information is not available.
(4) The total amount and type of material that was rejected by the
facility.
(5) The name and address, or physical location, of the source of
each type of material rejected by the facility and the reasons for
the rejection. A facility that cannot provide the name and address,
or the physical location, of a source of material rejected by the
facility shall provide an explanation why the information is not
available.
(6) The name and address, or physical location, of the final end
user of ash or other byproducts produced by the facility. Until
January 1, 2017, a facility that cannot provide the name and address,
or physical location, of the final end user of ash or byproducts
shall provide an explanation why that information is not available.
(7) Signatures of the operator and owner of the facility
certifying the accuracy of the information provided under the penalty
of perjury.
(8) Any other information that is necessary for the department to
determine the accuracy of the information provided pursuant to this
subdivision.
(c) To the extent that information specified in subdivision (b)
has previously been submitted by the owner or operator of a biomass
conversion facility in reports to another state agency or
instrument of a state agency, the owner or operator of the facility
may submit those reports to the department in satisfaction of
the requirements of subdivision (b) regarding that information
. Information required by subdivision (b) and not contained in the
previously submitted reports shall be provided separately to the
department.
(d) If any information provided by a biomass
conservation facility pursuant to this section is designated as
confidential, the department shall treat that information in
accordance with Section 40062 and its implementing regulations.
SEC. 435. Section 75220 of the Public Resources Code is amended to
read:
75220. (a) The Transit and Intercity Rail Capital Program is
hereby created to fund capital improvements and operational
investments that will reduce greenhouse gas emissions, modernize
California's intercity, commuter, and urban rail systems to achieve
all of the following policy objectives:
(1) Reduce greenhouse gas emissions.
(2) Expand and improve rail service to increase ridership.
(3) Integrate the rail service of the state's various rail
operators, including integration with the high-speed rail system.
(4) Improve rail safety.
(b) The Transportation Agency shall evaluate applications for
funding under the program consistent with the criteria set forth in
this chapter part and prepare a list of
projects recommended for funding. The list may be revised at any
time.
(c) The California Transportation Commission shall award grants to
applicants pursuant to the list prepared by the Transportation
Agency.
SEC. 436. Section 765 of the Public Utilities Code is amended to
read:
765. (a) When the federal National Transportation Safety Board
(NTSB) submits a safety recommendation letter concerning rail safety
to the commission, the commission shall provide the NTSB with a
formal written response to each recommendation no later than 90 days
after receiving the letter. The response shall state one of the
following:
(1) The commission's intent to implement the recommendations in
full, with a proposed timetable for implementation of the
recommendations.
(2) The commission's intent to implement part of the
recommendations, with a proposed timetable for implementation of
those recommendations, and detailed reasons for the commission's
refusal to implement those recommendations that the commission does
not intend to implement.
(3) The commission's refusal to implement the recommendations,
with detailed reasons for the commission's refusal to implement the
recommendations.
(b) If the NTSB issues a safety recommendation letter concerning
any commission-regulated rail facility to the United States
Department of Transportation, the Federal Transit Administration,
to a commission-regulated rail operator, or
to the commission, or if the Federal Transit
Administration issues a safety advisory concerning any
commission-regulated rail facility, the commission shall determine if
implementation of the recommendation or advisory is appropriate. The
basis for the commission's determination shall be detailed in
writing and shall be approved by a majority vote of the commission.
(c) If the commission determines that a safety recommendation made
by the NTSB is appropriate, or that action concerning a safety
advisory is necessary, the commission shall issue orders or adopt
rules to implement the safety recommendations
recommendation or advisory as soon as practicable. In
implementing the safety recommendation or advisory, the commission
shall consider whether a more effective, or equally effective and
less costly, alternative exists to address the safety issue that the
recommendation or advisory addresses.
(d) Any An action taken
by the commission on a safety recommendation letter or safety
advisory shall be reported annually, in detail, to the Legislature
with the report required by Section 321.6. Any
correspondence Correspondence from the NTSB
indicating that a recommendation has been closed following an action
that the NTSB finds unacceptable shall be noted in the report
required by Section 321.6.
SEC. 437. Section 957 of the Public Utilities Code, as added by
Section 2 of Chapter 519 of the Statutes of 2011, is repealed.
957. (a) (1) Unless the commission determines that it is
prohibited from doing so by Section 60104(c) of Title 49 of the
United States Code, the commission shall require the installation of
automatic shutoff or remote controlled sectionalized block valves on
both of the following facilities, if it determines those valves are
necessary for the protection of the public:
(A) Intrastate transmission lines that are located in a high
consequence area.
(B) Intrastate transmission lines that traverse an active seismic
earthquake fault.
(2) Each owner or operator of a commission-regulated gas pipeline
facility that is an intrastate transmission line shall provide the
commission with a valve location plan, along with any recommendations
for valve locations. The commission may make modifications to the
valve location plan or provide for variations from any location
requirements adopted by the commission pursuant to this section that
it deems necessary or appropriate and consistent with protection of
the public.
(3) The commission shall additionally establish action timelines,
adopt standards for how to prioritize installation of automatic
shutoff or remote controlled sectionalized block valves pursuant to
paragraph (1), ensure that remote and automatic shutoff valves are
installed as quickly as is reasonably possible, and establish ongoing
procedures for monitoring progress in achieving the requirements of
this section.
(b) The commission shall authorize recovery in rates for all
reasonably incurred costs incurred for implementation of the
requirements of this section.
(c) The commission, in consultation with the Pipeline and
Hazardous Materials Safety Administration of the United States
Department of Transportation, shall adopt and enforce compatible
safety standards for commission-regulated gas pipeline facilities
that the commission determines should be adopted to implement the
requirements of this section.
SEC. 438. Section 960 of the Public Utilities Code is amended to
read:
960. (a) When the federal National Transportation Safety Board
(NTSB) submits a safety recommendation letter concerning gas pipeline
safety to the commission, the commission shall provide the NTSB with
a formal written response to each recommendation not later than 90
days after receiving the letter. The response shall state one of the
following:
(1) The commission's intent to implement the recommendations in
full, with a proposed timetable for implementation of the
recommendations.
(2) The commission's intent to implement part of the
recommendations, with a proposed timetable for implementation of
those recommendations, and detailed reasons for the commission's
refusal to implement those recommendations that the commission does
not intend to implement.
(3) The commission's refusal to implement the recommendations,
with detailed reasons for the commission's refusal to implement the
recommendations.
(b) If the NTSB issues a safety recommendation letter concerning
any commission-regulated gas pipeline facility to the United States
Department of Transportation, the federal Pipeline and Hazardous
Materials Safety Administration (PHMSA), a gas corporation, or
to the commission, or the PHMSA issues an advisory
bulletin concerning any commission-regulated gas pipeline facility,
the commission shall determine if implementation of the
recommendation or advisory is appropriate. The basis for the
commission's determination shall be detailed in writing and shall be
approved by a majority vote of the commission.
(c) If the commission determines that a safety recommendation made
by the NTSB is appropriate or that action concerning an advisory
bulletin is necessary, the commission shall issue orders or adopt
rules to implement the safety recommendations
recommendation or advisory as soon as practicable. In
implementing the safety recommendation or advisory, the commission
shall consider whether a more effective, or equally effective and
less costly, alternative exists to address the safety issue that the
recommendation or advisory addresses.
(d) Any An action taken
by the commission on a safety recommendation letter or advisory
bulletin shall be reported annually, in detail, to the Legislature
with the report required by Section 321.6. Any
correspondence Correspondence from the NTSB that
indicates that a recommendation of the NTSB has been closed
following an action that the NTSB finds unacceptable shall be noted
in the report required by Section 321.6.
SEC. 439. Section 5384.2 of the Public Utilities Code, as added by
Section 2 of Chapter 649 of the Statutes of 2008, is amended and
renumbered to read:
5384.2. 5395. A school, school
district, or the state is not liable for transportation services
provided by an operator of a charter-party carrier operating a motor
vehicle as specified in subdivision (k) of Section 545 of the Vehicle
Code for which the school or school district has not contracted,
arranged, or otherwise provided.
SEC. 440. Section 120260 of the Public Utilities Code is amended
to read:
120260. The board shall provide input to the San Diego
Association of Governments on the planning and construction of
exclusive public mass transit guideways in the area under its
jurisdiction in conformance with the California Transportation Plan
and the regional transportation plan developed pursuant to Chapter
2.5 (commencing with Section 65080.1) 65080)
of Division 1 of Title 7 of the Government Code.
SEC. 441. The heading of Article 5 (commencing with Section
125300) of Chapter 4 of Division 11.5 of the Public Utilities Code is
repealed.
Article 5. Transportation Planning
SEC. 442. Section 125450 of the Public Utilities Code, as added by
Section 7 of Chapter 990 of the Statutes of 1993, is repealed.
125450. A violation of any ordinance, rule, or regulation enacted
by the board relating to the nonpayment of a fare in any transit
facility owned or controlled by the board shall be an infraction
punishable by a fine not exceeding seventy-five dollars ($75), except
that a violation by a person, after the second conviction under this
section, shall be a misdemeanor punishable by a fine not exceeding
five hundred dollars ($500) or by imprisonment in the county jail not
exceeding six months, or by both that fine and imprisonment.
SEC. 443. Section 125500 of the Public Utilities Code, as added by
Chapter 1188 of the Statutes of 1975, is repealed.
125500. This chapter shall become operative on the date the board
first begins to operate a public transit system pursuant to Section
125105.
SEC. 444. Section 54 of the Revenue and Taxation Code is repealed.
54. (a) Notwithstanding any other provision of law, no
modification of assessment procedures shall be made with respect to
real property on the basis of the invalidity of any portion of
Section 2 of Article XIII A of the California Constitution as
determined by the United States Supreme Court in the case of
Nordlinger v. Hahn.
(b) This section shall only be operative if the United States
Supreme Court, in its decision in the case of Nordlinger v. Hahn,
determines that any portion of Section 2 of Article XIII A of the
California Constitution is invalid, and shall, in that event, absent
a shorter period specified by the Legislature by statute, be
operative for only two years from the date of that decision.
SEC. 445. Section 196.91 of the Revenue and Taxation Code, as
added by Section 1 of Chapter 3 of the First Extraordinary Session of
the Statutes of 1995, is repealed.
196.91. In the 1994-95 fiscal year, or as soon as possible
thereafter, the county auditor of an eligible county, proclaimed by
the Governor to be in a state of disaster as a result of storm,
flooding, or any other related casualty that occurred in the county
in 1995, shall certify to the Director of Finance an estimate of the
total amount of the reduction in property tax revenues on both the
regular secured roll and the supplemental roll for that fiscal year
resulting from the reassessment of eligible properties by the county
assessor pursuant to Section 170, except that the amount certified
shall not include any estimated property tax revenue reductions to
school districts (other than basic state aid school districts) and
county offices of education. For purposes of this section, "basic
state aid school district" means any school district that does not
receive a state apportionment pursuant to subdivision (h) of Section
42238 of the Education Code, but receives from the state only a basic
apportionment pursuant to Section 6 of Article IX of the California
Constitution.
SEC. 446. Section 196.91 of the Revenue and Taxation Code, as
added by Section 1 of Chapter 4 of the First Extraordinary Session of
the Statutes of 1995, is repealed.
196.91. In the 1994-95 fiscal year, or as soon as possible
thereafter, the county auditor of an eligible county, proclaimed by
the Governor to be in a state of disaster as a result of storm,
flooding, or any other related casualty that occurred in the county
in 1995, shall certify to the Director of Finance an estimate of the
total amount of the reduction in property tax revenues on both the
regular secured roll and the supplemental roll for that fiscal year
resulting from the reassessment of eligible properties by the county
assessor pursuant to Section 170, except that the amount certified
shall not include any estimated property tax revenue reductions to
school districts (other than basic state aid school districts) and
county offices of education. For purposes of this section, "basic
state aid school district" means any school district that does not
receive a state apportionment pursuant to subdivision (h) of Section
42238 of the Education Code, but receives from the state only a basic
apportionment pursuant to Section 6 of Article IX of the California
Constitution.
SEC. 447. Section 196.92 of the Revenue and Taxation Code, as
added by Section 2 of Chapter 3 of the First Extraordinary Session of
the Statutes of 1995, is repealed.
196.92. After the county auditor of an eligible county, as
described in Section 196.91, has made the applicable certification to
the Director of Finance pursuant to Section 196.91, the director
shall, within 30 days after verification of the county auditor's
estimate, certify this amount to the Controller for allocation to the
county. Upon receipt of certification from the Director of Finance,
the Controller shall make the appropriate allocation to the county
within 10 working days thereafter.
SEC. 448. Section 196.92 of the Revenue and Taxation Code, as
added by Section 2 of Chapter 4 of the First Extraordinary Session of
the Statutes of 1995, is repealed.
196.92. After the county auditor of an eligible county, as
described in Section 196.91, has made the applicable certification to
the Director of Finance pursuant to Section 196.91, the director
shall, within 30 days after verification of the county auditor's
estimate, certify this amount to the Controller for allocation to the
county. Upon receipt of certification from the Director of Finance,
the Controller shall make the appropriate allocation to the county
within 10 working days thereafter.
SEC. 449. Section 441 of the Revenue and Taxation Code is amended
to read:
441. (a) Each person owning taxable personal property, other than
a manufactured home subject to Part 13 (commencing with Section
5800), having an aggregate cost of one hundred thousand dollars
($100,000) or more for any assessment year shall file a signed
property statement with the assessor. Every person owning personal
property that does not require the filing of a property statement or
real property shall, upon request of the assessor, file a signed
property statement. Failure of the assessor to request or secure the
property statement does not render any assessment invalid.
(b) The property statement shall be declared to be true under the
penalty of perjury and filed annually with the assessor between the
lien date and 5 p.m. on April 1. The penalty provided by Section 463
applies for property statements not filed by May 7. If May 7 falls on
a Saturday, Sunday, or legal holiday, a property statement that is
mailed and postmarked on the next business day shall be deemed to
have been filed between the lien date and 5 p.m. on May 7. If, on the
dates specified in this subdivision, the county's offices are closed
for the entire day, that day is considered a legal holiday for
purposes of this section.
(c) The property statement may be filed with the assessor through
the United States mail, properly addressed with postage prepaid. For
purposes of determining the date upon which the property statement is
deemed filed with the assessor, the date of postmark as affixed by
the United States Postal Service, or the date certified by a bona
fide private courier service on the envelope containing the
application, shall control. This subdivision shall be
applicable applies to every taxing agency,
including, but not limited to, a chartered city and county, or
chartered city.
(d) (1) At any time, as required by the assessor for assessment
purposes, every person shall make available for examination
information or records regarding his or her property or any other
personal property located on premises he or she owns or controls. In
this connection details of property acquisition transactions,
construction and development costs, rental income, and other data
relevant to the determination of an estimate of value are to be
considered as information essential to the proper discharge of the
assessor's duties.
(2) (A) This subdivision shall also
apply applies to an owner-builder or an
owner-developer of new construction that is sold to a third party, is
constructed on behalf of a third party, or is constructed for the
purpose of selling that property to a third party.
(B) The owner-builder or owner-developer of new construction
described in subparagraph (A), shall, within 45 days of receipt of a
written request by the assessor for information or records, provide
the assessor with all information and records regarding that
property. The information and records provided to the assessor shall
include the total consideration provided either by the purchaser or
on behalf of the purchaser that was paid or provided either, as part
of or outside of the purchase agreement, including, but not limited
to, consideration paid or provided for the purchase or acquisition of
upgrades, additions, or for any other additional or supplemental
work performed or arranged for by the owner-builder or
owner-developer on behalf of the purchaser.
(e) In the case of a corporate owner of property, the property
statement shall be signed either by an officer of the corporation or
an employee or agent who has been designated in writing by the board
of directors to sign the statements on behalf of the corporation.
(f) In the case of property owned by a bank or other financial
institution and leased to an entity other than a bank or other
financial institution, the property statement shall be submitted by
the owner bank or other financial institution.
(g) The assessor may refuse to accept any property statement he
or she determines to be in error.
(h) If a taxpayer fails to provide information to the assessor
pursuant to subdivision (d) and introduces any requested materials or
information at any assessment appeals board hearing, the assessor
may request and shall be granted a continuance for a reasonable
period of time. The continuance shall extend the two-year period
specified in subdivision (c) of Section 1604 for a period of time
equal to the period of the continuance.
(i) Notwithstanding any other provision of law, every person
required to file a property statement pursuant to this section shall
be permitted to amend that property statement until May 31 of the
year in which the property statement is due, for errors and omissions
not the result of willful intent to erroneously report. The penalty
authorized by Section 463 does not apply to an amended statement
received prior to May 31, provided the original statement is not
subject to penalty pursuant to subdivision (b). The amended property
statement shall otherwise conform to the requirements of a property
statement as provided in this article.
(j) This subdivision shall apply applies
to the oil, gas, and mineral extraction industry only. Any
information that is necessary to file a true, correct, and complete
statement shall be made available by the assessor, upon request, to
the taxpayer by mail or at the office of the assessor by February 28.
For each business day beyond February 28 that the information is
unavailable, the filing deadline in subdivision (b) shall be extended
in that county by one business day, for those statements affected by
the delay. In no case shall the filing deadline be extended beyond
June 1 or the first business day thereafter.
(k) The assessor may accept the filing of a property statement by
the use of electronic media. In lieu of the signature required by
subdivision (a) and the declaration under penalty of perjury required
by subdivision (b), property statements filed using electronic media
shall be authenticated pursuant to methods specified by the assessor
and approved by the board. Electronic media includes, but is not
limited to, computer modem, magnetic media, optical disk, and
facsimile machine.
(l) (1) After receiving the notice required by Section 1162, the
manager in control of a fleet of fractionally owned aircraft shall
file with the lead county assessor's office one signed property
statement for all of its aircraft that have acquired situs in the
state, as described in Section 1161.
(2) Flight data required to compute fractionally owned aircraft
allocation under Section 1161 shall be segregated by airport.
(m) (1) After receiving the notice required by paragraph (5) of
subdivision (b) of Section 1153.5, a commercial air carrier whose
certificated aircraft is subject to Article 6 (commencing with
Section 1150) of Chapter 5 shall file with the lead county assessor's
office designated under Section 1153.5 one signed property statement
for its personal property at all airport locations and fixtures at
all airport locations.
(2) Each commercial air carrier may file one schedule for all of
its certificated aircraft that have acquired situs in this state
under Section 1151.
(3) Flight data required to compute certificated aircraft
allocation under Section 1152 and subdivision (g) of Section 202 of
Title 18 of the California Code of Regulations shall be segregated by
airport location.
(4) Beginning with the 2006 assessment year, a commercial air
carrier may file a statement described in this subdivision
electronically by means of the California Assessor's Standard Data
Record (SDR) network. If the SDR is not equipped to accept electronic
filings for the 2006 assessment year, an air carrier may file a
printed version of its property statement for that year with its lead
county assessor's office.
(5) This subdivision shall remain in effect only until
become inoperative on December 31, 2015
, and as of that date is repealed .
SEC. 450. Section 6051.7 of the Revenue and Taxation Code is
repealed.
6051.7. (a) In addition to the taxes imposed by Section 6051 and
any other provision of this part, for the privilege of selling
tangible personal property at retail, a tax is hereby imposed upon
all retailers at the rate of 1 percent of the gross receipts of any
retailer from the sale of all tangible personal property sold at
retail in this state, on and after April 1, 2009.
(b) This section shall cease to be operative on July 1, 2011,
unless the Director of Finance makes the notification pursuant to
Section 99040 of the Government Code, in which case this section
shall cease to be operative on July 1, 2012.
SEC. 451. The heading of Article 1.5 (commencing with Section
7063) of Chapter 8 of Part 1 of Division 2 of the Revenue and
Taxation Code, as added by Section 1 of Chapter 443 of the Statutes
of 1999, is repealed.
Article 1.5. Public Disclosure of Tax Delinquencies
SEC. 452. Chapter 3.5 (commencing with Section 7288.1) of Part 1.7
of Division 2 of the Revenue and Taxation Code, as added by Section
2 of Chapter 14 of the 1st Extraordinary Session of the Statutes of
1991, is repealed.
SEC. 453. The heading of Part 5.5 (commencing with Section 11151)
of Division 2 of the Revenue and Taxation Code, as added by Section 1
of Chapter 966 of the Statutes of 1993, is amended and renumbered to
read:
PART 5.5. 5.6. LOCAL VEHICLE
LICENSE FEE SURCHARGE
SEC. 454. Section 17053.34 of the Revenue and Taxation Code is
amended to read:
17053.34. (a) For each taxable year beginning on or after January
1, 1998, there shall be allowed a credit against the "net tax" (as
defined in Section 17039) to a qualified taxpayer who employs a
qualified employee in a targeted tax area during the taxable year.
The credit shall be equal to the sum of each of the following:
(1) Fifty percent of qualified wages in the first year of
employment.
(2) Forty percent of qualified wages in the second year of
employment.
(3) Thirty percent of qualified wages in the third year of
employment.
(4) Twenty percent of qualified wages in the fourth year of
employment.
(5) Ten percent of qualified wages in the fifth year of
employment.
(b) For purposes of this section:
(1) "Qualified wages" means:
(A) That portion of wages paid or incurred by the qualified
taxpayer during the taxable year to qualified employees that does not
exceed 150 percent of the minimum wage.
(B) Wages received during the 60-month period beginning with the
first day the employee commences employment with the qualified
taxpayer. Reemployment in connection with any increase, including a
regularly occurring seasonal increase, in the trade or business
operations of the qualified taxpayer does not constitute commencement
of employment for purposes of this section.
(C) Qualified wages do not include any wages paid or incurred by
the qualified taxpayer on or after the targeted tax area expiration
date. However, wages paid or incurred with respect to qualified
employees who are employed by the qualified taxpayer within the
targeted tax area within the 60-month period prior to the targeted
tax area expiration date shall continue to qualify for the credit
under this section after the targeted tax area expiration date, in
accordance with all provisions of this section applied as if the
targeted tax area designation were still in existence and binding.
(2) "Minimum wage" means the wage established by the Industrial
Welfare Commission as provided for in Chapter 1 (commencing with
Section 1171) of Part 4 of Division 2 of the Labor Code.
(3) "Targeted tax area expiration date" means the date the
targeted tax area designation expires, is revoked, is no longer
binding, becomes inoperative, or is repealed.
(4) (A) "Qualified employee" means an individual who meets all of
the following requirements:
(i) At least 90 percent of his or her services for the qualified
taxpayer during the taxable year are directly related to the conduct
of the qualified taxpayer's trade or business located in a targeted
tax area.
(ii) Performs at least 50 percent of his or her services for the
qualified taxpayer during the taxable year in a targeted tax area.
(iii) Is hired by the qualified taxpayer after the date of
original designation of the area in which services were performed as
a targeted tax area.
(iv) Is any of the following:
(I) Immediately preceding the qualified employee's commencement of
employment with the qualified taxpayer, was a person eligible for
services under the federal Job Training Partnership Act (29 U.S.C.
Sec. 1501 et seq.), or its successor, who is receiving, or is
eligible to receive, subsidized employment, training, or services
funded by the federal Job Training Partnership Act, or its successor.
(II) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was a person eligible to
be a voluntary or mandatory registrant under the Greater Avenues for
Independence Act of 1985 (GAIN) provided for pursuant to Article 3.2
(commencing with Section 11320) of Chapter 2 of Part 3 of Division 9
of the Welfare and Institutions Code, or its successor.
(III) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was an economically
disadvantaged individual 14 years of age or older.
(IV) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was a dislocated worker
who meets any of the following:
(aa)
(ia) Has been terminated or laid off or who has
received a notice of termination or layoff from employment, is
eligible for or has exhausted entitlement to unemployment insurance
benefits, and is unlikely to return to his or her previous industry
or occupation.
(bb)
(ib) Has been terminated or has received a notice of
termination of employment as a result of any permanent closure or any
substantial layoff at a plant, facility, or enterprise, including an
individual who has not received written notification but whose
employer has made a public announcement of the closure or layoff.
(cc)
(ic) Is long-term unemployed and has limited
opportunities for employment or reemployment in the same or a similar
occupation in the area in which the individual resides, including an
individual 55 years of age or older who may have substantial
barriers to employment by reason of age.
(dd)
(id) Was self-employed (including farmers and ranchers)
and is unemployed as a result of general economic conditions in the
community in which he or she resides or because of natural disasters.
(ee)
(ie) Was a civilian employee of the Department of
Defense employed at a military installation being closed or realigned
under the Defense Base Closure and Realignment Act of 1990.
(ff)
(if) Was an active member of the Armed Forces or
National Guard as of September 30, 1990, and was either involuntarily
separated or separated pursuant to a special benefits program.
(gg)
(ig) Is a seasonal or migrant worker who experiences
chronic seasonal unemployment and underemployment in the agriculture
industry, aggravated by continual advancements in technology and
mechanization.
(hh)
(ih) Has been terminated or laid off, or has received a
notice of termination or layoff, as a consequence of compliance with
the Clean Air Act.
(V) Immediately preceding the qualified employee's commencement of
employment with the qualified taxpayer, was a disabled individual
who is eligible for or enrolled in, or has completed a state
rehabilitation plan or is a service-connected disabled veteran,
veteran of the Vietnam era, or veteran who is recently separated from
military service.
(VI) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was an ex-offender. An
individual shall be treated as convicted if he or she was placed on
probation by a state court without a finding of guilty.
(VII) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was a person eligible for
or a recipient of any of the following:
(aa)
(ia) Federal Supplemental Security Income benefits.
(bb)
(ib) Aid to Families with Dependent Children.
(cc)
(ic) CalFresh benefits.
(dd)
(id) State and local general assistance.
(VIII) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was a member of a
federally recognized Indian tribe, band, or other group of Native
American descent.
(IX) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was a resident of a
targeted tax area.
(X) Immediately preceding the qualified employee's commencement of
employment with the taxpayer, was a member of a targeted group as
defined in Section 51(d) of the Internal Revenue Code, or its
successor.
(B) Priority for employment shall be provided to an individual who
is enrolled in a qualified program under the federal Job Training
Partnership Act or the Greater Avenues for Independence Act of 1985
or who is eligible as a member of a targeted group under the Work
Opportunity Tax Credit (Section 51 of the Internal Revenue Code), or
its successor.
(5) (A) "Qualified taxpayer" means a person or entity that meets
both of the following:
(i) Is engaged in a trade or business within a targeted tax area
designated pursuant to Chapter 12.93 (commencing with Section 7097)
of Division 7 of Title 1 of the Government Code.
(ii) Is engaged in those lines of business described in Codes 2000
to 2099, inclusive; 2200 to 3999, inclusive; 4200 to 4299,
inclusive; 4500 to 4599, inclusive; and 4700 to 5199, inclusive, of
the Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition.
(B) In the case of any passthrough entity, the determination of
whether a taxpayer is a qualified taxpayer under this section shall
be made at the entity level and any credit under this section or
Section 23634 shall be allowed to the passthrough entity and passed
through to the partners or shareholders in accordance with applicable
provisions of this part
or Part 11 (commencing with Section 23001). For purposes of this
subdivision, the term "passthrough entity" means any partnership or S
corporation.
(6) "Seasonal employment" means employment by a qualified taxpayer
that has regular and predictable substantial reductions in trade or
business operations.
(c) If the qualified taxpayer is allowed a credit for qualified
wages pursuant to this section, only one credit shall be allowed to
the taxpayer under this part with respect to those qualified wages.
(d) The qualified taxpayer shall do both of the following:
(1) Obtain from the Employment Development Department, as
permitted by federal law, the local county or city Job Training
Partnership Act administrative entity, the local county GAIN office
or social services agency, or the local government administering the
targeted tax area, a certification that provides that a qualified
employee meets the eligibility requirements specified in clause (iv)
of subparagraph (A) of paragraph (4) of subdivision (b). The
Employment Development Department may provide preliminary screening
and referral to a certifying agency. The Department of Housing and
Community Development shall develop regulations governing the
issuance of certificates pursuant to subdivision (g) of Section 7097
of the Government Code, and shall develop forms for this purpose.
(2) Retain a copy of the certification and provide it upon request
to the Franchise Tax Board.
(e) (1) For purposes of this section:
(A) All employees of trades or businesses, which are not
incorporated, that are under common control shall be treated as
employed by a single taxpayer.
(B) The credit, if any, allowable by this section with respect to
each trade or business shall be determined by reference to its
proportionate share of the expense of the qualified wages giving rise
to the credit, and shall be allocated in that manner.
(C) Principles that apply in the case of controlled groups of
corporations, as specified in subdivision (d)
(e) of Section 23634, shall apply with
respect to determining employment.
(2) If an employer acquires the major portion of a trade or
business of another employer (hereinafter in this paragraph referred
to as the "predecessor") or the major portion of a separate unit of a
trade or business of a predecessor, then, for purposes of applying
this section (other than subdivision (f)) for any calendar year
ending after that acquisition, the employment relationship between a
qualified employee and an employer shall not be treated as terminated
if the employee continues to be employed in that trade or business.
(f) (1) (A) If the employment, other than seasonal employment, of
any qualified employee, with respect to whom qualified wages are
taken into account under subdivision (a) is terminated by the
qualified taxpayer at any time during the first 270 days of that
employment (whether or not consecutive) or before the close of the
270th calendar day after the day in which that employee completes 90
days of employment with the qualified taxpayer, the tax imposed by
this part for the taxable year in which that employment is terminated
shall be increased by an amount equal to the credit allowed under
subdivision (a) for that taxable year and all prior taxable years
attributable to qualified wages paid or incurred with respect to that
employee.
(B) If the seasonal employment of any qualified employee, with
respect to whom qualified wages are taken into account under
subdivision (a) is not continued by the qualified taxpayer for a
period of 270 days of employment during the 60-month period beginning
with the day the qualified employee commences seasonal employment
with the qualified taxpayer, the tax imposed by this part, for the
taxable year that includes the 60th month following the month in
which the qualified employee commences seasonal employment with the
qualified taxpayer, shall be increased by an amount equal to the
credit allowed under subdivision (a) for that taxable year and all
prior taxable years attributable to qualified wages paid or incurred
with respect to that qualified employee.
(2) (A) Subparagraph (A) of paragraph (1) shall
does not apply to any of the following:
(i) A termination of employment of a qualified employee who
voluntarily leaves the employment of the qualified taxpayer.
(ii) A termination of employment of a qualified employee who,
before the close of the period referred to in subparagraph (A) of
paragraph (1), becomes disabled and unable to perform the services of
that employment, unless that disability is removed before the close
of that period and the qualified taxpayer fails to offer reemployment
to that employee.
(iii) A termination of employment of a qualified employee, if it
is determined that the termination was due to the misconduct (as
defined in Sections 1256-30 to 1256-43, inclusive, of Title 22 of the
California Code of Regulations) of that employee.
(iv) A termination of employment of a qualified employee due to a
substantial reduction in the trade or business operations of the
qualified taxpayer.
(v) A termination of employment of a qualified employee, if that
employee is replaced by other qualified employees so as to create a
net increase in both the number of employees and the hours of
employment.
(B) Subparagraph (B) of paragraph (1) shall not apply to any of
the following:
(i) A failure to continue the seasonal employment of a qualified
employee who voluntarily fails to return to the seasonal employment
of the qualified taxpayer.
(ii) A failure to continue the seasonal employment of a qualified
employee who, before the close of the period referred to in
subparagraph (B) of paragraph (1), becomes disabled and unable to
perform the services of that seasonal employment, unless that
disability is removed before the close of that period and the
qualified taxpayer fails to offer seasonal employment to that
qualified employee.
(iii) A failure to continue the seasonal employment of a qualified
employee, if it is determined that the failure to continue the
seasonal employment was due to the misconduct (as defined in Sections
1256-30 to 1256-43, inclusive, of Title 22 of the California Code of
Regulations) of that qualified employee.
(iv) A failure to continue seasonal employment of a qualified
employee due to a substantial reduction in the regular seasonal trade
or business operations of the qualified taxpayer.
(v) A failure to continue the seasonal employment of a qualified
employee, if that qualified employee is replaced by other qualified
employees so as to create a net increase in both the number of
seasonal employees and the hours of seasonal employment.
(C) For purposes of paragraph (1), the employment relationship
between the qualified taxpayer and a qualified employee shall not be
treated as terminated by reason of a mere change in the form of
conducting the trade or business of the qualified taxpayer, if the
qualified employee continues to be employed in that trade or business
and the qualified taxpayer retains a substantial interest in that
trade or business.
(3) Any An increase in tax under
paragraph (1) shall not be treated as tax imposed by this part for
purposes of determining the amount of any credit allowable under this
part.
(g) In the case of an estate or trust, both of the following
apply:
(1) The qualified wages for any taxable year shall be apportioned
between the estate or trust and the beneficiaries on the basis of the
income of the estate or trust allocable to each.
(2) Any A beneficiary to whom any
qualified wages have been apportioned under paragraph (1) shall be
treated, for purposes of this part, as the employer with respect to
those wages.
(h) For purposes of this section, "targeted tax area" means an
area designated pursuant to Chapter 12.93 (commencing with Section
7097) of Division 7 of Title 1 of the Government Code.
(i) In the case where in which the
credit otherwise allowed under this section exceeds the "net tax" for
the taxable year, that portion of the credit that exceeds the "net
tax" may be carried over and added to the credit, if any, in the
succeeding 10 taxable years, if necessary, until the credit is
exhausted. The credit shall be applied first to the earliest taxable
years possible.
(j) (1) The amount of the credit otherwise allowed under this
section and Section 17053.33, including any credit carryover from
prior years, that may reduce the "net tax" for the taxable year shall
not exceed the amount of tax that would be imposed on the qualified
taxpayer's business income attributable to the targeted tax area
determined as if that attributable income represented all of the
income of the qualified taxpayer subject to tax under this part.
(2) Attributable income shall be that portion of the taxpayer's
California source business income that is apportioned to the targeted
tax area. For that purpose, the taxpayer's business income
attributable to sources in this state first shall be determined in
accordance with Chapter 17 (commencing with Section 25101) of Part
11. That business income shall be further apportioned to the targeted
tax area in accordance with Article 2 (commencing with Section
25120) of Chapter 17 of Part 11, modified for purposes of this
section in accordance with paragraph (3).
(3) Business income shall be apportioned to the targeted tax area
by multiplying the total California business income of the taxpayer
by a fraction, the numerator of which is the property factor plus the
payroll factor, and the denominator of which is two. For purposes of
this paragraph:
(A) The property factor is a fraction, the numerator of which is
the average value of the taxpayer's real and tangible personal
property owned or rented and used in the targeted tax area during the
taxable year, and the denominator of which is the average value of
all the taxpayer's real and tangible personal property owned or
rented and used in this state during the taxable year.
(B) The payroll factor is a fraction, the numerator of which is
the total amount paid by the taxpayer in the targeted tax area during
the taxable year for compensation, and the denominator of which is
the total compensation paid by the taxpayer in this state during the
taxable year.
(4) The portion of any credit remaining, if any, after application
of this subdivision, shall be carried over to succeeding taxable
years, if necessary, until the credit is exhausted, as if it were an
amount exceeding the "net tax" for the taxable year, as provided in
subdivision (i). However, the portion of any credit remaining for
carryover to taxable years beginning on or after January 1, 2014, if
any, after application of this subdivision, shall be carried over
only to the succeeding 10 taxable years, if necessary, until the
credit is exhausted, as if it were an amount exceeding the "net tax"
for the taxable year, as provided in subdivision (i).
(5) In the event that a credit carryover is allowable under
subdivision (i) for any taxable year after the targeted tax area
expiration date, the targeted tax area shall be deemed to remain in
existence for purposes of computing the limitation specified in this
subdivision.
(k) (1) Except as provided in paragraph (2), this section shall
cease to be operative for taxable years beginning on or after January
1, 2014, and shall be repealed on December 1, 2019.
(2) The section shall continue to apply with respect to qualified
employees who are employed by the qualified taxpayer within the
targeted tax area within the 60-month period immediately preceding
January 1, 2014, and qualified wages paid or incurred with respect to
those qualified employees shall continue to qualify for the credit
under this section for taxable years beginning on or after January 1,
2014, in accordance with this section, as amended by the act adding
this subdivision.
SEC. 455. Section 17053.46 of the Revenue and Taxation Code is
amended to read:
17053.46. (a) For each taxable year beginning on or after January
1, 1995, there shall be allowed as a credit against the "net tax"
(as defined in Section 17039) to a qualified taxpayer for hiring a
qualified disadvantaged individual or a qualified displaced employee
during the taxable year for employment in the LAMBRA. The credit
shall be equal to the sum of each of the following:
(1) Fifty percent of the qualified wages in the first year of
employment.
(2) Forty percent of the qualified wages in the second year of
employment.
(3) Thirty percent of the qualified wages in the third year of
employment.
(4) Twenty percent of the qualified wages in the fourth year of
employment.
(5) Ten percent of the qualified wages in the fifth year of
employment.
(b) For purposes of this section:
(1) "Qualified wages" means:
(A) That portion of wages paid or incurred by the employer during
the taxable year to qualified disadvantaged individuals or qualified
displaced employees that does not exceed 150 percent of the minimum
wage.
(B) The total amount of qualified wages which may be taken into
account for purposes of claiming the credit allowed under this
section shall not exceed two million dollars ($2,000,000) per taxable
year.
(C) Wages received during the 60-month period beginning with the
first day the individual commences employment with the taxpayer.
Reemployment in connection with any increase, including a regularly
occurring seasonal increase, in the trade or business operations of
the qualified taxpayer does not constitute commencement of employment
for purposes of this section.
(D) Qualified wages do not include any wages paid or incurred by
the qualified taxpayer on or after the LAMBRA expiration date.
However, wages paid or incurred with respect to qualified
disadvantaged individuals or qualified displaced employees who are
employed by the qualified taxpayer within the LAMBRA within the
60-month period prior to the LAMBRA expiration date shall continue to
qualify for the credit under this section after the LAMBRA
expiration date, in accordance with all provisions of this section
applied as if the LAMBRA designation were still in existence and
binding.
(2) "Minimum wage" means the wage established by the Industrial
Welfare Commission as provided for in Chapter 1 (commencing with
Section 1171) of Part 4 of Division 2 of the Labor Code.
(3) "LAMBRA" means a local agency military base recovery area
designated in accordance with Section 7114 of the Government Code.
(4) "Qualified disadvantaged individual" means an individual who
satisfies all of the following requirements:
(A) (i) At least 90 percent of whose services for the taxpayer
during the taxable year are directly related to the conduct of the
taxpayer's trade or business located in a LAMBRA.
(ii) Who performs at least 50 percent of his or her services for
the taxpayer during the taxable year in the LAMBRA.
(B) Who is hired by the employer after the designation of the area
as a LAMBRA in which the individual's services were primarily
performed.
(C) Who is any of the following immediately preceding the
individual's commencement of employment with the taxpayer:
(i) An individual who has been determined eligible for services
under the federal Job Training Partnership Act (29 U.S.C. Sec. 1501
et seq.).
(ii) Any voluntary or mandatory registrant under the Greater
Avenues for Independence Act of 1985 as provided pursuant to Article
3.2 (commencing with Section 11320) of Chapter 2 of Part 3 of
Division 9 of the Welfare and Institutions Code.
(iii) An economically disadvantaged individual age 16 years or
older.
(iv) A dislocated worker who meets any of the following
conditions:
(I) Has been terminated or laid off or who has received a notice
of termination or layoff from employment, is eligible for or has
exhausted entitlement to unemployment insurance benefits, and is
unlikely to return to his or her previous industry or occupation.
(II) Has been terminated or has received a notice of termination
of employment as a result of any permanent closure or any substantial
layoff at a plant, facility, or enterprise, including an individual
who has not received written notification but whose employer has made
a public announcement of the closure or layoff.
(III) Is long-term unemployed and has limited opportunities for
employment or reemployment in the same or a similar occupation in the
area in which the individual resides, including an individual 55
years of age or older who may have substantial barriers to employment
by reason of age.
(IV) Was self-employed (including farmers and ranchers) and is
unemployed as a result of general economic conditions in the
community in which he or she resides or because of natural disasters.
(V) Was a civilian employee of the Department of Defense employed
at a military installation being closed or realigned under the
Defense Base Closure and Realignment Act of 1990.
(VI) Was an active member of the Armed Forces or National Guard as
of September 30, 1990, and was either involuntarily separated or
separated pursuant to a special benefits program.
(VII) Experiences chronic seasonal unemployment and
underemployment in the agriculture industry, aggravated by continual
advancements in technology and mechanization.
(VIII) Has been terminated or laid off or has received a notice of
termination or layoff as a consequence of compliance with the Clean
Air Act.
(v) An individual who is enrolled in or has completed a state
rehabilitation plan or is a service-connected disabled veteran,
veteran of the Vietnam era, or veteran who is recently separated from
military service.
(vi) An ex-offender. An individual shall be treated as convicted
if he or she was placed on probation by a state court without a
finding of guilty.
(vii) A recipient of:
(I) Federal Supplemental Security Income benefits.
(II) Aid to Families with Dependent Children.
(III) CalFresh benefits.
(IV) State and local general assistance.
(viii) Is a member of a federally recognized Indian tribe, band,
or other group of Native American descent.
(5) "Qualified taxpayer" means a taxpayer or partnership that
conducts a trade or business within a LAMBRA and, for the first two
taxable years, has a net increase in jobs (defined as 2,000 paid
hours per employee per year) of one or more employees in the LAMBRA.
(A) The net increase in the number of jobs shall be determined by
subtracting the total number of full-time employees (defined as 2,000
paid hours per employee per year) the taxpayer employed in this
state in the taxable year prior to commencing business operations in
the LAMBRA from the total number of full-time employees the taxpayer
employed in this state during the second taxable year after
commencing business operations in the LAMBRA. For taxpayers who
commence doing business in this state with their LAMBRA business
operation, the number of employees for the taxable year prior to
commencing business operations in the LAMBRA shall be zero. If the
taxpayer has a net increase in jobs in the state, the credit shall be
allowed only if one or more full-time employees is employed within
the LAMBRA.
(B) The total number of employees employed in the LAMBRA shall
equal the sum of both of the following:
(i) The total number of hours worked in the LAMBRA for the
taxpayer by employees (not to exceed 2,000 hours per employee) who
are paid an hourly wage divided by 2,000.
(ii) The total number of months worked in the LAMBRA for the
taxpayer by employees who are salaried employees divided by 12.
(C) In the case of a taxpayer who first commences doing business
in the LAMBRA during the taxable year, for purposes of clauses (i)
and (ii), respectively, of subparagraph (B), the divisors "2,000" and
"12" shall be multiplied by a fraction, the numerator of which is
the number of months of the taxable year that the taxpayer was doing
business in the LAMBRA and the denominator of which is 12.
(6) "Qualified displaced employee" means an individual who
satisfies all of the following requirements:
(A) Any civilian or military employee of a base or former base who
has been displaced as a result of a federal base closure act.
(B) (i) At least 90 percent of whose services for the taxpayer
during the taxable year are directly related to the conduct of the
taxpayer's trade or business located in a LAMBRA.
(ii) Who performs at least 50 percent of his or her services for
the taxpayer during the taxable year in a LAMBRA.
(C) Who is hired by the employer after the designation of the area
in which services were performed as a LAMBRA.
(7) "Seasonal employment" means employment by a qualified taxpayer
that has regular and predictable substantial reductions in trade or
business operations.
(8) "LAMBRA expiration date" means the date the LAMBRA designation
expires, is no longer binding, becomes inoperative, or is repealed.
(c) For qualified disadvantaged individuals or qualified displaced
employees hired on or after January 1, 2001, the taxpayer shall do
both of the following:
(1) Obtain from the Employment Development Department, as
permitted by federal law, the local county or city Job Training
Partnership Act administrative entity, the local county GAIN office
or social services agency, or the local government administering the
LAMBRA, a certification that provides that a qualified disadvantaged
individual or qualified displaced employee meets the eligibility
requirements specified in subparagraph (C) of paragraph (4) of
subdivision (b) or subparagraph (A) of paragraph (6) of subdivision
(b). The Employment Development Department may provide preliminary
screening and referral to a certifying agency. The Department of
Housing and Community Development shall develop regulations governing
the issuance of certificates pursuant to Section 7114.2 of the
Government Code and shall develop forms for this purpose.
(2) Retain a copy of the certification and provide it upon request
to the Franchise Tax Board.
(d) (1) For purposes of this section, both of the following apply:
(A) All employees of trades or businesses that are under common
control shall be treated as employed by a single employer.
(B) The credit (if any) allowable by this section with respect to
each trade or business shall be determined by reference to its
proportionate share of the qualified wages giving rise to the credit.
The regulations prescribed under this paragraph shall be based on
principles similar to the principles that apply in the case of
controlled groups of corporations as specified in paragraph (1)
of subdivision (e) (d) of Section
23622. 23622.7.
(2) If an employer acquires the major portion of a trade or
business of another employer (hereinafter in this paragraph referred
to as the "predecessor") or the major portion of a separate unit of a
trade or business of a predecessor, then, for purposes of applying
this section (other than subdivision (d)) for any calendar year
ending after that acquisition, the employment relationship between an
employee and an employer shall not be treated as terminated if the
employee continues to be employed in that trade or business.
(e) (1) (A) If the employment, other than seasonal employment, of
any employee, with respect to whom qualified wages are taken into
account under subdivision (a), is terminated by the taxpayer at any
time during the first 270 days of that employment (whether or not
consecutive) or before the close of the 270th calendar day after the
day in which that employee completes 90 days of employment with the
taxpayer, the tax imposed by this part for the taxable year in which
that employment is terminated shall be increased by an amount
(determined under those regulations) equal to the credit allowed
under subdivision (a) for that taxable year and all prior taxable
years attributable to qualified wages paid or incurred with respect
to that employee.
(B) If the seasonal employment of any a
qualified disadvantaged individual, with respect to whom
qualified wages are taken into account under subdivision (a), is not
continued by the qualified taxpayer for a period of 270 days of
employment during the 60-month period beginning with the day the
qualified disadvantaged individual commences seasonal employment with
the qualified taxpayer, the tax imposed by this part, for the
taxable year that includes the 60th month following the month in
which the qualified disadvantaged individual commences seasonal
employment with the qualified taxpayer, shall be increased by an
amount equal to the credit allowed under subdivision (a) for that
taxable year and all prior taxable years attributable to qualified
wages paid or incurred with respect to that qualified disadvantaged
individual.
(2) (A) Subparagraph (A) of paragraph (1) shall
does not apply to any of the following:
(i) A termination of employment of an employee who voluntarily
leaves the employment of the taxpayer.
(ii) A termination of employment of an individual who, before the
close of the period referred to in subparagraph (A) of paragraph (1),
becomes disabled to perform the services of that employment, unless
that disability is removed before the close of that period and the
taxpayer fails to offer reemployment to that individual.
(iii) A termination of employment of an individual, if it is
determined that the termination was due to the misconduct (as defined
in Sections 1256-30 to 1256-43, inclusive, of Title 22 of the
California Code of Regulations) of that individual.
(iv) A termination of employment of an individual due to a
substantial reduction in the trade or business operations of the
taxpayer.
(v) A termination of employment of an individual, if that
individual is replaced by other qualified employees so as to create a
net increase in both the number of employees and the hours of
employment.
(B) Subparagraph (B) of paragraph (1) shall
does not apply to any of the following:
(i) A failure to continue the seasonal employment of a qualified
disadvantaged individual who voluntarily fails to return to the
seasonal employment of the qualified taxpayer.
(ii) A failure to continue the seasonal employment of a qualified
disadvantaged individual who, before the close of the period referred
to in subparagraph (B) of paragraph (1), becomes disabled and unable
to perform the services of that seasonal employment, unless that
disability is removed before the close of that period and the
qualified taxpayer fails to offer seasonal employment to that
individual.
(iii) A failure to continue the seasonal employment of a
qualified disadvantaged individual, if it is determined that the
failure to continue the seasonal employment was due to the misconduct
(as defined in Sections 1256-30 to 1256-43, inclusive, of Title 22
of the California Code of Regulations) of that qualified
disadvantaged individual.
(iv) A failure to continue seasonal employment of a qualified
disadvantaged individual due to a substantial reduction in the
regular seasonal trade or business operations of the qualified
taxpayer.
(v) A failure to continue the seasonal employment of a qualified
disadvantaged individual, if that individual is replaced by other
qualified displaced employees so as to create a net increase in both
the number of seasonal employees and the hours of seasonal
employment.
(C) For purposes of paragraph (1), the employment relationship
between the taxpayer and an employee shall not be treated as
terminated by reason of a mere change in the form of conducting the
trade or business of the taxpayer, if the employee continues to be
employed in that trade or business and the taxpayer retains a
substantial interest in that trade or business.
(3) Any An increase in tax under
paragraph (1) shall not be treated as tax imposed by this part for
purposes of determining the amount of any credit allowable under this
part.
(4) At the close of the second taxable year, if the taxpayer has
not increased the number of its employees as determined by paragraph
(5) of subdivision (b), then the amount of the credit previously
claimed shall be added to the taxpayer's net tax for the taxpayer's
second taxable year.
(f) In the case of an estate or trust, both of the following
apply:
(1) The qualified wages for any taxable year shall be apportioned
between the estate or trust and the beneficiaries on the basis of the
income of the estate or trust allocable to each.
(2) Any A beneficiary to whom any
qualified wages have been apportioned under paragraph (1) shall be
treated (for purposes of this part) as the employer with respect to
those wages.
(g) The credit shall be reduced by the credit allowed under
Section 17053.7. The credit shall also be reduced by the federal
credit allowed under Section 51 of the Internal Revenue Code.
In addition, any deduction otherwise allowed under this part for
the wages or salaries paid or incurred by the taxpayer upon which the
credit is based shall be reduced by the amount of the credit, prior
to any reduction required by subdivision (h) or (i).
(h) In the case where the credit otherwise allowed under this
section exceeds the "net tax" for the taxable year, that portion of
the credit that exceeds the "net tax" may be carried over and added
to the credit, if any, in the succeeding 10 taxable years, if
necessary, until the credit is exhausted. The credit shall be applied
first to the earliest taxable years possible.
(i) (1) The amount of credit otherwise allowed under this section
and Section 17053.45, including prior year credit carryovers, that
may reduce the "net tax" for the taxable year shall not exceed the
amount of tax that would be imposed on the taxpayer's business income
attributed to a LAMBRA determined as if that attributed income
represented all of the net income of the taxpayer subject to tax
under this part.
(2) Attributable income shall be that portion of the taxpayer's
California source business income that is apportioned to the LAMBRA.
For that purpose, the taxpayer's business income that is attributable
to sources in this state first shall be determined in accordance
with Chapter 17 (commencing with Section 25101) of Part 11. That
business income shall be further apportioned to the LAMBRA in
accordance with Article 2 (commencing with Section 25120) of Chapter
17 of Part 11, modified for purposes of this section in accordance
with paragraph (3).
(3) Income shall be apportioned to a LAMBRA by multiplying the
total California business income of the taxpayer by a fraction, the
numerator of which is the property factor plus the payroll factor,
and the denominator of which is two. For purposes of this paragraph:
(A) The property factor is a fraction, the numerator of which is
the average value of the taxpayer's real and tangible personal
property owned or rented and used in the LAMBRA during the taxable
year, and the denominator of which is the average value of all the
taxpayer's real and tangible personal property owned or rented and
used in this state during the taxable year.
(B) The payroll factor is a fraction, the numerator of which is
the total amount paid by the taxpayer in the LAMBRA during the
taxable year for compensation, and the denominator of which is the
total compensation paid by the taxpayer in this state during the
taxable year.
(4) The portion of any credit remaining, if any, after application
of this subdivision, shall be carried over to succeeding taxable
years, if necessary, until the credit is exhausted, as if it were an
amount exceeding the "net tax" for the taxable year, as provided in
subdivision (h). However, the portion of any credit remaining for
carryover to taxable years beginning on or after January 1, 2014, if
any, after application of this subdivision, shall be carried over
only to the succeeding 10 taxable years if necessary, until the
credit is exhausted, as if it were an amount exceeding the "net tax"
for the taxable year, as provided in subdivision (h).
(j) If the taxpayer is allowed a credit pursuant to this section
for qualified wages paid or incurred, only one credit shall be
allowed to the taxpayer under this part with respect to any wage
consisting in whole or in part of those qualified wages.
(k) (1) Except as provided in paragraph (2), this section shall
cease to be operative on January 1, 2014, and shall be repealed on
December 1, 2019. A credit shall not be allowed under this section
with respect to an employee who first commences employment with a
qualified taxpayer on or after January 1, 2014.
(2) This section shall continue to apply with respect to qualified
disadvantaged individuals or qualified displaced employees who are
employed by the qualified taxpayer within the LAMBRA within the
60-month period immediately preceding January 1, 2014, and qualified
wages paid or incurred with respect to those qualified disadvantaged
individuals or qualified displaced employees shall continue to
qualify for the credit under this section for taxable years beginning
on or after January 1, 2014, in accordance with this section, as
amended by the act adding this subdivision.
SEC. 456. Section 17053.73 of the Revenue and Taxation Code is
amended to read:
17053.73. (a) (1) For each taxable year beginning on or after
January 1, 2014, and before January 1, 2021, there shall be allowed
to a qualified taxpayer that hires a qualified full-time employee and
pays or incurs qualified wages attributable to work performed by the
qualified full-time employee in a designated census tract or
economic development area, and that receives a tentative credit
reservation for that qualified full-time employee, a credit against
the "net tax," as defined in Section 17039, in an amount calculated
under this section.
(2) The amount of the credit allowable under this section for a
taxable year shall be equal to the product of the tentative credit
amount for the taxable year and the applicable percentage for that
taxable year.
(3) (A) If a qualified taxpayer relocates to a designated census
tract or economic development area, the qualified taxpayer shall be
allowed a credit with respect to qualified wages for each qualified
full-time employee employed within the new location only if the
qualified taxpayer provides each employee at the previous location or
locations a written offer of employment at the new location in the
designated census tract or economic development area with comparable
compensation.
(B) For purposes of this paragraph, "relocates to a designated
census tract or economic development area" means an increase in the
number of qualified full-time employees, employed by a qualified
taxpayer, within a designated census tract or tracts or economic
development areas within a 12-month period in which there is a
decrease in the number of full-time employees, employed by the
qualified taxpayer in this state, but outside of designated census
tracts or economic development areas.
(C) This paragraph shall does not
apply to a small business.
(4) The credit allowed by this section may be claimed only on a
timely filed original return of the qualified taxpayer and only with
respect to a qualified full-time employee for whom the qualified
taxpayer has received a tentative credit reservation.
(b) For purposes of this section:
(1) The "tentative credit amount" for a taxable year shall be
equal to the product of the applicable credit percentage for each
qualified full-time employee and the qualified wages paid by the
qualified taxpayer during the taxable year to that qualified
full-time employee.
(2) The "applicable percentage" for a taxable year shall be equal
to a fraction, the numerator of which is the net increase in the
total number of full-time employees employed in this state during the
taxable year, determined on an annual full-time equivalent basis, as
compared with the total number of full-time employees employed in
this state during the base year, determined on the same basis, and
the denominator of which shall be the total number of qualified
full-time employees employed in this state during the taxable year.
The applicable percentage shall not exceed 100 percent.
(3) The "applicable credit percentage" means the credit percentage
for the calendar year during which a qualified full-time employee
was first employed by the qualified taxpayer. The applicable credit
percentage for all calendar years shall be 35 percent.
(4) "Base year" means the 2013 taxable year, except in the case of
a qualified taxpayer who first hires a qualified full-time employee
in a taxable year beginning on or after January 1, 2015, the base
year means the taxable year immediately preceding the taxable year in
which a qualified full-time employee was first hired by the
qualified taxpayer.
(5) "Acquired" includes any gift, inheritance, transfer incident
to divorce, or any other transfer, whether or not for consideration.
(6) "Annual full-time equivalent" means either of the following:
(A) In the case of a full-time employee paid hourly qualified
wages, "annual full-time equivalent" means the total number of hours
worked for the qualified taxpayer by the employee, not to exceed
2,000 hours per employee, divided by 2,000.
(B) In the case of a salaried full-time employee, "annual
full-time equivalent" means the total number of weeks worked for the
qualified taxpayer by the employee divided by 52.
(7) "Designated census tract" means a census tract within the
state that is determined by the Department of Finance to have a
civilian unemployment rate that is within the top 25 percent of all
census tracts within the state and has a poverty rate within the top
25 percent of all census tracts within the state, as prescribed in
Section 13073.5 of the Government Code.
(8) "Economic development area" means either of the following:
(A) A former enterprise zone. For purposes of this section,
"former enterprise zone" means an enterprise zone designated and in
effect as of December 31, 2011, any enterprise zone designated during
2012, and any revision of an enterprise zone prior to June 30, 2013,
under former Chapter 12.8 (commencing with Section 7070) of Division
7 of Title 1 of the Government Code, as in effect on December 31,
2012, excluding any census tract within an enterprise zone that is
identified by the Department of Finance pursuant to Section 13073.5
of the Government Code as a census tract within the lowest quartile
of census tracts with the lowest civilian unemployment and poverty.
(B) A local agency military base recovery area designated as of
the effective date of the act adding this subparagraph, in accordance
with Section 7114 of the Government Code.
(9) "Minimum wage" means the wage established pursuant to Chapter
1 (commencing with Section 1171) of Part 4 of Division 2 of the Labor
Code.
(10) (A) "Qualified full-time employee" means an individual who
meets all of the following requirements:
(i) Performs at least 50 percent of his or her services for the
qualified taxpayer during the taxable year in a designated census
tract or economic development area.
(ii) Receives starting wages that are at least 150 percent of the
minimum wage.
(iii) Is hired by the qualified taxpayer on or after January 1,
2014.
(iv) Is hired by the qualified taxpayer after the date the
Department of Finance determines that the census tract referred to in
clause (i) is a designated census tract or that the census tracts
within a former enterprise zone are not census tracts with the lowest
civilian unemployment and poverty.
(v) Satisfies either of the following conditions:
(I) Is paid qualified wages by the qualified taxpayer for services
not less than an average of 35 hours per week.
(II) Is a salaried employee and was paid compensation during the
taxable year for full-time employment, within the meaning of Section
515 of the Labor Code, by the qualified taxpayer.
(vi) Upon commencement of employment with the qualified taxpayer,
satisfies any of the following conditions:
(I) Was unemployed for the six months immediately preceding
employment with the qualified taxpayer. In the case of an individual
that completed a program of study at a college, university, or other
postsecondary educational institution, received a baccalaureate,
postgraduate, or professional degree, and was unemployed for the six
months immediately preceding employment with the qualified taxpayer,
that individual must have completed that program of study at least 12
months prior to the individual's commencement of employment with the
qualified taxpayer.
(II) Is a veteran who separated from service in the Armed Forces
of the United States within the 12 months preceding commencement of
employment with the qualified taxpayer.
(III) Was a recipient of the credit allowed under Section 32 of
the Internal Revenue Code, relating to earned income, as applicable
for federal purposes, for the previous taxable year.
(IV) Is an ex-offender previously convicted of a felony.
(V) Is a recipient of either CalWORKs, in accordance with Article
2 (commencing with Section 11250) of Chapter 2 of Part 3 of Division
9 of the Welfare and Institutions Code, or general assistance, in
accordance with Section 17000.5 of the Welfare and Institutions Code.
(B) An individual may be considered a qualified full-time employee
only for the period of time commencing with the date the individual
is first employed by the qualified taxpayer and ending 60 months
thereafter.
(11) (A) "Qualified taxpayer" means a person or entity engaged in
a trade or business within a designated census tract or economic
development area that, during the taxable year, pays or incurs
qualified wages.
(B) In the case of any pass-thru entity, the determination of
whether a taxpayer is a qualified taxpayer under this section shall
be made at the entity level and any credit under this section or
Section 23626 shall be allowed to the pass-thru entity and passed
through to the partners and shareholders in accordance with
applicable provisions of this part or Part 11 (commencing with
Section 23001). For purposes of this subdivision, the term "pass-thru
entity" means any partnership or "S" corporation.
(C) "Qualified taxpayers" shall not include any of the following:
(i) Employers that provide temporary help services, as described
in Code 561320 of the North American Industry Classification System
(NAICS) published by the United States Office of Management and
Budget, 2012 edition.
(ii) Employers that provide retail trade services, as described in
Sector 44-45 of the North American Industry Classification System
(NAICS) published by the United States Office of Management and
Budget, 2012 edition.
(iii) Employers that are primarily engaged in providing food
services, as described in Code 711110, 722511, 722513, 722514, or
722515 of the North American Industry Classification System (NAICS)
published by the United States Office of Management and Budget, 2012
edition.
(iv) Employers that are primarily engaged in services as described
in Code 713210, 721120, or 722410 of the North American Industry
Classification System (NAICS) published by the United States Office
of Management and Budget, 2012 edition.
(v) (I) An employer that is a sexually oriented business.
(II) For purposes of this clause:
(aa)
(ia) "Sexually oriented business" means a nightclub,
bar, restaurant, or similar commercial enterprise that provides for
an audience of two or more individuals live nude entertainment or
live nude performances where the nudity is a function of everyday
business operations and where nudity is a planned and intentional
part of the entertainment or performance.
(ab)
(ib) "Nude" means clothed in a manner that leaves
uncovered or visible, through less than fully opaque clothing, any
portion of the genitals or, in the case of a female, any portion of
the breasts below the top of the areola of the breasts.
(D) Subparagraph (C) shall not apply to a taxpayer that is a
"small business."
(12) "Qualified wages" means those wages that meet all of the
following requirements:
(A) (i) Except as provided in clause (ii), that portion of wages
paid or incurred by the qualified taxpayer during the taxable year to
each qualified full-time employee that exceeds 150 percent of
minimum wage, but does not exceed 350 percent of minimum wage.
(ii) (I) In the case of a qualified full-time employee employed in
a designated pilot area, that portion of wages paid or incurred by
the qualified taxpayer during the taxable year to each qualified
full-time employee that exceeds ten dollars ($10) per hour or an
equivalent amount for salaried employees, but does not exceed 350
percent of minimum wage. For qualified full-time employees described
in the preceding sentence, clause (ii) of subparagraph (A) of
paragraph (10) is modified by substituting "ten dollars ($10) per
hour or an equivalent amount for salaried employees" for "150 percent
of the minimum wage."
(II) For purposes of this clause:
(aa)
(ia) "Designated pilot area" means an area designated
as a designated pilot area by the Governor's Office of Business and
Economic Development.
(ab)
(ib) Areas that may be designated as a designated pilot
area are limited to areas within a designated census tract or an
economic development area with average wages less than the statewide
average wages, based on information from the Labor Market Division of
the Employment Development Department, and areas within a designated
census tract or an economic development area based on high poverty
or high unemployment.
(ac)
(ic) The total number of designated pilot areas that
may be designated is limited to five, one or more of which must be an
area within five or fewer designated census tracts within a single
county based on high poverty or high unemployment or an area within
an economic development area based on high poverty or high
unemployment.
(ad)
(id) The designation of a designated pilot area shall
be applicable for a period of four calendar years, commencing with
the first calendar year for which the designation of a designated
pilot area is effective. The applicable period of a designated pilot
area may be extended, in the sole discretion of the Governor's Office
of Business and Economic Development, for an additional period of up
to three calendar years. The applicable period, and any extended
period, shall not extend beyond December 31, 2020.
(III) The designation of an area as a designated pilot area and
the extension of the applicable period of a designated pilot area
shall be at the sole discretion of the Governor's Office of Business
and Economic Development and shall not be subject to administrative
appeal or judicial review.
(B) Wages paid or incurred during the 60-month period beginning
with the first day the qualified full-time employee commences
employment with the qualified taxpayer. In the case of any employee
who is reemployed, including a regularly occurring seasonal increase,
in the trade or business operations of the qualified taxpayer, this
reemployment shall not be treated as constituting commencement of
employment for purposes of this section.
(C) Except as provided in paragraph (3) of subdivision (n),
qualified wages shall not include any wages paid or incurred by the
qualified taxpayer on or after the date that the Department of
Finance's redesignation of designated census tracts is effective, as
provided in paragraph (2) of subdivision (g), so that a census tract
is no longer a designated census tract.
(13) "Seasonal employment" means employment by a qualified
taxpayer that has regular and predictable substantial reductions in
trade or business operations.
(14) (A) "Small business" means a trade or business that has
aggregate gross receipts, less returns and allowances reportable to
this state, of less than two million dollars ($2,000,000) during the
previous taxable year.
(B) (i) For purposes of this paragraph, "gross receipts, less
returns and allowances reportable to this state," means the sum of
the gross receipts from the production of business income, as defined
in subdivision (a) of Section 25120, and the gross receipts from the
production of nonbusiness income, as defined in subdivision (d) of
Section 25120.
(ii) In the case of any trade or business activity conducted by a
partnership or an "S" corporation, the limitations set forth in
subparagraph (A) shall be applied to the partnership or "S"
corporation and to each partner or shareholder.
(C) (i) "Small business" shall not include a sexually oriented
business.
(ii) For purposes of this subparagraph:
(I) "Sexually oriented business" means a nightclub, bar,
restaurant, or similar commercial enterprise that provides for an
audience of two or more individuals live nude entertainment or live
nude performances where the nudity is a function of everyday business
operations and where nudity is a planned and intentional part of the
entertainment or performance.
(II) "Nude" means clothed in a manner that leaves uncovered or
visible, through less than fully opaque clothing, any portion of the
genitals or, in the case of a female, any portion of the breasts
below the top of the areola of the breasts.
(15) An individual is "unemployed" for any period for which the
individual is all of the following:
(A) Not in receipt of wages subject to withholding under Section
13020 of the Unemployment Insurance Code for that period.
(B) Not a self-employed individual (within the meaning of Section
401(c)(1)(B) of the Internal Revenue Code, relating to self-employed
individual) for that period.
(C) Not a registered full-time student at a high school, college,
university, or other postsecondary educational institution for that
period.
(c) The net increase in full-time employees of a qualified
taxpayer shall be determined as provided by this subdivision:
(1) (A) The net increase in full-time employees shall be
determined on an annual full-time equivalent basis by subtracting
from the amount determined in subparagraph (C) the amount determined
in subparagraph (B).
(B) The total number of full-time employees employed in the base
year by the taxpayer and by any trade or business acquired by the
taxpayer during the current taxable year.
(C) The total number of full-time employees employed in the
current taxable year by the taxpayer and by any trade or business
acquired during the current taxable year.
(2) For taxpayers who first commence doing business in this state
during the taxable year, the number of full-time employees for the
base year shall be zero.
(d) For purposes of this section:
(1) All employees of the trades or businesses that are treated as
related under Section 267, 318, or 707 of the Internal Revenue Code
shall be treated as employed by a single taxpayer.
(2) In determining whether the taxpayer has first commenced doing
business in this state during the taxable year, the provisions of
subdivision (f) of Section 17276.20, 17276,
without application of paragraph (7) of that subdivision, shall
apply.
(e) (1) To be eligible for the credit allowed by this section, a
qualified taxpayer shall, upon hiring a qualified full-time employee,
request a tentative credit reservation from the Franchise Tax Board
within 30 days of complying with the Employment Development
Department's new hire reporting requirements as provided in Section
1088.5 of the Unemployment Insurance Code, in the form and manner
prescribed by the Franchise Tax Board.
(2) To obtain a tentative credit reservation with respect to a
qualified full-time employee, the qualified taxpayer shall provide
necessary information, as determined by the Franchise Tax Board,
including the name, social security number, the start date of
employment, the rate of pay of the qualified full-time employee, the
qualified taxpayer's gross receipts, less returns and allowances, for
the previous taxable year, and whether the qualified full-time
employee is a resident of a targeted employment area, as defined in
former Section 7072 of the Government Code, as in effect on December
31, 2013.
(3) The qualified taxpayer shall provide the Franchise Tax Board
an annual certification of employment with respect to each qualified
full-time employee hired in a previous taxable year, on or before,
the 15th day of the third month of the taxable year. The
certification shall include necessary information, as determined by
the Franchise Tax Board, including the name, social security number,
start date of employment, and rate of pay for each qualified
full-time employee employed by the qualified taxpayer.
(4) A tentative credit reservation provided to a taxpayer with
respect to an employee of that taxpayer shall not constitute a
determination by the Franchise Tax Board with respect to any of the
requirements of this section regarding a taxpayer's eligibility for
the credit authorized by this section.
(f) The Franchise Tax Board shall do all of the following:
(1) Approve a tentative credit reservation with respect to a
qualified full-time employee hired during a calendar year.
(2) Determine the aggregate tentative reservation amount and
the aggregate small business tentative reservation amount for a
calendar year.
(3) A tentative credit reservation request from a qualified
taxpayer with respect to a qualified full-time employee who is a
resident of a targeted employment area, as defined in former Section
7072 of the Government Code, as in effect on December 31, 2013, shall
be expeditiously processed by the Franchise Tax Board. The residence
of a qualified full-time employee in a targeted employment area
shall have no other effect on the eligibility of an individual as a
qualified full-time employee or the eligibility of a qualified
taxpayer for the credit authorized by this section.
(4) Notwithstanding Section 19542, provide as a searchable
database on its Internet Web site, for each taxable year beginning on
or after January 1, 2014, and before January 1, 2021, the employer
names, amounts of tax credit claimed, and number of new jobs created
for each taxable year pursuant to this section and Section 23626.
(g) (1) The Department of Finance shall, by January 1, 2014, and
by January 1 of every fifth year thereafter, provide the Franchise
Tax Board with a list of the designated census tracts and a list of
census tracts with the lowest civilian unemployment rate.
(2) The redesignation of designated census tracts and lowest
civilian unemployment census tracts by the Department of Finance as
provided in Section 13073.5 of the Government Code shall be
effective, for purposes of this credit, one year after the date the
Department of Finance redesignates the designated census tracts.
(h) For purposes of this section:
(1) All employees of the trades or businesses that are treated as
related under Section 267, 318, or 707 of the Internal Revenue Code
shall be treated as employed by a single taxpayer.
(2) All employees of trades or businesses that are not
incorporated, and that are under common control, shall be treated as
employed by a single taxpayer.
(3) The credit, if any, allowable by this section with respect to
each trade or business shall be determined by reference to its
proportionate share of the expense of the qualified wages giving rise
to the credit, and shall be allocated to that trade or business in
that manner.
(4) Principles that apply in the case of controlled groups of
corporations, as specified in subdivision (h) of Section 23626, shall
apply with respect to determining employment.
(5) If an employer acquires the major portion of a trade or
business of another employer, hereinafter in this paragraph referred
to as the predecessor, or the major portion of a separate unit of a
trade or business of a predecessor, then, for purposes of applying
this section, other than subdivision (i), for any taxable year ending
after that acquisition, the employment relationship between a
qualified full-time employee and an employer shall not be treated as
terminated if the employee continues to be employed in that trade or
business.
(i) (1) If the employment of any qualified full-time employee,
with respect to whom qualified wages are taken into account under
subdivision (a), is terminated by the qualified taxpayer at any time
during the first 36 months after commencing employment with the
qualified taxpayer, whether or not consecutive, the tax imposed by
this part for the taxable year in which that employment is terminated
shall be increased by an amount equal to the credit allowed under
subdivision (a) for that taxable year and all prior taxable years
attributable to qualified wages paid or incurred with respect to that
employee.
(2) Paragraph (1) shall does not
apply to any of the following:
(A) A termination of employment of a qualified full-time employee
who voluntarily leaves the employment of the qualified taxpayer.
(B) A termination of employment of a qualified full-time employee
who, before the close of the period referred to in paragraph (1),
becomes disabled and unable to perform the services of that
employment, unless that disability is removed before the close of
that period and the qualified taxpayer fails to offer reemployment to
that employee.
(C) A termination of employment of a qualified full-time employee,
if it is determined that the termination was due to the misconduct,
as defined in Sections 1256-30 to 1256-43, inclusive, of Title 22 of
the California Code of Regulations, of that employee.
(D) A termination of employment of a qualified full-time employee
due to a substantial reduction in the trade or business operations of
the qualified taxpayer, including reductions due to seasonal
employment.
(E) A termination of employment of a qualified full-time employee,
if that employee is replaced by other qualified full-time employees
so as to create a net increase in both the number of employees and
the hours of employment.
(F) A termination of employment of a qualified full-time employee,
when that employment is considered seasonal employment and the
qualified employee is rehired on a seasonal basis.
(3) For purposes of paragraph (1), the employment relationship
between the qualified taxpayer and a qualified full-time employee
shall not be treated as terminated by reason of a mere change in the
form of conducting the trade or business of the qualified taxpayer,
if the qualified full-time employee continues to be employed in that
trade or business and the qualified taxpayer retains a substantial
interest in that trade or business.
(4) Any An increase in tax under
paragraph (1) shall not be treated as tax imposed by this part for
purposes of determining the amount of any credit allowable under this
part.
(j) In the case of an estate or trust, both of the following
apply:
(1) The qualified wages for any a
taxable year shall be apportioned between the estate or trust and the
beneficiaries on the basis of the income of the estate or trust
allocable to each.
(2) Any A beneficiary to whom any
qualified wages have been apportioned under paragraph (1) shall be
treated, for purposes of this part, as the employer with respect to
those wages.
(k) In the case where in which the
credit allowed by this section exceeds the "net tax," the excess may
be carried over to reduce the "net tax" in the following year, and
the succeeding four years if necessary, until the credit is
exhausted.
( l ) The Franchise Tax Board may prescribe rules,
guidelines, or procedures necessary or appropriate to carry out the
purposes of this section, including any guidelines regarding the
allocation of the credit allowed under this section. Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code shall not apply to any rule, guideline, or
procedure prescribed by the Franchise Tax Board pursuant to this
section.
(m) (1) Upon the effective date of this section, the Department of
Finance shall estimate the total dollar amount of credits that will
be claimed under this section with respect to each fiscal year from
the 2013-14 fiscal year to the 2020- 21 fiscal year, inclusive.
(2) The Franchise Tax Board shall annually provide to the Joint
Legislative Budget Committee, by no later than March 1, a report of
the total dollar amount of the credits claimed under this section
with respect to the relevant fiscal year. The report shall compare
the total dollar amount of credits claimed under this section with
respect to that fiscal year with the department's estimate with
respect to that same fiscal year. If the total dollar amount of
credits claimed for the fiscal year is less than the estimate for
that fiscal year, the report shall identify options for increasing
annual claims of the credit so as to meet estimated amounts.
(n) (1) This section shall remain in effect only until December 1,
2024, and as of that date is repealed.
(2) Notwithstanding paragraph (1) of subdivision (a), this section
shall continue to be operative for taxable years beginning on or
after January 1, 2021, but only with respect to qualified full-time
employees who commenced employment with a qualified taxpayer in a
designated census tract or economic development area in a taxable
year beginning before January 1, 2021.
(3) This section shall remain operative for any qualified taxpayer
with respect to any qualified full-time employee after the
designated census tract is no longer designated or an economic
development area ceases to be an economic development area, as
defined in this section, for the remaining period, if any, of the
60-month period after the original date of hiring of an otherwise
qualified full-time employee and any wages paid or incurred with
respect to those qualified full-time employees after the designated
census tract is no longer designated or an economic development area
ceases to be an economic development area, as defined in this
section, shall be treated as qualified wages under this section,
provided the employee satisfies any other requirements of paragraphs
(10) and (12) of subdivision (b), as if the designated census tract
was still designated and binding or the economic development area was
still in existence.
SEC. 457. Section 17053.74 of the Revenue and Taxation Code is
amended to read:
17053.74. (a) There shall be allowed a credit against the "net
tax" (as defined in Section 17039) to a taxpayer who employs a
qualified employee in an enterprise zone during the taxable year. The
credit shall be equal to the sum of each of the following:
(1) Fifty percent of qualified wages in the first year of
employment.
(2) Forty percent of qualified wages in the second year of
employment.
(3) Thirty percent of qualified wages in the third year of
employment.
(4) Twenty percent of qualified wages in the fourth year of
employment.
(5) Ten percent of qualified wages in the fifth year of
employment.
(b) For purposes of this section:
(1) "Qualified wages" means:
(A) (i) Except as provided in clause (ii), that portion of wages
paid or incurred by the taxpayer during the taxable year to qualified
employees that does not exceed 150 percent of the minimum wage.
(ii) For up to 1,350 qualified employees who are employed by the
taxpayer in the Long Beach Enterprise Zone in aircraft manufacturing
activities described in Codes 3721 to 3728, inclusive, and Code 3812
of the Standard Industrial Classification (SIC) Manual published by
the United States Office of Management and Budget, 1987 edition,
"qualified wages" means that portion of hourly wages that does not
exceed 202 percent of the minimum wage.
(B) Wages received during the 60-month period beginning with the
first day the employee commences employment with the taxpayer.
Reemployment in connection with any increase, including a regularly
occurring seasonal increase, in the trade or business operations of
the taxpayer does not constitute commencement of employment for
purposes of this section.
(C) Qualified wages do not include any wages paid or incurred by
the taxpayer on or after the zone expiration date. However, wages
paid or incurred with respect to qualified employees who are employed
by the taxpayer within the enterprise zone within the 60-month
period prior to the zone expiration date shall continue to qualify
for the credit under this section after the zone expiration date, in
accordance with all provisions of this section applied as if the
enterprise zone designation were still in existence and binding.
(2) "Minimum wage" means the wage established by the Industrial
Welfare Commission as provided for in Chapter 1 (commencing with
Section 1171) of Part 4 of Division 2 of the Labor Code.
(3) "Zone expiration date" means the date the enterprise zone
designation expires, is no longer binding, becomes inoperative, or is
repealed.
(4) (A) "Qualified employee" means an individual who meets all of
the following requirements:
(i) At least 90 percent of whose services for the taxpayer during
the taxable year are directly related to the conduct of the taxpayer'
s trade or business located in an enterprise zone.
(ii) Performs at least 50 percent of his or her services for the
taxpayer during the taxable year in an enterprise zone.
(iii) Is hired by the taxpayer after the date of original
designation of the area in which services were performed as an
enterprise zone.
(iv) Is any of the following:
(I) Immediately preceding the qualified employee's commencement of
employment with the taxpayer, was a person eligible for services
under the federal Job Training Partnership Act (29 U.S.C. Sec. 1501
et seq.), or its successor, who is receiving, or is eligible to
receive, subsidized employment, training, or services funded by the
federal Job Training Partnership Act, or its successor.
(II) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a person eligible to be a
voluntary or mandatory registrant under the Greater Avenues for
Independence Act of 1985 (GAIN) provided for pursuant to Article 3.2
(commencing with Section 11320) of Chapter 2 of Part 3 of Division 9
of the Welfare and Institutions Code, or its successor.
(III) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was an economically disadvantaged
individual 14 years of age or older.
(IV) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a dislocated worker who meets
any of the following:
(aa)
(ia) Has been terminated or laid off or who has
received a notice of termination or layoff from employment, is
eligible for or has exhausted entitlement to unemployment insurance
benefits, and is unlikely to return to his or her previous industry
or occupation.
(bb)
(ib) Has been terminated or has received a notice of
termination of employment as a result of any permanent closure or any
substantial layoff at a plant, facility, or enterprise, including an
individual who has not received written notification but whose
employer has made a public announcement of the closure or layoff.
(cc)
(ic) Is long-term unemployed and has limited
opportunities for employment or reemployment in the same or a similar
occupation in the area in which the individual resides, including an
individual 55 years of age or older who may have substantial
barriers to employment by reason of age.
(dd)
(id) Was self-employed (including farmers and ranchers)
and is unemployed as a result of general economic conditions in the
community in which he or she resides or because of natural disasters.
(ee)
(ie) Was a civilian employee of the Department of
Defense employed at a military installation being closed or realigned
under the Defense Base Closure and Realignment Act of 1990.
(ff)
(if) Was an active member of the armed forces or
National Guard as of September 30, 1990, and was either involuntarily
separated or separated pursuant to a special benefits program.
(gg)
(ig) Is a seasonal or migrant worker who experiences
chronic seasonal unemployment and underemployment in the agriculture
industry, aggravated by continual advancements in technology and
mechanization.
(hh)
(ih) Has been terminated or laid off, or has received a
notice of termination or layoff, as a consequence of compliance with
the Clean Air Act.
(V) Immediately preceding the qualified employee's commencement of
employment with the taxpayer, was a disabled individual who is
eligible for or enrolled in, or has completed a state rehabilitation
plan or is a service-connected disabled veteran, veteran of the
Vietnam era, or veteran who is recently separated from military
service.
(VI) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was an ex-offender. An individual
shall be treated as convicted if he or she was placed on probation by
a state court without a finding of guilt.
(VII) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a person eligible for or a
recipient of any of the following:
(aa)
(ia) Federal Supplemental Security Income benefits.
(bb)
(ib) Aid to Families with Dependent Children.
(cc)
(ic) CalFresh benefits.
(dd)
(id) State and local general assistance.
(VIII) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a member of a federally
recognized Indian tribe, band, or other group of Native American
descent.
(IX) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a resident of a targeted
employment area, as defined in Section 7072 of the Government Code.
(X) An employee who qualified the taxpayer for the enterprise zone
hiring credit under former Section 17053.8 or the program area
hiring credit under former Section 17053.11.
(XI) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a member of a targeted group, as
defined in Section 51(d) of the Internal Revenue Code, or its
successor.
(B) Priority for employment shall be provided to an individual who
is enrolled in a qualified program under the federal Job Training
Partnership Act or the Greater Avenues for Independence Act of 1985
or who is eligible as a member of a targeted group under the Work
Opportunity Tax Credit (Section 51 of the Internal Revenue Code), or
its successor.
(5) "Taxpayer" means a person or entity engaged in a trade or
business within an enterprise zone designated pursuant to Chapter
12.8 (commencing with Section 7070) of the Government Code.
(6) "Seasonal employment" means employment by a taxpayer that has
regular and predictable substantial reductions in trade or business
operations.
(c) The taxpayer shall do both of the following:
(1) Obtain from the Employment Development Department, as
permitted by federal law, the local county or city Job Training
Partnership Act administrative entity, the local county GAIN office
or social services agency, or the local government administering the
enterprise zone, a certification which provides that a qualified
employee meets the eligibility requirements specified in clause (iv)
of subparagraph (A) of paragraph (4) of subdivision (b). The
Employment Development Department may provide preliminary screening
and referral to a certifying agency. The Employment Development
Department shall develop a form for this purpose. The Department of
Housing and Community Development shall develop regulations governing
the issuance of certificates by local governments pursuant to
subdivision (a) of Section 7086 of the Government Code.
(2) Retain a copy of the certification and provide it upon request
to the Franchise Tax Board.
(d) (1) For purposes of this section:
(A) All employees of trades or businesses, which are not
incorporated, that are under common control shall be treated as
employed by a single taxpayer.
(B) The credit, if any, allowable by this section with respect to
each trade or business shall be determined by reference to its
proportionate share of the expense of the qualified wages giving rise
to the credit, and shall be allocated in that manner.
(C) Principles that apply in the case of controlled groups of
corporations, as specified in paragraph (1) of subdivision
(d) of Section 23622.7, shall apply with respect
to determining employment.
(2) If an employer acquires the major portion of a trade or
business of another employer (hereinafter in this paragraph referred
to as the "predecessor") or the major portion of a separate unit of a
trade or business of a predecessor, then, for purposes of applying
this section (other than subdivision (e)) for any calendar year
ending after that acquisition, the employment relationship between a
qualified employee and an employer shall not be treated as terminated
if the employee continues to be employed in that trade or business.
(e) (1) (A) If the employment, other than seasonal employment, of
any qualified employee, with respect to whom qualified wages are
taken into account under subdivision (a), is terminated by the
taxpayer at any time during the first 270 days of that employment
(whether or not consecutive) or before the close of the 270th
calendar day after the day in which that employee completes 90 days
of employment with the taxpayer, the tax imposed by this part for the
taxable year in which that employment is terminated shall be
increased by an amount equal to the credit allowed under subdivision
(a) for that taxable year and all prior taxable years attributable to
qualified wages paid or incurred with respect to that employee.
(B) If the seasonal employment of any qualified employee, with
respect to whom qualified wages are taken into account under
subdivision (a), is not continued by the taxpayer for a period of 270
days of employment during the 60-month period beginning with the day
the qualified employee commences seasonal employment with the
taxpayer, the tax imposed by this part, for the taxable year that
includes the 60th month following the month in which the qualified
employee commences seasonal employment with the taxpayer, shall be
increased by an amount equal to the credit allowed under subdivision
(a) for that taxable year and all prior taxable years attributable to
qualified wages paid or incurred with respect to that qualified
employee.
(2) (A) Subparagraph (A) of paragraph (1) shall
does not apply to any of the following:
(i) A termination of employment of a qualified employee who
voluntarily leaves the employment of the taxpayer.
(ii) A termination of employment of a qualified employee who,
before the close of the period referred to in paragraph (1), becomes
disabled and unable to perform the services of that employment,
unless that disability is removed before the close of that period and
the taxpayer fails to offer reemployment to that employee.
(iii) A termination of employment of a qualified employee, if it
is determined that the termination was due to the misconduct (as
defined in Sections 1256-30 to 1256-43, inclusive, of Title 22 of the
California Code of Regulations) of that employee.
(iv) A termination of employment of a qualified employee due to a
substantial reduction in the trade or business operations of the
taxpayer.
(v) A termination of employment of a qualified employee, if that
employee is replaced by other qualified employees so as to create a
net increase in both the number of employees and the hours of
employment.
(B) Subparagraph (B) of paragraph (1) shall
does not apply to any of the following:
(i) A failure to continue the seasonal employment of a qualified
employee who voluntarily fails to return to the seasonal employment
of the taxpayer.
(ii) A failure to continue the seasonal employment of a qualified
employee who, before the close of the period referred to in
subparagraph (B) of paragraph (1), becomes disabled and unable to
perform the services of that seasonal employment, unless that
disability is removed before the close of that period and the
taxpayer fails to offer seasonal employment to that qualified
employee.
(iii) A failure to continue the seasonal employment of a qualified
employee, if it is determined that the failure to continue the
seasonal employment was due to the misconduct (as defined in Sections
1256-30 to 1256-43, inclusive, of Title 22 of the California Code of
Regulations) of that qualified employee.
(iv) A failure to continue seasonal employment of a qualified
employee due to a substantial reduction in the regular seasonal trade
or business operations of the taxpayer.
(v) A failure to continue the seasonal employment of a qualified
employee, if that qualified employee is replaced by other qualified
employees so as to create a net increase in both the number of
seasonal employees and the hours of seasonal employment.
(C) For purposes of paragraph (1), the employment relationship
between the taxpayer and a qualified employee shall not be treated as
terminated by reason of a mere change in the form of conducting the
trade or business of the taxpayer, if the qualified employee
continues to be employed in that trade or business and the taxpayer
retains a substantial interest in that trade or business.
(3) Any An increase in tax under
paragraph (1) shall not be treated as tax imposed by this part for
purposes of determining the amount of any credit allowable under this
part.
(f) In the case of an estate or trust, both of the following
apply:
(1) The qualified wages for any taxable year shall be apportioned
between the estate or trust and the beneficiaries on the basis of the
income of the estate or trust allocable to each.
(2) Any A beneficiary to whom any
qualified wages have been apportioned under paragraph (1) shall be
treated, for purposes of this part, as the employer with respect to
those wages.
(g) For purposes of this section, "enterprise zone" means an area
designated as an enterprise zone pursuant to Chapter 12.8 (commencing
with Section 7070) of Division 7 of Title 1 of the Government Code.
(h) The credit allowable under this section shall be reduced by
the credit allowed under Sections 17053.10, 17053.17, and 17053.46
claimed for the same employee. The credit shall also be reduced by
the federal credit allowed under Section 51 of the Internal Revenue
Code.
In addition, any deduction otherwise allowed under this part for
the wages or salaries paid or incurred by the taxpayer upon which the
credit is based shall be reduced by the amount of the credit, prior
to any reduction required by subdivision (i) or (j).
(i) In the case where the credit otherwise allowed under this
section exceeds the "net tax" for the taxable year, that portion of
the credit that exceeds the "net tax" may be carried over and added
to the credit, if any, in the succeeding 10 taxable years, if
necessary, until the credit is exhausted. The credit shall be applied
first to the earliest taxable years possible.
(j) (1) The amount of the credit otherwise allowed under this
section and Section 17053.70, including any credit carryover from
prior years, that may reduce the "net tax" for the taxable year shall
not exceed the amount of tax which would be imposed on the taxpayer'
s business income attributable to the enterprise zone determined as
if that attributable income represented all of the income of the
taxpayer subject to tax under this part.
(2) Attributable income shall be that portion of the taxpayer's
California source business income that is apportioned to the
enterprise zone. For that
purpose, the taxpayer's business income attributable to sources in
this state first shall be determined in accordance with Chapter 17
(commencing with Section 25101) of Part 11. That business income
shall be further apportioned to the enterprise zone in accordance
with Article 2 (commencing with Section 25120) of Chapter 17 of Part
11, modified for purposes of this section in accordance with
paragraph (3).
(3) Business income shall be apportioned to the enterprise zone by
multiplying the total California business income of the taxpayer by
a fraction, the numerator of which is the property factor plus the
payroll factor, and the denominator of which is two. For purposes of
this paragraph:
(A) The property factor is a fraction, the numerator of which is
the average value of the taxpayer's real and tangible personal
property owned or rented and used in the enterprise zone during the
taxable year, and the denominator of which is the average value of
all the taxpayer's real and tangible personal property owned or
rented and used in this state during the taxable year.
(B) The payroll factor is a fraction, the numerator of which is
the total amount paid by the taxpayer in the enterprise zone during
the taxable year for compensation, and the denominator of which is
the total compensation paid by the taxpayer in this state during the
taxable year.
(4) The portion of any credit remaining, if any, after application
of this subdivision, shall be carried over to succeeding taxable
years, if necessary, until the credit is exhausted, as if it were an
amount exceeding the "net tax" for the taxable year, as provided in
subdivision (i). However, the portion of any credit remaining for
carryover to taxable years beginning on or after January 1, 2014, if
any, after application of this subdivision, shall be carried over
only to the succeeding 10 taxable years if necessary, until the
credit is exhausted, as if it were an amount exceeding the "net tax"
for the taxable year, as provided in subdivision (i).
(k) The changes made to this section by the act adding this
subdivision shall apply to taxable years beginning
on or after January 1, 1997.
( l ) (1) Except as provided in paragraph (2), this
section shall cease to be operative on January 1, 2014, and shall be
repealed on December 1, 2019. A credit shall not be allowed under
this section with respect to an employee who first commences
employment with a taxpayer on or after January 1, 2014.
(2) This section shall continue to apply with respect to qualified
employees who are employed by the taxpayer within the enterprise
zone within the 60-month period immediately preceding January 1,
2014, and qualified wages paid or incurred with respect to those
qualified employees shall continue to qualify for the credit under
this section for taxable years beginning on or after January 1, 2014,
in accordance with this section, as amended by the act adding this
subdivision.
SEC. 458. Section 17058 of the Revenue and Taxation Code is
amended to read:
17058. (a) (1) There shall be allowed as a credit against the
"net tax" (as defined in Section 17039) a state low-income housing
credit in an amount equal to the amount determined in subdivision
(c), computed in accordance with the provisions of Section 42 of the
Internal Revenue Code, except as otherwise provided in this section.
(2) "Taxpayer" for purposes of this section means the sole owner
in the case of an individual, the partners in the case of a
partnership, and the shareholders in the case of an "S" corporation.
(3) "Housing sponsor" for purposes of this section means the sole
owner in the case of an individual, the partnership in the case of a
partnership, and the "S" corporation in the case of an "S"
corporation.
(b) (1) The amount of the credit allocated to any housing sponsor
shall be authorized by the California Tax Credit Allocation
Committee, or any successor thereof, based on a project's need for
the credit for economic feasibility in accordance with the
requirements of this section.
(A) The low-income housing project shall be located in California
and shall meet either of the following requirements:
(i) Except for projects to provide farmworker housing, as defined
in subdivision (h) of Section 50199.7 of the Health and Safety Code,
that are allocated credits solely under the set-aside described in
subdivision (c) of Section 50199.20 of the Health and Safety Code,
the project's housing sponsor has been allocated by the California
Tax Credit Allocation Committee a credit for federal income tax
purposes under Section 42 of the Internal Revenue Code.
(ii) It qualifies for a credit under Section 42(h)(4)(B) of the
Internal Revenue Code.
(B) The California Tax Credit Allocation Committee shall not
require fees for the credit under this section in addition to those
fees required for applications for the tax credit pursuant to Section
42 of the Internal Revenue Code. The committee may require a fee if
the application for the credit under this section is submitted in a
calendar year after the year the application is submitted for the
federal tax credit.
(C) (i) For a project that receives a preliminary reservation of
the state low-income housing tax credit, allowed pursuant to
subdivision (a), on or after January 1, 2009, and before January 1,
2016, the credit shall be allocated to the partners of a partnership
owning the project in accordance with the partnership agreement,
regardless of how the federal low-income housing tax credit with
respect to the project is allocated to the partners, or whether the
allocation of the credit under the terms of the agreement has
substantial economic effect, within the meaning of Section 704(b) of
the Internal Revenue Code.
(ii) To the extent the allocation of the credit to a partner under
this section lacks substantial economic effect, any loss or
deduction otherwise allowable under this part that is attributable to
the sale or other disposition of that partner's partnership interest
made prior to the expiration of the federal credit shall not be
allowed in the taxable year in which the sale or other disposition
occurs, but shall instead be deferred until and treated as if it
occurred in the first taxable year immediately following the taxable
year in which the federal credit period expires for the project
described in clause (i).
(iii) This subparagraph shall does
not apply to a project that receives a preliminary reservation of
state low-income housing tax credits under the set-aside described in
subdivision (c) of Section 50199.20 of the Health and Safety Code
unless the project also receives a preliminary reservation of federal
low-income housing tax credits.
(iv) This subparagraph shall cease to be operative with respect to
any project that receives a preliminary reservation of a credit on
or after January 1, 2016.
(2) (A) The California Tax Credit Allocation Committee shall
certify to the housing sponsor the amount of tax credit under this
section allocated to the housing sponsor for each credit period.
(B) In the case of a partnership or an "S" corporation, the
housing sponsor shall provide a copy of the California Tax Credit
Allocation Committee certification to the taxpayer.
(C) The taxpayer shall, upon request, provide a copy of the
certification to the Franchise Tax Board.
(D) All elections made by the taxpayer pursuant to Section 42 of
the Internal Revenue Code shall apply to this
section.
(E) (i) Except as described in clause (ii), for buildings located
in designated difficult development areas (DDAs) or qualified census
tracts (QCTs), as defined in Section 42(d)(5)(B) of the Internal
Revenue Code, credits may be allocated under this section in the
amounts prescribed in subdivision (c), provided that the amount of
credit allocated under Section 42 of the Internal Revenue Code is
computed on 100 percent of the qualified basis of the building.
(ii) Notwithstanding clause (i), the California Tax Credit
Allocation Committee may allocate the credit for buildings located in
DDAs or QCTs that are restricted to having 50 percent of its
occupants be special needs households, as defined in the California
Code of Regulations by the California Tax Credit Allocation
Committee, even if the taxpayer receives federal credits pursuant to
Section 42(d)(5)(B) of the Internal Revenue Code, provided that the
credit allowed under this section shall not exceed 30 percent of the
eligible basis of the building.
(G)
(F) (i) The California Tax Credit Allocation Committee
may allocate a credit under this section in exchange for a credit
allocated pursuant to Section 42(d)(5)(B) of the Internal Revenue
Code in amounts up to 30 percent of the eligible basis of a building
if the credits allowed under Section 42 of the Internal Revenue Code
are reduced by an equivalent amount.
(ii) An equivalent amount shall be determined by the California
Tax Credit Allocation Committee based upon the relative amount
required to produce an equivalent state tax credit to the taxpayer.
(c) Section 42(b) of the Internal Revenue Code shall be modified
as follows:
(1) In the case of any qualified low-income building placed in
service by the housing sponsor during 1987, the term "applicable
percentage" means 9 percent for each of the first three years and 3
percent for the fourth year for new buildings (whether or not the
building is federally subsidized) and for existing buildings.
(2) In the case of any qualified low-income building that receives
an allocation after 1989 and is a new building not federally
subsidized, the term "applicable percentage" means the following:
(A) For each of the first three years, the percentage prescribed
by the Secretary of the Treasury for new buildings that are not
federally subsidized for the taxable year, determined in accordance
with the requirements of Section 42(b)(2) of the Internal Revenue
Code, in lieu of the percentage prescribed in Section 42(b)
(1)(A) Section 42(b)(1)(B) of the Internal
Revenue Code.
(B) For the fourth year, the difference between 30 percent and the
sum of the applicable percentages for the first three years.
(3) In the case of any qualified low-income building that receives
an allocation after 1989 and that is a new building that is
federally subsidized or that is an existing building that is "at risk
of conversion," the term "applicable percentage" means the
following:
(A) For each of the first three years, the percentage prescribed
by the Secretary of the Treasury for new buildings that are federally
subsidized for the taxable year.
(B) For the fourth year, the difference between 13 percent and the
sum of the applicable percentages for the first three years.
(4) For purposes of this section, the term "at risk of conversion,"
with respect to an existing property means a property that satisfies
all of the following criteria:
(A) The property is a multifamily rental housing development in
which at least 50 percent of the units receive governmental
assistance pursuant to any of the following:
(i) New construction, substantial rehabilitation, moderate
rehabilitation, property disposition, and loan management set-aside
programs, or any other program providing project-based assistance
pursuant to Section 8 of the United States Housing Act of 1937,
Section 1437f of Title 42 of the United States Code, as amended.
(ii) The Below-Market-Interest-Rate Program pursuant to Section
221(d)(3) of the National Housing Act, Sections 1715 l (d)
(3) and (5) of Title 12 of the United States Code.
(iii) Section 236 of the National Housing Act, Section 1715z-1 of
Title 12 of the United States Code.
(iv) Programs for rent supplement assistance pursuant to Section
101 of the Housing and Urban Development Act of 1965, Section 1701s
of Title 12 of the United States Code, as amended.
(v) Programs pursuant to Section 515 of the Housing Act of 1949,
Section 1485 of Title 42 of the United States Code, as amended.
(vi) The low-income housing credit program set forth in Section 42
of the Internal Revenue Code.
(B) The restrictions on rent and income levels will terminate or
the federal insured mortgage on the property is eligible for
prepayment any time within five years before or after the date of
application to the California Tax Credit Allocation Committee.
(C) The entity acquiring the property enters into a regulatory
agreement that requires the property to be operated in accordance
with the requirements of this section for a period equal to the
greater of 55 years or the life of the property.
(D) The property satisfies the requirements of Section 42(e) of
the Internal Revenue Code regarding rehabilitation expenditures,
except that the provisions of Section 42(e)(3)(A)(ii)(I)
shall do not apply.
(d) The term "qualified low-income housing project" as defined in
Section 42(c)(2) of the Internal Revenue Code is modified by adding
the following requirements:
(1) The taxpayer shall be entitled to receive a cash distribution
from the operations of the project, after funding required reserves,
that, at the election of the taxpayer, is equal to:
(A) An amount not to exceed 8 percent of the lesser of:
(i) The owner equity that shall include the amount of the capital
contributions actually paid to the housing sponsor and shall not
include any amounts until they are paid on an investor note.
(ii) Twenty percent of the adjusted basis of the building as of
the close of the first taxable year of the credit period.
(B) The amount of the cashflow from those units in the building
that are not low-income units. For purposes of computing cashflow
under this subparagraph, operating costs shall be allocated to the
low-income units using the "floor space fraction," as defined in
Section 42 of the Internal Revenue Code.
(C) Any amount allowed to be distributed under subparagraph (A)
that is not available for distribution during the first five years of
the compliance period may be accumulated and distributed any time
during the first 15 years of the compliance period but not
thereafter.
(2) The limitation on return shall apply
applies in the aggregate to the partners if the housing sponsor
is a partnership and in the aggregate to the shareholders if the
housing sponsor is an "S" corporation.
(3) The housing sponsor shall apply any cash available for
distribution in excess of the amount eligible to be distributed under
paragraph (1) to reduce the rent on rent-restricted units or to
increase the number of rent-restricted units subject to the tests of
Section 42(g)(1) of the Internal Revenue Code.
(e) The provisions of Section 42(f) of the Internal Revenue Code
shall be modified as follows:
(1) The term "credit period" as defined in Section 42(f)(1) of the
Internal Revenue Code is modified by substituting "four taxable
years" for "10 taxable years."
(2) The special rule for the first taxable year of the credit
period under Section 42(f)(2) of the Internal Revenue Code
shall does not apply to the tax credit under
this section.
(3) Section 42(f)(3) of the Internal Revenue Code is modified to
read:
If, as of the close of any taxable year in the compliance period,
after the first year of the credit period, the qualified basis of any
building exceeds the qualified basis of that building as of the
close of the first year of the credit period, the housing sponsor, to
the extent of its tax credit allocation, shall be eligible for a
credit on the excess in an amount equal to the applicable percentage
determined pursuant to subdivision (c) for the four-year period
beginning with the taxable year in which the increase in qualified
basis occurs.
(f) The provisions of Section 42(h) of the Internal Revenue Code
shall be modified as follows:
(1) Section 42(h)(2) of the Internal Revenue Code shall
does not be applicable
apply and instead the following provisions shall be
applicable: apply:
The total amount for the four-year period of the housing credit
dollars allocated in a calendar year to any building shall reduce the
aggregate housing credit dollar amount of the California Tax Credit
Allocation Committee for the calendar year in which the allocation is
made.
(2) Paragraphs (3), (4), (5), (6)(E)(i)(II), (6)(F), (6)(G), (6)
(I), (7), and (8) of Section 42(h) of the Internal Revenue Code
shall do not be applicable
apply to this section.
(g) The aggregate housing credit dollar amount that may be
allocated annually by the California Tax Credit Allocation Committee
pursuant to this section, Section 12206, and Section 23610.5 shall be
an amount equal to the sum of all the following:
(1) Seventy million dollars ($70,000,000) for the 2001 calendar
year, and, for the 2002 calendar year and each calendar year
thereafter, seventy million dollars ($70,000,000) increased by the
percentage, if any, by which the Consumer Price Index for the
preceding calendar year exceeds the Consumer Price Index for the 2001
calendar year. For the purposes of this paragraph, the term
"Consumer Price Index" means the last Consumer Price Index for All
Urban Consumers published by the federal Department of Labor.
(2) The unused housing credit ceiling, if any, for the preceding
calendar years.
(3) The amount of housing credit ceiling returned in the calendar
year. For purposes of this paragraph, the amount of housing credit
dollar amount returned in the calendar year equals the housing credit
dollar amount previously allocated to any project that does not
become a qualified low-income housing project within the period
required by this section or to any project with respect to which an
allocation is canceled by mutual consent of the California Tax Credit
Allocation Committee and the allocation recipient.
(4) Five hundred thousand dollars ($500,000) per calendar year for
projects to provide farmworker housing, as defined in subdivision
(h) of Section 50199.7 of the Health and Safety Code.
(5) The amount of any unallocated or returned credits under former
Sections 17053.14, 23608.2, and 23608.3, as those sections read
prior to January 1, 2009, until fully exhausted for projects to
provide farmworker housing, as defined in subdivision (h) of Section
50199.7 of the Health and Safety Code.
(h) The term "compliance period" as defined in Section 42(i)(1) of
the Internal Revenue Code is modified to mean, with respect to any
building, the period of 30 consecutive taxable years beginning with
the first taxable year of the credit period with respect thereto.
(i) Section 42(j) of the Internal Revenue Code shall
does not be applicable
apply and the following requirements of this section shall be
set forth in a regulatory agreement between the California Tax Credit
Allocation Committee and the housing sponsor, which agreement shall
be subordinated, when required, to any lien or encumbrance of any
banks or other institutional lenders to the project. The regulatory
agreement entered into pursuant to subdivision (f) of Section
50199.14 of the Health and Safety Code shall apply, provided that the
agreement includes all of the following provisions:
(1) A term not less than the compliance period.
(2) A requirement that the agreement be recorded in the official
records of the county in which the qualified low-income housing
project is located.
(3) A provision stating which state and local agencies can enforce
the regulatory agreement in the event the housing sponsor fails to
satisfy any of the requirements of this section.
(4) A provision that the regulatory agreement shall be deemed a
contract enforceable by tenants as third-party beneficiaries thereto
and that allows individuals, whether prospective, present, or former
occupants of the building, who meet the income limitation applicable
to the building, the right to enforce the regulatory agreement in any
state court.
(5) A provision incorporating the requirements of Section 42 of
the Internal Revenue Code as modified by this section.
(6) A requirement that the housing sponsor notify the California
Tax Credit Allocation Committee or its designee if there is a
determination by the Internal Revenue Service that the project is not
in compliance with Section 42(g) of the Internal Revenue Code.
(7) A requirement that the housing sponsor, as security for the
performance of the housing sponsor's obligations under the regulatory
agreement, assign the housing sponsor's interest in rents that it
receives from the project, provided that until there is a default
under the regulatory agreement, the housing sponsor is entitled to
collect and retain the rents.
(8) The remedies available in the event of a default under the
regulatory agreement that is not cured within a reasonable cure
period, include, but are not limited to, allowing any of the parties
designated to enforce the regulatory agreement to collect all rents
with respect to the project; taking possession of the project and
operating the project in accordance with the regulatory agreement
until the enforcer determines the housing sponsor is in a position to
operate the project in accordance with the regulatory agreement;
applying to any court for specific performance; securing the
appointment of a receiver to operate the project; or any other relief
as may be appropriate.
(j) (1) The committee shall allocate the housing credit on a
regular basis consisting of two or more periods in each calendar year
during which applications may be filed and considered. The committee
shall establish application filing deadlines, the maximum percentage
of federal and state low-income housing tax credit ceiling that may
be allocated by the committee in that period, and the approximate
date on which allocations shall be made. If the enactment of federal
or state law, the adoption of rules or regulations, or other similar
events prevent the use of two allocation periods, the committee may
reduce the number of periods and adjust the filing deadlines, maximum
percentage of credit allocated, and the allocation dates.
(2) The committee shall adopt a qualified allocation plan, as
provided in Section 42(m)(1) of the Internal Revenue Code. In
adopting this plan, the committee shall comply with the provisions of
Sections 42(m)(1)(B) and 42(m)(1)(C) of the Internal Revenue Code.
(3) Notwithstanding Section 42(m) of the Internal Revenue Code,
the California Tax Credit Allocation Committee shall allocate housing
credits in accordance with the qualified allocation plan and
regulations, which shall include the following provisions:
(A) All housing sponsors, as defined by paragraph (3) of
subdivision (a), shall demonstrate at the time the application is
filed with the committee that the project meets the following
threshold requirements:
(i) The housing sponsor shall demonstrate there is a need and
demand for low-income housing in the community or region for which it
is proposed.
(ii) The project's proposed financing, including tax credit
proceeds, shall be sufficient to complete the project and that the
proposed operating income shall be adequate to operate the project
for the extended use period.
(iii) The project shall have enforceable financing commitments,
either construction or permanent financing, for at least 50 percent
of the total estimated financing of the project.
(iv) The housing sponsor shall have and maintain control of the
site for the project.
(v) The housing sponsor shall demonstrate that the project
complies with all applicable local land use and zoning ordinances.
(vi) The housing sponsor shall demonstrate that the project
development team has the experience and the financial capacity to
ensure project completion and operation for the extended use period.
(vii) The housing sponsor shall demonstrate the amount of tax
credit that is necessary for the financial feasibility of the project
and its viability as a qualified low-income housing project
throughout the extended use period, taking into account operating
expenses, a supportable debt service, reserves, funds set aside for
rental subsidies and required equity, and a development fee that does
not exceed a specified percentage of the eligible basis of the
project prior to inclusion of the development fee in the eligible
basis, as determined by the committee.
(B) The committee shall give a preference to those projects
satisfying all of the threshold requirements of subparagraph (A) if
both of the following apply:
(i) The project serves the lowest income tenants at rents
affordable to those tenants.
(ii) The project is obligated to serve qualified tenants for the
longest period.
(C) In addition to the provisions of subparagraphs (A) and (B),
the committee shall use the following criteria in allocating housing
credits:
(i) Projects serving large families in which a substantial number,
as defined by the committee, of all residential units is comprised
of low-income units with three and more bedrooms.
(ii) Projects providing single-room occupancy units serving very
low income tenants.
(iii) Existing projects that are "at risk of conversion," as
defined by paragraph (4) of subdivision (c).
(iv) Projects for which a public agency provides direct or
indirect long-term financial support for at least 15 percent of the
total project development costs or projects for which the owner's
equity constitutes at least 30 percent of the total project
development costs.
(v) Projects that provide tenant amenities not generally available
to residents of low-income housing projects.
(4) For purposes of allocating credits pursuant to this section,
the committee shall not give preference to any project by virtue of
the date of submission of its application.
(k) Section 42( l ) of the Internal Revenue Code shall
be modified as follows:
The term "secretary" shall be replaced by the term "California
Franchise Tax Board."
( l ) In the case where in
which the credit allowed under this section exceeds the net
tax, the excess credit may be carried over to reduce the net tax in
the following year, and succeeding taxable years, if necessary, until
the credit has been exhausted.
(m) A project that received an allocation of a 1989 federal
housing credit dollar amount shall be eligible to receive an
allocation of a 1990 state housing credit dollar amount, subject to
all of the following conditions:
(1) The project was not placed in service prior to 1990.
(2) To the extent the amendments made to this section by the
Statutes of 1990 conflict with any provisions existing in this
section prior to those amendments, the prior provisions of law shall
prevail.
(3) Notwithstanding paragraph (2), a project applying for an
allocation under this subdivision shall be is
subject to the requirements of paragraph (3) of subdivision
(j).
(n) The credit period with respect to an allocation of credit in
1989 by the California Tax Credit Allocation Committee of which any
amount is attributable to unallocated credit from 1987 or 1988 shall
not begin until after December 31, 1989.
(o) The provisions of Section 11407(a) of Public Law 101-508,
relating to the effective date of the extension of the low-income
housing credit, shall apply to calendar years
after 1989.
(p) The provisions of Section 11407(c) of Public Law 101-508,
relating to election to accelerate credit, shall
do not apply.
(q) Any unused credit may continue to be carried forward, as
provided in subdivision ( l ), until the credit
has been exhausted.
This section shall remain in effect on and after December 1, 1990,
for as long as Section 42 of the Internal Revenue Code, relating to
low-income housing credits, remains in effect.
(r)
(q) The amendments to this section made by the act
adding this subdivision shall apply only to
taxable years beginning on or after January 1, 1994.
(r) This section shall remain in effect on and after December 1,
1990, for as long as Section 42 of the Internal Revenue Code,
relating to low-income housing credits, remains in effect. Any unused
credit may continue to be carried forward, as provided in
subdivision (l ), until the credit has been exhausted.
SEC. 459. Section 17132.6 of the Revenue and Taxation Code is
repealed.
17132.6. A payment under paragraph (10) of subsection (c) of
Section 103 of the Ricky Ray Hemophilia Relief Fund Act of 1998 (42
U.S.C. Sec. 300c-22) to an individual shall be treated for purposes
of this part, Part 10.2 (commencing with Section 18401), and Part 11
(commencing with Section 23001) as damages described in Section 104
(a)(2) of the Internal Revenue Code.
SEC. 460. Section 17141 of the Revenue and Taxation Code, as added
by Section 1 of Chapter 439 of the Statutes of 2013, is amended and
renumbered to read:
17141. 17141.3 (a) Gross income
shall not include any amount received by an employee from an employer
to compensate for the additional federal income tax liability
incurred by the employee because, for federal income tax purposes,
the same-sex spouse or domestic partner of the employee is not
considered the spouse of the employee under Section 105(a) or Section
106(a) of the Internal Revenue Code, including any compensation for
the additional federal income tax liability incurred with respect to
those amounts.
(b) This section shall remain in effect only until January 1,
2019, and as of that date is repealed.
SEC. 461. Section 17155 of the Revenue and Taxation Code, as added
by Section 2 of Chapter 28 of the Statutes of 1996, is repealed.
17155. (a) Gross income shall not include any amount, including
any interest or property, that is received as compensation in any
taxable year by a taxpayer pursuant to the German Act Regulating
Unresolved Property Claims, as amended (Gesetz zur Regelung offener
Vermogensfragen).
(b) The basis of any property received pursuant to the German Act
Regulating Unresolved Property Claims shall be the fair market value
of the property at the time of receipt by the taxpayer.
SEC. 462. Section 17207.7 of the Revenue and Taxation Code is
amended to read:
17207.7. (a) An excess disaster loss, as defined in subdivision
(c), shall be carried to other taxable years as provided in
subdivision (b), with respect to losses sustained in the County of
Mendocino as a result of the tsunami that occurred in March 2011.
(b) (1) In the case of any loss allowed under Section 165(c) of
the Internal Revenue Code, relating to limitation of losses of
individuals, any excess disaster loss shall be carried forward to
each of the five taxable years following the taxable year for which
the loss is claimed. However, if there is any excess disaster loss
remaining after the five-year period, then the applicable percentage,
as set forth in paragraph (1) of subdivision (b) of Section
17276.20, 17276, of that excess disaster loss
shall be carried forward to each of the next 10 taxable years.
(2) The entire amount of any excess disaster loss as defined in
subdivision (c) shall be carried to the earliest of the taxable years
to which, by reason of subdivision (b), the loss may be carried. The
portion of the loss which shall be carried to each of the other
taxable years shall be the excess, if any, of the amount of excess
disaster loss over the sum of the adjusted taxable income for each of
the prior taxable years to which that excess disaster loss is
carried.
(c) "Excess disaster loss" means a disaster loss computed pursuant
to Section 165 of the Internal Revenue Code which exceeds the
adjusted taxable income of the year of loss or, if the election under
Section 165(i) of the Internal Revenue Code is made, the adjusted
taxable income of the year preceding the loss.
(d) This section and Section 165(i) of the Internal Revenue Code
shall be applicable apply to any of the
losses listed in subdivision (a) sustained in any county or city in
this state which was proclaimed by the Governor to be in a state of
disaster.
(e) Losses allowable under this section may
shall not be taken into account in computing a net
operating loss deduction under Section 172 of the Internal Revenue
Code.
(f) For purposes of this section, "adjusted taxable income" shall
be defined by Section 1212(b)(2)(B) of the Internal Revenue Code.
(g) For losses described in subdivision (a), the election under
Section 165(i) of the Internal Revenue Code may be made on a return
or amended return filed on or before the due date of the return
(determined with regard to extension) for the taxable year in which
the disaster occurred.
SEC. 463. Section 17207.8 of the Revenue and Taxation Code is
amended to read:
17207.8. (a) An excess disaster loss, as defined in subdivision
(c), shall be carried to other taxable years as provided in
subdivision (b), with respect to losses sustained in the County of
San Mateo as a result of the explosion and fire that occurred in
September 2010.
(b) (1) In the case of any loss allowed under Section 165(c) of
the Internal Revenue Code, relating to limitation of losses of
individuals, any excess disaster loss shall be carried forward to
each of the five taxable years following the taxable year for which
the loss is claimed. However, if there is any excess disaster loss
remaining after the five-year period, then the applicable percentage,
as set forth in paragraph (1) of subdivision (b) of Section
17276.20, 17276, of that excess disaster loss
shall be carried forward to each of the next 10 taxable years.
(2) The entire amount of any excess disaster loss as defined in
subdivision (c) shall be carried to the earliest of the taxable years
to which, by reason of subdivision (b), the loss may be carried. The
portion of the loss which shall be carried to each of the other
taxable years shall be the excess, if any, of the amount of excess
disaster loss over the sum of the adjusted taxable income for each of
the prior taxable years to which that excess disaster loss is
carried.
(c) "Excess disaster loss" means a disaster loss computed pursuant
to Section 165 of the Internal Revenue Code which exceeds the
adjusted taxable income of the year of loss or, if the election under
Section 165(i) of the Internal Revenue Code is made, the adjusted
taxable income of the year preceding the loss.
(d) This section and Section 165(i) of the Internal Revenue Code
shall be applicable apply to any of the
losses listed in subdivision (a) sustained in any county or city in
this state which was proclaimed by the Governor to be in a state of
disaster.
(e) Losses allowable under this section may
shall not be taken into account in computing a net
operating loss deduction under Section 172 of the Internal Revenue
Code.
(f) For purposes of this section, "adjusted taxable income" shall
be defined by Section 1212(b)(2)(B) of the Internal Revenue Code.
(g) For losses described in subdivision (a), the election under
Section 165(i) of the Internal Revenue Code may be made on a return
or amended return filed on or before the due date of the return
(determined with regard to extension) for the taxable year in which
the disaster occurred.
SEC. 464. Section 17276.20 of the Revenue and Taxation Code is
amended and renumbered to read:
17276.20. 17276. Except as provided
in Sections 17276.1, 17276.2, 17276.4, 17276.5, 17276.6, and
17276.7, the deduction provided by Section 172 of the Internal
Revenue Code, relating to net operating loss deduction, shall be
modified as follows:
(a) (1) Net operating losses attributable to taxable years
beginning before January 1, 1987, shall not be allowed.
(2) A net operating loss shall not be carried forward to any
taxable year beginning before January 1, 1987.
(b) (1) Except as provided in paragraphs (2) and (3), the
provisions of Section 172(b)(2) of the Internal Revenue Code,
relating to amount of carrybacks and carryovers, shall be modified so
that the applicable percentage of the entire amount of the net
operating loss for any taxable year shall be eligible for carryover
to any subsequent taxable year. For purposes of this subdivision, the
applicable percentage shall be:
(A) Fifty percent for any taxable year beginning before January 1,
2000.
(B) Fifty-five percent for any taxable year beginning on or after
January 1, 2000, and before January 1, 2002.
(C) Sixty percent for any taxable year beginning on or after
January 1, 2002, and before January 1, 2004.
(D) One hundred percent for any taxable year beginning on or after
January 1, 2004.
(2) In the case of a taxpayer who has a net operating loss in any
taxable year beginning on or after January 1, 1994, and who operates
a new business during that taxable year, each of the following shall
apply to each loss incurred during the first three taxable years of
operating the new business:
(A) If the net operating loss is equal to or less than the net
loss from the new business, 100 percent of the net operating loss
shall be carried forward as provided in subdivision (d).
(B) If the net operating loss is greater than the net loss from
the new business, the net operating loss shall be carried over as
follows:
(i) With respect to an amount equal to the net loss from the new
business, 100 percent of that amount shall be carried forward as
provided in subdivision (d).
(ii) With respect to the portion of the net operating loss that
exceeds the net loss from the new business, the applicable percentage
of that amount shall be carried forward as provided in subdivision
(d).
(C) For purposes of Section 172(b)(2) of the Internal Revenue
Code, the amount described in clause (ii) of subparagraph (B) shall
be absorbed before the amount described in clause (i) of subparagraph
(B).
(3) In the case of a taxpayer who has a net operating loss in any
taxable year beginning on or after January 1, 1994, and who operates
an eligible small business during that taxable year, each of the
following shall apply:
(A) If the net operating loss is equal to or less than the net
loss from the eligible small business, 100 percent of the net
operating loss shall be carried forward to the taxable years
specified in subdivision (d).
(B) If the net operating loss is greater than the net loss from
the eligible small business, the net operating loss shall be carried
over as follows:
(i) With respect to an amount equal to the net loss from the
eligible small business, 100 percent of that amount shall be carried
forward as provided in subdivision (d).
(ii) With respect to that portion of the net operating loss that
exceeds the net loss from the eligible small business, the applicable
percentage of that amount shall be carried forward as provided in
subdivision (d).
(C) For purposes of Section 172(b)(2) of the Internal Revenue
Code, the amount described in clause (ii) of subparagraph (B) shall
be absorbed before the amount described in clause (i) of subparagraph
(B).
(4) In the case of a taxpayer who has a net operating loss in a
taxable year beginning on or after January 1, 1994, and who operates
a business that qualifies as both a new business and an eligible
small business under this section, that business shall be treated as
a new business for the first three taxable years of the new business.
(5) In the case of a taxpayer who has a net operating loss in a
taxable year beginning on or after January 1, 1994, and who operates
more than one business, and more than one of those businesses
qualifies as either a new business or an eligible small business
under this section, paragraph (2) shall be applied first, except that
if there is any remaining portion of the net operating loss after
application of clause (i) of subparagraph (B) of that paragraph,
paragraph (3) shall be applied to the remaining portion of the net
operating loss as though that remaining portion of the net operating
loss constituted the entire net operating loss.
(6) For purposes of this section, the term "net loss" means the
amount of net loss after application of Sections 465 and 469 of the
Internal Revenue Code.
(c) Section 172(b)(1) of the Internal Revenue Code, relating to
years to which the loss may be carried, is modified as follows:
(1) Net operating loss carrybacks shall not be allowed for any net
operating losses attributable to taxable years beginning before
January 1, 2013.
(2) A net operating loss attributable to taxable years beginning
on or after January 1, 2013, shall be a net operating loss carryback
to each of the two taxable years preceding the taxable year of the
loss in lieu of the number of years provided therein.
(A) For a net operating loss attributable to a taxable year
beginning on or after January 1, 2013, and before January 1, 2014,
the amount of carryback to any taxable year shall not exceed 50
percent of the net operating loss.
(B) For a net operating loss attributable to a taxable year
beginning on or after January 1, 2014, and before January 1, 2015,
the amount of carryback to any taxable year shall not exceed 75
percent of the net operating loss.
(C) For a net operating loss attributable to a taxable year
beginning on or after January 1, 2015, the amount of carryback to any
taxable year shall not exceed 100 percent of the net operating loss.
(3) Notwithstanding paragraph (2), Section 172(b)(1)(B) of the
Internal Revenue Code, relating to special rules for REITs, and
Section 172(b)(1)(E) of the Internal Revenue Code, relating to excess
interest loss, and Section 172(h) of the Internal Revenue Code,
relating to corporate equity reduction interest losses, shall apply
as provided.
(4) A net operating loss carryback shall not be carried back to
any taxable year beginning before January 1, 2011.
(d) (1) (A) For a net operating loss for any taxable year
beginning on or after January 1, 1987, and before January 1, 2000,
Section 172(b)(1)(A)(ii) of the Internal Revenue Code is modified to
substitute "five taxable years" in lieu of "20 taxable years" except
as otherwise provided in paragraphs (2) and (3).
(B) For a net operating loss for any taxable year beginning on or
after January 1, 2000, and before January 1, 2008, Section 172(b)(1)
(A)(ii) of the Internal Revenue Code is modified to substitute "10
taxable years" in lieu of "20 taxable years."
(2) For any taxable year beginning before January 1, 2000, in the
case of a "new business," the "five taxable years" in paragraph (1)
shall be modified to read as follows:
(A) "Eight taxable years" for a net operating loss attributable to
the first taxable year of that new business.
(B) "Seven taxable years" for a net operating loss attributable to
the second taxable year of that new business.
(C) "Six taxable years" for a net operating loss attributable to
the third taxable year of that new business.
(3) For any carryover of a net operating loss for which a
deduction is denied by Section 17276.3, the carryover period
specified in this subdivision shall be extended as follows:
(A) By one year for a net operating loss attributable to taxable
years beginning in 1991.
(B) By two years for a net operating loss attributable to taxable
years beginning prior to January 1, 1991.
(4) The net operating loss attributable to taxable years beginning
on or after January 1, 1987, and before January 1, 1994, shall be a
net operating loss carryover to each of the 10 taxable years
following the year of the loss if it is incurred by a taxpayer that
is under the jurisdiction of the court in a Title 11 or similar case
at any time during the income year. The loss carryover provided in
the preceding sentence shall not apply to any loss incurred after the
date the taxpayer is no longer under the jurisdiction of the court
in a Title 11 or similar case.
(e) For purposes of this section:
(1) "Eligible small business" means any trade or business that has
gross receipts, less returns and allowances, of less than one
million dollars ($1,000,000) during the taxable year.
(2) Except as provided in subdivision (f), "new business" means
any trade or business activity that is first commenced in this state
on or after January 1, 1994.
(3) "Title 11 or similar case" shall have the same meaning as in
Section 368(a)(3) of the Internal Revenue Code.
(4) In the case of any trade or business activity conducted by a
partnership or "S" corporation paragraphs (1) and (2) shall be
applied to the partnership or "S" corporation.
(f) For purposes of this section, in determining whether a trade
or business activity qualifies as a new business under paragraph (2)
of subdivision (e), the following rules shall
apply:
(1) In any case where a taxpayer purchases or otherwise acquires
all or any portion of the assets of an existing trade or business
(irrespective of the form of entity) that is doing business in this
state (within the meaning of Section 23101), the trade or business
thereafter conducted by the taxpayer (or any related person) shall
not be treated as a new business if the aggregate fair market value
of the acquired assets (including real, personal, tangible, and
intangible property) used by the taxpayer (or any related person) in
the conduct of its trade or business exceeds 20 percent of the
aggregate fair market value of the total assets of the trade or
business being conducted by the taxpayer (or any related person). For
purposes of this paragraph only, the following rules shall
apply:
(A) The determination of the relative fair market values of the
acquired assets and the total assets shall be made as of the last day
of the first taxable year in which the taxpayer (or any related
person) first uses any of the acquired trade or business assets in
its business activity.
(B) Any acquired Acquired
assets that constituted property described in Section 1221
(1) 1221(a)(1) of the Internal Revenue Code in
the hands of the transferor shall not be treated as assets acquired
from an existing trade or business, unless those assets also
constitute property described in Section 1221(1)
1221(a)(1) of the Internal Revenue Code in the hands of
the acquiring taxpayer (or related person).
(2) In any a case where
in which a taxpayer (or any related person) is
engaged in one or more trade or business activities in this state, or
has been engaged in one or more trade or business activities in this
state within the preceding 36 months ("prior trade or business
activity"), and thereafter commences an additional trade or business
activity in this state, the additional trade or business activity
shall only be treated as a new business if the additional trade or
business activity is classified under a different division of the
Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition, than are
any of the taxpayer's (or any related person's) current or prior
trade or business activities.
(3) In any a case where
in which a taxpayer, including all related
persons, is engaged in trade or business activities wholly outside of
this state and the taxpayer first commences doing business in this
state (within the meaning of Section 23101) after December 31, 1993
(other than by purchase or other acquisition described in paragraph
(1)), the trade or business activity shall be treated as a new
business under paragraph (2) of subdivision (e).
(4) In any a case where
in which the legal form under which a trade or
business activity is being conducted is changed, the change in form
shall be disregarded and the determination of whether the trade or
business activity is a new business shall be made by treating the
taxpayer as having purchased or otherwise acquired all or any portion
of the assets of an existing trade or business under the rules of
paragraph (1).
(5) "Related person" shall mean any person that is related to the
taxpayer under either Section 267 or 318 of the Internal Revenue
Code.
(6) "Acquire" shall include any gift, inheritance, transfer
incident to divorce, or any other transfer, whether or not for
consideration.
(7) (A) For taxable years beginning on or after January 1, 1997,
the term "new business" shall include any taxpayer that is engaged in
biopharmaceutical activities or other biotechnology activities that
are described in Codes 2833 to 2836, inclusive, of the Standard
Industrial Classification (SIC) Manual published by the United States
Office of Management and Budget, 1987 edition, and as further
amended, and that has not received regulatory approval for any
product from the Food and Drug Administration.
(B) For purposes of this paragraph:
(i) "Biopharmaceutical activities" means those activities that use
organisms or materials derived from organisms, and their cellular,
subcellular, or molecular components, in order to provide
pharmaceutical products for human or animal therapeutics and
diagnostics. Biopharmaceutical activities make use of living
organisms to make commercial products, as opposed to pharmaceutical
activities that make use of chemical compounds to produce commercial
products.
(ii) "Other biotechnology activities" means activities consisting
of the application of recombinant DNA technology to produce
commercial products, as well as activities regarding pharmaceutical
delivery systems designed to provide a measure of control over the
rate, duration, and site of pharmaceutical delivery.
(g) In computing the modifications under Section 172(d)(2) of the
Internal Revenue Code, relating to capital gains and losses of
taxpayers other than corporations, the exclusion provided by Section
18152.5 shall not be allowed.
(h) Notwithstanding any provisions of this section to the
contrary, a deduction shall be allowed to a "qualified taxpayer" as
provided in Sections 17276.1, 17276.2, 17276.4, 17276.5, 17276.6, and
17276.7.
(i) The Franchise Tax Board may prescribe appropriate regulations
to carry out the purposes of this section, including any regulations
necessary to prevent the avoidance of the purposes of this section
through splitups, shell corporations, partnerships, tiered ownership
structures, or otherwise.
(j) The Franchise Tax Board may reclassify any net operating loss
carryover determined under either paragraph (2) or (3) of subdivision
(b) as a net operating loss carryover under paragraph (1) of
subdivision (b) upon a showing that the reclassification is necessary
to prevent evasion of the purposes of this section.
(k) Except as otherwise provided, the amendments made by Chapter
107 of the Statutes of 2000 shall apply to net
operating losses for taxable years beginning on or after January 1,
2000.
SEC. 465. Section 17276.21 of the Revenue and Taxation Code is
amended to read:
17276.21. (a) Notwithstanding Sections 17276, 17276.1, 17276.2,
17276.4, 17276.5, 17276.6, 17276.7, and 17276.20
and 17276.7 of this code and Section 172 of the Internal
Revenue Code, no net operating loss deduction shall be allowed for
any taxable year beginning on or after January 1, 2008, and before
January 1, 2012.
(b) For any net operating loss or carryover of a net operating
loss for which a deduction is denied by subdivision (a), the
carryover period under Section 172 of the Internal Revenue Code shall
be extended as follows:
(1) By one year, for losses incurred in taxable years beginning on
or after January 1, 2010, and before January 1, 2011.
(2) By two years, for losses incurred in taxable years beginning
on or after January 1, 2009, and before January 1, 2010.
(3) By three years, for losses incurred in taxable years beginning
on or after January 1, 2008, and before January 1, 2009.
(4) By four years, for losses incurred in taxable years beginning
before January 1, 2008.
(c) Notwithstanding subdivision (a), a net operating loss
deduction shall be allowed for carryback of a net operating loss
attributable to a taxable year beginning on or after January 1, 2013.
(d) The provisions of this section shall
do not apply to the following taxpayers:
(1) For any a taxable year beginning
on or after January 1, 2008, and before January 1, 2010, this
section shall does not apply to a
taxpayer with net business income of less than five hundred thousand
dollars ($500,000) for the taxable year. For purposes of this
paragraph, business income means:
(A) Income from a trade or business, whether conducted by the
taxpayer or by a passthrough entity owned directly or indirectly by
the taxpayer. For purposes of this paragraph, the term "passthrough
entity" means a partnership or an "S" corporation.
(B) Income from rental activity.
(C) Income attributable to a farming business.
(2) For any a taxable year beginning
on or after January 1, 2010, and before January 1, 2012, this
section shall does not apply to a
taxpayer with modified adjusted gross income of less than three
hundred thousand dollars ($300,000) for the taxable year. For
purposes of this paragraph, "modified adjusted gross income" means
the amount described in paragraph (2) of subdivision (h) of Section
17024.5, determined without
regard to the deduction allowed under Section 172 of the Internal
Revenue Code, relating to net operating loss deduction.
SEC. 466. Section 17507.6 of the Revenue and Taxation Code is
repealed.
17507.6. Section 408A of the Internal Revenue Code, relating to
Roth IRAs, is modified to additionally provide all of the following:
(a) Section 408A(c)(3) of the Internal Revenue Code is modified as
follows:
(1) By substituting the phrase "shall not exceed an amount equal
to the amount determined under paragraph (2)(A) for such taxable
year, reduced" in lieu of the phrase "shall be reduced" in Section
408A(c)(3)(A) of the Internal Revenue Code.
(2) By substituting the phrase "in the case of a joint return or a
married individual filing a separate return" in lieu of the phrase
"in the case of a joint return" in Section 408A(c)(3)(A)(ii) of the
Internal Revenue Code.
(3) By substituting the phrase "taxable year if, for the taxable
year of the distribution to which such contribution relates" in lieu
of the phrase "taxable year if" in Section 408A(c)(3)(B) of the
Internal Revenue Code.
(4) By substituting the phrase "adjusted gross income exceeds" in
lieu of the phrase "adjusted gross income for such taxable year
exceeds" in Section 408A(c)(3)(B)(i) of the Internal Revenue Code.
(5) By substituting the phrase "any amount included in gross
income under subsection (d)(3) shall not be taken into account" in
lieu of the phrase "any amount included in gross income under
subsection (d)(3) shall not be taken into account and the deduction
under Section 219 shall be taken into account" in Section 408A(c)(3)
(C)(i) of the Internal Revenue Code.
(b) (1) Section 408A(d)(1) of the Internal Revenue Code shall not
apply and in lieu thereof any qualified distribution from a Roth IRA
shall not be includable in gross income.
(2) Section 408A(d)(2)(B) of the Internal Revenue Code shall not
apply and in lieu thereof:
(A) A payment or distribution from a Roth IRA shall not be treated
as a qualified distribution under Section 408A(d)(2)(A) of the
Internal Revenue Code if the payment or distribution is made within
the five-taxable year period beginning with the first taxable year
for which the individual made a contribution to a Roth IRA (or the
individual's spouse made a contribution to a Roth IRA) established
for that individual.
(B) The term "qualified distribution" shall not include any
distribution of any contribution described in subdivision (g) and any
net income allocable to the contribution.
(c) (1) If a taxpayer has made an election for federal purposes
under Section 408A(d)(3)(A)(iii) of the Internal Revenue Code, as
amended by Public Law 105-206, to not have Section 408A(d)(3)(A)(iii)
of the Internal Revenue Code, as amended by Public Law 105-206,
apply to any distributions during the 1998 taxable year, that
election shall be treated as an election to include in gross income
for purposes of this part all amounts required to be included in
gross income for the taxable year by reason of Section 408A(d)(3) of
the Internal Revenue Code. A separate election for state purposes may
not be made under paragraph (3) of subdivision (e) of Section
17024.5 and the federal election shall be binding for purposes of
this part.
(2) If a taxpayer fails to make an election for federal purposes
under Section 408A(d)(3)(A)(iii) of the Internal Revenue Code, as
amended by Public Law 105-206, to not have Section 408A(d)(3)(A)(iii)
of the Internal Revenue Code, as amended by Public Law 105-206,
apply to any distributions during a taxable year, Section 408A(d)(3)
(A)(iii) of the Internal Revenue Code shall apply to those
distributions for state purposes, no election under Section 408A(d)
(3)(A)(iii) of the Internal Revenue Code, as amended by Public Law
105-206, shall be allowed for state purposes, and a separate election
for state purposes shall not be allowed under paragraph (3) of
subdivision (e) of Section 17024.5.
(d) In the case of a qualified rollover contribution to a Roth IRA
of a distribution to which Section 408A(d)(3)(A)(iii) of the
Internal Revenue Code, as amended by Public Law 105-206, applied, the
following rules shall apply:
(1) (A) The amount required to be included in gross income for
each of the first three taxable years in the four-year period under
Section 408A(d)(3)(A)(iii) of the Internal Revenue Code shall be
increased by the aggregate distributions from Roth IRAs for the
taxable year which are allocable under Section 408A(d)(4) of the
Internal Revenue Code to the portion of the qualified rollover
contribution required to be included in gross income under Section
408A(d)(3)(A)(i) of the Internal Revenue Code.
(B) The amount required to be included in gross income for any
taxable year under Section 408A(d)(3)(A)(iii) of the Internal Revenue
Code shall not exceed the aggregate amount required to be included
in gross income under Section 408A(d)(3)(A)(iii) of the Internal
Revenue Code for all taxable years in the four-year period (without
regard to subparagraph (A)) reduced by amounts included for all
preceding taxable years.
(2) (A) If the individual required to include amounts in gross
income under Section 408A(d)(3)(A)(iii) of the Internal Revenue Code
dies before all the amounts are included, all remaining amounts shall
be included in gross income for the taxable year which includes the
date of death.
(B) (i) If the spouse of the individual described in subparagraph
(A) acquires the individual's entire interest in any Roth IRA to
which the qualified rollover contribution is properly allocable and
makes an election for federal purposes under Section 408A(d)(3)(E) of
the Internal Revenue Code, as amended by Public Law 105-206, to
treat the remaining amounts described in subparagraph (A) as
includable in the spouse's gross income in the taxable years of the
spouse ending with or within the taxable years of the individual in
which the amounts would otherwise have been includable, subparagraph
(A) shall not apply for state purposes, a separate election for state
purposes shall not be allowed under paragraph (3) of subdivision (e)
of Section 17024.5, the federal election shall be binding for
purposes of this part and that election shall be treated as an
election to treat the remaining amounts described in subparagraph (A)
as includable in the spouse's gross income for state purposes in the
taxable years of the spouse ending with or within the taxable years
of the individual in which the amounts would otherwise have been
includable.
(ii) If the spouse of the individual described in subparagraph (A)
acquires the individual's entire interest in any Roth IRA to which
the qualified rollover contribution is properly allocable and fails
to make an election for federal purposes under Section 408A(d)(3)(E)
of the Internal Revenue Code, as amended by Public Law 105-206, or
revokes an election previously made for federal purposes under
Section 408A(d)(3)(E) of the Internal Revenue Code, as amended by
Public Law 105-206, to treat the remaining amounts described in
subparagraph (A) as includable in the spouse's gross income in the
taxable years of the spouse ending with or within the taxable years
of the individual in which the amounts would otherwise have been
includable, no election under this paragraph shall be allowed for
state purposes, subparagraph (A) shall apply for state purposes, and
a separate election for state purposes shall not be allowed under
paragraph (3) of subdivision (e) of Section 17024.5.
(e) (1) If any portion of a distribution from a Roth IRA is
properly allocable to a qualified rollover contribution described in
Section 408A(d)(3) of the Internal Revenue Code, and the distribution
is made within the five-taxable year period beginning with the
taxable year in which the contributions were made, then Section 72(t)
of the Internal Revenue Code shall be applied as if that portion
were includable in gross income.
(2) Paragraph (1) shall apply only to the extent of the amount of
the qualified rollover contribution includable in gross income under
Section 408A(d)(3)(A)(i) of the Internal Revenue Code.
(f) Section 408A(d)(3)(D) of the Internal Revenue Code shall not
apply.
(g) Section 408A(d)(4) of the Internal Revenue Code shall not
apply and in lieu thereof:
(1) (A) Section 408(d)(2) of the Internal Revenue Code shall be
applied separately with respect to Roth IRAs and other individual
retirement plans.
(B) For purposes of applying Section 408A of the Internal Revenue
Code, as amended by Public Law 105-206, this section and Section 72
of the Internal Revenue Code to any distribution from a Roth IRA, the
distribution shall be treated as made--
(i) From contributions to the extent that the amount of the
distribution, when added to all previous distributions from the Roth
IRA, does not exceed the aggregate contributions to the Roth IRA, and
(ii) From the contributions in the following order:
(I) Contributions other than qualified rollover contributions to
which Section 408A(d)(3) of the Internal Revenue Code, as amended by
Public Law 105-206, applies.
(II) Qualified rollover contributions to which Section 408A(d)(3)
of the Internal Revenue Code, as amended by Public Law 105-206,
applies on a first-in, first-out basis. Any distribution allocated to
a qualified rollover contribution under this clause shall be
allocated first to the portion of the contribution required to be
included in gross income.
(h) (1) Except as provided by the Secretary of the Treasury
(unless the Franchise Tax Board provides otherwise), if, on or before
the due date for any taxable year, a taxpayer transfers in a
trustee-to-trustee transfer any contribution to an individual
retirement plan made during the taxable year from that plan to any
other individual retirement plan, then, for purposes of this part,
the contribution shall be treated as having been made to the
transferee plan (and not the transferor plan).
(2) (A) Paragraph (1) shall not apply to the transfer of any
contribution unless the transfer is accompanied by any net income
allocable to that contribution.
(B) Paragraph (1) shall apply to the transfer of any contribution
only to the extent no deduction was allowed with respect to the
contribution to the transferor plan.
(i) For purposes of Section 408A(d) of the Internal Revenue Code,
the due date for any taxable year is the date prescribed by law
(including extensions of time) for filing the taxpayer's return for
that taxable year.
(j) For purposes of Section 408A of the Internal Revenue Code--
(1) A simplified employee pension or a simple retirement account
may not be designated as a Roth IRA, and
(2) Contributions to that pension or account shall not be taken
into account for purposes of Section 408A(c)(2)(B) of the Internal
Revenue Code.
SEC. 467. Section 17565 of the Revenue and Taxation Code, as added
by Chapter 362 of the Statutes of 1989, is repealed.
17565. (a) The taxable year of a taxpayer may not be different
than the taxable year used for purposes of the Internal Revenue Code,
unless initiated or approved by the Franchise Tax Board.
(b) For purposes of this section, whenever a taxpayer is required
to make a federal return for a period of less than 12 months, that
period shall be deemed to be a taxable year, and the provisions of
Section 17552 shall apply.
SEC. 468. The heading of Chapter 10.5 (commencing with Section
17940) of Part 10 of Division 2 of the Revenue and Taxation Code, as
added by Section 1 of Chapter 339 of the Statutes of 1987, is
repealed.
CHAPTER 10.5. REAL ESTATE MORTGAGE INVESTMENT CONDUITS
SEC. 469. Section 18407 of the Revenue and Taxation Code, as
amended by Section 326 of Chapter 183 of the Statutes of 2004, is
repealed.
18407. Section 6011 of the Internal Revenue Code, relating to
general requirement of return, statement, or list, shall apply,
except as otherwise provided.
(a) Section 6011(a) of the Internal Revenue Code, relating to
general rule, is modified as follows:
(1) The phrase "any person liable for any tax imposed by Part 10
(commencing with Section 17001), Part 11 (commencing with Section
23001), or this part," shall be substituted for the phrase "when
required by regulations prescribed by the Secretary any person made
liable for any tax imposed by this title," contained therein.
(2) "Secretary of the Treasury under Section 6011 of the Internal
Revenue Code for federal income tax purposes or by the Franchise Tax
Board" shall be substituted for "Secretary."
(3) To additionally provide that "reportable transaction" includes
any transaction of a type that the Secretary of the Treasury under
Section 6011 of the Internal Revenue Code for federal income tax
purposes or the Franchise Tax Board under this section for California
income or franchise tax purposes determines as having a potential
for tax avoidance or evasion including deductions, basis, credits,
entity classification, dividend elimination, or omission of income,
and shall be reported on the return or the statement required to be
made.
(4) To additionally provide that "listed transaction" includes any
transaction that is the same as, or substantially similar to, a
transaction specifically identified by the Secretary of the Treasury
under Section 6011 of the Internal Revenue Code for federal income
tax purposes or by the Franchise Tax Board under this section for
California income or franchise tax purposes, as a tax avoidance
transaction including deductions, basis, credits, entity
classification, dividend elimination, or omission of income and shall
be reported on the return or statement required to be made.
(A) The Franchise Tax Board shall identify and publish "listed
transactions" (whether identified by the Secretary of the Treasury
under Section 6011 of the Internal Revenue Code for federal income
tax purposes or by the Franchise Tax Board) through the use of
Franchise Tax Board Notices or other published positions. In
addition, the "listed transactions" identified and published pursuant
to the preceding sentence shall be published on the Web site of the
Franchise Tax Board.
(B) The Franchise Tax Board shall conduct a public outreach
program to make taxpayers aware of the new and increased penalties
associated with the use of tax avoidance transactions including
deductions, basis, credits, entity classification, dividend
elimination, or omission of income.
(5) Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code does not apply to any
standard, criterion, procedure, determination, rule, notice, or
guideline established or issued by the Franchise Tax Board pursuant
to paragraph (4).
(b) Section 6011(b) of the Internal Revenue Code, relating to
identification of taxpayer, does not apply and, in lieu thereof,
Section 18408 shall apply.
(c) Section 6011(c) of the Internal Revenue Code, relating to
returns, etc., of DISCs and former DISCs and FSCs and former FSCs,
does not apply.
(d) Section 6011(d) of the Internal Revenue Code, relating to
authority to require information concerning Section 912 allowances,
does not apply.
(e) Section 6011(e) of the Internal Revenue Code, relating to
regulations requiring returns on magnetic media, etc., shall take
into account Section 18408 and shall also include the modifications
made to Section 6011(e) of the Internal Revenue Code by Section
18408.
(f) Section 6011(f)(2) of the Internal Revenue Code, relating to
incentives, does not apply.
SEC. 470. Section 18805 of the Revenue and Taxation Code is
amended to read:
18805. (a) Any A taxpayer may
designate on the tax return that a contribution in excess of the tax
liability, if any, be made to the California Peace Officer Memorial
Foundation Fund, which is established by Section 18806. That
designation is to be used as a voluntary checkoff on the tax return.
(b) The contributions shall be in full dollar amounts and may be
made individually by each signatory on the joint return.
(c) A designation shall be made for any taxable year on the
initial return for that taxable year, and once made shall be
irrevocable. In the event that payments and credits reported on the
return, together with any other credits associated with the taxpayer'
s account, do not exceed the taxpayer's liability, the return shall
be treated as though no designation has been made. In the event that
no designee is specified, the contribution shall be transferred to
the General Fund, after reimbursement of the direct actual costs of
the Franchise Tax Board for the collection and the administration of
funds under this article.
(d) In the event a taxpayer designates a contribution to more than
one account or fund listed on the tax return, and the amount
available for designation is insufficient to satisfy the total amount
designated, the contribution shall be allocated among the designees
on a pro rata basis.
(e) The Franchise Tax Board shall revise the forms of the return
to include a space labeled the "California Peace Officer Memorial
Foundation Fund" to allow for the designation permitted. The forms
shall also include in the instructions information that the
contribution may be in the amount of one dollar ($1) or more and that
the contribution shall be used to build and maintain the California
Peace Officer Officers '
Memorial in Sacramento, California, and for activities performed by
the California Peace Officer Officers
' Memorial Foundation in support of families of slain
peace officers.
(f) A deduction shall be allowed under Article 6 (commencing with
Section 17201) of Chapter 3 for any contribution made pursuant to
subdivision (a).
SEC. 471. Section 18807 of the Revenue and Taxation Code is
amended to read:
18807. All money transferred to the California Peace Officer
Memorial Foundation Fund, upon appropriation by the Legislature,
shall be allocated as follows:
(a) To the Franchise Tax Board and the Controller for
reimbursement of all costs incurred by the Franchise Tax Board and
the Controller in connection with their duties under this article.
(b) To the California Department of the
California Highway Patrol for allocation to the California
Peace Officer Officers '
Memorial Commission for building and maintaining the California Peace
Officer Officers ' Memorial
in Sacramento, California, and for activities performed by the
California Peace Officer Memorial Foundation in support of families
of slain peace officers.
(c) All money transferred to the California Peace Officer Memorial
Foundation Fund prior to the enactment of the act adding this
subdivision is hereby appropriated for allocation as described in
subdivisions (a) and (b).
SEC. 472. Section 18808 of the Revenue and Taxation Code is
amended to read:
18808. (a) This article shall remain in effect only until January
1, 2021, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 2021, deletes that date.
(b) If the repeal date specified in subdivision (a) has been
deleted, all of the following apply:
(1) By September 1 of the calendar year beginning after the
effective date of the act deleting the repeal date and by September 1
of each subsequent calendar year that the California Peace
Officer Officers ' Memorial
Foundation Fund appears on a tax return, the Franchise Tax Board
shall do all of the following:
(A) Determine the minimum contribution amount required to be
received during the next calendar year for the fund to appear on the
tax return for the taxable year that includes that next calendar
year.
(B) Provide written notification to the California Peace Officer
Memorial Commission of the amount determined in subparagraph (A).
(C) Determine whether the amount of contributions estimated to be
received during the calendar year will equal or exceed the minimum
contribution amount determined by the Franchise Tax Board for the
calendar year pursuant to subparagraph (A). The Franchise Tax Board
shall estimate the amount of contributions to be received by using
the actual amounts received and an estimate of the contributions that
will be received by the end of that calendar year.
(2) If the Franchise Tax Board determines that the amount of
contributions estimated to be received during a calendar year will
not at least equal the minimum contribution amount for the calendar
year, this article is repealed with respect to taxable years
beginning on or after January 1 of that calendar year.
(3) For purposes of this section, the minimum contribution amount
for a calendar year means two hundred fifty thousand dollars
($250,000) for the first calendar year beginning after the effective
date of the act that deleted the repeal date specified in subdivision
(a), or the minimum contribution amount adjusted pursuant to
subdivision (c).
(c) For each calendar year, beginning with calendar year 2005, the
Franchise Tax Board shall adjust, on or before September 1 of that
calendar year, the minimum contribution amount specified in
subdivision (b) as follows:
(1) The minimum contribution amount for the calendar year shall be
an amount equal to the product of the minimum contribution amount
for the prior calendar year multiplied by the inflation factor
adjustment as specified in paragraph (2) of subdivision (h) of
Section 17041, rounded off to the nearest dollar.
(2) The inflation factor adjustment used for the calendar year
shall be based on the figures for the percentage change in the
California Consumer Price Index received on or before August 1 of the
calendar year pursuant to paragraph (1) of subdivision (h) of
Section 17041.
(d) Notwithstanding the repeal of this article, any contribution
amounts designated pursuant to this article prior to its repeal shall
continue to be transferred and disbursed in accordance with this
article as in effect immediately prior to that repeal.
SEC. 473. Section 19183 of the Revenue and Taxation Code is
amended to read:
19183. (a) (1) A penalty shall be imposed for failure to file
correct information returns, as required by this part, and that
penalty shall be determined in accordance with Section 6721 of the
Internal Revenue Code.
(2) Section 6721(e) of the Internal Revenue Code is modified to
the extent that the reference to Section 6041A(b) of the Internal
Revenue Code shall does not apply.
(b) (1) A penalty shall be imposed for failure to furnish correct
payee statements as required by this part, and that penalty shall be
determined in accordance with Section 6722 of the Internal Revenue
Code.
(2) Section 6722(c) of the Internal Revenue Code is modified to
the extent that the references to Sections 6041A(b) and 6041A(e) of
the Internal Revenue Code shall do not
apply.
(c) A penalty shall be imposed for failure to comply with other
information reporting requirements under this part, and that penalty
shall be determined in accordance with Section 6723 of the Internal
Revenue Code.
(d) (1) The provisions of Section 6724 of the Internal Revenue
Code relating to waiver, definitions, and special rules, shall apply,
except as otherwise provided.
(2) Section 6724(d)(1) of the Internal Revenue Code is modified as
follows:
(A) The following references are substituted:
(i) Subdivision (a) of Section 18640, in lieu of Section 6044(a)
(1) of the Internal Revenue Code.
(ii) Subdivision (a) of Section 18644, in lieu of Section 6050A(a)
of the Internal Revenue Code.
(B) References to Sections 4093(c)(4), 4093(e), 4101(d), 6041(b),
6041A(b), 6045(d), 6051(d), and 6053(c)(1) of the Internal Revenue
Code shall do not apply.
(C) The term "information return" shall also include both of the
following:
(i) The return required by paragraph (1) of subdivision
(i) (g) of Section 18662.
(ii) The return required by subdivision (a) of Section 18631.7.
(3) Section 6724(d)(2) of the Internal Revenue Code is modified as
follows:
(A) The following references are substituted:
(i) Subdivision (b) of Section 18640, in lieu of Section 6044(e)
of the Internal Revenue Code.
(ii) Subdivision (b) of Section 18644, in lieu of Section 6050A(b)
of the Internal Revenue Code.
(B) References to Sections 4093(c)(4)(B), 6031(b), 6037(b),
6041A(e), 6045(d), 6051(d), 6053(b), and 6053(c) of the Internal
Revenue Code shall do not apply.
(C) The term "payee statement" shall also include the statement
required by paragraph (2) of subdivision (i)
(g) of Section 18662.
(e) In the case of each failure to provide a written explanation
as required by Section 402(f) of the Internal Revenue Code, at the
time prescribed therefor, unless it is shown that the failure is due
to reasonable cause and not to willful neglect, there shall be paid,
on notice and demand of the Franchise Tax Board and in the same
manner as tax, by the person failing to provide that written
explanation, an amount equal to ten dollars ($10) for each failure,
but the total amount imposed on that person for all those failures
during any a calendar year shall not
exceed five thousand dollars ($5,000).
(f) Any A penalty imposed
by this part shall be paid on notice and demand by the Franchise Tax
Board and in the same manner as tax.
SEC. 474. Section 19191 of the Revenue and Taxation Code is
amended to read:
19191. (a) The Franchise Tax Board may enter into a voluntary
disclosure agreement with any qualified entity, qualified
shareholder, qualified member, or qualified beneficiary as defined in
Section 19192, that is binding on both the Franchise Tax Board and
the qualified entity, qualified shareholder, qualified member, or
qualified beneficiary.
(b) The Franchise Tax Board shall do all of the following:
(1) Provide guidelines and establish procedures for qualified
entities and their qualified shareholders, qualified members, or
qualified beneficiaries to apply for voluntary disclosure agreements.
(2) Accept applications on an anonymous basis from qualified
entities and their qualified shareholders, qualified members, or
qualified beneficiaries for voluntary disclosure agreements.
(3) Implement procedures for accepting applications for voluntary
disclosure agreements through the National Nexus Program administered
by the Multistate Tax Commission.
(4) For purposes of considering offers from qualified entities and
their qualified shareholders, qualified members, or qualified
beneficiaries to enter into voluntary disclosure agreements, take
into account the following criteria:
(A) The nature and magnitude of the qualified entity's previous
presence and activity in this state and the facts and circumstances
by which the nexus of the qualified entity or qualified shareholder,
qualified member, or qualified beneficiary was established.
(B) The extent to which the weight of the factual circumstances
demonstrates that a prudent business person exercising reasonable
care would conclude that the previous activities and presence in this
state were or were not immune from taxation by this state by reason
of Public Law 86-272 or otherwise.
(C) Reasonable reliance on the advice of a person in a fiduciary
position or other competent advice that the qualified entity or
qualified shareholder, qualified member, or qualified beneficiary
activities were immune from taxation by this state.
(D) Lack of evidence of willful disregard or neglect of the tax
laws of this state on the part of the qualified entity or qualified
shareholder, qualified member, or qualified beneficiary.
(E) Demonstrations of good faith on the part of the qualified
entity , qualified shareholder, qualified member, or qualified
beneficiary .
(F) Benefits that will accrue to the state by entering into a
voluntary disclosure agreement.
(5) Act on any application of a voluntary disclosure agreement
within 120 days of receipt.
(6) Enter into voluntary disclosure agreements with qualified
entities, qualified shareholders, qualified members, or qualified
beneficiaries, as authorized in subdivision (a) and based on the
criteria set forth in paragraph (4).
(c) Before any voluntary disclosure agreement becomes binding, the
Franchise Tax Board, itself, shall approve the agreement in the
following manner:
(1) The Executive Officer and Chief Counsel of the Franchise Tax
Board shall recommend and submit the voluntary disclosure agreement
to the Franchise Tax Board for approval.
(2) Each voluntary disclosure agreement recommendation shall be
submitted in a manner as to maintain the anonymity of the taxpayer
applying for the voluntary disclosure agreement.
(3) Any A recommendation for
approval of a voluntary disclosure agreement shall be approved or
disapproved by the Franchise Tax Board, itself, within 45 days of the
submission of that recommendation to the board.
(4) Any A recommendation of a
voluntary disclosure agreement that is not either approved or
disapproved by the board within 45 days of the submission of that
recommendation shall be deemed approved.
(5) Disapproval of a recommendation of a voluntary disclosure
agreement shall be made only by a majority vote of the Franchise Tax
Board.
(6) The members of the Franchise Tax Board shall not participate
in any voluntary disclosure agreement except as provided in this
subdivision.
(d) The voluntary disclosure agreement entered into by the
Franchise Tax Board and the qualified entity, qualified shareholder,
qualified member, or qualified beneficiary as provided for in
subdivision (a) shall to the extent applicable specify that:
(1) The Franchise Tax Board shall with respect to a qualified
entity, qualified shareholder, qualified member, or qualified
beneficiary, except as provided in paragraph (4), (6), or (9) of
subdivision (a) of Section 19192:
(A) Waive its authority under this part, Part 10 (commencing with
Section 17001), or Part 11 (commencing with Section 23001) to assess
or propose to assess taxes, additions to tax, fees, or penalties with
respect to each taxable year ending prior to six years from the
signing date of the voluntary disclosure agreement.
(B) With respect to each of the six taxable years ending
immediately preceding the signing date of the voluntary disclosure
agreement, based on its discretion, agree to waive any or all of the
following:
(i) Any A penalty related to a
failure to make and file a return, as provided in Section 19131.
(ii) Any A penalty related to a
failure to pay any amount due by the date prescribed for payment, as
provided in Section 19132.
(iii) Any An addition to tax related
to an underpayment of estimated tax, as provided in Section 19136.
(iv) Any A penalty related to
Section 6810 or subdivision (a) of Section 8810 of the Corporations
Code, as provided in Section 19141 of this code.
(v) Any A penalty related to a
failure to furnish information or maintain records, as provided in
Section 19141.5.
(vi) Any An addition to
tax related to an underpayment of tax imposed under Part 11
(commencing with Section 23001), as provided in Section 19142.
(vii) Any A penalty related to a
partnership required to file a return under Section 18633, as
provided in Section 19172.
(viii) Any A penalty related to a
failure to file information returns, as provided in Section 19183.
(ix) Any A penalty
related to relief from contract voidability, as provided in Section
23305.1.
(2) The qualified entity, qualified shareholder, qualified member,
or qualified beneficiary shall:
(A) With respect to each of the six taxable years ending
immediately preceding the signing date of the written agreement:
(i) Voluntarily and fully disclose on the qualified entity's
application all material facts pertinent to the qualified entity's,
shareholder's, member's, or beneficiary's liability for any taxes
imposed under Part 10 (commencing with Section 17001) or Part 11
(commencing with Section 23001).
(ii) Except as provided in paragraph (3), within 30 days from the
signing date of the voluntary disclosure agreement:
(I) File all returns required under this part, Part 10 (commencing
with Section 17001), or Part 11 (commencing with Section 23001).
(II) Pay in full any tax, interest, fee, and penalties, other than
those penalties specifically waived by the Franchise Tax Board under
the terms of the voluntary disclosure agreement, imposed under this
part, Part 10 (commencing with Section 17001), or Part 11 (commencing
with Section 23001) in a manner as may be prescribed by the
Franchise Tax Board. Paragraph (1) of subdivision (f) of Section
23153 shall not apply to qualified entities admitted into the
voluntary disclosure program.
(B) Agree to comply with all franchise and income tax laws of this
state in subsequent taxable years by filing all returns required and
paying all amounts due under this part, Part 10 (commencing with
Section 17001), or Part 11 (commencing with Section 23001).
(3) The Franchise Tax Board may extend the time for filing returns
and paying amounts due to 120 days from the signing date of the
voluntary disclosure agreement or to the latest extended due date of
the return for a taxable year for which relief is granted, whichever
is later.
(e) No An addition to tax under
Section 19136 or 19142 shall not be made for any
underpayment of estimated tax attributable to the underpayment of an
installment of estimated tax due before the signing date of the
voluntary disclosure agreement.
(f) The amendments to this section made by Chapter 954 of the
Statutes of 1996 shall apply to taxable years beginning on or after
January 1, 1997.
(g) The amendments to this section made by Chapter 543 of the
Statutes of 2001 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2002.
(h) The amendments to this section made by Chapter 543 of the
Statutes of 2001 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2005.
(i) The amendments to this section made by Chapter 296 of the
Statutes of 2011 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2011.
SEC. 475. Section 19255 of the Revenue and Taxation Code is
amended to read:
19255. (a) Except as otherwise provided in subdivisions (b) and
(e), after 20 years have lapsed from the date the latest tax
liability for a taxable year or the date any other liability that is
not associated with a taxable year becomes "due and payable" within
the meaning of Section 19221, the Franchise Tax Board may not collect
that amount and the taxpayer's liability to the state for that
liability is abated by reason of lapse of time. Any actions taken by
the Franchise Tax Board to collect an uncollectible liability shall
be released, withdrawn, or otherwise terminated by the Franchise Tax
Board, and no subsequent administrative or civil action shall be
taken or brought to collect all or part of that uncollectible amount.
Any amounts received in contravention of this section shall be
considered an overpayment pursuant to Section 19306
that may be credited and refunded in accordance with
Article 1 (commencing with Section 19301
19301) of Chapter 6 .
(b) If a timely civil action filed pursuant to Article 2 of
Chapter 6 of this part is commenced, or a claim is filed in a probate
action, the period for which the liability is collectable shall be
extended and shall not expire until that liability, probate claim, or
judgment against the taxpayer arising from that liability is
satisfied or becomes unenforceable under the laws applicable to the
enforcement of civil judgments.
(c) For purposes of this section, both of the following apply:
(1) "Tax liability" means a liability imposed under Part 10
(commencing with Section 17001), Part 11 (commencing with Section
23001), or this part, and includes any additions to tax, interest,
penalties, fees and any other amounts relating to the imposed
liability.
(2) If more than one liability is "due and payable" for a
particular taxable year, with the exception of a liability resulting
from a penalty imposed under Section 19777.5, the "due and payable"
date that is later in time shall be the date upon which the 20-year
limitation of subdivision (a) commences.
(d) This section shall not apply to amounts subject to collection
by the Franchise Tax Board pursuant to Article 5, 5.5, or 6 of this
chapter, or any other amount that is not a tax imposed under Part 10
or Part 11, but which the Franchise Tax Board is collecting as though
it were a final personal income tax delinquency.
(e) (1) The expiration of the period of limitation on collection
under this section shall be suspended for the following periods:
(A) The period that the Franchise Tax Board is prohibited from
involuntary collection under subparagraph (B) of paragraph (1) of
subdivision (b) of Section 19271 relating to collection of child
support delinquencies, plus 60 days thereafter.
(B) The period during which the Franchise Tax Board is prohibited
by reason of a bankruptcy case from collecting, plus six months
thereafter.
(C) The period described under subdivision (d) of Section 19008
relating to installment payment agreements.
(D) The period during which collection is postponed by operation
of law under Section 18571, related to postponement by reason of
service in a combat zone, or under Section 18572, related to
postponement by reason of presidentially declared disaster or
terroristic or military action.
(E) During any other period during which collection of a tax is
suspended, postponed, or extended by operation of law.
(2) A suspension of the period of limitation under this
subdivision shall apply with respect to both parties of any liability
that is joint and several.
(f) This section shall be applied on and after July 1, 2006, to
any liability "due and payable" before, on, or after that date.
SEC. 476. Chapter 9.5 (commencing with Section 19778) of Part 10.2
of Division 2 of the Revenue and Taxation Code, as added by Section
13 of Chapter 654 of the Statutes of 2003, is repealed.
SEC. 477. Section 23151 of the Revenue and Taxation Code is
amended to read:
23151. (a) With the exception of banks and financial
corporations, every corporation doing business within the limits of
this state and not expressly exempted from taxation by the provisions
of the Constitution of this state or by this part, shall annually
pay to the state, for the privilege of exercising its corporate
franchises within this state, a tax according to or measured by its
net income, to be computed at the rate of 7.6 percent upon the basis
of its net income for the next preceding income year, or if greater,
the minimum tax specified in Section 23153.
(b) For calendar or fiscal years ending after June 30, 1973, the
rate of tax shall be 9 percent instead of 7.6 percent as provided by
subdivision (a).
(c) For calendar or fiscal years ending in 1980 to 1986,
inclusive, the rate of tax shall be 9.6 percent.
(d) For calendar or fiscal years ending in 1987 to 1996,
inclusive, and for any income year beginning before January 1, 1997,
the tax rate shall be 9.3 percent.
(e) For any income year beginning on or after January 1, 1997,
and before the income year identified in subparagraph (A) of
paragraph (1) of subdivision (f), the tax rate shall be 8.84
percent. The change in rate provided in this subdivision shall be
made without proration otherwise required by Section 24251.
(f) (1) For the first taxable year beginning on or after January
1, 2000, the tax imposed under this section shall be the sum of both
of the following:
(A) A tax according to or measured by net income, to be computed
at the rate of 8.84 percent upon the basis of the net income for the
next preceding income year, but not less than the minimum tax
specified in Section 23153.
(B) A tax according to or measured by net income, to be computed
at the rate of 8.84 percent upon the basis of the net income for the
first taxable year beginning on or after January 1, 2000, but not
less than the minimum tax specified in Section 23153.
(2) Except as provided in paragraph (1), for taxable years
beginning on or after January 1, 2000, the tax imposed under this
section shall be a tax according to or measured by net income, to be
computed at the rate of 8.84 percent upon the basis of the net income
for that taxable year, but not less than the minimum tax specified
in Section 23153.
SEC. 478. The heading of Article 3 (commencing with Section 23571)
of Chapter 3 of Part 11 of Division 2 of the Revenue and Taxation
Code is repealed.
Article 3. Suspensions
SEC. 479. Section 23610.5 of the Revenue and Taxation Code is
amended to read:
23610.5. (a) (1) There shall be allowed as a credit against the
"tax" (as defined by Section 23036) a state low-income housing tax
credit in an amount equal to the amount determined in subdivision
(c), computed in accordance with Section 42 of the Internal Revenue
Code of 1986, except as otherwise provided in this section.
(2) "Taxpayer," for purposes of this section, means the sole owner
in the case of a "C" corporation, the partners in the case of a
partnership, and the shareholders in the case of an "S" corporation.
(3) "Housing sponsor," for purposes of this section, means the
sole owner in the case of a "C" corporation, the partnership in the
case of a partnership, and the "S" corporation in the case of an "S"
corporation.
(b) (1) The amount of the credit allocated to any housing sponsor
shall be authorized by the California Tax Credit Allocation
Committee, or any successor thereof, based on a project's need for
the credit for economic feasibility in accordance with the
requirements of this section.
(A) The low-income housing project shall be located in California
and shall meet either of the following requirements:
(i) Except for projects to provide farmworker housing, as defined
in subdivision (h) of Section 50199.7 of the Health and Safety Code,
that are allocated credits solely under the set-aside described in
subdivision (c) of Section 50199.20 of the Health and Safety Code,
the project's housing sponsor has been allocated by the California
Tax Credit Allocation Committee a credit for federal income tax
purposes under Section 42 of the Internal Revenue Code.
(ii) It qualifies for a credit under Section 42(h)(4)(B) of the
Internal Revenue Code.
(B) The California Tax Credit Allocation Committee shall not
require fees for the credit under this section in addition to those
fees required for applications for the tax credit pursuant to Section
42 of the Internal Revenue Code. The committee may require a fee if
the application for the credit under this section is submitted in a
calendar year after the year the application is submitted for the
federal tax credit.
(C) (i) For a project that receives a preliminary reservation of
the state low-income housing tax credit, allowed pursuant to
subdivision (a), on or after January 1, 2009, and before January 1,
2016, the credit shall be allocated to the partners of a partnership
owning the project in accordance with the partnership agreement,
regardless of how the federal low-income housing tax credit with
respect to the project is allocated to the partners, or whether the
allocation of the credit under the terms of the agreement has
substantial economic effect, within the meaning of Section 704(b) of
the Internal Revenue Code.
(ii) To the extent the allocation of the credit to a partner under
this section lacks substantial economic effect, any loss or
deduction otherwise allowable under this part that is attributable to
the sale or other disposition of that partner's partnership interest
made prior to the expiration of the federal credit shall not be
allowed in the taxable year in which the sale or other disposition
occurs, but shall instead be deferred until and treated as if it
occurred in the first taxable year immediately following the taxable
year in which the federal credit period expires for the project
described in clause (i).
(iii) This subparagraph shall does
not apply to a project that receives a preliminary reservation of
state low-income housing tax credits under the set-aside described in
subdivision (c) of Section 50199.20 of the Health and Safety Code
unless the project also receives a preliminary reservation of federal
low-income housing tax credits.
(iv) This subparagraph shall cease to be operative with respect to
any project that receives a preliminary reservation of a credit on
or after January 1, 2016.
(2) (A) The California Tax Credit Allocation Committee shall
certify to the housing sponsor the amount of tax credit under this
section allocated to the housing sponsor for each credit period.
(B) In the case of a partnership or an "S" corporation, the
housing sponsor shall provide a copy of the California Tax Credit
Allocation Committee certification to the taxpayer.
(C) The taxpayer shall, upon request, provide a copy of the
certification to the Franchise Tax Board.
(D) All elections made by the taxpayer pursuant to Section 42 of
the Internal Revenue Code shall apply to this
section.
(E) (i) Except as described in clause (ii), for buildings located
in designated difficult development areas (DDAs) or qualified census
tracts (QCTs), as defined in Section 42(d)(5)(B) of the Internal
Revenue Code, credits may be allocated under this section in the
amounts prescribed in subdivision (c), provided that the amount of
credit allocated under Section 42 of the Internal Revenue Code is
computed on 100 percent of the qualified basis of the building.
(ii) Notwithstanding clause (i), the California Tax Credit
Allocation Committee may allocate the credit for buildings located in
DDAs or QCTs that are restricted to having 50 percent of its
occupants be special needs households, as defined in the California
Code of Regulations by the California Tax Credit Allocation
Committee, even if the taxpayer receives federal credits pursuant to
Section 42(d)(5)(B) of the Internal Revenue Code, provided that the
credit allowed under this section shall not exceed 30 percent of the
eligible basis of the building.
(G)
(F) (i) The California Tax Credit Allocation Committee
may allocate a credit under this section in exchange for a credit
allocated pursuant to Section 42(d)(5)(B) of the Internal Revenue
Code in amounts up to 30 percent of the eligible basis of a building
if the credits allowed under Section 42 of the Internal Revenue Code
are reduced by an equivalent amount.
(ii) An equivalent amount shall be determined by the California
Tax Credit Allocation Committee based upon the relative amount
required to produce an equivalent state tax credit to the taxpayer.
(c) Section 42(b) of the Internal Revenue Code shall be modified
as follows:
(1) In the case of any qualified low-income building placed in
service by the housing sponsor during 1987, the term "applicable
percentage" means 9 percent for each of the first three years and 3
percent for the fourth year for new buildings (whether or not the
building is federally subsidized) and for existing buildings.
(2) In the case of any qualified low-income building that receives
an allocation after 1989 and is a new building not federally
subsidized, the term "applicable percentage" means the following:
(A) For each of the first three years, the percentage prescribed
by the Secretary of the Treasury for new buildings that are not
federally subsidized for the taxable year, determined in accordance
with the requirements of Section 42(b)(2) of the Internal Revenue
Code, in lieu of the percentage prescribed in Section 42(b)(1)(A) of
the Internal Revenue Code.
(B) For the fourth year, the difference between 30 percent and the
sum of the applicable percentages for the first three years.
(3) In the case of any qualified low-income building that receives
an allocation after 1989 and that is a new building that is
federally subsidized or that is an existing building that is "at risk
of conversion," the term "applicable percentage" means the
following:
(A) For each of the first three years, the percentage prescribed
by the Secretary of the Treasury for new buildings that are federally
subsidized for the taxable year.
(B) For the fourth year, the difference between 13 percent and the
sum of the applicable percentages for the first three years.
(4) For purposes of this section, the term "at risk of conversion,"
with respect to an existing property means a property that satisfies
all of the following criteria:
(A) The property is a multifamily rental housing development in
which at least 50 percent of the units receive governmental
assistance pursuant to any of the following:
(i) New construction, substantial rehabilitation, moderate
rehabilitation, property disposition, and loan management set-aside
programs, or any other program providing project-based assistance
pursuant to Section 8 of the United States Housing Act of 1937,
Section 1437f of Title 42 of the United States Code, as amended.
(ii) The Below-Market-Interest-Rate Program pursuant to Section
221(d)(3) of the National Housing Act, Sections 1715 l (d)
(3) and (5) of Title 12 of the United States Code.
(iii) Section 236 of the National Housing Act, Section 1715z-1 of
Title 12 of the United States Code.
(iv) Programs for rent supplement assistance pursuant to Section
101 of the Housing and Urban Development Act of 1965, Section 1701s
of Title 12 of the United States Code, as amended.
(v) Programs pursuant to Section 515 of the Housing Act of 1949,
Section 1485 of Title 42 of the United States Code, as amended.
(vi) The low-income housing credit program set forth in Section 42
of the Internal Revenue Code.
(B) The restrictions on rent and income levels will terminate or
the federally insured mortgage on the property is eligible for
prepayment any time within five years before or after the date of
application to the California Tax Credit Allocation Committee.
(C) The entity acquiring the property enters into a regulatory
agreement that requires the property to be operated in accordance
with the requirements of this section for a period equal to the
greater of 55 years or the life of the property.
(D) The property satisfies the requirements of Section 42(e) of
the Internal Revenue Code regarding rehabilitation expenditures,
except that the provisions of Section 42(e)(3)(A)(ii)(I) shall not
apply.
(d) The term "qualified low-income housing project" as defined in
Section 42(c)(2) of the Internal Revenue Code is modified by adding
the following requirements:
(1) The taxpayer shall be entitled to receive a cash distribution
from the operations of the project, after funding required reserves,
that at the election of
the taxpayer, is equal to:
(A) An amount not to exceed 8 percent of the lesser of:
(i) The owner equity, that shall include the amount of the capital
contributions actually paid to the housing sponsor and shall not
include any amounts until they are paid on an investor note.
(ii) Twenty percent of the adjusted basis of the building as of
the close of the first taxable year of the credit period.
(B) The amount of the cashflow from those units in the building
that are not low-income units. For purposes of computing cashflow
under this subparagraph, operating costs shall be allocated to the
low-income units using the "floor space fraction," as defined in
Section 42 of the Internal Revenue Code.
(C) Any amount allowed to be distributed under subparagraph (A)
that is not available for distribution during the first five years of
the compliance period may be accumulated and distributed any time
during the first 15 years of the compliance period but not
thereafter.
(2) The limitation on return shall apply
applies in the aggregate to the partners if the housing sponsor
is a partnership and in the aggregate to the shareholders if the
housing sponsor is an "S" corporation.
(3) The housing sponsor shall apply any cash available for
distribution in excess of the amount eligible to be distributed under
paragraph (1) to reduce the rent on rent-restricted units or to
increase the number of rent-restricted units subject to the tests of
Section 42(g)(1) of the Internal Revenue Code.
(e) The provisions of Section 42(f) of the Internal Revenue Code
shall be modified as follows:
(1) The term "credit period" as defined in Section 42(f)(1) of the
Internal Revenue Code is modified by substituting "four taxable
years" for "10 taxable years."
(2) The special rule for the first taxable year of the credit
period under Section 42(f)(2) of the Internal Revenue Code shall not
apply to the tax credit under this section.
(3) Section 42(f)(3) of the Internal Revenue Code is modified to
read:
If, as of the close of any taxable year in the compliance period,
after the first year of the credit period, the qualified basis of any
building exceeds the qualified basis of that building as of the
close of the first year of the credit period, the housing sponsor, to
the extent of its tax credit allocation, shall be eligible for a
credit on the excess in an amount equal to the applicable percentage
determined pursuant to subdivision (c) for the four-year period
beginning with the later of the taxable years in which the increase
in qualified basis occurs.
(f) The provisions of Section 42(h) of the Internal Revenue Code
shall be modified as follows:
(1) Section 42(h)(2) of the Internal Revenue Code shall
does not be applicable
apply and instead the following provisions shall be
applicable: apply:
The total amount for the four-year credit period of the housing
credit dollars allocated in a calendar year to any building shall
reduce the aggregate housing credit dollar amount of the California
Tax Credit Allocation Committee for the calendar year in which the
allocation is made.
(2) Paragraphs (3), (4), (5), (6)(E)(i)(II), (6)(F), (6)(G), (6)
(I), (7), and (8) of Section 42(h) of the Internal Revenue Code
shall do not be applicable
apply .
(g) The aggregate housing credit dollar amount that may be
allocated annually by the California Tax Credit Allocation Committee
pursuant to this section, Section 12206, and Section 17058 shall be
an amount equal to the sum of all the following:
(1) Seventy million dollars ($70,000,000) for the 2001 calendar
year, and, for the 2002 calendar year and each calendar year
thereafter, seventy million dollars ($70,000,000) increased by the
percentage, if any, by which the Consumer Price Index for the
preceding calendar year exceeds the Consumer Price Index for the 2001
calendar year. For the purposes of this paragraph, the term
"Consumer Price Index" means the last Consumer Price Index for All
Urban Consumers published by the federal Department of Labor.
(2) The unused housing credit ceiling, if any, for the preceding
calendar years.
(3) The amount of housing credit ceiling returned in the calendar
year. For purposes of this paragraph, the amount of housing credit
dollar amount returned in the calendar year equals the housing credit
dollar amount previously allocated to any project that does not
become a qualified low-income housing project within the period
required by this section or to any project with respect to which an
allocation is canceled by mutual consent of the California Tax Credit
Allocation Committee and the allocation recipient.
(4) Five hundred thousand dollars ($500,000) per calendar year for
projects to provide farmworker housing, as defined in subdivision
(h) of Section 50199.7 of the Health and Safety Code.
(5) The amount of any unallocated or returned credits under former
Sections 17053.14, 23608.2, and 23608.3, as those sections read
prior to January 1, 2009, until fully exhausted for projects to
provide farmworker housing, as defined in subdivision (h) of Section
50199.7 of the Health and Safety Code.
(h) The term "compliance period" as defined in Section 42(i)(1) of
the Internal Revenue Code is modified to mean, with respect to any
building, the period of 30 consecutive taxable years beginning with
the first taxable year of the credit period with respect thereto.
(i) Section 42(j) of the Internal Revenue Code shall
does not be applicable
apply and the following shall be substituted in its place:
The requirements of this section shall be set forth in a
regulatory agreement between the California Tax Credit Allocation
Committee and the housing sponsor, and this agreement shall be
subordinated, when required, to any lien or encumbrance of any banks
or other institutional lenders to the project. The regulatory
agreement entered into pursuant to subdivision (f) of Section
50199.14 of the Health and Safety Code shall apply, provided that the
agreement includes all of the following provisions:
(1) A term not less than the compliance period.
(2) A requirement that the agreement be recorded in the official
records of the county in which the qualified low-income housing
project is located.
(3) A provision stating which state and local agencies can enforce
the regulatory agreement in the event the housing sponsor fails to
satisfy any of the requirements of this section.
(4) A provision that the regulatory agreement shall be deemed a
contract enforceable by tenants as third-party beneficiaries thereto,
and that allows individuals, whether prospective, present, or former
occupants of the building, who meet the income limitation applicable
to the building, the right to enforce the regulatory agreement in
any state court.
(5) A provision incorporating the requirements of Section 42 of
the Internal Revenue Code as modified by this section.
(6) A requirement that the housing sponsor notify the California
Tax Credit Allocation Committee or its designee if there is a
determination by the Internal Revenue Service that the project is not
in compliance with Section 42(g) of the Internal Revenue Code.
(7) A requirement that the housing sponsor, as security for the
performance of the housing sponsor's obligations under the regulatory
agreement, assign the housing sponsor's interest in rents that it
receives from the project, provided that until there is a default
under the regulatory agreement, the housing sponsor is entitled to
collect and retain the rents.
(8) A provision that the remedies available in the event of a
default under the regulatory agreement that is not cured within a
reasonable cure period include, but are not limited to, allowing any
of the parties designated to enforce the regulatory agreement to
collect all rents with respect to the project; taking possession of
the project and operating the project in accordance with the
regulatory agreement until the enforcer determines the housing
sponsor is in a position to operate the project in accordance with
the regulatory agreement; applying to any court for specific
performance; securing the appointment of a receiver to operate the
project; or any other relief as may be appropriate.
(j) (1) The committee shall allocate the housing credit on a
regular basis consisting of two or more periods in each calendar year
during which applications may be filed and considered. The committee
shall establish application filing deadlines, the maximum percentage
of federal and state low-income housing tax credit ceiling that may
be allocated by the committee in that period, and the approximate
date on which allocations shall be made. If the enactment of federal
or state law, the adoption of rules or regulations, or other similar
events prevent the use of two allocation periods, the committee may
reduce the number of periods and adjust the filing deadlines, maximum
percentage of credit allocated, and allocation dates.
(2) The committee shall adopt a qualified allocation plan, as
provided in Section 42(m)(1) of the Internal Revenue Code. In
adopting this plan, the committee shall comply with the provisions of
Sections 42(m)(1)(B) and 42(m)(1)(C) of the Internal Revenue Code.
(3) Notwithstanding Section 42(m) of the Internal Revenue Code,
the California Tax Credit Allocation Committee shall allocate housing
credits in accordance with the qualified allocation plan and
regulations, which shall include the following provisions:
(A) All housing sponsors, as defined by paragraph (3) of
subdivision (a), shall demonstrate at the time the application is
filed with the committee that the project meets the following
threshold requirements:
(i) The housing sponsor shall demonstrate that there is a need for
low-income housing in the community or region for which it is
proposed.
(ii) The project's proposed financing, including tax credit
proceeds, shall be sufficient to complete the project and shall be
adequate to operate the project for the extended use period.
(iii) The project shall have enforceable financing commitments,
either construction or permanent financing, for at least 50 percent
of the total estimated financing of the project.
(iv) The housing sponsor shall have and maintain control of the
site for the project.
(v) The housing sponsor shall demonstrate that the project
complies with all applicable local land use and zoning ordinances.
(vi) The housing sponsor shall demonstrate that the project
development team has the experience and the financial capacity to
ensure project completion and operation for the extended use period.
(vii) The housing sponsor shall demonstrate the amount of tax
credit that is necessary for the financial feasibility of the project
and its viability as a qualified low-income housing project
throughout the extended use period, taking into account operating
expenses, a supportable debt service, reserves, funds set aside for
rental subsidies and required equity, and a development fee that does
not exceed a specified percentage of the eligible basis of the
project prior to inclusion of the development fee in the eligible
basis, as determined by the committee.
(B) The committee shall give a preference to those projects
satisfying all of the threshold requirements of subparagraph (A) if
both of the following apply:
(i) The project serves the lowest income tenants at rents
affordable to those tenants.
(ii) The project is obligated to serve qualified tenants for the
longest period.
(C) In addition to the provisions of subparagraphs (A) and (B),
the committee shall use the following criteria in allocating housing
credits:
(i) Projects serving large families in which a substantial number,
as defined by the committee, of all residential units are low-income
units with three and more bedrooms.
(ii) Projects providing single-room occupancy units serving very
low income tenants.
(iii) Existing projects that are "at risk of conversion," as
defined by paragraph (4) of subdivision (c).
(iv) Projects for which a public agency provides direct or
indirect long-term financial support for at least 15 percent of the
total project development costs or projects for which the owner's
equity constitutes at least 30 percent of the total project
development costs.
(v) Projects that provide tenant amenities not generally available
to residents of low-income housing projects.
(4) For purposes of allocating credits pursuant to this section,
the committee shall not give preference to any project by virtue of
the date of submission of its application except to break a tie when
two or more of the projects have an equal rating.
(5) Not less than 20 percent of the low-income housing tax credits
available annually under this section, Section 12206, and Section
17058 shall be set aside for allocation to rural areas as defined in
Section 50199.21 of the Health and Safety Code. Any amount of credit
set aside for rural areas remaining on or after October 31 of any
calendar year shall be available for allocation to any eligible
project. No amount of credit set aside for rural areas shall be
considered available for any eligible project so long as there are
eligible rural applications pending on October 31.
(k) Section 42( l ) of the Internal Revenue Code shall
be modified as follows:
The term "secretary" shall be replaced by the term "California
Franchise Tax Board."
( l ) In the case where in
which the state credit allowed under this section exceeds the
"tax," the excess may be carried over to reduce the "tax" in the
following year, and succeeding years if necessary, until the credit
has been exhausted.
(m) A project that received an allocation of a 1989 federal
housing credit dollar amount shall be eligible to receive an
allocation of a 1990 state housing credit dollar amount, subject to
all of the following conditions:
(1) The project was not placed in service prior to 1990.
(2) To the extent the amendments made to this section by the
Statutes of 1990 conflict with any provisions existing in this
section prior to those amendments, the prior provisions of law shall
prevail.
(3) Notwithstanding paragraph (2), a project applying for an
allocation under this subdivision shall be subject to the
requirements of paragraph (3) of subdivision (j).
(n) The credit period with respect to an allocation of credit in
1989 by the California Tax Credit Allocation Committee of which any
amount is attributable to unallocated credit from 1987 or 1988 shall
not begin until after December 31, 1989.
(o) The provisions of Section 11407(a) of Public Law 101-508,
relating to the effective date of the extension of the low-income
housing credit, shall apply to calendar years
after 1989.
(p) The provisions of Section 11407(c) of Public Law 101-508,
relating to election to accelerate credit, shall
do not apply.
(q) (1) A corporation may elect to assign any portion of any
credit allowed under this section to one or more affiliated
corporations for each taxable year in which the credit is allowed.
For purposes of this subdivision, "affiliated corporation" has the
meaning provided in subdivision (b) of Section 25110, as that section
was amended by Chapter 881 of the Statutes of 1993, as of the last
day of the taxable year in which the credit is allowed, except that
"100 percent" is substituted for "more than 50 percent" wherever it
appears in the section, as that section was amended by Chapter 881 of
the Statutes of 1993, and "voting common stock" is substituted for
"voting stock" wherever it appears in the section, as that section
was amended by Chapter 881 of the Statutes of 1993.
(2) The election provided in paragraph (1):
(A) May be based on any method selected by the corporation that
originally receives the credit.
(B) Shall be irrevocable for the taxable year the credit is
allowed, once made.
(C) May be changed for any subsequent taxable year if the election
to make the assignment is expressly shown on each of the returns of
the affiliated corporations that assign and receive the credits.
(r) Any unused credit may continue to be carried forward, as
provided in subdivision ( l ), until the credit has been
exhausted.
This section shall remain in effect on and after December 1, 1990,
for as long as Section 42 of the Internal Revenue Code, relating to
low-income housing credits, remains in effect.
(s) The amendments to this section made by the act adding this
subdivision shall apply only to taxable years beginning on or after
January 1, 1994, except that paragraph (1) of subdivision (q), as
amended, shall apply to taxable years beginning on or after January
1, 1993.
SEC. 480. Section 23622.7 of the Revenue and Taxation Code is
amended to read:
23622.7. (a) There shall be allowed a credit against the "tax"
(as defined by Section 23036) to a taxpayer who employs a qualified
employee in an enterprise zone during the taxable year. The credit
shall be equal to the sum of each of the following:
(1) Fifty percent of qualified wages in the first year of
employment.
(2) Forty percent of qualified wages in the second year of
employment.
(3) Thirty percent of qualified wages in the third year of
employment.
(4) Twenty percent of qualified wages in the fourth year of
employment.
(5) Ten percent of qualified wages in the fifth year of
employment.
(b) For purposes of this section:
(1) "Qualified wages" means:
(A) (i) Except as provided in clause (ii), that portion of wages
paid or incurred by the taxpayer during the taxable year to qualified
employees that does not exceed 150 percent of the minimum wage.
(ii) For up to 1,350 qualified employees who are employed by the
taxpayer in the Long Beach Enterprise Zone in aircraft manufacturing
activities described in Codes 3721 to 3728, inclusive, and Code 3812
of the Standard Industrial Classification (SIC) Manual published by
the United States Office of Management and Budget, 1987 edition,
"qualified wages" means that portion of hourly wages that does not
exceed 202 percent of the minimum wage.
(B) Wages received during the 60-month period beginning with the
first day the employee commences employment with the taxpayer.
Reemployment in connection with any increase, including a regularly
occurring seasonal increase, in the trade or business operations of
the taxpayer does not constitute commencement of employment for
purposes of this section.
(C) Qualified wages do not include any wages paid or incurred by
the taxpayer on or after the zone expiration date. However, wages
paid or incurred with respect to qualified employees who are employed
by the taxpayer within the enterprise zone within the 60-month
period prior to the zone expiration date shall continue to qualify
for the credit under this section after the zone expiration date, in
accordance with all provisions of this section applied as if the
enterprise zone designation were still in existence and binding.
(2) "Minimum wage" means the wage established by the Industrial
Welfare Commission as provided for in Chapter 1 (commencing with
Section 1171) of Part 4 of Division 2 of the Labor Code.
(3) "Zone expiration date" means the date the enterprise zone
designation expires, is no longer binding, becomes inoperative, or is
repealed.
(4) (A) "Qualified employee" means an individual who meets all of
the following requirements:
(i) At least 90 percent of whose services for the taxpayer during
the taxable year are directly related to the conduct of the taxpayer'
s trade or business located in an enterprise zone.
(ii) Performs at least 50 percent of his or her services for the
taxpayer during the taxable year in an enterprise zone.
(iii) Is hired by the taxpayer after the date of original
designation of the area in which services were performed as an
enterprise zone.
(iv) Is any of the following:
(I) Immediately preceding the qualified employee's commencement of
employment with the taxpayer, was a person eligible for services
under the federal Job Training Partnership Act (29 U.S.C. Sec. 1501
et seq.), or its successor, who is receiving, or is eligible to
receive, subsidized employment, training, or services funded by the
federal Job Training Partnership Act, or its successor.
(II) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a person eligible to be a
voluntary or mandatory registrant under the Greater Avenues for
Independence Act of 1985 (GAIN) provided for pursuant to Article 3.2
(commencing with Section 11320) of Chapter 2 of Part 3 of Division 9
of the Welfare and Institutions Code, or its successor.
(III) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was an economically disadvantaged
individual 14 years of age or older.
(IV) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a dislocated worker who meets
any of the following:
(aa)
(ia) Has been terminated or laid off or who has
received a notice of termination or layoff from employment, is
eligible for or has exhausted entitlement to unemployment insurance
benefits, and is unlikely to return to his or her previous industry
or occupation.
(bb)
(ib) Has been terminated or has received a notice of
termination of employment as a result of any permanent closure or any
substantial layoff at a plant, facility, or enterprise, including an
individual who has not received written notification but whose
employer has made a public announcement of the closure or layoff.
(cc)
(ic) Is long-term unemployed and has limited
opportunities for employment or reemployment in the same or a similar
occupation in the area in which the individual resides, including an
individual 55 years of age or older who may have substantial
barriers to employment by reason of age.
(dd)
(id) Was self-employed (including farmers and ranchers)
and is unemployed as a result of general economic conditions in the
community in which he or she resides or because of natural disasters.
(ee)
(ie) Was a civilian employee of the Department of
Defense employed at a military installation being closed or realigned
under the Defense Base Closure and Realignment Act of 1990.
(ff)
(if) Was an active member of the armed forces or
National Guard as of September 30, 1990, and was either involuntarily
separated or separated pursuant to a special benefits program.
(gg)
(ig) Is a seasonal or migrant worker who experiences
chronic seasonal unemployment and underemployment in the agriculture
industry, aggravated by continual advancements in technology and
mechanization.
(hh)
(ih) Has been terminated or laid off, or has received a
notice of termination or layoff, as a consequence of compliance with
the Clean Air Act.
(V) Immediately preceding the qualified employee's commencement of
employment with the taxpayer, was a disabled individual who is
eligible for or enrolled in, or has completed a state rehabilitation
plan or is a service-connected disabled veteran, veteran of the
Vietnam era, or veteran who is recently separated from military
service.
(VI) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was an ex-offender. An individual
shall be treated as convicted if he or she was placed on probation by
a state court without a finding of guilt.
(VII) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a person eligible for or a
recipient of any of the following:
(aa)
(ia) Federal Supplemental Security Income benefits.
(bb)
(ib) Aid to Families with Dependent Children.
(cc)
(ic) CalFresh benefits.
(dd)
(id) State and local general assistance.
(VIII) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a member of a federally
recognized Indian tribe, band, or other group of Native American
descent.
(IX) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a resident of a targeted
employment area (as defined in Section 7072 of the Government Code).
(X) An employee who qualified the taxpayer for the enterprise zone
hiring credit under former Section 23622 or the program area hiring
credit under former Section 23623.
(XI) Immediately preceding the qualified employee's commencement
of employment with the taxpayer, was a member of a targeted group, as
defined in Section 51(d) of the Internal Revenue Code, or its
successor.
(B) Priority for employment shall be provided to an individual who
is enrolled in a qualified program under the federal Job Training
Partnership Act or the Greater Avenues for Independence Act of 1985
or who is eligible as a member of a targeted group under the Work
Opportunity Tax Credit (Section 51 of the Internal Revenue Code), or
its successor.
(5) "Taxpayer" means a corporation engaged in a trade or business
within an enterprise zone designated pursuant to Chapter 12.8
(commencing with Section 7070) of Division 7 of Title 1 of the
Government Code.
(6) "Seasonal employment" means employment by a taxpayer that has
regular and predictable substantial reductions in trade or business
operations.
(c) The taxpayer shall do both of the following:
(1) Obtain from the Employment Development Department, as
permitted by federal law, the local county or city Job Training
Partnership Act administrative entity, the local county GAIN office
or social services agency, or the local government administering the
enterprise zone, a certification that provides that a qualified
employee meets the eligibility requirements specified in clause (iv)
of subparagraph (A) of paragraph (4) of subdivision (b). The
Employment Development Department may provide preliminary screening
and referral to a certifying agency. The Employment Development
Department shall develop a form for this purpose. The Department of
Housing and Community Development shall develop regulations governing
the issuance of certificates by local governments pursuant to
subdivision (a) of Section 7086 of the Government Code.
(2) Retain a copy of the certification and provide it upon request
to the Franchise Tax Board.
(d) (1) For purposes of this section:
(A) All employees of all corporations which are members of the
same controlled group of corporations shall be treated as employed by
a single taxpayer.
(B) The
credit, if any, allowable by this section to each member shall be
determined by reference to its proportionate share of the expense of
the qualified wages giving rise to the credit, and shall be allocated
in that manner.
(C) For purposes of this subdivision, "controlled group of
corporations" means "controlled group of corporations" as defined in
Section 1563(a) of the Internal Revenue Code, except that:
(i) "More than 50 percent" shall be substituted for "at least 80
percent" each place it appears in Section 1563(a)(1) of the Internal
Revenue Code.
(ii) The determination shall be made without regard to subsections
(a)(4) and (e)(3)(C) of Section 1563 of the Internal Revenue Code.
(2) If an employer acquires the major portion of a trade or
business of another employer (hereinafter in this paragraph referred
to as the "predecessor") or the major portion of a separate unit of a
trade or business of a predecessor, then, for purposes of applying
this section (other than subdivision (e)) for any calendar year
ending after that acquisition, the employment relationship between a
qualified employee and an employer shall not be treated as terminated
if the employee continues to be employed in that trade or business.
(e) (1) (A) If the employment, other than seasonal employment, of
any qualified employee with respect to whom qualified wages are taken
into account under subdivision (a) is terminated by the taxpayer at
any time during the first 270 days of that employment, whether or not
consecutive, or before the close of the 270th calendar day after the
day in which that employee completes 90 days of employment with the
taxpayer, the tax imposed by this part for the taxable year in which
that employment is terminated shall be increased by an amount equal
to the credit allowed under subdivision (a) for that taxable year and
all prior taxable years attributable to qualified wages paid or
incurred with respect to that employee.
(B) If the seasonal employment of any qualified employee, with
respect to whom qualified wages are taken into account under
subdivision (a) is not continued by the taxpayer for a period of 270
days of employment during the 60-month period beginning with the day
the qualified employee commences seasonal employment with the
taxpayer, the tax imposed by this part, for the taxable year that
includes the 60th month following the month in which the qualified
employee commences seasonal employment with the taxpayer, shall be
increased by an amount equal to the credit allowed under subdivision
(a) for that taxable year and all prior taxable years attributable to
qualified wages paid or incurred with respect to that qualified
employee.
(2) (A) Subparagraph (A) of paragraph (1) shall
does not apply to any of the following:
(i) A termination of employment of a qualified employee who
voluntarily leaves the employment of the taxpayer.
(ii) A termination of employment of a qualified employee who,
before the close of the period referred to in subparagraph (A) of
paragraph (1), becomes disabled and unable to perform the services of
that employment, unless that disability is removed before the close
of that period and the taxpayer fails to offer reemployment to that
employee.
(iii) A termination of employment of a qualified employee, if it
is determined that the termination was due to the misconduct (as
defined in Sections 1256-30 to 1256-43, inclusive, of Title 22 of the
California Code of Regulations) of that employee.
(iv) A termination of employment of a qualified employee due to a
substantial reduction in the trade or business operations of the
taxpayer.
(v) A termination of employment of a qualified employee, if that
employee is replaced by other qualified employees so as to create a
net increase in both the number of employees and the hours of
employment.
(B) Subparagraph (B) of paragraph (1) shall
does not apply to any of the following:
(i) A failure to continue the seasonal employment of a qualified
employee who voluntarily fails to return to the seasonal employment
of the taxpayer.
(ii) A failure to continue the seasonal employment of a qualified
employee who, before the close of the period referred to in
subparagraph (B) of paragraph (1), becomes disabled and unable to
perform the services of that seasonal employment, unless that
disability is removed before the close of that period and the
taxpayer fails to offer seasonal employment to that qualified
employee.
(iii) A failure to continue the seasonal employment of a qualified
employee, if it is determined that the failure to continue the
seasonal employment was due to the misconduct (as defined in Sections
1256-30 to 1256-43, inclusive, of Title 22 of the California Code of
Regulations) of that qualified employee.
(iv) A failure to continue seasonal employment of a qualified
employee due to a substantial reduction in the regular seasonal trade
or business operations of the taxpayer.
(v) A failure to continue the seasonal employment of a qualified
employee, if that qualified employee is replaced by other qualified
employees so as to create a net increase in both the number of
seasonal employees and the hours of seasonal employment.
(C) For purposes of paragraph (1), the employment relationship
between the taxpayer and a qualified employee shall not be treated as
terminated by either of the following:
(i) By a transaction to which Section 381(a) of the Internal
Revenue Code applies, if the qualified employee continues to be
employed by the acquiring corporation.
(ii) By reason of a mere change in the form of conducting the
trade or business of the taxpayer, if the qualified employee
continues to be employed in that trade or business and the taxpayer
retains a substantial interest in that trade or business.
(3) Any increase in tax under paragraph (1) shall not be treated
as tax imposed by this part for purposes of determining the amount of
any credit allowable under this part.
(f) Rules similar to the rules provided in Section 46(e) and (h)
of the Internal Revenue Code shall apply to both of the following:
(1) An organization to which Section 593 of the Internal Revenue
Code applies.
(2) A regulated investment company or a real estate investment
trust subject to taxation under this part.
(g) For purposes of this section, "enterprise zone" means an area
designated as an enterprise zone pursuant to Chapter 12.8 (commencing
with Section 7070) of Division 7 of Title 1 of the Government Code.
(h) The credit allowable under this section shall be reduced by
the credit allowed under Sections 23623.5, 23625, and 23646 claimed
for the same employee. The credit shall also be reduced by the
federal credit allowed under Section 51 of the Internal Revenue Code.
In addition, any deduction otherwise allowed under this part for
the wages or salaries paid or incurred by the taxpayer upon which the
credit is based shall be reduced by the amount of the credit, prior
to any reduction required by subdivision (i) or (j).
(i) In the case where the credit otherwise allowed under this
section exceeds the "tax" for the taxable year, that portion of the
credit that exceeds the "tax" may be carried over and added to the
credit, if any, in the succeeding 10 taxable years, if necessary,
until the credit is exhausted. The credit shall be applied first to
the earliest taxable years possible.
(j) (1) The amount of the credit otherwise allowed under this
section and Section 23612.2, including any credit carryover from
prior years, that may reduce the "tax" for the taxable year shall not
exceed the amount of tax which would be imposed on the taxpayer's
business income attributable to the enterprise zone determined as if
that attributable income represented all of the income of the
taxpayer subject to tax under this part.
(2) Attributable income shall be that portion of the taxpayer's
California source business income that is apportioned to the
enterprise zone. For that purpose, the taxpayer's business
attributable to sources in this state first shall be determined in
accordance with Chapter 17 (commencing with Section 25101). That
business income shall be further apportioned to the enterprise zone
in accordance with Article 2 (commencing with Section 25120) of
Chapter 17, modified for purposes of this section in accordance with
paragraph (3).
(3) Business income shall be apportioned to the enterprise zone by
multiplying the total California business income of the taxpayer by
a fraction, the numerator of which is the property factor plus the
payroll factor, and the denominator of which is two. For purposes of
this paragraph:
(A) The property factor is a fraction, the numerator of which is
the average value of the taxpayer's real and tangible personal
property owned or rented and used in the enterprise zone during the
income year, and the denominator of which is the average value of all
the taxpayer's real and tangible personal property owned or rented
and used in this state during the income year.
(B) The payroll factor is a fraction, the numerator of which is
the total amount paid by the taxpayer in the enterprise zone during
the income year for compensation, and the denominator of which is the
total compensation paid by the taxpayer in this state during the
income year.
(4) The portion of any credit remaining, if any, after application
of this subdivision, shall be carried over to succeeding taxable
years, if necessary, until the credit is exhausted, as if it were an
amount exceeding the "tax" for the taxable year, as provided in
subdivision (i). However, the portion of any credit remaining for
carryover to taxable years beginning on or after January 1, 2014, if
any, after application of this subdivision, shall be carried over
only to the succeeding 10 taxable years if necessary, until the
credit is exhausted, as if it were an amount exceeding the "tax" for
the taxable year, as provided in subdivision (i).
(k) The changes made to this section by the act adding this
subdivision shall apply to taxable years on or
after January 1, 1997.
( l ) (1) Except as provided in paragraph (2), this
section shall cease to be operative on January 1, 2014, and shall be
repealed on December 1, 2019. A credit shall not be allowed under
this section with respect to an employee who first commences
employment with a taxpayer on or after January 1, 2014.
(2) This section shall continue to apply with respect to qualified
employees who are employed by the taxpayer within the enterprise
zone within the 60-month period immediately preceding January 1,
2014, and qualified wages paid or incurred with respect to those
qualified employees shall continue to qualify for the credit under
this section for taxable years beginning on or after January 1, 2014,
in accordance with this section, as amended by the act adding this
subdivision.
SEC. 481. Section 23626 of the Revenue and Taxation Code is
amended to read:
23626. (a) (1) For each taxable year beginning on or after
January 1, 2014, and before January 1, 2021, there shall be allowed
to a qualified taxpayer that hires a qualified full-time employee and
pays or incurs qualified wages attributable to work performed by the
qualified full-time employee in a designated census tract or
economic development area, and that receives a tentative credit
reservation for that qualified full-time employee, a credit against
the "tax," as defined by Section 23036, in an amount calculated under
this section.
(2) The amount of the credit allowable under this section for a
taxable year shall be equal to the product of the tentative credit
amount for the taxable year and the applicable percentage for the
taxable year.
(3) (A) If a qualified taxpayer relocates to a designated census
tract or economic development area, the qualified taxpayer shall be
allowed a credit with respect to qualified wages for each qualified
full-time employee who is employed within the new location only if
the qualified taxpayer provides each employee at the previous
location or locations a written offer of employment at the new
location in the designated census tract or economic development area
with comparable compensation.
(B) For purposes of this paragraph, "relocates to a designated
census tract or economic development area" means an increase in the
number of qualified full-time employees, employed by a qualified
taxpayer, within a designated census tract or tracts or economic
development areas within a 12-month period in which there is a
decrease in the number of full-time employees, employed by the
qualified taxpayer in this state, but outside of designated census
tracts or economic development areas.
(C) This paragraph shall does not
apply to a small business.
(4) The credit allowed by this section may only be claimed on a
timely filed original return of the qualified taxpayer and only with
respect to a qualified full-time employee for whom the qualified
taxpayer has received a tentative credit reservation.
(b) For purposes of this section:
(1) The "tentative credit amount" for a taxable year shall be
equal to the product of the applicable credit percentage for each
qualified full-time employee and the qualified wages paid by the
qualified taxpayer during the taxable year to that qualified
full-time employee.
(2) The "applicable percentage" for a taxable year shall be equal
to a fraction, the numerator of which is the net increase in the
total number of full-time employees employed in this state during the
taxable year, determined on an annual full-time equivalent basis, as
compared with the total number of full-time employees employed in
this state during the base year, determined on the same basis, and
the denominator of which shall be the total number of qualified
full-time employees employed in this state during the taxable year.
The applicable percentage shall not exceed 100 percent.
(3) The "applicable credit percentage" means the credit percentage
for the calendar year during which a qualified full-time employee
was first employed by the qualified taxpayer. The applicable credit
percentage for all calendar years shall be 35 percent.
(4) "Base year" means the 2013 taxable year, or in the case of a
qualified taxpayer who first hires a qualified full-time employee in
a taxable year beginning on or after January 2015, the taxable year
immediately preceding the taxable year in which the qualified
full-time employee was hired.
(5) "Acquired" includes any gift, inheritance, transfer incident
to divorce, or any other transfer, whether or not for consideration.
(6) "Annual full-time equivalent" means either of the following:
(A) In the case of a full-time employee paid hourly qualified
wages, "annual full-time equivalent" means the total number of hours
worked for the qualified taxpayer by the employee (not to exceed
2,000 hours per employee) divided by 2,000.
(B) In the case of a salaried full-time employee, "annual
full-time equivalent" means the total number of weeks worked for the
qualified taxpayer by the employee divided by 52.
(7) "Designated census tract" means a census tract within the
state that is determined by the Department of Finance to have a
civilian unemployment rate that is within the top 25 percent of all
census tracts within the state and has a poverty rate within the top
25 percent of all census tracts within the state, as prescribed in
Section 13073.5 of the Government Code.
(8) "Economic development area" means either of the following:
(A) A former enterprise zone. For purposes of this section,
"former enterprise zone" means an enterprise zone designated and in
effect as of December 31, 2011, any enterprise zone designated during
2012, and any revision of an enterprise zone prior to June 30, 2013,
under former Chapter 12.8 (commencing with Section 7070) of Division
7 of Title 1 of the Government Code, as in effect on December 31,
2012, excluding any census tract within an enterprise zone that is
identified by the Department of Finance pursuant to Section 13073.5
of the Government Code as a census tract within the lowest quartile
of census tracts with the lowest civilian unemployment and poverty.
(B) A local agency military base recovery area designated as of
the effective date of the act adding this subparagraph, in accordance
with Section 7114 of the Government Code.
(9) "Minimum wage" means the wage established pursuant to Chapter
1 (commencing with Section 1171) of Part 4 of Division 2 of the Labor
Code.
(10) (A) "Qualified full-time employee" means an individual who
meets all of the following requirements:
(i) Performs at least 50 percent of his or her services for the
qualified taxpayer during the taxable year in a designated census
tract or economic development area.
(ii) Receives starting wages that are at least 150 percent of the
minimum wage.
(iii) Is hired by the qualified taxpayer on or after January 1,
2014.
(iv) Is hired by the qualified taxpayer after the date the
Department of Finance determines that the census tract referred to in
clause (i) is a designated census tract or that the census tracts
within a former enterprise zone are not census tracts with the lowest
civilian unemployment and poverty.
(v) Satisfies either of the following conditions:
(I) Is paid qualified wages by the qualified taxpayer for services
not less than an average of 35 hours per week.
(II) Is a salaried employee and was paid compensation during the
taxable year for full-time employment, within the meaning of Section
515 of the Labor Code, by the qualified taxpayer.
(vi) Upon commencement of employment with the qualified taxpayer,
satisfies any of the following conditions:
(I) Was unemployed for the six months immediately preceding
employment with the qualified taxpayer. In the case of an individual
who completed a program of study at a college, university, or other
postsecondary educational institution, received a baccalaureate,
postgraduate, or professional degree, and was unemployed for the six
months immediately preceding employment with the qualified taxpayer,
that individual must have completed that program of study at least 12
months prior to the individual's commencement of employment with the
qualified taxpayer.
(II) Is a veteran who separated from service in the Armed Forces
of the United States within the 12 months preceding commencement of
employment with the qualified taxpayer.
(III) Was a recipient of the credit allowed under Section 32 of
the Internal Revenue Code, relating to earned income, as applicable
for federal purposes, for the previous taxable year.
(IV) Is an ex-offender previously convicted of a felony.
(V) Is a recipient of either CalWORKs, in accordance with Article
2 (commencing with Section 11250) of Chapter 2 of Part 3 of Division
9 of the Welfare and Institutions Code, or general assistance, in
accordance with Section 17000.5 of the Welfare and Institutions Code.
(B) An individual may only be considered a qualified full-time
employee for the period of time commencing with the date the
individual is first employed by the qualified taxpayer and ending 60
months thereafter.
(11) (A) "Qualified taxpayer" means a corporation engaged in a
trade or business within designated census tract or economic
development area that, during the taxable year, pays or incurs
qualified wages.
(B) In the case of any pass-thru entity, the determination of
whether a taxpayer is a qualified taxpayer under this section shall
be made at the entity level and any credit under this section or
Section 17053.73 shall be allowed to the pass-thru entity and passed
through to the partners and shareholders in accordance with
applicable provisions of this part or Part 10 (commencing with
Section 17001). For purposes of this subdivision, the term "pass-thru
entity" means any partnership or "S" corporation.
(C) "Qualified taxpayer" shall not include any of the following:
(i) Employers that provide temporary help services, as described
in Code 561320 of the North American Industry Classification System
(NAICS) published by the United States Office of Management and
Budget, 2012 edition.
(ii) Employers that provide retail trade services, as described in
Sector 44-45 of the North American Industry Classification System
(NAICS) published by the United States Office of Management and
Budget, 2012 edition.
(iii) Employers that are primarily engaged in providing food
services, as described in Code 711110, 722511, 722513, 722514, or
722515 of the North American Industry Classification System (NAICS)
published by the United States Office of Management and Budget, 2012
edition.
(iv) Employers that are primarily engaged in services as described
in Code 713210, 721120, or 722410 of the North American Industry
Classification System (NAICS) published by the United States Office
of Management and Budget, 2012 edition.
(v) (I) An employer that is a sexually oriented business.
(II) For purposes of this clause:
(aa)
(ia) "Sexually oriented business" means a nightclub,
bar, restaurant, or similar commercial enterprise that provides for
an audience of two or more individuals live nude entertainment or
live nude performances where the nudity is a function of everyday
business operations and where nudity is a planned and intentional
part of the entertainment or performance.
(ab)
(ib) "Nude" means clothed in a manner that leaves
uncovered or visible, through less than fully opaque clothing, any
portion of the genitals or, in the case of a female, any portion of
the breasts below the top of the areola of the breasts.
(D) Subparagraph (C) shall not apply to a taxpayer that is a
"small business."
(12) "Qualified wages" means those wages that meet all of the
following requirements:
(A) (i) Except as provided in clause (ii), that portion of wages
paid or incurred by the qualified taxpayer during the taxable year to
each qualified full-time employee that exceeds 150 percent of
minimum wage, but does not exceed 350 percent of the minimum wage.
(ii) (I) In the case of a qualified full-time employee employed in
a designated pilot area, that portion of wages paid or incurred by
the qualified taxpayer during the taxable year to each qualified
full-time employee that exceeds ten dollars ($10) per hour or an
equivalent amount for salaried employees, but does not exceed 350
percent of the minimum wage. For qualified full-time employees
described in the preceding sentence, clause (ii) of subparagraph (A)
of paragraph (10) is modified by substituting "ten dollars ($10) per
hour or an equivalent amount for salaried employees" for "150 percent
of the minimum wage."
(II) For purposes of this clause:
(aa)
(ia) "Designated pilot area" means an area designated
as a designated pilot area by the Governor's Office of Business and
Economic Development.
(ab)
(ib) Areas that may be designated as a designated pilot
area are limited to areas within a designated census tract or an
economic development area with average wages less than the statewide
average wages, based on information from the Labor Market Division of
the Employment Development Department, and areas within a designated
census tract or an economic development area based on high poverty
or high unemployment.
(ac)
(ic) The total number of designated pilot areas that
may be designated is limited to five, one or more of which must be an
area within five or fewer designated census tracts within a single
county based on high poverty or high unemployment or an area within
an economic development area based on high poverty or high
unemployment.
(ad)
(id) The designation of a designated pilot area shall
be applicable for a period of four calendar years, commencing with
the first calendar year for which the designation of a designated
pilot area is effective. The applicable period of a designated pilot
area may be extended, in the sole discretion of the Governor's Office
of Business and Economic Development, for an additional period of up
to three calendar years. The applicable period, and any extended
period, shall not extend beyond December 31, 2020.
(III) The designation of an area as a designated pilot area and
the extension of the applicable period of a designated pilot area
shall be at the sole discretion of the Governor's Office of Business
and Economic Development and shall not be subject to administrative
appeal or judicial review.
(B) Wages paid or incurred during the 60-month period beginning
with the first day the qualified full-time employee commences
employment with the qualified taxpayer. In the case of any employee
who is reemployed, including regularly occurring seasonal increase,
in the trade or business operations of the qualified taxpayer, this
reemployment shall not be treated as constituting commencement of
employment for purposes of this section.
(C) Except as provided in paragraph (3) of subdivision (m),
qualified wages shall not include any wages paid or incurred by the
qualified taxpayer on or after the date that the Department of
Finance's redesignation of designated census tracts is effective, as
provided in paragraph (2) of subdivision (g), so that a census tract
is no longer determined to be a designated census tract.
(13) "Seasonal employment" means employment by a qualified
taxpayer that has regular and predictable substantial reductions in
trade or business operations.
(14) (A) "Small business" means a trade or business that has
aggregate gross receipts, less returns and allowances reportable to
this state, of less than two million dollars ($2,000,000) during the
previous taxable year.
(B) (i) For purposes of this paragraph, "gross receipts, less
returns and allowances reportable to this state," means the sum of
the gross receipts from the production of business income, as defined
in subdivision (a) of Section 25120, and the gross receipts from the
production of nonbusiness income, as defined in subdivision (d) of
Section 25120.
(ii) In the case of any trade or business activity conducted by a
partnership or an "S" corporation, the limitations set forth in
subparagraph (A) shall be applied to the partnership or "S"
corporation and to each partner or shareholder.
(iii) For taxpayers that are required to be included in a combined
report under Section 25101 or authorized to be included in a
combined report under Section 25101.15, the dollar amount specified
in subparagraph (A) shall apply to the aggregate gross receipts of
all taxpayers that are required to be or authorized to be included in
a combined report.
(C) (i) "Small business" shall not include a sexually
oriented business.
(ii) For purposes of this subparagraph:
(I) "Sexually oriented business" means a nightclub, bar,
restaurant, or similar commercial enterprise that provides for an
audience of two or more individuals live nude entertainment or live
nude performances where the nudity is a function of everyday business
operations and where nudity is a planned and intentional part of the
entertainment or performance.
(II) "Nude" means clothed in a manner that leaves uncovered or
visible, through less than fully opaque clothing, any portion of the
genitals or, in the case of a female, any portion of the breasts
below the top of the areola of the breasts.
(15) An individual is "unemployed" for any period for which the
individual is all of the following:
(A) Not in receipt of wages subject to withholding under Section
13020 of the Unemployment Insurance Code for that period.
(B) Not a self-employed individual (within the meaning of Section
401(c)(1)(B) of the Internal Revenue Code, relating to self-employed
individual) for that period.
(C) Not a registered full-time student at a high school, college,
university, or other postsecondary educational institution for that
period.
(c) The net increase in full-time employees of a qualified
taxpayer shall be determined as provided by this subdivision:
(1) (A) The net increase in full-time employees shall be
determined on an annual full-time equivalent basis by subtracting
from the amount determined in subparagraph (C) the amount determined
in subparagraph (B).
(B) The total number of full-time employees employed in the base
year by the taxpayer and by any trade or business acquired by the
taxpayer during the current taxable year.
(C) The total number of full-time employees employed in the
current taxable year by the taxpayer and by any trade or business
acquired during the current taxable year.
(2) For taxpayers who first commence doing business in this state
during the taxable year, the number of full-time employees for the
base year shall be zero.
(d) For purposes of this section:
(1) All employees of the trades or businesses that are treated as
related under Section 267, 318, or 707 of the Internal Revenue Code
shall be treated as employed by a single taxpayer.
(2) In determining whether the taxpayer has first commenced doing
business in this state during the taxable year, the provisions of
subdivision (g) of Section 24416.20, 24416,
without application of paragraph (7) of that subdivision,
shall apply.
(e) (1) To be eligible for the credit allowed by this section, a
qualified taxpayer shall, upon hiring a qualified full-time employee,
request a tentative credit reservation from the Franchise Tax Board
within 30 days of complying with the Employment Development
Department's new hire reporting requirement as provided in Section
1088.5 of the Unemployment Insurance Code, in the form and manner
prescribed by the Franchise Tax Board.
(2) To obtain a tentative credit reservation with respect to a
qualified full-time employee, the qualified taxpayer shall provide
necessary information, as determined by the Franchise Tax Board,
including the name, the social security number, the start date of
employment, the rate of pay of the qualified full-time employee, the
qualified taxpayer's gross receipts, less returns and allowances, for
the previous taxable year, and whether the qualified full-time
employee is a resident of a targeted employment area, as defined in
former Section 7072 of the Government Code, as in effect on December
31, 2013.
(3) The qualified taxpayer shall provide the Franchise Tax Board
an annual certification of employment with respect to each qualified
full-time employee hire in a previous taxable year, on or before the
15th day of the third month of the taxable year. The certification
shall include necessary information, as determined by the Franchise
Tax Board, including the name, social security number, start date of
employment, and rate of pay for each qualified full-time employee
employed by the qualified taxpayer.
(4) A tentative credit reservation provided to a taxpayer with
respect to an employee of that taxpayer shall not constitute a
determination by the Franchise Tax Board with respect to any of the
requirements of this section regarding a taxpayer's eligibility for
the credit authorized by this section.
(f) The Franchise Tax Board shall do all of the following:
(1) Approve a tentative credit reservation with respect to a
qualified full-time employee hired during a calendar year.
(2) Determine the aggregate tentative reservation amount and the
aggregate small business tentative reservation amount for a calendar
year.
(3) A tentative credit reservation request from a qualified
taxpayer with respect to a qualified full-time employee who is a
resident of a targeted employment area, as defined in former Section
7072 of the Government Code, as in effect on December 31, 2013, shall
be expeditiously processed by the Franchise Tax Board. The residence
of a qualified full-time employee in a targeted employment area
shall have no other effect on the eligibility of an individual as a
qualified full-time employee or the eligibility of a qualified
taxpayer for the credit authorized by this section.
(4) Notwithstanding Section 19542, provide as a searchable
database on its Internet Web site, for each taxable year beginning on
or after January 1, 2014, and before January 1, 2021, the employer
names, amounts of tax credit claimed, and number of new jobs created
for each taxable year pursuant to this section and Section 17053.73.
(g) (1) The Department of Finance shall, by January 1, 2014, and
by January 1 of every fifth year thereafter, provide the Franchise
Tax Board with a list of the designated census tracts and a list of
census tracts with the lowest civilian unemployment rate.
(2) The redesignation of designated census tracts and lowest
civilian unemployment census tracts by the Department of Finance as
provided in Section 13073.5 of the Government Code shall be
effective, for purposes of this credit, one year after the date that
the Department of Finance redesignates the designated census tracts.
(h) (1) For purposes of this section:
(A) All employees of the trades or businesses that are treated as
related under Section 267, 318, or 707 of the Internal Revenue Code
shall be treated as employed by a single qualified taxpayer.
(B) All employees of all corporations that are members of the same
controlled group of corporations shall be treated as employed by a
single qualified taxpayer.
(C) The credit, if any, allowable by this section to each member
shall be determined by reference to its proportionate share of the
expense of the qualified wages giving rise to the credit, and shall
be allocated in that manner.
(D) If a qualified taxpayer acquires the major portion of a trade
or business of another taxpayer, hereinafter in this paragraph
referred to as the predecessor, or the major portion of a separate
unit of a trade or business of a predecessor, then, for purposes of
applying this section for any taxable year ending after that
acquisition, the employment relationship between a qualified
full-time employee and a qualified taxpayer shall not be treated as
terminated if the employee continues to be employed in that trade or
business.
(2) For purposes of this subdivision, "controlled group of
corporations" means a controlled group of corporations as defined in
Section 1563(a) of the Internal Revenue Code, except that:
(A) "More than 50 percent" shall be substituted for "at least 80
percent" each place it appears in Section 1563(a)(1) of the Internal
Revenue Code.
(B) The determination shall be made without regard to subsections
(a)(4) and (e)(3)(C) of Section 1563 of the Internal Revenue Code.
(3) Rules similar to the rules provided in Sections 46(e) and 46
(h) of the Internal Revenue Code, as in effect on November 4, 1990,
shall apply to both of the following:
(A) An organization to which Section 593 of the Internal Revenue
Code applies.
(B) A regulated investment company or a real estate investment
trust subject to taxation under this part.
(i) (1) If the employment of any qualified full-time employee,
with respect to whom qualified wages are taken into account under
subdivision (a), is terminated by the qualified taxpayer at any time
during the first 36 months after commencing employment with the
qualified taxpayer, whether or not consecutive, the tax imposed by
this part for the taxable year in which that employment is terminated
shall be increased by an amount equal to the credit allowed under
subdivision (a) for that taxable year and all prior taxable years
attributable to qualified wages paid or incurred with respect to that
employee.
(2) Paragraph (1) shall does not
apply to any of the following:
(A) A termination of employment of a qualified full-time employee
who voluntarily leaves the employment of the qualified taxpayer.
(B) A termination of employment of a qualified full-time employee
who, before the close of the period referred to in paragraph (1),
becomes disabled and unable to perform the services of that
employment, unless that disability is removed before the close of
that period and the qualified taxpayer fails to offer reemployment to
that employee.
(C) A termination of employment of a qualified full-time employee,
if it is determined that the termination was due to the misconduct,
as defined in Sections 1256-30 to 1256-43, inclusive, of Title 22 of
the California Code of Regulations, of that employee.
(D) A termination of employment of a qualified full-time employee
due to a substantial reduction in the trade or business operations of
the qualified taxpayer, including reductions due to seasonal
employment.
(E) A termination of employment of a qualified full-time employee,
if that employee is replaced by other qualified full-time employees
so as to create a net increase in both the number of employees and
the hours of employment.
(F) A termination of employment of a qualified full-time employee,
when that employment is considered seasonal employment and the
qualified employee is rehired on a seasonal basis.
(3) For purposes of paragraph (1), the employment relationship
between the qualified taxpayer and a qualified full-time employee
shall not be treated as terminated by reason of a mere change in the
form of conducting the trade or business of the qualified taxpayer,
if the qualified full-time employee continues to be employed in that
trade or business and the qualified taxpayer retains a substantial
interest in that trade or business.
(4) Any An increase in tax under
paragraph (1) shall not be treated as tax imposed by this part for
purposes of determining the amount of any credit allowable under this
part.
(j) In the case where the credit allowed by this section exceeds
the "tax," the excess may be carried over to reduce the "tax" in the
following year, and the succeeding four years if necessary, until
exhausted.
(k) The Franchise Tax Board may prescribe rules, guidelines, or
procedures necessary or appropriate to carry out the purposes of this
section, including any guidelines regarding the allocation of the
credit allowed under this section. Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code shall not apply to any rule, guideline, or procedure prescribed
by the Franchise Tax Board pursuant to this section.
( l ) (1) Upon the effective date of this section, the
Department of Finance shall estimate the total dollar amount of
credits that will be claimed under this section with respect to each
fiscal year from the 2013-14 fiscal year to the 2020 -21 fiscal year,
inclusive.
(2) The Franchise Tax Board shall annually provide to the Joint
Legislative Budget Committee, by no later than March 1, a report of
the total dollar amount of the credits claimed under this section
with respect to the relevant fiscal year. The report shall compare
the total dollar amount of credits claimed under this section with
respect to that fiscal year with the department's estimate with
respect to that same fiscal year. If the total dollar amount of
credits claimed for the fiscal year is less than the estimate for
that fiscal year, the report shall identify options for increasing
annual claims of the credit so as to meet estimated amounts.
(m) (1) This section shall remain in effect only until December 1,
2024, and as of that date is repealed.
(2) Notwithstanding paragraph (1) of subdivision (a), this section
shall continue to be operative for taxable years beginning on or
after January 1, 2021, but only with respect to qualified full-time
employees who commenced employment with a qualified taxpayer in a
designated census tract or economic development area in a taxable
year beginning before January 1, 2021.
(3) This section shall remain operative for any qualified taxpayer
with respect to any qualified full-time employee after the
designated census tract is no longer designated or an economic
development area ceases to be an economic development area, as
defined in this section, for the remaining period, if any, of the
60-month period after the original date of hiring of an otherwise
qualified full-time employee and any wages paid or incurred with
respect to those qualified full-time employees after the designated
census tract is no longer designated or an economic development area
ceases to be an economic development area, as defined in this
section, shall be treated as qualified wages under this section,
provided the employee satisfies any other requirements of paragraphs
(10) and (12) of subdivision (b), as if the designated census tract
was still designated and binding or the economic development area was
still in existence.
SEC. 482. Section 23634 of the Revenue and Taxation Code is
amended to read:
23634. (a) For each taxable year beginning on or after January 1,
1998, there shall be allowed a credit against the "tax" (as defined
by Section 23036) to a qualified taxpayer who employs a qualified
employee in a targeted tax area during the taxable year. The credit
shall be equal to the sum of each of the following:
(1) Fifty percent of qualified wages in the first year of
employment.
(2) Forty percent of qualified wages in the second year of
employment.
(3) Thirty percent of qualified wages in the third year of
employment.
(4) Twenty percent of qualified wages in the fourth year of
employment.
(5) Ten percent of qualified wages in the fifth year of
employment.
(b) For purposes of this section:
(1) "Qualified wages" means:
(A) That portion of wages paid or incurred by the qualified
taxpayer during the taxable year to qualified employees that does not
exceed 150 percent of the minimum wage.
(B) Wages received during the 60-month period beginning with the
first day the employee commences employment with the qualified
taxpayer. Reemployment in connection with any increase, including a
regularly occurring seasonal increase, in the trade or business
operations of the qualified taxpayer does not constitute commencement
of employment for purposes of this section.
(C) Qualified wages do not include any wages paid or incurred by
the qualified taxpayer on or after the targeted tax area expiration
date. However, wages paid or incurred with respect to qualified
employees who are employed by the qualified taxpayer within the
targeted tax area within the 60-month period prior to the targeted
tax area expiration date shall continue to qualify for the credit
under this section after the targeted tax area expiration date, in
accordance with all provisions of this section applied as if the
targeted tax area designation were still in existence and binding.
(2) "Minimum wage" means the wage established by the Industrial
Welfare Commission as provided for in Chapter 1 (commencing with
Section 1171) of Part 4 of Division 2 of the Labor Code.
(3) "Targeted tax area expiration date" means the date the
targeted tax area designation expires, is revoked, is no longer
binding, becomes inoperative, or is repealed.
(4) (A) "Qualified employee" means an individual who meets all of
the following requirements:
(i) At least 90 percent of his or her services for the qualified
taxpayer during the taxable year are directly related to the conduct
of the qualified taxpayer's trade or business located in a targeted
tax area.
(ii) Performs at least 50 percent of his or her services for the
qualified taxpayer during the taxable year in a targeted tax area.
(iii) Is hired by the qualified taxpayer after the date of
original designation of the area in which services were performed as
a targeted tax area.
(iv) Is any of the following:
(I) Immediately preceding the qualified employee's commencement of
employment with the qualified taxpayer, was a person eligible for
services under the federal Job Training Partnership Act (29 U.S.C.
Sec. 1501 et seq.), or its successor, who is receiving, or is
eligible to receive, subsidized employment, training, or services
funded by the federal Job Training Partnership Act, or its successor.
(II) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was a person eligible to
be a voluntary or mandatory registrant under the Greater Avenues for
Independence Act of 1985 (GAIN) provided for pursuant to Article 3.2
(commencing with Section 11320) of Chapter 2 of Part 3 of Division 9
of the Welfare and Institutions Code, or its successor.
(III) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was an economically
disadvantaged individual 14 years of age or older.
(IV) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was a dislocated worker
who meets any of the following:
(aa)
(ia) Has been terminated or laid off or who has
received a notice of termination or layoff from employment, is
eligible for or has exhausted entitlement to unemployment insurance
benefits, and is unlikely to return to his or her previous industry
or occupation.
(bb)
(ib) Has been terminated or has received a notice of
termination of employment as a result of any permanent closure or any
substantial layoff at a plant, facility, or enterprise, including an
individual who has not received written notification but whose
employer has made a public announcement of the closure or layoff.
(cc)
(ic) Is long-term unemployed and has limited
opportunities for employment or reemployment in the same or a similar
occupation in the area in which the individual resides, including an
individual 55 years of age or older who may have substantial
barriers to employment by reason of age.
(dd)
(id) Was self-employed (including farmers and ranchers)
and is unemployed as a result of general economic conditions in the
community in which he or she resides or because of natural disasters.
(ee)
(ie) Was a civilian employee of the Department of
Defense employed at a military installation being closed or realigned
under the Defense Base Closure and Realignment Act of 1990.
(ff)
(if) Was an active member of the Armed Forces or
National Guard as of September 30, 1990, and was either involuntarily
separated or separated pursuant to a special benefits program.
(gg)
(ig) Is a seasonal or migrant worker who experiences
chronic seasonal unemployment and underemployment in the agriculture
industry, aggravated by continual advancements in technology and
mechanization.
(hh)
(ih) Has been terminated or laid off, or has received a
notice of termination or layoff, as a consequence of compliance with
the Clean Air Act.
(V) Immediately preceding the qualified employee's commencement of
employment with the qualified taxpayer, was a disabled individual
who is eligible for or enrolled in, or has completed a state
rehabilitation plan or is a service-connected disabled veteran,
veteran of the Vietnam era, or veteran who is recently separated from
military service.
(VI) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was an ex-offender. An
individual shall be treated as convicted if he or she was placed on
probation by a state court without a finding of guilt.
(VII) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was a person eligible for
or a recipient of any of the following:
(aa)
(ia) Federal Supplemental Security Income benefits.
(bb)
(ib) Aid to Families with Dependent Children.
(cc)
(ic) CalFresh benefits.
(dd)
(id) State and local general assistance.
(VIII) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was a member of a
federally recognized Indian tribe, band, or other group of Native
American descent.
(IX) Immediately preceding the qualified employee's commencement
of employment with the qualified taxpayer, was a resident of a
targeted tax area.
(X) Immediately preceding the qualified employee's commencement of
employment with the taxpayer, was a member of a targeted group, as
defined in Section 51(d) of the Internal Revenue Code, or its
successor.
(B) Priority for employment shall be provided to an individual who
is enrolled in a qualified program under the federal Job Training
Partnership Act or the Greater Avenues for Independence Act of 1985
or who is eligible as a member of a targeted group under the Work
Opportunity Tax Credit (Section 51 of the Internal Revenue Code), or
its successor.
(5) (A) "Qualified taxpayer" means a person or entity that meets
both of the following:
(i) Is engaged in a trade or business within a targeted tax area
designated pursuant to Chapter 12.93 (commencing with Section 7097)
of Division 7 of Title 1 of the Government Code.
(ii) Is engaged in those lines of business described in Codes 2000
to 2099, inclusive; 2200 to 3999, inclusive; 4200 to 4299,
inclusive; 4500 to 4599, inclusive; and 4700 to 5199, inclusive, of
the Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition.
(B) In the case of any passthrough entity, the determination of
whether a taxpayer is a qualified taxpayer under this section shall
be made at the entity level and any credit under this section or
Section 17053.34 shall be allowed to the passthrough entity and
passed through to the partners or shareholders in accordance with
applicable provisions of this part or Part 10 (commencing with
Section 17001). For purposes of this subparagraph, the term
"passthrough entity" means any partnership or S corporation.
(6) "Seasonal employment" means employment by a qualified taxpayer
that has regular and predictable substantial reductions in trade or
business operations.
(c) If the qualified taxpayer is allowed a credit for qualified
wages pursuant to this section, only one credit shall be allowed to
the taxpayer under this part with respect to those qualified wages.
(d) The qualified taxpayer shall do both of the following:
(1) Obtain from the Employment Development Department, as
permitted by federal law, the local county or city Job Training
Partnership Act administrative entity, the local county GAIN office
or social services agency, or the local government administering the
targeted tax area, a certification that provides that a qualified
employee meets the eligibility requirements specified in clause (iv)
of subparagraph (A) of paragraph (4) of subdivision (b). The
Employment Development Department may provide preliminary screening
and referral to a certifying agency. The Department of Housing and
Community Development shall develop regulations for the issuance of
certificates pursuant to subdivision (g) of Section 7097 of the
Government Code, and shall develop forms for this purpose.
(2) Retain a copy of the certification and provide it upon request
to the Franchise Tax Board.
(e) (1) For purposes of this section:
(A) All employees of all corporations that are members of the same
controlled group of corporations shall be treated as employed by a
single taxpayer.
(B) The credit, if any, allowable by this section to each member
shall be determined by reference to its proportionate share of the
expense of the qualified wages giving rise to the credit, and shall
be allocated in that manner.
(C) For purposes of this subdivision, "controlled group of
corporations" means "controlled group of corporations" as defined in
Section 1563(a) of the Internal Revenue Code, except that:
(i) "More than 50 percent" shall be substituted for "at least 80
percent" each place it appears in Section 1563(a)(1) of the Internal
Revenue Code.
(ii) The determination shall be made without regard to subsections
(a)(4) and (e)(3)(C) of Section 1563 of the Internal Revenue Code.
(2) If an employer acquires the major portion of a trade or
business of another employer (hereinafter in this paragraph referred
to as the "predecessor") or the major portion of a separate unit of a
trade or business of a predecessor, then, for purposes of applying
this section (other than subdivision (f)) for any calendar year
ending after that acquisition, the employment relationship between a
qualified employee and an employer shall not be treated as terminated
if the employee continues to be employed in that trade or business.
(f) (1) (A) If the employment, other than seasonal employment, of
any qualified employee with respect to whom qualified wages are taken
into account under subdivision (a) is terminated by the qualified
taxpayer at any time during the first 270 days of that employment
(whether or not consecutive) or before the close of the 270th
calendar day after the day in which that employee completes 90 days
of employment with the qualified taxpayer, the tax imposed by this
part for the taxable year in which that employment is terminated
shall be increased by an amount equal to the credit allowed under
subdivision (a) for that taxable year and all prior taxable years
attributable to qualified wages paid or incurred with respect to that
employee.
(B) If the seasonal employment of any qualified employee, with
respect to whom qualified wages are taken into account under
subdivision (a) is not continued by the qualified taxpayer for a
period of 270 days of employment during the 60-month period beginning
with the day the
qualified employee commences seasonal employment with the qualified
taxpayer, the tax imposed by this part, for the taxable year that
includes the 60th month following the month in which the qualified
employee commences seasonal employment with the qualified taxpayer,
shall be increased by an amount equal to the credit allowed under
subdivision (a) for that taxable year and all prior taxable years
attributable to qualified wages paid or incurred with respect to that
qualified employee.
(2) (A) Subparagraph (A) of paragraph (1) shall
does not apply to any of the following:
(i) A termination of employment of a qualified employee who
voluntarily leaves the employment of the qualified taxpayer.
(ii) A termination of employment of a qualified employee who,
before the close of the period referred to in subparagraph (A) of
paragraph (1), becomes disabled and unable to perform the services of
that employment, unless that disability is removed before the close
of that period and the qualified taxpayer fails to offer reemployment
to that employee.
(iii) A termination of employment of a qualified employee, if it
is determined that the termination was due to the misconduct (as
defined in Sections 1256-30 to 1256-43, inclusive, of Title 22 of the
California Code of Regulations) of that employee.
(iv) A termination of employment of a qualified employee due to a
substantial reduction in the trade or business operations of the
taxpayer.
(v) A termination of employment of a qualified employee, if that
employee is replaced by other qualified employees so as to create a
net increase in both the number of employees and the hours of
employment.
(B) Subparagraph (B) of paragraph (1) shall
does not apply to any of the following:
(i) A failure to continue the seasonal employment of a qualified
employee who voluntarily fails to return to the seasonal employment
of the qualified taxpayer.
(ii) A failure to continue the seasonal employment of a qualified
employee who, before the close of the period referred to in
subparagraph (B) of paragraph (1), becomes disabled and unable to
perform the services of that seasonal employment, unless that
disability is removed before the close of that period and the
qualified taxpayer fails to offer seasonal employment to that
qualified employee.
(iii) A failure to continue the seasonal employment of a qualified
employee, if it is determined that the failure to continue the
seasonal employment was due to the misconduct (as defined in Sections
1256-30 to 1256-43, inclusive, of Title 22 of the California Code of
Regulations) of that qualified employee.
(iv) A failure to continue seasonal employment of a qualified
employee due to a substantial reduction in the regular seasonal trade
or business operations of the qualified taxpayer.
(v) A failure to continue the seasonal employment of a qualified
employee, if that qualified employee is replaced by other qualified
employees so as to create a net increase in both the number of
seasonal employees and the hours of seasonal employment.
(C) For purposes of paragraph (1), the employment relationship
between the qualified taxpayer and a qualified employee shall not be
treated as terminated by either of the following:
(i) By a transaction to which Section 381(a) of the Internal
Revenue Code applies, if the qualified employee continues to be
employed by the acquiring corporation.
(ii) By reason of a mere change in the form of conducting the
trade or business of the qualified taxpayer, if the qualified
employee continues to be employed in that trade or business and the
qualified taxpayer retains a substantial interest in that trade or
business.
(3) Any An increase in tax under
paragraph (1) shall not be treated as tax imposed by this part for
purposes of determining the amount of any credit allowable under this
part.
(g) Rules similar to the rules provided in Sections 46(e) and (h)
of the Internal Revenue Code shall apply to both
of the following:
(1) An organization to which Section 593 of the Internal Revenue
Code applies.
(2) A regulated investment company or a real estate investment
trust subject to taxation under this part.
(h) For purposes of this section, "targeted tax area" means an
area designated pursuant to Chapter 12.93 (commencing with Section
7097) of Division 7 of Title 1 of the Government Code.
(i) In the case where in which the
credit otherwise allowed under this section exceeds the "tax" for the
taxable year, that portion of the credit that exceeds the "tax" may
be carried over and added to the credit, if any, in the succeeding 10
taxable years, if necessary, until the credit is exhausted. The
credit shall be applied first to the earliest taxable years possible.
(j) (1) The amount of the credit otherwise allowed under this
section and Section 23633, including any credit carryover from prior
years, that may reduce the "tax" for the taxable year shall not
exceed the amount of tax that would be imposed on the qualified
taxpayer's business income attributable to the targeted tax area
determined as if that attributable income represented all of the
income of the qualified taxpayer subject to tax under this part.
(2) Attributable income shall be that portion of the taxpayer's
California source business income that is apportioned to the targeted
tax area. For that purpose, the taxpayer's business income
attributable to sources in this state first shall be determined in
accordance with Chapter 17 (commencing with Section 25101). That
business income shall be further apportioned to the targeted tax area
in accordance with Article 2 (commencing with Section 25120) of
Chapter 17, modified for purposes of this section in accordance with
paragraph (3).
(3) Business income shall be apportioned to the targeted tax area
by multiplying the total California business income of the taxpayer
by a fraction, the numerator of which is the property factor plus the
payroll factor, and the denominator of which is two. For purposes of
this paragraph:
(A) The property factor is a fraction, the numerator of which is
the average value of the taxpayer's real and tangible personal
property owned or rented and used in the targeted tax area during the
taxable year, and the denominator of which is the average value of
all the taxpayer's real and tangible personal property owned or
rented and used in this state during the taxable year.
(B) The payroll factor is a fraction, the numerator of which is
the total amount paid by the taxpayer in the targeted tax area during
the taxable year for compensation, and the denominator of which is
the total compensation paid by the taxpayer in this state during the
taxable year.
(4) The portion of any credit remaining, if any, after application
of this subdivision, shall be carried over to succeeding taxable
years, if necessary, until the credit is exhausted, as if it were an
amount exceeding the "tax" for the taxable year, as provided in
subdivision (i). However, the portion of any credit remaining for
carryover to taxable years beginning on or after January 1, 2014, if
any, after application of this subdivision, shall be carried over
only to the succeeding 10 taxable years if necessary, until the
credit is exhausted, as if it were an amount exceeding the "tax" for
the taxable year, as provided in subdivision (i).
(5) In the event that a credit carryover is allowable under
subdivision (h) for any taxable year after the targeted tax area
designation has expired or been revoked, the targeted tax area shall
be deemed to remain in existence for purposes of computing the
limitation specified in this subdivision.
(k) (1) Except as provided in paragraph (2), this section shall
cease to be operative for taxable years beginning on or after January
1, 2014, and shall be repealed on December 1, 2019.
(2) The section shall continue to apply with respect to qualified
employees who are employed by the qualified taxpayer within the
targeted tax area within the 60-month period immediately preceding
January 1, 2014, and qualified wages paid or incurred with respect to
those qualified employees shall continue to qualify for the credit
under this section for taxable years beginning on or after January 1,
2014, in accordance with this section, as amended by the act adding
this subdivision.
SEC. 483. Section 23732 of the Revenue and Taxation Code is
amended to read:
23732. Section 512 of the Internal Revenue Code, relating to
unrelated business taxable income, shall apply,
applies, except as otherwise provided.
(a) Section 512(a)(2) of the Internal Revenue Code, relating to
special rule for foreign organizations, shall
does not be applicable apply .
(b) Section 512(a)(3) of the Internal Revenue Code, relating to
special rules applicable to organizations described in paragraph (7),
(9), (17), or (20) of Section 501(c), shall be modified as follows:
(1) The reference to Section 501(c)(7) of the Internal Revenue
Code shall be modified to refer to Section 23701g.
(2) The reference to Section 501(c)(9) of the Internal Revenue
Code shall be modified to refer to Section 23701i.
(3) The reference to Section 501(c)(17) of the Internal Revenue
Code shall be modified to refer to Section 23701n.
(4) The reference to Section 501(c)(20) of the Internal Revenue
Code shall be modified to refer to Section 23701q.
(c) Section 512(d) of the Internal Revenue Code, relating to
treatment of dues of agricultural or horticultural organizations,
shall be modified by substituting "Section 23701a" for "Section 501
(c)(5)" of the Internal Revenue Code.
(d) Section 512(b)(13)(E) of the Internal Revenue Code is modified
as follows:
(1) The phrase "tax imposed under Part 10 (commencing with Section
17001) or this part" shall be substituted for "tax imposed by this
chapter" in Section 512(b)(13)(E)(ii) of the Internal Revenue Code.
(2) The phrase "January 1, 2010," shall be substituted for "the
date of the enactment of this subparagraph" in Section 512(b)(13)
(iii)(I) of the Internal Revenue Code.
(3) The amendments made by the act adding this subdivision shall
apply to payments received or accrued on or after January 1, 2010.
SEC. 484. Section 24347.6 of the Revenue and Taxation Code is
amended to read:
24347.6. (a) An excess disaster loss, as defined in subdivision
(c), shall be carried to other taxable years as provided in
subdivision (b), with respect to losses sustained in the County of
Mendocino as a result of the tsunami that occurred in March 2011.
(b) (1) In the case of any loss allowed under Section 165 of the
Internal Revenue Code, relating to losses, any excess disaster loss
shall be carried forward to each of the five taxable years following
the taxable year for which the loss is claimed. However, if there is
any excess disaster loss remaining after the five-year period, then
the applicable percentage, as set forth in paragraph (1) of
subdivision (b) of Section 24416.20, 24416,
of that excess disaster loss shall be carried forward to each
of the next 10 taxable years.
(2) The entire amount of any excess disaster loss as defined in
subdivision (c) shall be carried to the earliest of the taxable years
to which, by reason of subdivision (b), the loss may be carried. The
portion of the loss which shall be carried to each of the other
taxable years shall be the excess, if any, of the amount of excess
disaster loss over the sum of the net income for each of the prior
taxable years to which that excess disaster loss is carried.
(c) "Excess disaster loss" means a disaster loss computed pursuant
to Section 165 of the Internal Revenue Code, which exceeds the net
income of the year of loss or, if the election under Section 165(i)
of the Internal Revenue Code is made, the net income of the year
preceding the loss.
(d) This section and Section 165(i) of the Internal Revenue Code
shall be applicable apply to any of the
losses listed in subdivision (a) sustained in any county or city in
this state which was proclaimed by the Governor to be in a state of
disaster.
(e) Any A corporation subject to
Section 25101 or 25101.15 that has disaster losses pursuant to this
section shall determine the excess disaster loss to be carried to
other taxable years under the principles specified in Section 25108
relating to net operating losses.
(f) Losses allowable under this section shall not be taken into
account in computing a net operating loss deduction under Section 172
of the Internal Revenue Code.
(g) For losses described in subdivision (a), the election under
Section 165(i) of the Internal Revenue Code may be made on a return
or amended return filed on or before the due date of the return
(determined with regard to extension) for the taxable year in which
the disaster occurred.
SEC. 485. Section 24347.10 of the Revenue and Taxation Code is
amended to read:
24347.10. (a) An excess disaster loss, as defined in subdivision
(c), shall be carried to other taxable years as provided in
subdivision (b), with respect to losses sustained in the County of
San Mateo as a result of the explosion and fire that occurred in
September 2010.
(b) (1) In the case of any loss allowed under Section 165 of the
Internal Revenue Code, relating to losses, any excess disaster loss
shall be carried forward to each of the five taxable years following
the taxable year for which the loss is claimed. However, if there is
any excess disaster loss remaining after the five-year period, then
the applicable percentage, as set forth in paragraph (1) of
subdivision (b) of Section 24416.20, 24416,
of that excess disaster loss shall be carried forward to each
of the next 10 taxable years.
(2) The entire amount of any excess disaster loss as defined in
subdivision (c) shall be carried to the earliest of the taxable years
to which, by reason of subdivision (b), the loss may be carried. The
portion of the loss which shall be carried to each of the other
taxable years shall be the excess, if any, of the amount of excess
disaster loss over the sum of the net income for each of the prior
taxable years to which that excess disaster loss is carried.
(c) "Excess disaster loss" means a disaster loss computed pursuant
to Section 165 of the Internal Revenue Code, which exceeds the net
income of the year of loss or, if the election under Section 165(i)
of the Internal Revenue Code is made, the net income of the year
preceding the loss.
(d) This section and Section 165(i) of the Internal Revenue Code
shall be applicable apply to any of the
losses listed in subdivision (a) sustained in any county or city in
this state which was proclaimed by the Governor to be in a state of
disaster.
(e) Any A corporation subject to
Section 25101 or 25101.15 that has disaster losses pursuant to this
section shall determine the excess disaster loss to be carried to
other taxable years under the principles specified in Section 25108
relating to net operating losses.
(f) Losses allowable under this section may
shall not be taken into account in computing a net
operating loss deduction under Section 172 of the Internal Revenue
Code.
(g) For losses described in subdivision (a), the election under
Section 165(i) of the Internal Revenue Code may be made on a return
or amended return filed on or before the due date of the return
(determined with regard to extension) for the taxable year in which
the disaster occurred.
SEC. 486. Section 24355.4 of the Revenue and Taxation Code, as
added by Chapter 691 of the Statutes of 2005, is amended and
renumbered to read:
24355.4. 24355.5. For purposes of
computing the depreciation deduction pursuant to Section 24349, the
useful life of any Alaska natural gas pipeline, as defined in Section
168(i)(16) of the Internal Revenue Code, shall be seven years.
SEC. 487. Section 24416.20 of the Revenue and Taxation Code is
amended and renumbered to read:
24416.20. 24416. Except as provided
in Sections 24416.1, 24416.2, 24416.4, 24416.5, 24416.6, and
24416.7, a net operating loss deduction shall be allowed in computing
net income under Section 24341 and shall be determined in accordance
with Section 172 of the Internal Revenue Code, except as otherwise
provided.
(a) (1) Net operating losses attributable to taxable years
beginning before January 1, 1987, shall not be allowed.
(2) A net operating loss shall not be carried forward to any
taxable year beginning before January 1, 1987.
(b) (1) Except as provided in paragraphs (2) and (3), the
provisions of Section 172(b)(2) of the Internal Revenue Code,
relating to amount of carrybacks and carryovers, shall be modified so
that the applicable percentage of the entire amount of the net
operating loss for any taxable year shall be eligible for carryover
to any subsequent taxable year. For purposes of this subdivision, the
applicable percentage shall be:
(A) Fifty percent for any taxable year beginning before January 1,
2000.
(B) Fifty-five percent for any taxable year beginning on or after
January 1, 2000, and before January 1, 2002.
(C) Sixty percent for any taxable year beginning on or after
January 1, 2002, and before January 1, 2004.
(D) One hundred percent for any taxable year beginning on or after
January 1, 2004.
(2) In the case of a taxpayer who has a net operating loss in any
taxable year beginning on or after January 1, 1994, and who operates
a new business during that taxable year, each of the following shall
apply to each loss incurred during the first three taxable years of
operating the new business:
(A) If the net operating loss is equal to or less than the net
loss from the new business, 100 percent of the net operating loss
shall be carried forward as provided in subdivision (e).
(B) If the net operating loss is greater than the net loss from
the new business, the net operating loss shall be carried over as
follows:
(i) With respect to an amount equal to the net loss from the new
business, 100 percent of that amount shall be carried forward as
provided in subdivision (e).
(ii) With respect to the portion of the net operating loss that
exceeds the net loss from the new business, the applicable percentage
of that amount shall be carried forward as provided in subdivision
(d).
(C) For purposes of Section 172(b)(2) of the Internal Revenue
Code, the amount described in clause (ii) of subparagraph (B) shall
be absorbed before the amount described in clause (i) of subparagraph
(B).
(3) In the case of a taxpayer who has a net operating loss in any
taxable year beginning on or after January 1, 1994, and who operates
an eligible small business during that taxable year, each of the
following shall apply:
(A) If the net operating loss is equal to or less than the net
loss from the eligible small business, 100 percent of the net
operating loss shall be carried forward to the taxable years
specified in paragraph (1) of subdivision (e).
(B) If the net operating loss is greater than the net loss from
the eligible small business, the net operating loss shall be carried
over as follows:
(i) With respect to an amount equal to the net loss from the
eligible small business, 100 percent of that amount shall be carried
forward as provided in subdivision (e).
(ii) With respect to that portion of the net operating loss that
exceeds the net loss from the eligible small business, the applicable
percentage of that amount shall be carried forward as provided in
subdivision (e).
(C) For purposes of Section 172(b)(2) of the Internal Revenue
Code, the amount described in clause (ii) of subparagraph (B) shall
be absorbed before the amount described in clause (i) of subparagraph
(B).
(4) In the case of a taxpayer who has a net operating loss in a
taxable year beginning on or after January 1, 1994, and who operates
a business that qualifies as both a new business and an eligible
small business under this section, that business shall be treated as
a new business for the first three taxable years of the new business.
(5) In the case of a taxpayer who has a net operating loss in a
taxable year beginning on or after January 1, 1994, and who operates
more than one business, and more than one of those businesses
qualifies as either a new business or an eligible small business
under this section, paragraph (2) shall be applied first, except that
if there is any remaining portion of the net operating loss after
application of clause (i) of subparagraph (B) of paragraph (2),
paragraph (3) shall be applied to the remaining portion of the net
operating loss as though that remaining portion of the net operating
loss constituted the entire net operating loss.
(6) For purposes of this section, "net loss" means the amount of
net loss after application of Sections 465 and 469 of the Internal
Revenue Code.
(c) For any taxable year in which the taxpayer has in effect a
water's-edge election under Section 25110, the deduction of a net
operating loss carryover shall be denied to the extent that the net
operating loss carryover was determined by taking into account the
income and factors of an affiliated corporation in a combined report
whose income and apportionment factors would not have been taken into
account if a water's-edge election under Section 25110 had been in
effect for the taxable year in which the loss was incurred.
(d) Section 172(b)(1) of the Internal Revenue Code, relating to
years to which the loss may be carried, is modified as follows:
(1) Net operating loss carrybacks shall not be allowed for any net
operating losses attributable to taxable years beginning before
January 1, 2013.
(2) A net operating loss attributable to taxable years beginning
on or after January 1, 2013, shall be a net operating loss carryback
to each of the two taxable years preceding the taxable year of the
loss in lieu of the number of years provided therein.
(A) For a net operating loss attributable to a taxable year
beginning on or after January 1, 2013, and before January 1, 2014,
the amount of carryback to any taxable year shall not exceed 50
percent of the net operating loss.
(B) For a net operating loss attributable to a taxable year
beginning on or after January 1, 2014, and before January 1, 2015,
the amount of carryback to any taxable year shall not exceed 75
percent of the net operating loss.
(C) For a net operating loss attributable to a taxable year
beginning on or after January 1, 2015, the amount of carryback to any
taxable year shall not exceed 100 percent of the net operating loss.
(3) Notwithstanding paragraph (2), Section 172(b)(1)(B) of the
Internal Revenue Code, relating to special rules for REITs, and
Section 172(b)(1)(E) of the Internal Revenue Code, relating to excess
interest loss, and Section 172(h) of the Internal Revenue Code,
relating to corporate equity reduction interest losses, shall apply
as provided.
(4) A net operating loss carryback shall not be carried back to
any taxable year beginning before January 1, 2011.
(e) (1) (A) For a net operating loss for any taxable year
beginning on or after January 1, 1987, and before January 1, 2000,
Section 172(b)(1)(A)(ii) of the Internal Revenue Code is modified to
substitute "five taxable years" in lieu of "20 years" except as
otherwise provided in paragraphs (2), (3), and (4).
(B) For a net operating loss for any income year beginning on or
after January 1, 2000, and before January 1, 2008, Section 172(b)(1)
(A)(ii) of the Internal Revenue Code is modified to substitute "10
taxable years" in lieu of "20 taxable years."
(2) For any income year beginning before January 1, 2000, in the
case of a "new business," the "five taxable years" referred to in
paragraph (1) shall be modified to read as follows:
(A) "Eight taxable years" for a net operating loss attributable to
the first taxable year of that new business.
(B) "Seven taxable years" for a net operating loss attributable to
the second taxable year of that new business.
(C) "Six taxable years" for a net operating loss attributable to
the third taxable year of that new business.
(3) For any carryover of a net operating loss for which a
deduction is denied by Section 24416.3, the carryover period
specified in this subdivision shall be extended as follows:
(A) By one year for a net operating loss attributable to taxable
years beginning in 1991.
(B) By two years for a net operating loss attributable to taxable
years beginning prior to January 1, 1991.
(4) The net operating loss attributable to taxable years beginning
on or after January 1, 1987, and before January 1, 1994, shall be a
net operating loss carryover to each of the 10 taxable years
following the year of the loss if it is incurred by a corporation
that was either of the following:
(A) Under the jurisdiction of the court in a Title 11 or similar
case at any time prior to January 1, 1994. The loss carryover
provided in the preceding sentence shall not apply to any loss
incurred in an income year after the taxable year during which the
corporation is no longer under the jurisdiction of the court in a
Title 11 or similar case.
(B) In receipt of assets acquired in a transaction that qualifies
as a tax-free reorganization under Section 368(a)(1)(G) of the
Internal Revenue Code.
(f) For purposes of this section:
(1) "Eligible small business" means any trade or business that has
gross receipts, less returns and allowances, of less than one
million dollars ($1,000,000) during the income year.
(2) Except as provided in subdivision (g), "new business" means
any trade or business activity that is first commenced in this state
on or after January 1, 1994.
(3) "Title 11 or similar case" shall have the same meaning as in
Section 368(a)(3) of the Internal Revenue Code.
(4) In the case of any trade or business activity conducted by a
partnership or an "S" corporation, paragraphs (1) and (2) shall be
applied to the partnership or "S" corporation.
(g) For purposes of this section, in determining whether a trade
or business activity qualifies as a new business under paragraph (2)
of subdivision (e), the following rules shall apply:
(1) In any case where a taxpayer purchases or otherwise acquires
all or any portion of the assets of an existing trade or business
(irrespective of the form of entity) that is doing business in this
state (within the meaning of Section 23101), the trade or business
thereafter conducted by the taxpayer (or any related person) shall
not be treated as a new business if the aggregate fair
market value of the acquired assets
(including real, personal, tangible, and intangible property) used by
the taxpayer (or any related person) in the conduct of its trade or
business exceeds 20 percent of the aggregate fair market value of the
total assets of the trade or business being conducted by the
taxpayer (or any related person). For purposes of this paragraph
only, the following rules shall apply:
(A) The determination of the relative fair market values of the
acquired assets and the total assets shall be made as of the last day
of the first taxable year in which the taxpayer (or any related
person) first uses any of the acquired trade or business assets in
its business activity.
(B) Any acquired assets that constituted property described in
Section 1221(1) 1221(a)(1) of the
Internal Revenue Code in the hands of the transferor shall not be
treated as assets acquired from an existing trade or business, unless
those assets also constitute property described in Section
1221(1) 1221(a)(1) of the Internal Revenue Code
in the hands of the acquiring taxpayer (or related person).
(2) In any case where a taxpayer (or any related person) is
engaged in one or more trade or business activities in this state, or
has been engaged in one or more trade or business activities in this
state within the preceding 36 months ("prior trade or business
activity"), and thereafter commences an additional trade or business
activity in this state, the additional trade or business activity
shall only be treated as a new business if the additional trade or
business activity is classified under a different division of the
Standard Industrial Classification (SIC) Manual published by the
United States Office of Management and Budget, 1987 edition, than are
any of the taxpayer's (or any related person's) current or prior
trade or business activities.
(3) In any a case where
in which a taxpayer, including all related
persons, is engaged in trade or business activities wholly outside of
this state and the taxpayer first commences doing business in this
state (within the meaning of Section 23101) after December 31, 1993
(other than by purchase or other acquisition described in paragraph
(1)), the trade or business activity shall be treated as a new
business under paragraph (2) of subdivision (e).
(4) In any a case where
in which the legal form under which a trade or
business activity is being conducted is changed, the change in form
shall be disregarded and the determination of whether the trade or
business activity is a new business shall be made by treating the
taxpayer as having purchased or otherwise acquired all or any portion
of the assets of an existing trade or business under the rules of
paragraph (1).
(5) "Related person" shall mean any person that is related to the
taxpayer under either Section 267 or 318 of the Internal Revenue
Code.
(6) "Acquire" shall include any transfer, whether or not for
consideration.
(7) (A) For taxable years beginning on or after January 1, 1997,
the term "new business" shall include any taxpayer that is engaged in
biopharmaceutical activities or other biotechnology activities that
are described in Codes 2833 to 2836, inclusive, of the Standard
Industrial Classification (SIC) Manual published by the United States
Office of Management and Budget, 1987 edition, and as further
amended, and that has not received regulatory approval for any
product from the Food and Drug Administration.
(B) For purposes of this paragraph:
(i) "Biopharmaceutical activities" means those activities that use
organisms or materials derived from organisms, and their cellular,
subcellular, or molecular components, in order to provide
pharmaceutical products for human or animal therapeutics and
diagnostics. Biopharmaceutical activities make use of living
organisms to make commercial products, as opposed to pharmaceutical
activities that make use of chemical compounds to produce commercial
products.
(ii) "Other biotechnology activities" means activities consisting
of the application of recombinant DNA technology to produce
commercial products, as well as activities regarding pharmaceutical
delivery systems designed to provide a measure of control over the
rate, duration, and site of pharmaceutical delivery.
(h) For purposes of corporations whose net income is determined
under Chapter 17 (commencing with Section 25101), Section 25108
shall apply applies to each of the
following:
(1) The amount of net operating loss incurred in any taxable year
that may be carried forward to another taxable year.
(2) The amount of any loss carry forward that may be deducted in
any taxable year.
(i) The provisions of Section 172(b)(1)(D) of the Internal Revenue
Code, relating to bad debt losses of commercial banks,
shall do not be applicable
apply .
(j) The Franchise Tax Board may prescribe appropriate regulations
to carry out the purposes of this section, including any regulations
necessary to prevent the avoidance of the purposes of this section
through splitups, shell corporations, partnerships, tiered ownership
structures, or otherwise.
(k) The Franchise Tax Board may reclassify any net operating loss
carryover determined under either paragraph (2) or (3) of subdivision
(b) as a net operating loss carryover under paragraph (1) of
subdivision (b) upon a showing that the reclassification is necessary
to prevent evasion of the purposes of this section.
( l ) Except as otherwise provided, the amendments made
by Chapter 107 of the Statutes of 2000 shall
apply to net operating losses for taxable years beginning on or after
January 1, 2000.
SEC. 488. Section 24416.21 of the Revenue and Taxation Code is
amended to read:
24416.21. (a) Notwithstanding Sections 24416, 24416.1, 24416.2,
24416.4, 24416.5, 24416.6, 24416.7, and 24416.20
and 24416.7 of this code and Section 172 of the Internal
Revenue Code, no net operating loss deduction shall be allowed for
any taxable year beginning on or after January 1, 2008, and before
January 1, 2012.
(b) For any net operating loss or carryover of a net operating
loss for which a deduction is denied by subdivision (a), the
carryover period under Section 172 of the Internal Revenue Code shall
be extended as follows:
(1) By one year, for losses incurred in taxable years beginning on
or after January 1, 2010, and before January 1, 2011.
(2) By two years, for losses incurred in taxable years beginning
on or after January 1, 2009, and before January 1, 2010.
(3) By three years, for losses incurred in taxable years beginning
on or after January 1, 2008, and before January 1, 2009.
(4) By four years, for losses incurred in taxable years beginning
before January 1, 2008.
(c) Notwithstanding subdivision (a), a net operating loss
deduction shall be allowed for carryback of a net operating loss
attributable to a taxable year beginning on or after January 1, 2013.
(d) The disallowance of any net operating loss deduction for any
taxable year beginning on or after January 1, 2008, and before
January 1, 2010, pursuant to subdivision (a) shall not apply to a
taxpayer with income subject to tax under this part of less than five
hundred thousand dollars ($500,000) for the taxable year.
(e) (1) The disallowance of any net operating loss deduction for
any taxable year beginning on or after January 1, 2010, and before
January 1, 2012, pursuant to subdivision (a) shall not apply to a
taxpayer with preapportioned income of less than three hundred
thousand dollars ($300,000) for the taxable year.
(2) For purposes of this subdivision, "preapportioned income"
means net income after state adjustments, before the application of
the apportionment and allocation provisions of this part.
(3) For taxpayers that are required to be included in a combined
report under Section 25101 or authorized to be included in a combined
report under Section 25101.15, the amount prescribed in paragraph
(1) shall apply to the aggregate amount of preapportioned income for
all members included in a combined report.
(f) Notwithstanding subdivision (a), this section shall not apply
to a taxpayer that ceased to do business or has a final taxable year
ending prior to August 28, 2008, that sold or transferred
substantially all of its assets resulting in a gain on sale during a
taxable year ending prior to August 28, 2008, for which the gain
could be offset with existing net operating loss deductions and the
sale or transfer occurred pursuant to a plan of reorganization under
Chapter 11 of Title 11 of the United States Code. An amended tax
return claiming net operating loss deductions allowed pursuant to
this subdivision shall be treated as a timely filed original return.
(g) The Legislature finds and declares that the addition of
subdivision (f) to this section by the act adding this subdivision
fulfills a statewide public purpose by providing necessary tax relief
for a taxpayer that ceased to do business or has a final taxable
year ending prior to August 28, 2008, that sold or transferred
substantially all of its assets resulting in a gain or sale during a
taxable year prior to August 28, 2008, for which the gain could be
offset with existing net operating loss deductions and the sale or
transfer occurred pursuant to a plan of reorganization under Chapter
11 of Title 11 of the United States Code, in order to ensure that
these taxpayers are not permanently denied the net operating loss
deduction.
SEC. 489. Section 24661.3 of the Revenue and Taxation Code, as
added by Section 54 of Chapter 34 of the Statutes of 2002, is
repealed.
24661.3. (a) (1) The options under Sections 112(d)(2) and 112(d)
(3) of the Federal Agriculture Improvement and Reform Act of 1996 (7
U.S.C. Sec. 7212(d)(2) and (3)), as in effect on October 12, 1998,
shall be disregarded in determining the taxable year for which any
payment under a production flexibility contract under Subtitle B of
Title I of that act (as so in effect) is properly includable in gross
income for purposes of this part, Part 10 (commencing with Section
17001), or Part 10.2 (commencing with Section 18401).
(2) In order to provide farmers with the same tax treatment for
all payments in years beginning before January 1, 2002, with respect
to production flexibility contract payments as provided under federal
law as modified by Public Law 105-277, this subdivision shall apply
to taxable years ending after December 31, 1995.
(b) Any option to accelerate the receipt of any payment under a
production flexibility contract entered into on or after January 1,
2002, that is payable under the Federal Agriculture Improvement and
Reform Act of 1996 (7 U.S.C. Sec. 7200 et seq.) as in effect on
December 17, 1999, shall be disregarded in determining the taxable
year for which that payment is properly includable in gross income
for purposes of this part, Part 10 (commencing with Section 17001),
or Part 10.2 (commencing with Section 18401).
SEC. 490. Section 24685.5 of the Revenue and Taxation Code, as
added by Section 56 of Chapter 34 of the Statutes of 2002, is
repealed.
24685.5. (a) The amendment made by Section 7001(a) of the
Internal Revenue Service Restructuring and Reform Act of 1998 (Public
Law 105-206) to Section 404(a)(11) of the Internal Revenue Code,
regarding determinations relating to deferred compensation, shall
apply to taxable years beginning on or after January 1, 2002.
(b) In the case of any taxpayer required by enactment of this
section to change its method of accounting, for that taxpayer's first
taxable year beginning on or after January 1, 2002, each of the
following shall apply for purposes of this part, Part 10 (commencing
with Section 17001), and Part 10.2 (commencing with Section 18401):
(1) The change shall be treated as initiated by the taxpayer.
(2) The change shall be treated as made with the consent of the
Franchise Tax Board.
(3) The net amount of the adjustments required to be taken into
account by the taxpayer under Chapter 13 (commencing with Section
24631) shall be taken into account ratably over the
three-taxable-year period beginning with that taxpayer's first
taxable year beginning on or after January 1, 2002.
SEC. 491. Section 24989 of the Revenue and Taxation Code is
repealed.
24989. Section 1056 of the Internal Revenue Code, relating to
basis limitation for player contracts transferred in connection with
the sale of a franchise, shall apply, except as otherwise provided.
SEC. 492. Section 32432 of the Revenue and Taxation Code, as added
by Section 24 of Chapter 929 of the Statutes of 1999, is amended and
renumbered to read:
32432. 32432.5. (a) Notwithstanding
any other provision of this part, if the board finds that neither
the person liable for payment of tax nor any party related to that
person has in any way caused an erroneous refund for which an action
for recovery is provided under Section 32431, no interest shall be
imposed on the amount of that erroneous refund until 30 days after
the date on which the board mails a notice of determination for
repayment of the erroneous refund to the person. The act of filing a
claim for refund shall not be considered as causing the erroneous
refund.
(b) This section shall be operative for any action for recovery
under Section 32431 on or after January 1, 2000.
SEC. 493. Section 40069 of the Revenue and Taxation Code, as added
by Section 18 of Chapter 459 of the Statutes of 2002, is amended and
renumbered to read:
40070 40069.5. (a) Any return,
declaration, statement, or other document required to be made under
this part that is filed using electronic media shall be filed and
authenticated pursuant to any method or form the board may prescribe.
(b) Notwithstanding any other law, any return, declaration,
statement, or other document otherwise required to be signed that is
filed by the taxpayer using electronic media in a form as required by
the board shall be deemed to be a signed, valid original document,
including upon reproduction to paper form by the board.
(c) Electronic media includes, but is not limited to, computer
modem, magnetic media, optical disk, facsimile machine, or telephone.
SEC. 494. Section 45752 of the Revenue and Taxation Code, as added
by Section 41 of Chapter 609 of the Statutes of 1998, is amended and
renumbered to read:
45752. 45754. In any action brought
pursuant to subdivision (a) of Section 45751, the court may, with
the consent of the Attorney General, order a change in the place of
trial.
SEC. 495. Section 55262 of the Revenue and Taxation Code, as added
by Section 76 of Chapter 929 of the Statutes of 1999, is amended and
renumbered to read:
55262. 55262.5. (a) Notwithstanding
any other provision of this part, if the board finds that neither
the person liable for payment of fees nor any party related to that
person has in any way caused an erroneous refund for which an action
for recovery is provided under Section 55261, no interest shall be
imposed on the amount of that erroneous refund until 30 days after
the date on which the board mails a notice of determination for
repayment of the erroneous refund to the person. The act of filing a
claim for refund shall not be considered as causing the erroneous
refund.
(b) This section shall be operative for any action for recovery
under Section 55261 on or after January 1, 2000.
SEC. 496. The heading of Article 6.5 (commencing with Section 217)
of Chapter 1 of Division 1 of the Streets and Highways Code is
repealed.
Article 6.5. Design-Sequencing Demonstration and Evaluation
Program
SEC. 497. Section 2192 of the Streets and Highways Code is amended
to read:
2192. (a) The Trade Corridors Improvement Fund, created pursuant
to subdivision (c) of Section 8879.23 of the Government Code, is
hereby continued in existence to receive revenues from sources other
than the Highway Safety, Traffic Reduction, Air Quality, and Port
Security Bond Act of 2006. This chapter shall govern expenditure of
those other revenues.
(b) The moneys in the fund from those other sources shall be
available upon appropriation for allocation by the California
Transportation Commission for infrastructure improvements in this
state on federally designated Trade Corridors of National and
Regional Significance, on the Primary Freight Network, and along
other corridors that have a high volume of freight movement, as
determined by the commission. In determining the projects eligible
for funding, the commission shall consult the state
Transportation Agency's state freight plan as described in
Section 13978.8 of the Government Code, the State Air Resources Board'
s Sustainable Freight Strategy adopted by Resolution 14-2, and the
trade infrastructure and goods movement plan submitted to the
commission by the Secretary of Transportation and the Secretary
of for Environmental Protection
Agency . The commission shall also consult trade
infrastructure and goods movement plans adopted by regional
transportation planning agencies, adopted regional transportation
plans required by state and federal law, and the statewide port
master plan prepared by the California Marine and Intermodal
Transportation System Advisory Council (Cal-MITSAC) pursuant to
Section 1730 of the Harbors and Navigation Code, when determining
eligible projects for funding. Eligible projects for these funds
include, but are not limited to, all of the following:
(1) Highway capacity improvements and operational improvements to
more efficiently accommodate the movement of freight, particularly
for ingress and egress to and from the state's land ports of entry
and seaports, including navigable inland waterways used to transport
freight between seaports, land ports of entry, and airports, and to
relieve traffic congestion along major trade or goods movement
corridors.
(2) Freight rail system improvements to enhance the ability to
move goods from seaports, land ports of entry, and airports to
warehousing and distribution centers throughout California, including
projects that separate rail lines from highway or local road
traffic, improve freight rail mobility through mountainous regions,
relocate rail switching yards, and other projects that improve the
efficiency and capacity of the rail freight system.
(3) Projects to enhance the capacity and efficiency of ports.
(4) Truck corridor improvements, including dedicated truck
facilities or truck toll facilities.
(5) Border access improvements that enhance goods movement between
California and Mexico and that maximize the state's ability to
access coordinated border infrastructure funds made available to the
state by federal law.
(6) Surface transportation and connector road improvements to
effectively facilitate the movement of goods, particularly for
ingress and egress to and from the state's land ports of entry,
airports, and seaports, to relieve traffic congestion along major
trade or goods movement corridors.
(c) (1) The commission shall allocate funds for trade
infrastructure improvements from the fund consistent with Section
8879.52 of the Government Code and the Trade Corridors Improvement
Fund (TCIF) Guidelines adopted by the commission on November 27,
2007, or as amended by the commission, and in a manner that (A)
addresses the state's most urgent needs, (B) balances the demands of
various land ports of entry, seaports, and airports, (C) provides
reasonable geographic balance between the state's regions, and (D)
places emphasis on projects that improve trade corridor mobility
while reducing emissions of diesel particulate and other pollutant
emissions.
(2) In addition, the commission shall also consider the following
factors when allocating these funds:
(A) "Velocity," which means the speed by which large cargo would
travel from the land port of entry or seaport through the
distribution system.
(B) "Throughput," which means the volume of cargo that would move
from the land port of entry or seaport through the distribution
system.
(C) "Reliability," which means a reasonably consistent and
predictable amount of time for cargo to travel from one point to
another on any given day or at any given time in California.
(D) "Congestion reduction," which means the reduction in recurrent
daily hours of delay to be achieved.
SEC. 498. The heading of Division 6 (commencing with Section 4000)
of the Streets and Highways Code is repealed.
DIVISION 6. STREET OPENING
SEC. 499. Section 5132.1 of the Streets and Highways Code, as
amended by Chapter 416 of the Statutes of 1963, is amended and
renumbered to read:
5132.1. In the event that
5132.05. (a) If the
proceedings include any acquisition and the actual cost of the
acquisition as finally determined is less than the amount included in
the assessment as the cost of such the
acquisition, such the excess may be
spent as the legislative body may thereafter determine, either for
the maintenance or repair of the work or improvement, or
such the excess shall be refunded or credited in
proportion to the amount of the assessments that were levied for
such the acquisition cost, as follows:
(a) Where
(1) If the assessment and all
installments thereof and all interest and penalties due thereon have
been paid, such the refund shall be
returned in cash to the person who paid the corresponding assessment
or installment, upon his furnishing satisfactory
evidence of such the payment.
(b) Where
(2) If the assessment or any
installment thereof is unpaid, the credit shall be applied upon
such the assessment or upon the
earliest unpaid installment of principal and interest.
In the event
(b) If the legislative body
determines that such the excess shall
be used for maintenance or repair, the legislative body shall
establish a separate fund of such the
excess and shall use the same it solely
for said that purpose.
SEC. 500. Section 125.4 of the Unemployment Insurance Code is
amended to read:
125.4. "American employer" means any of the following:
(a) An individual who is a resident of the United States.
(b) A partnership, if two-thirds or more of the partners are
residents of the United States.
(c) A trust, if all of the trustees are residents of the United
States.
(d) A corporation organized under the laws of the United States or
of any state.
(e) A limited liability company organized under the laws of the
United States or of any state.
(f) Any An Indian tribe as described
by subsection (u) of Section 3306 (u)
of Title 26 of the United States Code.
SEC. 501. Section 135 of the Unemployment Insurance Code is
amended to read:
135. (a) "Employing unit" means any an
individual or type of organization that has in its employ one
or more individuals performing services for it within this state, and
includes but is not limited to, the following individuals and
organizations:
(1) Any An individual or type of
organization or public entity that elects coverage pursuant to any
provision of this division.
(2) Any A joint venture,
partnership, association, trust, estate, joint stock company,
insurance company, corporation whether domestic or foreign, limited
liability company, whether domestic or foreign, community chest,
fund, or foundation.
(3) Any A public entity. As used in
this section, "public entity" means the State of California
(including the Trustees of the California State University),
any an instrumentality of this state (including
the Regents of the University of California), any
a political subdivision of this state or any of its
instrumentalities, a county, city, district (including the governing
board of any a school district or
community college district, any a
county board of education, any a county
superintendent of schools, or any a
personnel commission of a school district or community college
district that has a merit system pursuant to any provision
of the Education Code), entities receiving state money to
conduct county fairs and agricultural fairs pursuant to Sections
25905 and 25906 of the Government Code and that perform no other
functions, any a public authority,
public agency, or public corporation of this state, any
an instrumentality of more than one of the
foregoing, and any an instrumentality
of any of the foregoing and one or more other states or political
subdivisions.
(4) Any An instrumentality of the
United States required to make payments under this division.
(5) The receiver, trustee in bankruptcy, trustee or successor
thereof, and the legal representative of a deceased person.
(6) Any An Indian tribe
as described by subsection (u) of Section 3306
(u) of Title 26 of the United States Code.
(b) All individuals performing services within this state for
any an employing unit that maintains
two or more separate establishments within this state shall be deemed
to be employed by a single employing unit for all the purposes of
this division. This subdivision does not apply to any
an Indian tribe (as described by
subsection (u) of Section 3306 (u) of Title 26
of the United States Code) and the subdivisions, subsidiaries, or
other business enterprises wholly owned by the Indian tribe if the
tribe chooses to treat those subdivisions, subsidiaries, or other
business enterprises as separate business entities for the purposes
of Section 803.
SEC. 502. Section 605 of the Unemployment Insurance Code is
amended to read:
605. (a) Except as provided by Section 634.5, "employment" for
the purposes of this part and Parts 3 (commencing with Section 3501)
and 4 (commencing with Section 4001) includes all service performed
by an individual (including blind and otherwise disabled individuals)
for any public entity or Indian tribe, if the service is excluded
from "employment" under the federal Federal
Unemployment Tax Act solely by reason of paragraph (7)
of Section 3306(c) (7) of that act.
Title 26 of the United States Code.
(b) For purposes of this section:
(1) "Public entity" means the State of California (including the
Trustees of the California State University and Colleges, and the
California Industries for the Blind), any an
instrumentality of this state (including the Regents of the
University of California), any a
political subdivision of this state or any of its instrumentalities,
a county, city, district (including the governing board of
any a school district or community college
district, any a county board of
education, any a county superintendent
of schools, or any a personnel
commission of a school district or community college district that
has a merit system pursuant to any provision of
the Education Code), entities conducting fairs as identified in
Sections 19418 to 19418.3, inclusive, of the Business and Professions
Code, any a public authority, public
agency, or public corporation of this state, any
an instrumentality of more than one of the foregoing, and
any an instrumentality of any of the
foregoing and one or more other states or political subdivisions.
(2) "Indian tribe" means any an
Indian tribe described by subsection (u) of
Section 3306 (u) of Title 26 of the United States Code.
SEC. 503. Section 634.5 of the Unemployment Insurance Code is
amended to read:
634.5. Notwithstanding any other provision of law, no
a provision excluding service from "employment"
shall does not apply to any
an entity defined by Section 605 or to
any a nonprofit organization described by
Section 608, except as provided by this section. With respect to
any an entity defined by Section 605 or
any a nonprofit organization described
by Section 608, "employment" does not include service excluded under
Sections 629, 631, 635, and 639 to 648, inclusive, or service
performed in any of the following:
(a) In the employ of either of the following:
(1) A church or convention or association of churches.
(2) An organization which that is
operated primarily for religious purposes and which is operated,
supervised, controlled, or principally supported by a church or
convention or association of churches.
(b) By a duly ordained, commissioned, or licensed minister of a
church in the exercise of his or her ministry or by a member of a
religious order in the exercise of duties required by the order.
(c) In the employ of any an entity
defined by Section 605, if the service is performed by an individual
in the exercise of his or her duties as any of the following:
(1) An elected official.
(2) A member of a legislative body or a member of the judiciary of
a state or a political subdivision of a state.
(3) A member of the tribal council of an Indian tribe as described
by subsection (u) of Section 3306 (u)
of Title 26 of the United States Code.
(4) A member of a State National Guard or Air National Guard.
(5) An employee serving on a temporary basis in case of fire,
storm, snow, earthquake, flood, or other similar emergency.
(6) An employee in a position that, under or pursuant to state or
tribal law, is designated as either of the following:
(A) A major nontenured policymaking or advisory position.
(B) A policymaking or advisory position, the performance of the
duties of which ordinarily does not require more than eight hours per
week.
(7) (A) Except as otherwise provided in subparagraph (B), an
election official or election worker if the amount of remuneration
reasonably expected to be received by the individual during the
calendar year for services as an election official or election worker
is less than one thousand dollars ($1,000).
(B) This paragraph shall not take effect unless and until the
service is excluded from service to which paragraph (1) of
subdivision (a) of Section 3309 (a)(1)
of Title 26 of the United States Code applies by reason of
exemption under subdivision (b) of Section 3309
(b) of that act.
(d) By an individual receiving rehabilitation or remunerative
work in a facility conducted for the purpose of carrying out a
program of either:
(1) Rehabilitation for individuals whose earning capacity is
impaired by age or physical or mental deficiency or injury.
(2) Providing remunerative work for individuals who because of
their impaired physical or mental capacity cannot be readily absorbed
in the competitive labor market.
(e) By an individual receiving work relief or work training as
part of an unemployment work relief or work training program assisted
or financed in whole or in part by any of the following:
(1) A federal agency.
(2) An agency of a state or a political subdivision thereof.
(3) An Indian tribe, as described by subsection (u) of
Section 3306 (u) of Title 26 of the United
States Code.
(f) By a ward or an inmate of a custodial or penal institution
pursuant to Article 1 (commencing with Section 2700), Article 4
(commencing with Section 2760), and Article 5 (commencing with
Section 2780) of Chapter 5 of, and Article 1 (commencing with Section
2800) of Chapter 6 of, Title 1 of Part 3 of the Penal Code, Section
4649 and Chapter 1 (commencing with Section 4951) of Part 4 of
Division 4 of the Public Resources Code, and Sections 883, 884, and
1768 of the Welfare and Institutions Code.
(g) By an individual under the age of 18 years in the delivery or
distribution of newspapers or shopping news, not including delivery
or distribution to any point for subsequent delivery or distribution.
(h) By an individual in the sale of newspapers or magazines to
ultimate consumers, under an arrangement that includes the following
conditions:
(1) The newspapers or magazines are to be sold by the individual
at a fixed price.
(2) The individual's compensation is based on retention of the
excess of the price over the amount at which the newspapers or
magazines are charged to the individual, whether or not he or she is
guaranteed a minimum amount of compensation for the service or is
entitled to be credited with the unsold newspapers or magazines that
he or she returns.
(i) (1) Except as otherwise provided in paragraph (2), as a
substitute employee whose employment does not increase the size of
the employer's normal workforce, whose employment is required by law,
and whose employment as a substitute employee does not occur on more
than 60 days during the base period.
(2) This subdivision shall not take effect unless and until the
United States Secretary of Labor, or his or her designee, finds that
this subdivision is in conformity with federal requirements.
(j) As a participant in a national service program carried out
using assistance provided under Section 12571 of Title 42 of the
United States Code.
SEC. 504. Section 710.6 of the Unemployment Insurance Code is
amended to read:
710.6. (a) Notwithstanding Section 709, any
an Indian tribe as described by subsection (u) of
Section 3306 (u) of Title 26 of the United
States Code, including those tribes not covered by
the Tribal-State Gaming Compact, may elect to become an employer
subject to Part 2 (commencing with Section 2601) with respect to all
employees who meet either of the following conditions:
(1) Are employed in one or more distinct establishments or places
of business.
(2) Are a part of an employee bargaining unit provided the
election is the result of a negotiated agreement between the Indian
tribe and the recognized employee organization. The Indian tribe also
may elect to provide coverage to its management and confidential
employees and to its employees who are not a part of an employee
bargaining unit, but the election by the bargaining unit shall not be
contingent upon coverage of other employees of the Indian tribe.
(b) Upon filing of an election, the filing entity shall, upon
approval by the director, become an employer subject to Part 2
(commencing with Section 2601) to the same extent as other employers,
and services performed by its employees who are subject to an
election under this section shall constitute employment subject to
that part. Sections 986 and 2903 apply to an employer making an
election pursuant to this section.
(c) This section does not affect the requirement that Indian
tribes covered by the Tribal-State Gaming Compact be subject to Part
2 (commencing with Section 2601).
SEC. 505. Section 802 of the Unemployment Insurance Code is
amended to read:
802. (a) The State of California, any other public entity (as
defined by Section 605), or any Indian tribe as described by
subsection (u) of Section 3306 (u) of Title 26
of the United States Code, or any subdivision, subsidiary, or
business enterprise wholly owned by that Indian tribe, for which
services are performed that do constitute employment under Section
605 may, in lieu of the contributions required of employers, elect to
finance its liability for unemployment compensation benefits,
extended duration benefits, and federal-state extended benefits with
respect to those services by any method of financing coverage that is
permitted under Section 803.
(b) Any An election under Section 803
for financing coverage under this section shall take effect with
respect to services performed from and after the first day of the
calendar quarter in which the election is filed with the director,
and shall continue in effect for not less than two full calendar
years, unless the election is cancelled
canceled by the director pursuant to paragraph (2) of
subdivision (g) of Section 803. Thereafter the election under Section
803 may be terminated as of January 1 of any calendar year only if
the state or other public entity or Indian tribe, on or before the
31st day of January of that year, has filed with the director a
written application for termination. The director may for good cause
waive the requirement that a written application for termination
shall be filed on or before the 31st day of January. In no
event shall financing Financing coverage by an
election under Section 803 be is not
valid that if it would establish any
different method of financing coverage for any calendar quarter where
an election for coverage has also been made by the state or other
public entity or Indian tribe under any provision of Article 4
(commencing with Section 701) of this chapter.
(c) The director may require from the state and other public
entity and Indian tribe, including any an
agent thereof, such employment, financial,
statistical, or other information and reports, properly verified, as
may be deemed necessary by the director to carry out his or her
duties under this division, which shall be filed with the director at
the time and in the manner prescribed by him or her.
(d) The director may tabulate and publish information obtained
pursuant to this section in statistical form and may divulge the name
of the state or other public entity or Indian tribe.
(e) The state and other public entity and Indian tribe, including
any an agent thereof, shall keep any
work records as may be prescribed by the director for the proper
administration of this division.
(f) Except as inconsistent with the provisions of this section,
the provisions of this division and authorized regulations apply to
any matter arising pursuant to this section.
SEC. 506. Section 803 of the Unemployment Insurance Code is
amended to read:
803. (a) As used in this section, "entity" means any
an employing unit that is authorized by
any provision of Article 4 (commencing with Section 701)
or by Section 801 or 802 to elect a method of financing coverage
permitted by this section.
(b) In lieu of the contributions required of employers, an entity
may elect any one of the following:
(1) To pay into the Unemployment Fund the cost of benefits,
including extended duration benefits and federal-state extended
benefits, paid based on base period wages with respect to employment
for the entity and charged to its account in the manner provided by
Section 1026, pursuant to authorized regulations that shall prescribe
the rate or amount, time, manner, and method of payment or advance
payment or providing a good and sufficient bond to guarantee payment
of contributions.
(2) Two or more entities may, pursuant to authorized regulations,
file an application with the director for the establishment of a
joint account for the purpose of determining the rate of
contributions they shall pay into the Unemployment Fund to reimburse
the fund for benefits paid with respect to employment for those
entities. The members of the joint account may share the cost of
benefits, including extended duration benefits and federal-state
extended benefits, paid based on the base period wages with respect
to employment for those members and charged to the joint account in
the manner provided by Section 1026. The director shall prescribe
authorized regulations for the establishment, maintenance, and
dissolution of joint accounts, and for the rate or amount, time,
manner, and method of payment or advance payment or providing a good
and sufficient bond to guarantee payment of contributions by the
members of joint accounts, on the cost of benefits charged in the
manner provided by Section 1026.
(c) Sections 1030, 1031, 1032, and 1032.5, and any provision of
this division for the noncharging of benefits to the account of an
employer, shall do not apply to an
election under subdivision (b). The cost of benefits charged to an
entity under this section shall include, but not be limited to,
benefits or payments improperly paid in excess of a weekly benefit
amount, or in excess of a maximum benefit amount, or otherwise in
excess of the amount that should have been paid, due to any
computational or other error of any type by the Employment
Development Department or the Department of Benefit Payments, whether
or not the error could be anticipated.
(d) The cost of benefits charged to an entity under this section
shall include credits of benefit overpayments actually collected by
the department, unless the department determines that the payment was
made because the entity, or an agent of the entity, was at fault for
failing to respond timely or adequately to requests of the
department for information relating to the individual claim for
unemployment compensation benefits. The department shall make this
determination when the entity or agent fails to respond timely or
adequately in two instances relating to the individual claim for
unemployment compensation benefits. This subdivision shall apply to
benefit overpayments established on or after October 22, 2013.
(e) In making the payments prescribed by subdivision (b), there
shall be paid or credited to the Unemployment Fund, either in advance
or by way of reimbursement, as may be determined by the director,
any sums he or she estimates the Unemployment Fund will be entitled
to receive from each entity for each calendar quarter, reduced or
increased by any sum by which he or she finds that his or her
estimates for any prior calendar quarter were greater or less than
the amounts which should have been paid to the fund. The estimates
may be made upon the basis of statistical sampling, or any other
method as may be determined by the director.
Upon making that determination, the director shall give notice of
the determination, pursuant to Section 1206, to the entity. The
director may cancel any contributions or portion thereof that he or
she finds has been erroneously determined.
The director shall charge to any special fund, that is responsible
for the salary of any employee of an entity, the amount determined
by the director for which the fund is liable pursuant to this
section. The contributions due from the entity shall be paid from the
liable special fund, the General Fund, or other liable fund to the
Unemployment Fund by the Controller or other officer or person
responsible for disbursements on behalf of the entity within 30 days
of the date of mailing of the director's notice of determination to
the entity. The director for good cause may extend for not to exceed
60 days the time for paying without penalty the amount determined and
required to be paid. Contributions are due upon the date of mailing
of the notice of determination and are delinquent if not paid on or
before the 30th day following the date of mailing of the notice.
(f) Any An entity that fails to pay
the contributions required within the time required shall be liable
for interest on the contributions at the adjusted annual rate and by
the method established pursuant to Section 19521 of the Revenue and
Taxation Code from and after the date of delinquency until paid, and
any an entity that without good cause
fails to pay any contributions required within the
time required shall pay a penalty of 10 percent of the amount of the
contributions. If the entity fails to pay the contributions required
on or before the delinquency date, the director may assess the
entity for the amount required by the notice of determination. This
subdivision shall does not apply to
employers electing financing under Section 821, for amounts due after
December 31, 1992.
(g) Article 8 (commencing with Section 1126) of Chapter 4 of Part
1 , with respect to the assessment of contributions, and
Chapter 7 (commencing with Section 1701) of Part 1 , with
respect to the collection of contributions, shall
apply to the assessments provided by this section. Sections 1177 to
1184, inclusive, relating to refunds and overpayments, shall
apply to amounts paid to the Unemployment Fund pursuant to
this section. Sections 1222, 1223, 1224, 1241, and 1242
shall apply to matters arising under this section.
(h) (1) The director may terminate the election of any
an entity for financing under this section if
the entity is delinquent in the payment of advances or reimbursements
required by the director under this section. After any
a termination , the entity may again
make an election pursuant to this section , but only if it
is not delinquent in the payment of contributions and not delinquent
in the payment of advances or reimbursements required by the
director under this section.
(2) In the case of an Indian tribe (as described by
subsection (u) of Section 3306 (u) of Title 26
of the United States Code), the director shall terminate all
elections for the tribe and all subdivisions, subsidiaries, and
business enterprises wholly owned by that tribe if the tribe or any
subdivision, subsidiary, or business enterprise wholly owned by that
tribe is more than 90 days delinquent in the payment of
contributions, bonds, advances, reimbursements, or applicable
penalties or interest required under this code, after notice to the
tribe. After any a termination ,
the Indian tribe may again make an election pursuant to this
section , but only if it is not delinquent in the payment
of contributions, bonds, advances, reimbursements, or applicable
penalties or interest required under this code.
(i) Notwithstanding any other provision of this section,
no an entity shall not be liable for
that portion of any extended duration benefits or federal-state
extended benefits that is reimbursed or reimbursable by the federal
government to the State of California.
(j) After the termination of any an
election under this section, the entity shall remain liable for its
proportionate share of the cost of benefits paid and charged to its
account in the manner provided by Section 1026, which are based on
wages paid for services during the period of the election. That
liability may be charged against any remaining balance of a prior
reserve account used by the entity pursuant to Section 712 or 713.
Any portion of the remaining balance shall be included in the reserve
account of the entity following any a
termination of an election under this section which occurs prior to
the expiration of a period of three consecutive years commencing with
the effective date of the election. For purposes of Section 982, the
period of an election under Section 803 shall, to the extent
permitted by federal law, be included as a period during which a
reserve account has been subject to benefit charges.
SEC. 507. Section 804 of the Unemployment Insurance Code is
amended to read:
804. The director shall notify the United States Internal Revenue
Service and the United States Department of Labor of the failure of
any Indian tribe (as described by subsection (u) of
Section 3306 (u) of Title 26 of the United
States Code) to make a payment or post a bond as required under
subdivision (b) of Section 803 within 90 days of the delinquency date
of a notice to the tribe specifying the amount due under that
subdivision. If the amount due is subsequently paid by the Indian
tribe, the director shall notify the United States Internal Revenue
Service and the United States Department of Labor of the satisfaction
of the liability.
SEC. 508. Section 1086 of the Unemployment Insurance Code is
amended to read:
1086. (a) Each employing unit within 15 days after becoming an
employer as defined in this part shall register with the department
on a form prescribed by the department.
(b) (1) Notwithstanding subdivision (a), any
an Indian tribe (as described by subsection (u)
of Section 3306 (u) of Title 26 of the United
States Code) that employed one or more workers on or after December
21, 2000, and prior to the operative date of the statute adding this
subdivision at the 2001 portion of the 2001-02 Regular Session of the
Legislature that has not registered with the department by the
operative date of the statute, shall register with the department
within 15 days of that operative date.
(2) The subject date for employers who register with the
department under the provisions of paragraph (1) shall be December
21, 2000, or the date that employer first hired an employee,
whichever is later.
SEC. 509. Section 1119 of the Unemployment Insurance Code is
amended to read:
1119. The director shall notify the United States Internal
Revenue Service and the United States Department of Labor of the
failure of any an Indian tribe (as
described by subsection (u) of Section 3306
(u) of Title 26 of the United States Code) to make a payment of
any an amount required to be paid
under this article within 90 days of the date of a notice specifying
the amount due. If the amount due is subsequently paid by the Indian
tribe, the director shall notify the United States Internal Revenue
Service and the United States Department of Labor of the satisfaction
of the liability.
SEC. 510. Section 1128.1 of the Unemployment Insurance Code is
amended to read:
1128.1. (a) If the director finds that an individual or business
entity has exchanged money on behalf of an employer and the employer
used the cash proceeds from the exchange to conceal the payment of
wages with an intent to evade any a
provision of this code, the director shall assess a penalty against
the individual or business entity in an amount equal to 100 percent
of any assessed contributions that were based on the concealed wages.
An employing unit subject to a penalty under Section 1128 shall not
be assessed a penalty under this section for the same violation.
(b) For purposes of this section, "business entity" means a
partnership, corporation, association, limited liability company, or
Indian tribe (as described by subsection (u) of
Section 3306 (u) of Title 26 of the United States Code).
(c) The penalty shall apply applies
only when there is evidence that the individual or business entity
who exchanged money knew that the employer intended to use the cash
proceeds from the exchange to conceal the payment of wages and
thereby avoid the payment of contributions or taxes required by this
code.
SEC. 511. Section 1141.1 of the Unemployment Insurance Code is
amended to read:
1141.1. The director shall notify the United States Internal
Revenue Service and the United States Department of Labor of the
failure of any an Indian tribe (as
described by subsection (u) of Section 3306
(u) of Title 26 of the United States Code) to pay within 90
days of the final date of an assessment any amounts assessed pursuant
to the provisions of this article. If the assessment is subsequently
paid by the Indian tribe, the director shall notify the United
States Internal Revenue Service and the United States Department of
Labor of the satisfaction of the liability.
SEC. 512. Section 1145 of the Unemployment Insurance Code is
amended to read:
1145. (a) If the director finds that a person or business entity
knowingly advises another person or business entity to violate any
provision of this chapter, the director may assess the greater of:
(1) A penalty of five thousand dollars ($5,000).
(2) Ten percent of the combined amount of any resulting
underreporting of contribution, penalties, or interest required by
law.
(b) For purposes of this section, "business entity" means a
partnership, corporation, association, limited liability company, or
Indian tribe, as described in subsection (u) of
Section 3306 (u) of Title 26 of the United States Code, or
any other legal entity.
SEC. 513. Section 1253.92 of the Unemployment Insurance Code is
amended to read:
1253.92. (a) An unemployed individual who is meeting
meets all of the requirements under this
division, including Section 1253.9, and is certifying
certifies for continued unemployment
compensation benefits shall not be scheduled for a determination of
eligibility for a week in which the individual commenced or is
participating in a training or education program and has notified the
department of the training or education program.
(b) If the department determines that the commencement of, or the
ongoing participation in, a training or education program conflicts
with the eligibility requirements for unemployment compensation under
this division, the department may schedule and conduct a
determination of eligibility.
SEC. 514. Section 1326.5 of the Unemployment Insurance Code is
amended to read:
1326.5. An individual shall, to maintain his or her eligibility
to file continued claims during a continuous period of unemployment,
submit a continued claim not more than 14 days from the end of the
last week week's ending date
showing shown on the continued claim, or not
more than 14 days from the date the department issued that continued
claim, whichever is later, unless the department finds good cause for
the individual's delay in
submitting the continued claim. An unemployed individual may not be
disqualified for unemployment compensation benefits solely on the
basis that the continued claim was submitted 15 to 21 days,
inclusive, from the end of the last week week'
s ending date showing shown on
the continued claim, or 15 to 21 days inclusive, from the date the
department issued that continued claim, whichever is later.
SEC. 515. Section 1735.1 of the Unemployment Insurance Code is
amended to read:
1735.1. (a) An individual who has been assessed under the
provisions of Section 1128.1, or any an
officer, major stockholder, or other person having charge of the
affairs of a business entity that has been assessed under the
provisions of that section, shall be personally liable for the amount
of contributions, withholdings, penalties, and interest due and
unpaid by the employer, other than those under subdivisions (a) and
(b) of Section 1128, for whom money was exchanged as described in
Section 1128.1. The director may assess that person for the amount of
contributions, withholdings, all penalties other than those under
Section 1128, and interest. The provisions of Article 8 (commencing
with Section 1126) and Article 9 (commencing with Section 1176) of
Chapter 4 of Part 1 shall apply to assessments
made pursuant to this section. Sections 1221, 1222, 1223, and 1224
shall apply to assessments made pursuant to this
section. With respect to that person, the director shall have all the
collection remedies set forth in this chapter.
(b) For purposes of this section, "business entity" means a
partnership, corporation, association, limited liability company, or
Indian tribe (as described by subsection (u) of
Section 3306 (u) of Title 26 of the United States Code).
SEC. 516. Section 3655 of the Unemployment Insurance Code, as
amended by Section 17 of Chapter 399 of the Statutes of 2014, is
amended to read:
3655. (a) The Employment Development Department shall consider
the facts submitted by an employer pursuant to Section 3654 and, if
benefits are claimed subsequent to the filing of the extended
duration benefits claim, make a determination as to the exhaustee's
eligibility for the extended duration benefits. The Employment
Development Department shall promptly notify the exhaustee and any
employer who prior to the determination has submitted any facts
pursuant to Section 3654 of the determination and the reasons
therefor. The exhaustee and this the
employer may appeal therefrom to an administrative law judge within
20 days from mailing or personal service of notice of the
determination. The 20-day period may be extended for good cause. The
Director of Employment Development shall be an interested party to
any appeal.
(b) "Good cause," as used in this section, shall include, but not
be limited to, mistake, inadvertence, surprise, or excusable neglect.
(c) This section shall become inoperative on July 1, 2015, and, as
of January 1, 2016, is repealed.
SEC. 517. Section 3655 of the Unemployment Insurance Code, as
added by Section 18 of Chapter 399 of the Statutes of 2014, is
amended to read:
3655. (a) The Employment Development Department shall consider
the facts submitted by an employer pursuant to Section 3654 and, if
benefits are claimed subsequent to the filing of the extended
duration benefits claim, make a determination as to the exhaustee's
eligibility for the extended duration benefits. The Employment
Development Department shall promptly notify the exhaustee and any
employer who prior to the determination has submitted any facts
pursuant to Section 3654 of the determination and the reasons
therefor. The exhaustee and this the
employer may appeal therefrom to an administrative law judge within
30 days from mailing or personal service of notice of the
determination. The 30-day period may be extended for good cause. The
Director of Employment Development shall be an interested party to
any appeal.
(b) "Good cause," as used in this section, shall include, but not
be limited to, mistake, inadvertence, surprise, or excusable neglect.
(c) This section shall take effect on July 1, 2015.
SEC. 518. Section 14013 of the Unemployment Insurance Code is
amended to read:
14013. The board shall assist the Governor in the following:
(a) Promoting the development of a well-educated and highly
skilled 21st century workforce.
(b) Developing the State Workforce Investment Plan.
(c) Developing guidelines for the continuous improvement and
operation of the workforce investment system, including:
(1) Developing policies to guide the one-stop system.
(2) Providing technical assistance for the continuous improvement
of the one-stop system.
(3) Recommending state investments in the one-stop system.
(4) Targeting resources to competitive and emerging industry
sectors and industry clusters that provide economic security and are
either high-growth sectors or critical to California's economy, or
both. These industry sectors and clusters shall have significant
economic impacts on the state and its regional and workforce
development needs and have documented career opportunities.
(5) To the extent permissible under state and federal laws,
recommending youth policies and strategies that support linkages
between kindergarten and grades 1 to 12, inclusive, and community
college educational systems and youth training opportunities in order
to help youth secure educational and career advancement. These
policies and strategies may be implemented using a sector strategies
framework and should ultimately lead to placement in a job providing
economic security or job placement in an entry-level job that has a
well-articulated career pathway or career ladder to a job providing
economic security.
(6) To the extent permissible under state and federal law,
recommending adult and dislocated worker training policies and
investments that offer a variety of career opportunities while
upgrading the skills of California's workforce. These may include
training policies and investments pertaining to any of the following:
(A) Occupational skills training, including training for
nontraditional employment.
(B) On-the-job training.
(C) Programs that combine workplace training with related
instruction, which may include cooperative education programs.
(D) Training programs operated by the private sector.
(E) Skill upgrading and retraining.
(F) Entrepreneurial training.
(G) Job readiness training.
(H) Adult education and literacy activities provided in
combination with any of the services described in this paragraph.
(I) Customized training conducted with a commitment by an employer
or group of employers to employ an individual upon successful
completion of the training.
(d) Developing and continuously improving the statewide workforce
investment system as delivered via the one-stop delivery system and
via other programs and services supported by funding from the federal
Workforce Investment Act of 1998, including:
(1) Developing linkages in order to ensure coordination and
nonduplication among workforce programs and activities.
(2) Reviewing local workforce investment plans.
(3) Leveraging state and federal funds to ensure that resources
are invested in activities that meet the needs of the state's
competitive and emerging industry sectors and advance the education
and employment needs of students and workers so they can keep pace
with the education and skill needs of the state, its regional
economies, and leading industry sectors.
(e) Commenting, at least once annually, on the measures taken
pursuant to the Carl D. Perkins Vocational and Applied Technology
Education Act Amendments of 1990 (Public Law 101-392; 20 U.S.C. Sec.
2301 et seq.).
(f) Designating local workforce investment areas within the state
based on information derived from all of the following:
(1) Consultations with the Governor.
(2) Consultations with the chief local elected officials.
(3) Consideration of comments received through the public comment
process, as described in Section 112(b)(9) of the federal Workforce
Investment Act of 1998 (Public Law 105-220) .
(g) Developing and modifying allocation formulas, as necessary,
for the distribution of funds for adult employment and training
activities, for youth activities to local workforce investment areas,
and dislocated worker employment and training activities, as
permitted by federal law.
(h) Coordinating the development and continuous improvement of
comprehensive state performance measures, including state adjusted
levels of performance, to assess the effectiveness of the workforce
investment activities in the state.
(i) Preparing the annual report to the United States Secretary of
Labor.
(j) Recommending policy for the development of the statewide
employment statistics system, including workforce and economic data,
as described in Section 49l-2 of Title 29 of the United States Code,
and using, to the fullest extent possible, the Employment Development
Department's existing labor market information systems.
(k) Recommending strategies to the Governor for strategic training
investments of the Governor's 15-percent discretionary funds.
(l) Developing and recommending waivers, in conjunction with local
workforce investment boards, to the Governor as provided for in the
federal Workforce Investment Act of 1998.
(m) Recommending policy to the Governor for the use of the
25-percent rapid response funds, as authorized under the federal
Workforce Investment Act of 1998.
(n) Developing an application to the United States Department of
Labor for an incentive grant under Section 9273 of Title 20 of the
United States Code.
(o) (1) Developing a workforce metrics dashboard, to be updated
annually, that measures the state's human capital investments in
workforce development to better understand the collective impact of
these investments on the labor market. The workforce metrics
dashboard shall be produced using existing available data and
resources that are currently collected and accessible to state
agencies. The board shall convene workforce program partners to
develop a standardized set of inputs and outputs for the workforce
metrics dashboard. The workforce metrics dashboard shall do all of
the following:
(A) Provide a status report on credential attainment, training
completion, degree attainment, and participant earnings from
workforce education and training programs. The board shall publish
and distribute the final report.
(B) Provide demographic breakdowns, including, to the extent
possible, race, ethnicity, age, gender, veteran status, wage and
credential or degree outcomes, and information on workforce outcomes
in different industry sectors.
(C) Measure, at a minimum and to the extent feasible with existing
resources, the performance of the following workforce programs:
community college career technical education, the Employment Training
Panel, Title I and Title II of the federal Workforce Investment Act
of 1998, Trade Adjustment Assistance, and state apprenticeship
programs.
(D) Measure participant earnings in California, and to the extent
feasible, in other states. The Employment Development Department
shall assist the board by calculating aggregated participant earnings
using unemployment insurance wage records, without violating any
applicable confidentiality requirements.
(2) The State Department of Education is hereby authorized to
collect the social security numbers of adults participating in adult
education programs so that accurate participation in those programs
can be represented in the report card. However, an individual shall
not be denied program participation if he or she refuses to provide a
social security number. The State Department of Education shall keep
this information confidential and shall only use this information
for tracking purposes, in compliance with all applicable state and
federal law.
(3) (A) Participating workforce programs, as specified in
clause subparagraph (C) of paragraph (1), shall provide
participant data in a standardized format to the Employment
Development Department.
(B) The Employment Development Department shall aggregate data
provided by participating workforce programs and shall report the
data, organized by demographics, earnings, and industry of
employment, to the board to assist the board in producing the annual
workforce metrics dashboard.
SEC. 519. Section 241 of the Vehicle Code, as added by Section 4
of Chapter 740 of the Statutes of 2012, is repealed.
241. A "buy-here-pay-here" dealer is a dealer, as defined in
Section 285, who is not otherwise expressly excluded by Section
241.1, and who does all of the following:
(a) Enters into conditional sale contracts, within the meaning of
subdivision (a) of Section 2981 of the Civil Code, and subject to the
provisions of Chapter 2b (commencing with Section 2981) of Title 14
of Part 4 of Division 3 of the Civil Code, or lease contracts, within
the meaning of Section 2985.7 of the Civil Code, and subject to the
provisions of Chapter 2d (commencing with Section 2985.7) of Title 14
of Part 4 of Division 3 of the Civil Code.
(b) Assigns less than 90 percent of all unrescinded conditional
sale contracts and lease contracts to unaffiliated third-party
finance or leasing sources within 45 days of the consummation of
those contracts.
(c) For purposes of this section, a conditional sale contract does
not include a contract for the sale of a motor vehicle if all
amounts owed under the contract are paid in full within 30 days.
(d) The department may promulgate regulations as necessary to
implement this section.
SEC. 520. Section 241.1 of the Vehicle Code, as added by Section 5
of Chapter 740 of the Statutes of 2012, is repealed.
241.1. The term "buy-here-pay-here" dealer does not include any
of the following:
(a) A lessor who primarily leases vehicles that are two model
years old or newer.
(b) A dealer that does both of the following:
(1) Certifies 100 percent of used vehicle inventory offered for
sale at retail price pursuant to Section 11713.18.
(2) Maintains an onsite service and repair facility that is
licensed by the Bureau of Automotive Repair and employs a minimum of
five master automobile technicians that are certified by the National
Institute for Automotive Service Excellence.
SEC. 521. Section 612 of the Vehicle Code, as added by Chapter
1305 of the Statutes of 1986, is repealed.
612. "Tour bus" means a bus designed for carrying more than 16
passengers and the driver which is operated by or for a charter-party
carrier of passengers, as defined in Section 5360 of the Public
Utilities Code.
SEC. 522. Section 612 of the Vehicle Code, as amended by Section 8
of Chapter 1216 of the Statutes of 1989, is amended to read:
612. "Tour bus" means a bus, which is operated by or for a
charter-party carrier of passengers, as defined in Section 5360 of
the Public Utilities Code, or a passenger stage corporation, as
defined in Section 226 of the Public Utilities Code, or any
highway carrier of passengers required to register with the
California Public Utilities Commission pursuant to Section 3910 of
the Public Utilities Code.
SEC. 523. Section 1803.5 of the Vehicle Code, as added by Chapter
216 of the Statutes of 2010, is repealed.
1803.5. (a) In accordance with Section 41501 or 42005, the clerk
of a court or hearing officer, when a person who receives a notice to
appear at a court or board proceeding for a violation of any statute
relating to the safe operation of vehicles is granted a continuance
of the proceeding in consideration for completion of a program at a
school for traffic violators, that results in a designation of the
conviction as confidential in consideration for that completion,
shall prepare an abstract of the record of the court or board
proceeding that indicates that the person was convicted of the
violation and ordered to complete a traffic violator program, certify
the abstract to be true and correct, and cause the abstract to be
forwarded to the department at its office at Sacramento within five
days after receiving proof that the program was completed or the due
date to which the proceeding was continued, whichever comes first.
(b) This section shall become operative on July 1, 2011.
SEC. 524. Section 1808.7 of the Vehicle Code, as added by Chapter
216 of the Statutes of 2010, is repealed.
1808.7. (a) The record of the department relating to the first
proceeding and conviction under Section 1803.5 in any 18-month period
for completion of a traffic violator school program is confidential,
shall not be disclosed to any person, except a court and as provided
for in subdivision (b), and shall be used only for statistical
purposes by the department. No violation point count shall be
assessed pursuant to Section 12810 if the conviction is confidential.
(b) The record of a conviction described in subdivision (a) shall
not be confidential if any of the following circumstances applies:
(1) The person convicted holds a commercial driver's license as
defined by Section 15210.
(2) The person convicted holds a commercial driver's license in
another state, in accordance with Part 383 of Title 49 of the Code of
Federal Regulations.
(3) The violation occurred in a commercial motor vehicle, as
defined in subdivision (b) of Section 15210.
(4) The conviction would result in a violation point count of more
than one point pursuant to Section 12810.
(c) This section shall become operative on July 1, 2011.
SEC. 525. Section 2480 of the Vehicle Code is amended to read:
2480. (a) A peace officer may remove a vehicle, within the
territorial limits in which the officer may act, if the vehicle is
involved in the theft or movement of stolen inedible kitchen grease.
If a peace officer removes a vehicle pursuant to this subdivision,
the officer may, after citing or arresting the responsible person,
seize the vehicle, which may be impounded for up to 15 days.
(b) The registered and legal owner of a vehicle removed and seized
pursuant to subdivision (a) or their agents shall be provided the
opportunity for a storage hearing to determine the validity of the
storage in accordance with Section 22852.
(c) (1) Notwithstanding Chapter 10 (commencing with Section 22650)
of Division 11 or any other law, an impounding agency
shall release a motor vehicle to the registered owner or his or her
agent prior to the conclusion of the impoundment period described in
subdivision (a) under any of the following circumstances:
(A) If the vehicle is a stolen vehicle and reported as stolen in
accordance with then existing state and local law.
(B) If the legal owner or registered owner of the vehicle is a
rental car agency.
(C) If, prior to the conclusion of the impoundment period, a
citation or notice is dismissed under Section 40500, criminal charges
are not filed by the district attorney because of a lack of
evidence, or the charges are otherwise dismissed by the court.
(2) A vehicle shall be released pursuant to this subdivision only
if the registered owner or his or her agent presents a currently
valid driver's license to operate the vehicle and proof of current
vehicle registration, or if ordered by a court.
(d) A vehicle seized and removed pursuant to subdivision (a) shall
be released to the legal owner of the vehicle, or the legal owner's
agent, on or before the 15th day of impoundment if all of the
following conditions are met:
(1) The legal owner is a motor vehicle dealer, bank, credit union,
acceptance corporation, or other licensed financial institution
legally operating in this state, or is another person, not the
registered owner, holding a security interest in the vehicle.
(2) The legal owner or the legal owner's agent pays all towing and
storage fees related to the impoundment of the vehicle. No lien sale
processing fees shall be charged to a legal owner who redeems the
vehicle on or before the seventh day of impoundment.
(3) The legal owner or the legal owner's agent presents
foreclosure documents or an affidavit of repossession for the
vehicle.
(e) (1) The registered owner or his or her agent is responsible
for all towing and storage charges related to the impoundment, and
any administrative charges authorized under Section 22850.5.
(2) If the vehicle is a rental vehicle, the rental car agency may
require the person to whom the vehicle was rented to pay all towing
and storage charges related to the impoundment and any administrative
charges authorized under Section 22850.5 incurred by the rental car
agency in connection with obtaining possession of the vehicle.
(3) The owner is not liable for any towing and storage charges
related to the impoundment if acquittal or dismissal occurs.
(4) The vehicle may shall not be
sold prior to the defendant's conviction.
SEC. 526. Section 2501 of the Vehicle Code, as added by Section 6
of Chapter 860 of the Statutes of 1981, is repealed.
2501. The Commissioner of the California Highway Patrol may issue
licenses for the operation of privately owned and operated
ambulances used to respond to emergency calls, armored cars, fleet
owner inspection and maintenance stations, and for the transportation
of explosives. The licenses shall be issued in accordance with the
provisions of this chapter and regulations adopted by the
commissioner pursuant thereto. All licenses issued by the
commissioner shall expire one year from the date of issue. Licenses
may be renewed upon application and payment of the renewal fees if
the application for renewal is made within the 30-day period prior to
the date of expiration. Persons whose licenses have expired shall
immediately cease the activity requiring a license, but the
commissioner shall accept applications for renewal during the 30-day
period following the date of expiration if they are accompanied by
the new license fee. In no case shall a license be renewed where the
application is received more than 30 days after the date of
expiration.
This section shall become operative January 1, 1988.
SEC. 527. Section 2501 of the Vehicle Code, as amended by Section
2 of Chapter 294 of the Statutes of 1982, is amended to read:
2501. The Commissioner of the California Highway Patrol may issue
licenses for the operation of privately owned or operated ambulances
used to respond to emergency calls, armored cars, fleet owner
inspection and maintenance stations, and for the transportation of
hazardous material, including the transportation of explosives.
Such The licenses shall be issued in
accordance with the provisions of this chapter and regulations
adopted by the commissioner pursuant thereto. All licenses issued by
the commissioner shall expire one year from the date of issue.
Licenses may be renewed upon application and payment of the renewal
fees if the application for renewal is made within the 30-day period
prior to the date of expiration. Persons whose licenses have expired
shall immediately cease the activity requiring a license, but the
commissioner shall accept applications for renewal during the 30-day
period following the date of expiration if they are accompanied by
the new license fee. In no case shall a A
license shall not be renewed where
when the application is received more than 30
days after the date of expiration.
SEC. 528. Section 5156.7 of the Vehicle Code is amended to read:
5156.7. (a) The State Department of Health Care Services shall
apply to the department, pursuant to Section 5156, to sponsor a
breast cancer awareness license plate program. The department shall
issue specialized license plates for that program if the State
Department of Health Care Services complies with the requirements of
Section 5156.
(b) The State Department of Health Care Services may accept and
use donated artwork from California artists for the license plate.
(c) Notwithstanding subdivision (c) of Section 5157, the
additional fees prescribed by Section 5157 for the issuance, renewal,
or transfer of the specialized license plates shall be deposited,
after the department deducts its administrative costs, in the Breast
Cancer Control Account in the Breast Cancer Fund established pursuant
to Section 30461.6 of the Revenue and Taxation Code.
(d) It is the intent of the Legislature that the department, in
consultation with the State Department of Health Care Services, will
design and make available for issuance pursuant to this article
special breast cancer awareness license plates. Specifically, it is
the intent of the Legislature that the license plates issued pursuant
to this section shall consist of a pink breast
cancer awareness ribbon to the left of the numerical series and a
breast cancer awareness message, such as, "Early Detection Saves
Lives," below the numerical series.
SEC. 529. Chapter 5 (commencing with Section 10900) of Division 4
of the Vehicle Code, as added by Section 7 of Chapter 1247 of the
Statutes of 1994, is repealed.
SEC. 530. Section 12801 of the Vehicle Code, as amended by Section
6 of Chapter 27 of the Statutes of 2014, is amended to read:
12801. (a) Except as provided in subdivisions (b) and (c) and
Section 12801.9, the department shall require an application for a
driver's license to contain the applicant's social security account
number and any other number or identifier determined to be
appropriate by the department.
(b) An applicant who provides satisfactory proof that his or her
presence in the United States is authorized under federal law, but
who is not eligible for a social security account number, is eligible
to receive an original driver's license if he or
she meets all other qualifications for
licensure.
(c) (1) An applicant applying for a driver's license under Section
12801.9, who has never been issued a social security account number
and is not presently eligible for a social security account number,
shall satisfy the requirements of this section if he or she indicates
in the application described in Section 12800, in the manner
prescribed by the department, that he or she has never been issued a
social security account number and is not presently eligible for a
social security account number.
(2) This subdivision shall does not
apply to applications for a commercial driver's license. The
department shall require all applications for a commercial driver's
license to include the applicant's social security account number.
(3) Nothing in this This
section shall not be used to consider an individual's
citizenship or immigration status as a basis for a criminal
investigation, arrest, or detention.
(d) The department shall not complete an application for a driver'
s license unless the applicant is in compliance with the requirements
of subdivision (a), (b) , or (c).
(e) Notwithstanding any other law, the social security account
number collected on a driver's license application shall not be
displayed on the driver's license , including, but not
limited to, inclusion on a magnetic tape or strip used to store data
on the license.
(f) This section shall become operative on January 1, 2015, or on
the date that the director executes a declaration pursuant to Section
12801.11, whichever is sooner.
(g) This section shall become inoperative on the effective date of
a final judicial determination made by any court of appellate
jurisdiction that any provision of the act that added this section,
or its application, either in whole or in part, is enjoined, found
unconstitutional, or held invalid for any reason. The department
shall post this information on its Internet Web site.
SEC. 531. Section 12801.9 of the Vehicle Code is amended to read:
12801.9. (a) Notwithstanding Section 12801.5, the department
shall issue an original driver's license to a person who is unable to
submit satisfactory proof that the applicant's presence in the
United States is authorized under federal law if he or she meets all
other qualifications for licensure and provides satisfactory proof to
the department of his or her identity and California residency.
(b) The department shall adopt emergency regulations to carry out
the purposes of this section, including, but not limited to,
procedures for (1) identifying documents acceptable for the purposes
of proving identity and California residency, (2) procedures for
verifying the authenticity of the documents, (3) issuance of a
temporary license pending verification of any document's
authenticity, and (4) hearings to appeal a denial of a license or
temporary license.
(c) Emergency regulations adopted for purposes of establishing the
documents acceptable to prove identity and residency pursuant to
subdivision (b) shall be promulgated by the department in
consultation with appropriate interested parties, in accordance with
the Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code), including law enforcement representatives, immigrant rights
representatives, labor representatives, and other stakeholders, which
may include, but are not limited to, the Department of the
California Highway Patrol, the California State Sheriffs'
Association, and the California Police Chiefs Association. The
department shall accept various types of documentation for this
purpose, including, but not limited to, the following documents:
(1) A valid, unexpired consular identification document issued by
a consulate from the applicant's country of citizenship, or a valid,
unexpired passport from the applicant's country of citizenship.
(2) An original birth certificate, or other proof of age, as
designated by the department.
(3) A home utility bill, lease or rental agreement, or other proof
of California residence, as designated by the department.
(4) The following documents, which, if in a language other than
English, shall be accompanied by a certified translation or an
affidavit of translation into English:
(A) A marriage license or divorce certificate.
(B) A foreign federal electoral photo card issued on or after
January 1, 1991.
(C) A foreign driver's license.
(5) A United States Department of Homeland Security Form I-589,
Application for Asylum and for Withholding of Removal.
(6) An official school or college transcript that includes the
applicant's date of birth, or a foreign school record that is sealed
and includes a photograph of the applicant at the age the record was
issued.
(7) A United States Department of Homeland Security Form I-20 or
Form DS-2019.
(8) A deed or title to real property.
(9) A property tax bill or statement issued within the previous 12
months.
(10) An income tax return.
(d) (1) A license issued pursuant to this section, including a
temporary license issued pursuant to Section 12506, shall include a
recognizable feature on the front of the card, such as the letters
"DP" instead of, and in the same font size as, the letters "DL," with
no other distinguishable feature.
(2) The license shall bear the following notice: "This card is not
acceptable for official federal purposes. This license is issued
only as a license to drive a motor vehicle. It does not establish
eligibility for employment, voter registration, or public benefits."
(3) The notice described in paragraph (2) shall be in lieu of the
notice provided in Section 12800.5.
(e) If the United States Department of Homeland Security
determines a license issued pursuant to this section does not satisfy
the requirements of Section 37.71 of Title 6 of the Code of Federal
Regulations, adopted pursuant to paragraph (11) of subdivision (d) of
Section 202 of the Real ID Act of 2005 (Public Law 109-13), the
department shall modify the license only to the extent necessary to
satisfy the requirements of that section.
(f) Notwithstanding Section 40300 or any other law, a peace
officer shall not detain or arrest a person solely on the belief that
the person is an unlicensed driver, unless the officer has
reasonable cause to believe the person driving is under 16 years of
age.
(g) The inability to obtain a driver's license pursuant to this
section does not abrogate or diminish in any respect the legal
requirement of every driver in this state to obey the motor vehicle
laws of this state, including laws with respect to licensing, motor
vehicle registration, and financial responsibility.
(h) It shall be is a violation of
law to discriminate against a person because he or she holds or
presents a license issued under this section, including, but not
limited to, the following:
(1) It is a violation of the Unruh Civil Rights Act (Section 51 of
the Civil Code), for a business establishment to discriminate
against a person because he or she holds or presents a license issued
under this section.
(2) (A) It is a violation of the California Fair Employment and
Housing Act (Part 2.8 (commencing with Section 12900) of Division 3
of Title 2 of the Government Code) for an employer or other covered
person or entity, pursuant to Section 12940 of the Government Code
and subdivision (v) of Section 12926 of the Government Code, to
discriminate against a person because the person holds or presents a
driver's license issued pursuant to this section, or for an employer
or other covered entity to require a person to present a driver's
license, unless possessing a driver's license is required by law or
is required by the employer and the employer's requirement is
otherwise permitted by law. Nothing in this
This section shall not be construed to limit or
expand an employer's authority to require a person to possess a
driver's license.
(B) Notwithstanding subparagraph (A), nothing in
this section shall not be construed to alter an
employer's rights or obligations under Section 1324a of Title 8 of
the United States Code regarding obtaining documentation evidencing
identity and authorization for employment. An action taken by an
employer that is required by the federal Immigration and Nationality
Act (8 U.S.C. Sec. 1324a) is not a violation of law.
(3) It is a violation of Section 11135 of the Government Code for
a state or local governmental authority, agent, or person acting on
behalf of a state or local governmental authority, or a program or
activity that is funded directly or receives financial assistance
from the state, to discriminate against an individual because he or
she holds or presents a license issued pursuant to this section.
(i) Driver's license information obtained by an employer shall be
treated as private and confidential, is exempt from disclosure under
the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code), and
shall not be disclosed to any unauthorized person or used for any
purpose other than to establish identity and authorization to drive.
(j) Information collected pursuant to this section is not a public
record and shall not be disclosed by the department, except as
required by law.
(k) A license issued pursuant to this section shall not be used to
consider an individual's citizenship or immigration status,
status as a basis for an investigation, arrest,
citation, or detention.
(l) On or before January 1, 2018, the California Research Bureau
shall compile and submit to the Legislature and the Governor a report
of any violations of subdivisions (h) and (k). Information
pertaining to any specific individual shall not be provided in the
report.
(m) In addition to the fees required by Section 14900, a person
applying for an original license pursuant to this section may be
required to pay an additional fee determined by the department that
is sufficient to offset the reasonable administrative costs of
implementing the provisions of the act that added this section. If
this additional fee is assessed, it shall only apply until June 30,
2017.
(n) This section shall become operative on January 1, 2015, or on
the date that the director executes a declaration pursuant to Section
12801.11, whichever is sooner.
(o) This section shall become inoperative on the effective date of
a final judicial determination made by any court of appellate
jurisdiction that any provision of the act that added this section,
or its application, either in whole or in part, is enjoined, found
unconstitutional, or held invalid for any reason. The department
shall post this information on its Internet Web site.
SEC. 532. The heading of Article 1.7 (commencing with Section
23145) of Chapter 12 of Division 11 of the Vehicle Code is repealed.
Article 1.7. Youthful Drunk Driver Visitation Program
SEC. 533. Section 15210 of the Vehicle Code is amended to read:
15210. Notwithstanding any other provision of this code, as used
in this chapter, the following terms have the following meanings:
(a) "Commercial driver's license" means a driver's license issued
by a state or other jurisdiction, in accordance with the standards
contained in Part 383 of Title 49 of the Code of Federal Regulations,
which authorizes the licenseholder to operate a class or type of
commercial motor vehicle.
(b) (1) "Commercial motor vehicle" means any vehicle or
combination of vehicles that requires a class A or class B license,
or a class C license with an endorsement issued pursuant to paragraph
(2), (3), (4), or (5) of subdivision (a) of Section 15278.
(2) "Commercial motor vehicle" does not include any of the
following:
(A) A recreational vehicle, as defined in Section 18010 of the
Health and Safety Code.
(B) An implement of husbandry operated by a person who is not
required to obtain a driver's license under this code.
(C) Vehicles operated by persons exempted pursuant to Section
25163 of the Health and Safety Code or a vehicle operated in an
emergency situation at the direction of a peace officer pursuant to
Section 2800.
(c) "Controlled substance" has the same meaning as defined by the
federal Controlled Substances Act (21 U.S.C. Sec. 802).
(d) "Conviction" means an unvacated adjudication of guilt, or a
determination that a person has violated or failed to comply with the
law in a court of original jurisdiction or by an authorized
administrative tribunal, an unvacated forfeiture of bail or
collateral deposited to secure the person's appearance in court, a
plea of guilty or nolo contendere accepted by the court, the payment
of a fine or court costs, or violation of a condition of release
without bail, regardless of whether or not the penalty is rebated,
suspended, or probated.
(e) "Disqualification" means a prohibition against driving a
commercial motor vehicle.
(f) "Driving a commercial vehicle under the influence" means
committing any one or more of the following unlawful acts in a
commercial motor vehicle:
(1) Driving a commercial motor vehicle while the operator's
blood-alcohol concentration level is 0.04 percent or more, by weight
in violation of subdivision (d) of Section 23152.
(2) Driving under the influence of alcohol, as prescribed in
subdivision (a) or (b) of Section 23152.
(3) Refusal to undergo testing as required under this code in the
enforcement of Subpart D of Part 383 or Subpart A of Part 392 of
Title 49 of the Code of Federal Regulations.
(g) "Employer" means any person, including the United States, a
state, or political subdivision of a state, who owns or leases a
commercial motor vehicle or assigns drivers to operate that vehicle.
A person who employs himself or herself as a commercial vehicle
driver is considered to be both an employer and a driver for purposes
of this chapter.
(h) "Fatality" means the death of a person as a result of a motor
vehicle accident.
(i) "Felony" means an offense under state or federal law that is
punishable by death or imprisonment for a term exceeding one year.
(j) "Gross combination weight rating" means the value specified by
the manufacturer as the maximum loaded weight of a combination or
articulated vehicle. In the absence of a value specified by the
manufacturer, gross vehicle weight rating will
shall be determined by adding the gross vehicle weight
rating of the power unit and the total weight of the towed units and
any load thereon.
(k) "Gross vehicle weight rating" means the value specified by the
manufacturer as the maximum loaded weight of a single vehicle, as
defined in Section 350.
(l) "Imminent hazard" means the existence of a condition that
presents a substantial likelihood that death, serious illness, severe
personal injury, or substantial endangerment to health, property, or
the environment may occur before the reasonable
reasonably foreseeable completion date of a formal
proceeding has begun to lessen the risk of death, illness,
injury, or endangerment.
(m) "Noncommercial motor vehicle" means a motor vehicle or
combination of motor vehicles that is not included within the
definition in subdivision (b).
(n) "Nonresident commercial driver's license" means a commercial
driver's license issued to an individual by a state under one of the
following provisions:
(1) The individual is domiciled in a foreign country.
(2) The individual is domiciled in another state.
(o) "Schoolbus" is a commercial motor vehicle, as defined in
Section 545.
(p) "Serious traffic violation" includes any of the following:
(1) Excessive speeding, as defined pursuant to the federal
Commercial Motor Vehicle Safety Act (P.L. 99-570) involving any
single offense for any speed of 15 miles an hour or more above the
posted speed limit.
(2) Reckless driving, as defined pursuant to the federal
Commercial Motor Vehicle Safety Act (P.L. 99-570), and driving in the
manner described under Section 2800.1, 2800.2, or 2800.3, including,
but not limited to, the offense of driving a commercial motor
vehicle in willful or wanton disregard for the safety of persons or
property.
(3) A violation of a state or local law involving the safe
operation of a motor vehicle, arising in connection with a fatal
traffic accident.
(4) A similar violation of a state or local law involving the safe
operation of a motor vehicle, as defined pursuant to the Commercial
Motor Vehicle Safety Act (Title XII of P.L. 99-570).
(5) Driving a commercial motor vehicle without a commercial driver'
s license.
(6) Driving a commercial motor vehicle without the driver having
in his or her possession a commercial driver's license, unless the
driver provides proof at the subsequent court appearance that he or
she held a valid commercial driver's license on the date of the
violation.
(7) Driving a commercial motor vehicle when the driver has not met
the minimum testing standards for that vehicle as to the class or
type of cargo the vehicle is carrying.
(8) Driving a commercial motor vehicle while using an electronic
wireless communication device to write, send, or read a text-based
communication, as defined in Section 23123.5.
In the absence of a federal definition, existing definitions under
this code shall apply.
(q) "State" means a state of the United States or the District of
Columbia.
(r) "Tank vehicle" means a commercial motor vehicle that is
designed to transport any liquid or gaseous material within a tank or
tanks having an individual rated capacity of more than 119 gallons
and an aggregate rated capacity of at least 1,000 gallons that is
permanently or temporarily attached to the vehicle or the chassis,
including, but not limited to, cargo tanks and portable tanks, as
defined in Part 171 of Title 49 of the Code of Federal Regulations. A
commercial motor vehicle transporting an empty storage container
tank not designed for transportation, with a rated capacity of at
least 1,000 gallons that is temporarily attached to a flatbed
trailer, is not a tank vehicle.
SEC. 534. Section 34500 of the Vehicle Code is amended to read:
34500. The department shall regulate the safe operation of the
following vehicles:
(a) Motortrucks of three or more axles that are more than 10,000
pounds gross vehicle weight rating.
(b) Truck tractors.
(c) Buses, schoolbuses, school pupil activity buses, youth buses,
farm labor vehicles, modified limousines, and general public
paratransit vehicles.
(d) Trailers and semitrailers designed or used for the
transportation of more than 10 persons, and the towing motor vehicle.
(e) Trailers and semitrailers, pole or pipe dollies, auxiliary
dollies, and logging dollies used in combination with vehicles listed
in subdivision (a), (b), (c), or (d). This subdivision does not
include camp trailers, trailer coaches, and utility trailers.
(f) A combination of a motortruck and a vehicle or vehicles set
forth in subdivision (e) that exceeds 40 feet in length when coupled
together.
(g) Any A vehicle, or a combination
of vehicles, transporting hazardous materials.
(h) Manufactured homes that, when moved upon the highway, are
required to be moved pursuant to a permit as specified in Section
35780 or 35790.
(i) A park trailer, as described in Section 18009.3 of the Health
and Safety Code, that, when moved upon a highway, is required to be
moved pursuant to a permit pursuant to Section 35780.
(j) Any other motortruck not specified in subdivisions (a) to (h),
inclusive, or subdivision (k), that is regulated by the Department
of Motor Vehicles, Public Utilities Commission, or United States
Secretary of the Department of Transportation, but
only for matters relating to hours of service and logbooks of
drivers.
(k) A commercial motor vehicle with a gross vehicle weight rating
of 26,001 or more pounds or a commercial motor vehicle of any gross
vehicle weight rating towing a vehicle described in subdivision (e)
with a gross vehicle weight rating of more than 10,000 pounds, except
combinations including camp trailers, trailer coaches, or utility
trailers. For purposes of this subdivision, the term "commercial
motor vehicle" has the meaning defined in subdivision (b) of Section
15210.
SEC. 535. Section 35401.7 of the Vehicle Code is amended to read:
35401.7. (a) The limitations of access specified in subdivision
(d) of Section 35401.5 do not apply to licensed carriers of livestock
when those carriers are directly en route to or from a point of
loading or unloading of livestock on those portions of State Highway
Route 101 located in the Counties of Del Norte, Humboldt, and
Mendocino from its junction with State Highway Route 1 near Leggett
north to the Oregon border, if the travel is necessary and incidental
to the shipment of the livestock.
(b) The exemption allowed under this section does not apply unless
all of the following conditions are met:
(1) The length of the truck tractor, in combination with the
semitrailer used to transport the livestock, does not exceed a total
of 70 feet.
(2) The distance from the kingpin to the rearmost axle of the
semitrailer does not exceed 43 feet.
(3) The length of the semitrailer does not exceed a total of 48
feet.
(c) The exemption allowed under this section does not apply to
travel conducted on the day prior to, or on the day of, any federally
recognized holiday.
(d) (1) Because route improvements in Richardson Grove that will
allow the combination of vehicles described in Section 35401.5 to
fully operate on all portions of State Highway Route 101 located in
the Counties of Del Norte, Humboldt, and Mendocino are ongoing and
not yet completed, this section shall remain in effect only until
both of the following conditions are satisfied:
(A) All route improvements in Richardson Grove are completed
without restraint, including, but not limited to, judicial or
injunctive restraints.
(B) The Director of Transportation determines that the combination
of vehicles described in Section 35401.5 is authorized to operate on
all portions of State Highway Route 101 located in the Counties of
Del Norte, Humboldt, and Mendocino. When the director makes the
determination described in this subparagraph, the director shall post
a declaration on the Internet Web site of the Department of
Transportation.
(2) This section is repealed as of the date that the declaration
described in subparagraph (B) of paragraph (1) is posted on the
Department of Transportation's Internet Web site.
(3) The declaration described in subparagraph (B) of paragraph (1)
shall state that it is being made pursuant to this section.
(e) (1) If , prior to the completion of the route
improvements in Richardson Grove as described in paragraph (1) of
subdivision (d), the Director of Transportation determines that the
only adjustment to State Highway Route 101 possible to accommodate
the truck sizes allowed to travel on portions of State Highway Route
101, pursuant to subdivisions (a) and (b), is the removal of any tree
that has a diameter of 42 inches or greater, measured outside the
bark, at 12 inches above ground on the side adjacent to the highest
ground level, the director shall notify the Secretary of State of
that determination.
(2) If , prior to the completion of the route
improvements in Richardson Grove as described in paragraph (1) of
subdivision (d), the Director of Transportation determines that
safety improvements to the portion of State Highway Route 101
described in subdivision (a) have resulted in the reclassification of
the entire segment as a terminal access route pursuant to
subdivision (d) of Section 35401.5, the director shall notify the
Secretary of State of that determination.
(3) The notice required under paragraph (1) or (2) shall state
that it is being made pursuant to this section.
(4) This section is repealed on the date the Secretary of State
receives either of the notices described in this subdivision.
SEC. 536. Section 40303.5 of the Vehicle Code is amended to read:
40303.5. Whenever any a person is
arrested for any of the following offenses, the arresting officer
shall permit the arrested person to execute a notice containing a
promise to correct the violation in accordance with the provisions of
Section 40610 unless the arresting officer finds that any of the
disqualifying conditions specified in subdivision (b) of Section
40610 exist:
(a) Any A registration infraction
set forth in Division 3 (commencing with Section 4000).
(b) Any A driver's license
infraction set forth in Division 6 (commencing with Section 12500),
and subdivision (a) of Section 12951, relating to possession of
a driver's license.
(c) Section 21201, relating to bicycle equipment.
(d) Any An infraction involving
equipment set forth in Division 12 (commencing with Section 24000),
Division 13 (commencing with Section 29000), Division 14.8
(commencing with Section 34500), Division 16 (commencing with Section
36000), Division 16.5 (commencing with Section 38000), and Division
16.7 (commencing with Section 39000).
(e) Section 2482, relating to registration decals for vehicles
transporting inedible kitchen grease.
SEC. 537. Section 42002.1 of the Vehicle Code, as added by Section
4 of Chapter 899 of the Statutes of 2006, is repealed.
42002.1. A person convicted of a misdemeanor violation of Section
2800, 2801, or 2803, insofar as it affects a failure to stop and
submit to inspection of equipment or for an unsafe condition
endangering a person, is punishable as follows:
(a) By a fine not exceeding fifty dollars ($50) or imprisonment in
the county jail not exceeding five days.
(b) For a second conviction within a period of one year, a fine
not exceeding one hundred dollars ($100) or imprisonment in the
county jail not exceeding 10 days, or both that fine and
imprisonment.
(c) For a third or a subsequent conviction within a period of one
year, a fine not exceeding five hundred dollars ($500) or
imprisonment in the county jail not exceeding six months, or both
that fine and imprisonment.
SEC. 538. Section 42002.1 of the Vehicle Code, as added by Section
4 of Chapter 900 of the Statutes of 2006, is repealed.
42002.1. A person convicted of a misdemeanor violation of Section
2800, 2801, or 2803, insofar as it affects a failure to stop and
submit to inspection
of equipment or for an unsafe condition endangering a person,
shall be punished as follows:
(a) By a fine not exceeding fifty dollars ($50) or imprisonment in
the county jail not exceeding five days.
(b) For a second conviction within a period of one year, a fine
not exceeding one hundred dollars ($100) or imprisonment in the
county jail not exceeding 10 days, or both that fine and
imprisonment.
(c) For a third or a subsequent conviction within a period of one
year, a fine not exceeding five hundred dollars ($500) or
imprisonment in the county jail not exceeding six months, or both
that fine and imprisonment.
SEC. 539. Article 2 (commencing with Section 8580) of Chapter 2 of
Part 4 of Division 5 of the Water Code, as added by Section 15 of
Chapter 365 of the Statutes of 2007, is repealed.
SEC. 540. Section 8612 of the Water Code, as added by Section 22
of Chapter 366 of the Statutes of 2007, is repealed.
8612. (a) On or before December 31, 2008, the department shall
prepare, and the board shall adopt, a schedule for mapping areas at
risk of flooding in the Sacramento River and San Joaquin River
drainage.
(b) The department shall update the schedule annually and shall
present the updated schedule to the board for adoption on or before
December 31 of each year. The update shall include the status of
mapping in progress and an estimated time of completion. The schedule
shall be based on the present and expected future risk of flooding
and associated consequences.
SEC. 541. Section 8613 of the Water Code, as added by Section 23
of Chapter 366 of the Statutes of 2007, is repealed.
8613. (a) The board or the department may establish a program of
mitigation banking for the activities of the board or the department
under this part and for the benefit of local districts in the
discharge of their flood control responsibilities under this part and
the State Water Resources Law of 1945 (Chapter 1 (commencing with
Section 12570) and Chapter 2 (commencing with Section 12639) of Part
6 of Division 6).
(b) For the purposes of carrying out subdivision (a), the board or
the department, in consultation with all appropriate state, local,
and federal agencies with jurisdiction over environmental protection
that are authorized to regulate and impose requirements upon the
flood control work performed under this part or the State Water
Resources Law of 1945 (Chapter 1 (commencing with Section 12570) and
Chapter 2 (commencing with Section 12639) of Part 6 of Division 6),
may establish a system of mitigation banking by which mitigation
credits may be acquired in advance for flood control work to be
performed by the board, the department, or a local agency authorized
to operate and maintain facilities of the State Plan of Flood
Control.
SEC. 542. Part 8 (commencing with Section 9650) of Division 5 of
the Water Code, as added by Section 27 of Chapter 366 of the Statutes
of 2007, is repealed.
SEC. 543. Section 9650 of the Water Code, as added by Section 8 of
Chapter 368 of the Statutes of 2007, is amended to read:
9650. (a) (1) Commencing July 1, 2008, the allocation or
expenditure of funds by the state for the upgrade of a project levee,
if that upgrade is authorized on or after July 1, 2008, that
protects an area in which more than 1,000 people reside shall be
subject to a requirement that the local agency responsible for the
operation and maintenance of the project levee and any city or county
protected by the project levee, including a charter city or charter
county, enter into an agreement to adopt a safety plan within two
years. If a city or county is responsible for the operation and
maintenance of the project levee, the governing body shall approve a
resolution committing to the preparation of a safety plan within two
years.
(2) The local entity responsible for the operation and maintenance
of the project levee shall submit a copy of the safety plan to the
department and the Reclamation Board. Central
Valley Flood Protection Board.
(b) The safety plan, at a minimum, shall include all of the
following elements:
(1) A flood preparedness plan that includes storage of materials
that can be used to reinforce or protect a levee when a risk of
failure exists.
(2) A levee patrol plan for high water situations.
(3) A flood-fight plan for the period before state or federal
agencies assume control over the flood fight.
(4) An evacuation plan that includes a system for adequately
warning the general public in the event of a levee failure, and a
plan for the evacuation of every affected school, residential care
facility for the elderly, and long-term health care facility.
(5) A floodwater removal plan.
(6) A requirement, to the extent reasonable, that either of the
following applies to a new building in which the inhabitants are
expected to be essential service providers:
(A) The building is located outside an area that may be flooded.
(B) The building is designed to be operable shortly after the
floodwater is removed.
(c) The safety plan shall be integrated into any other local
agency emergency plan and shall be coordinated with the state
emergency plan.
(d) This section does not require the adoption of an element of
the safety plan that was adopted previously and remains in effect.
SEC. 544. Section 10725.8 of the Water Code is amended to read:
10725.8. (a) A groundwater sustainability agency may require
through its groundwater sustainability plan that the use of every
groundwater extraction facility within the management area of the
groundwater sustainability agency be measured by a water-measuring
device satisfactory to the groundwater sustainability agency.
(b) All costs associated with the purchase and installation of the
water-measuring device shall be borne by the owner or operator of
each groundwater extraction facility. The water measuring
water-measuring devices shall be installed by
the groundwater sustainability agency or, at the groundwater
sustainability agency's option, by the owner or operator of the
groundwater extraction facility. Water-measuring devices shall be
calibrated on a reasonable schedule as may be determined by the
groundwater sustainability agency.
(c) A groundwater sustainability agency may require, through its
groundwater sustainability plan, that the owner or operator of a
groundwater extraction facility within the groundwater sustainability
agency file an annual statement with the groundwater sustainability
agency setting forth the total extraction in acre-feet of groundwater
from the facility during the previous water year.
(d) In addition to the measurement of groundwater extractions
pursuant to subdivision (a), a groundwater sustainability agency may
use any other reasonable method to determine groundwater extraction.
(e) This section does not apply to de minimis extractors.
SEC. 545. Section 10735.2 of the Water Code is amended to read:
10735.2. (a) The board, after notice and a public hearing, may
designate a basin as a probationary basin, if the board finds one or
more of the following applies to the basin:
(1) After June 30, 2017, none of the following have occurred:
(A) A local agency has elected to be a groundwater sustainability
agency that intends to develop a groundwater sustainability plan for
the entire basin.
(B) A collection of local agencies has formed a groundwater
sustainability agency or prepared agreements to develop one or more
groundwater sustainability plans that will collectively serve as a
groundwater sustainability plan for the entire basin.
(C) A local agency has submitted an alternative that has been
approved or is pending approval pursuant to Section 10733.6. If the
department disapproves an alternative pursuant to Section 10733.6,
the board shall not act under this paragraph until at least 180 days
after the department disapproved the alternative.
(2) The basin is subject to paragraph (1) of subdivision (a) of
Section 10720.7, and after January 31, 2020, none of the following
have occurred:
(A) A groundwater sustainability agency has adopted a groundwater
sustainability plan for the entire basin.
(B) A collection of local agencies has adopted groundwater
sustainability plans that collectively serve as a groundwater
sustainability plan for the entire basin.
(C) The department has approved an alternative pursuant to Section
10733.6.
(3) The basin is subject to paragraph (1) of subdivision (a) of
Section 10720.7 and after January 31, 2020, the department, in
consultation with the board, determines that a groundwater
sustainability plan is inadequate or that the groundwater
sustainability program is not being implemented in a manner that will
likely achieve the sustainability goal.
(4) The basin is subject to paragraph (2) of subdivision (a) of
Section 10720.7, and after January 31, 2022, none of the following
have occurred:
(A) A groundwater sustainability agency has adopted a groundwater
sustainability plan for the entire basin.
(B) A collection of local agencies has adopted groundwater
sustainability plans that collectively serve as a groundwater
sustainability plan for the entire basin.
(C) The department has approved an alternative pursuant to Section
10733.6.
(5) The basin is subject to paragraph (2) of subdivision (a) of
Section 10720.7, and either of the following have occurred:
(A) After January 31, 2022, both of the following have occurred:
(i) The department, in consultation with the board, determines
that a groundwater sustainability plan is inadequate or that the
groundwater sustainability plan is not being implemented in a manner
that will likely achieve the sustainability goal.
(ii) The board determines that the basin is in a condition of
long-term overdraft.
(B) After January 31, 2025, both of the following have occurred:
(i) The department, in consultation with the board, determines
that a groundwater sustainability plan is inadequate or that the
groundwater sustainability plan is not being implemented in a manner
that will likely achieve the sustainability goal.
(ii) The board determines that the basin is in a condition where
groundwater extractions result in significant depletions of
interconnected surface waters.
(b) In making the findings associated with paragraph (3) or (5) of
subdivision (a), the department and board may rely on periodic
assessments the department has prepared pursuant to Chapter 10
(commencing with Section 10733). The board may request that the
department conduct additional assessments utilizing the regulations
developed pursuant to Chapter 10 (commencing with Section 10733) and
make determinations pursuant to this section. The board shall post on
its Internet Web site and provide at least 30 days for the public to
comment on any determinations provided by the department pursuant to
this subdivision.
(c) (1) The determination may exclude a class or category of
extractions from the requirement for reporting pursuant to Part 5.2
(commencing with Section 5200) of Division 2 if those extractions are
subject to a local plan or program that adequately manages
groundwater within the portion of the basin to which that plan or
program applies, or if those extractions are likely to have a minimal
impact on basin withdrawals.
(2) The determination may require reporting of a class or category
of extractions that would otherwise be exempt from reporting
pursuant to paragraph (1) of subdivision (c) of Section 5202 if those
extractions are likely to have a substantial impact on basin
withdrawals or requiring reporting of those extractions is reasonably
necessary to obtain information for purposes of this chapter.
(3) The determination may establish requirements for information
required to be included in reports of groundwater extraction, for
installation of measuring devices, or for use of a methodology,
measuring device, or both, pursuant to Part 5.2 (commencing with
Section 5200) of Division 2.
(4) The determination may modify the water year or reporting date
for a report of groundwater extraction pursuant to Section 5202.
(d) If the board finds that litigation challenging the formation
of a groundwater sustainability agency prevented its formation before
July 1, 2017, pursuant to paragraph (1) of subdivision (a) ,
or prevented a groundwater sustainability program from being
implemented in a manner likely to achieve the sustainability goal
pursuant to paragraph (3), (4), or (5) of subdivision (a), the board
shall not designate a basin as a probationary basin for a period of
time equal to the delay caused by the litigation.
(e) The board shall exclude from probationary status any portion
of a basin for which a groundwater sustainability agency demonstrates
compliance with the sustainability goal.
SEC. 546. Section 12585.12 of the Water Code, as added by Section
28 of Chapter 366 of the Statutes of 2007, is repealed.
12585.12. The department and the board may participate with the
federal government or local agencies in the design of environmental
enhancements associated with a federal flood control project, and may
participate in the construction of environmental enhancements
associated with a federal flood control project for which the state
has authorized state participation.
SEC. 547. Section 12938.2 of the Water Code, as added by Section
29 of Chapter 652 of the Statutes of 1991, is amended and renumbered
to read:
12938.2. 12938.3. Notwithstanding
any other provision of this bond act, or of the State General
Obligation Bond Law (Chapter 4 (commencing with Section 16720) of
Part 3 of Division 4 of Title 2 of the Government Code), if the
Treasurer sells bonds pursuant to this bond act that include a bond
counsel opinion to the effect that the interest on the bonds is
excluded from gross income for federal tax purposes under designated
conditions, the Treasurer may maintain separate accounts for the bond
proceeds invested and the investment earnings on those proceeds, and
may use or direct the use of those proceeds or earnings to pay any
rebate, penalty, or other payment required under federal law, or take
any other action with respect to the investment and use of those
bond proceeds, as may be required or desirable under federal law in
order to maintain the tax-exempt status of those bonds and to obtain
any other advantage under federal law on behalf of the funds of this
state.
SEC. 548. Section 13272.1 of the Water Code, as added by Section
12 of Chapter 814 of the Statutes of 1997, is repealed.
13272.1. Each regional board shall publish and distribute on a
quarterly basis to all public water system operators within the
region of the regional board, a list of discharges of MTBE that
occurred during the quarter and a list of locations where MTBE was
detected in the groundwater within the region of the regional board.
SEC. 549. Section 20560.2 of the Water Code is amended to read:
20560.2. In the case of any district that owns and operates
facilities for the generation, transmission, distribution, and retail
sale of electric power, the district shall give notice to the
California Debt and Investment Advisory Commission, at
least 30 days prior to the proposed sale date, of the proposed sale
of any evidence of indebtedness issued to provide financing of any
works of the district. The notice shall include the information
required by subdivision (h) (i) of
Section 8855 of the Government Code. Failure to give this notice
shall render the sale invalid. The California Debt and
Investment Advisory Commission may waive the 30-day notice
period upon application by the district.
In carrying out the purpose of this section, the California Debt
and Investment Advisory Commission may charge fees payable
solely from the proceeds of the sale of the debt issue in an amount
equal to one-fortieth of 1 percent of the principal amount of the
issue, but not to exceed five thousand dollars ($5,000) for any one
issue.
The bonds shall be legal investments for all trust funds, for the
funds of all insurance companies, commercial banks, savings banks,
trust companies, the state school funds, and for any funds which may
be invested in bonds of cities, cities and counties, counties, school
districts, or municipalities in the state.
SEC. 550. Section 21065 of the Water Code is amended and
renumbered to read:
21065. 21605.]
21605. (a) Notwithstanding any other provision of law,
subdivision (b) applies to districts in which directors are elected
by divisions.
(b) The board of directors shall, by resolution, adjust the
boundaries of any divisions pursuant to Chapter 8 (commencing with
Section 22000) of Division 21 of the Elections Code.
SEC. 551. Section 21562.5 of the Water Code, as added by Section 3
of Chapter 1134 of the Statutes of 1994, is repealed.
21562.5. (a) This section applies to the Alta Irrigation
District.
(b) Notwithstanding Section 21550, the board of directors of the
district may adopt a resolution that increases the number of
directors and the divisions from which they are elected from five to
seven in accordance with this section.
(c) Notwithstanding Section 21383, if the number of district
directors is increased from five to seven pursuant to this section,
the number of directors required to constitute a quorum of the board
and to concur on all questions, except a motion to adjourn or a
motion to adjourn to a stated time, is four.
(d) The board of directors shall, by resolution, adjust the
boundaries of any divisions pursuant to Chapter 3 (commencing with
Section 35200) of Division 19 of the Elections Code.
(e) (1) Before considering the adoption of a resolution pursuant
to subdivision (b), the board of directors shall provide at least 45
days notice of the public hearing at which the board proposes to act
on the resolution. The notice of the public hearing shall be provided
by placing a display advertisement of at least one-eighth page in a
newspaper of general circulation in each county and incorporated city
in which territory of the district is located for three weeks
pursuant to Section 6063 of the Government Code. The public hearing
shall be held at least 45 days after the first publication of the
notice.
(2) The notice required by paragraph (1) shall include, but not be
limited to, all of the following:
(A) A statement that the board of directors will consider a
resolution to change from five to seven the number of directors of
the district and the divisions from which they are elected.
(B) The phone number and address of an individual that interested
persons may contact to receive additional information about the
resolution.
(C) The date, time, and location of the public hearing.
(D) Notice that the resolution will be effective for the district
elections occurring at least 180 days after adoption of the
resolution unless a petition protesting the resolution containing the
signatures of not less than 10 percent of the qualified registered
voters of the district is filed with the secretary of the district
within 30 days from the date of the adoption of the resolution in the
same manner and subject to the same requirements as are set forth in
Sections 3754, 3755, and 3755.5 of the Elections Code, except that
all elections referred to in those sections and officers of the
county mentioned in those sections shall be construed to refer to
general or special district elections and to comparable officers of
the district; and the heading of the proposed referendum shall be in
substantially the following form: "Referendum Against a Resolution
Passed by the Board of Directors of the Alta Irrigation District
Changing From Five to Seven the Number of Directors of the District
and the Divisions From Which They Are Elected."
(f) This section shall become operative only if Assembly Bill 2536
of the 1993-94 Regular Session is enacted and becomes operative.
SEC. 552. The heading of Article 5 (commencing with Section 36459)
of Chapter 6 of Part 6 of Division 13 of the Water Code is repealed.
Article 5. Bond Approval
SEC. 553. Section 37921 of the Water Code is amended to read:
37921. The board may adopt ordinances for the purpose of
regulating, conserving, managing, and controlling the use and
extraction of groundwater within the territory of the district. All
ordinances shall be adopted, after noticed public hearings ,
by a majority vote of the board. Notice of the adoption of all
ordinances shall be given. The ordinances of the district shall
become effective on the 31st day after adoption except that the board
may, by the vote of at least four members of the board, dispense
with notice of public hearing and adopt an emergency ordinance that
shall become effective immediately upon adoption, if the board
determines that the public health, safety, or welfare so requires.
SEC. 554. Section 37954 of the Water Code is amended to read:
37954. The district may, by ordinance, require the operator of
each extraction facility to file semiannually, or more frequently,
with the district, a groundwater extraction statement that contains,
but is not limited to, the following information:
(1)
(a) Total extraction in acre-feet of water from the
extraction facility for the preceding groundwater extraction
statement period.
(2)
(b) The static groundwater level for the extraction
facility.
(3)
(c) A description of the location of the extraction
facility.
(4)
(d) The crop types or other uses and the acreage served
by the extraction facility.
(5)
(e) The method of measuring or computing groundwater
extraction.
(6)
(f) Other information deemed reasonable and necessary
by the board to meet the purposes of this act.
SEC. 555. The heading of Article 1 (commencing with Section 42500)
of Chapter 3 of Part 5 of Division 14 of the Water Code is repealed.
Article 1. Investigation by State Treasurer
SEC. 556. Section 73502 of the Water Code is amended to read:
73502. (a) The city, on or before February 1, 2003, shall adopt
the program of capital improvement projects designed to restore and
improve the bay area regional water system that are described in the
capital improvement program report prepared by the San Francisco
Public Utilities Commission dated February 25, 2002. A copy of the
program shall be submitted, on or before March 1, 2003, to the State
Department of Public Health. Water Resources
Control Board. The program shall include a schedule for the
completion of design and award of contract, and commencement and
completion of construction of each described project. The schedule
shall require that projects representing 50 percent of the total
program cost be completed on or before 2010 and that projects
representing 100 percent of the total program cost be completed on or
before 2015. The program shall also contain a financing plan. The
city shall review and update the program, as necessary, based on
changes in the schedule set forth in the plan adopted pursuant to
subdivision (d).
(b) The plan shall require completion of the following projects:
Project
Identification
Project Location Number
1. Irvington Alameda/Santa 9970
Tunnel
Alternative Clara Counties
2. Crystal San Mateo 201671
Springs Pump County
Station
& Pipeline
3. BDPL 1 & 2- Alameda/San 99
Repair of
Mateo Counties
Caissons/Pipe
Bridge
4. BDPL Pipeline Alameda County 128
Upgrades at
Hayward Fault
5. Calaveras Alameda County 9897
Fault Crossing
Upgrade
6. Crystal San Mateo 9891
Springs Bypass County
Pipeline
7. BDPL Cross Alameda/Santa 202339
Connections 3 &
Clara
4 Counties
8. Conveyance Alameda/Santa 201441
Capacity West of
Clara/San
Irvington Tunnel Mateo
Counties
9. Calaveras Dam Alameda County 202135
Seismic
Improvements
(c) The city shall submit a report to the Joint Legislative Audit
Committee, the Alfred E. Alquist Seismic Safety Commission, and the
State Department of Public Health, Water
Resources Control Board, on or before September 1 of each year,
describing the progress made on the implementation of the capital
improvement program for the bay area regional water system during the
previous fiscal year. The city shall identify in the report any
project that is behind schedule, and, for each project so identified,
shall describe the city's plan and timeline for either making up the
delay or adopting a revised schedule pursuant to subdivision (d).
(d) (1) The city may determine that completion dates for projects
contained in the capital improvement program adopted pursuant to
subdivision (a), including those projects described in subdivision
(b), should be delayed or that different projects should be
constructed.
(2) The city shall provide written notice, not less than 30 days
before the date of a meeting of the city agency responsible for
management of the bay area regional water system, that a change in
the program is to be considered. The notice shall include information
about the reason for the proposed change and the availability of
materials related to the proposed change. All bay area wholesale
customers shall be permitted to testify or otherwise submit comments
at the meeting.
(3) If the city adopts a change in the program that deletes one or
more projects from the program, or postpones the scheduled completion
dates, the city shall promptly furnish a copy of that change and the
reasons for that change to the State Department of Public
Health Water Resources Control Board and the
Alfred E. Alquist Seismic Safety Commission. The State
Department of Public Health Water Resources Control
Board and the Alfred E. Alquist Seismic Safety Commission shall
each submit written comments with regard to the significance of that
change with respect to public health and safety to the city and the
Joint Legislative Audit Committee not later than 120 days after the
date on which those entities received notice of that change.
SEC. 557. Section 213.5 of the Welfare and Institutions Code is
amended to read:
213.5. (a) After a petition has been filed pursuant to Section
311 to declare a child a dependent child of the juvenile court, and
until the time that the petition is dismissed or dependency is
terminated, upon application in the manner provided by Section 527 of
the Code of Civil Procedure or in the manner provided by Section
6300 of the Family Code, if related to domestic violence, the
juvenile court has exclusive jurisdiction to issue ex parte orders
(1) enjoining any a person from
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying the personal property, contacting,
either directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of the child or any
other child in the household; and (2) excluding any
a person from the dwelling of the person who has
care, custody, and control of the child. A court may also issue an
ex parte order enjoining any a person
from molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying the personal property, contacting,
either directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of any parent, legal
guardian, or current caretaker of the child, regardless of whether
the child resides with that parent, legal guardian, or current
caretaker, upon application in the manner provided by Section 527 of
the Code of Civil Procedure or, if related to domestic violence, in
the manner provided by Section 6300 of the Family Code. A court may
also issue an ex parte order enjoining any a
person from molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing, telephoning,
including, but not limited to, making annoying telephone calls as
described in Section 653m of the Penal Code, destroying the personal
property, contacting, either directly or indirectly, by mail or
otherwise, coming within a specified distance of, or disturbing the
peace of the child's current or former social worker or court
appointed special advocate, upon application in the manner provided
by Section 527 of the Code of Civil Procedure.
(b) After a petition has been filed pursuant to Section 601 or 602
to declare a child a ward of the juvenile court, and until the time
that the petition is dismissed or wardship is terminated, upon
application in the manner provided by Section 527 of the Code of
Civil Procedure or, if related to domestic violence, in the manner
provided by Section 6300 of the Family Code, the juvenile court may
issue ex parte orders (1) enjoining any a
person from molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing, telephoning,
including, but not limited to, making annoying telephone calls as
described in Section 653m of the Penal Code, destroying the personal
property, contacting, either directly or indirectly, by mail or
otherwise, coming within a specified distance of, or disturbing the
peace of the child or any other child in the household; (2) excluding
any a person from the dwelling of the
person who has care, custody, and control of the child; or (3)
enjoining the child from contacting, threatening, stalking, or
disturbing the peace of any person the court finds to be at risk from
the conduct of the child, or with whom association would be
detrimental to the child. A court may also issue an ex parte order
enjoining any a person from molesting,
attacking, striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning, including, but not limited to,
making annoying telephone calls as described in Section 653m of the
Penal Code, destroying the personal property, contacting, either
directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of any
a parent, legal guardian, or current caretaker
of the child, regardless of whether the child resides with that
parent, legal guardian, or current caretaker, upon application in the
manner provided by Section 527 of the Code of Civil Procedure or, if
related to domestic violence, in the manner provided by Section 6300
of the Family Code. A court may also issue an ex parte order
enjoining any a person from molesting,
attacking, striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning, including, but not limited to,
making annoying telephone calls as described in Section 653m of the
Penal Code, destroying the personal property, contacting, either
directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of the child's current
or former probation officer or court appointed special advocate,
upon application in the manner provided by Section 527 of the Code of
Civil Procedure.
(c) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why the order should not be granted, on the earliest day that
the business of the court will permit, but not later than 21 days or,
if good cause appears to the court, 25 days from the date the
temporary restraining order is granted. The court may, on the motion
of the person seeking the restraining order, or on its own motion,
shorten the time for service of the order to show cause on the person
to be restrained. The court may, upon its own motion or the filing
of a declaration by the person seeking the restraining order, find
that the person to be restrained could not be served within the time
required by law and reissue an order previously issued and dissolved
by the court for failure to serve the person to be restrained. The
reissued order shall remain in effect until the date set for the
hearing. The reissued order shall state on its face the date of
expiration of the order. Any hearing pursuant to this section may be
held simultaneously with any regularly scheduled hearings held in
proceedings to declare a child a dependent child or ward of the
juvenile court pursuant to Section 300, 601, or 602, or subsequent
hearings regarding the dependent child or ward.
(d) (1) The juvenile court may issue, upon notice and a hearing,
any of the orders set forth in subdivisions (a), (b), and (c).
Any A restraining order granted
pursuant to this subdivision shall remain in effect, in the
discretion of the court, no more than three years, unless otherwise
terminated by the court, extended by mutual consent of all parties to
the restraining order, or extended by further order of the court on
the motion of any a party to the
restraining order.
(2) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005 of the Code of Civil Procedure, of
the proceeding by personal service or, if the protected party has
satisfied the requirements of Chapter 3.1 (commencing with Section
6205) of Division 7 of Title 1 of the Government Code, by service on
the Secretary of State. If the party who is protected by the order
cannot be notified prior to the hearing for modification or
termination of the protective order, the juvenile court shall deny
the motion to modify or terminate the order without prejudice or
continue the hearing until the party who is protected can be properly
noticed and may, upon a showing of good cause, specify another
method for service of process that is reasonably designed to afford
actual notice to the protected party. The protected party may waive
his or her right to notice if he or she is physically present and
does not challenge the sufficiency of the notice.
(e) (1) The juvenile court may issue an order made pursuant to
subdivision (a), (b), or (d) excluding a person from a residence or
dwelling. This order may be issued for the time and on the conditions
that the court determines, regardless of which party holds legal or
equitable title or is the lessee of the residence or dwelling.
(2) The court may issue an order under paragraph (1) only on a
showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the other party or any other person under the care, custody,
and control of the other party, or any a
minor child of the parties or of the other party.
(C) That physical or emotional harm would otherwise result to the
other party, to any a person under the
care, custody, and control of the other party, or to any
a minor child of the parties or of the other
party.
(f) Any An order issued pursuant to
subdivision (a), (b), (c), or (d) shall state on its face the date of
expiration of the order.
(g) All data with respect to a juvenile court protective order, or
extension, modification, or termination thereof, granted pursuant to
subdivision (a), (b), (c), or (d), shall be transmitted by the court
or its designee, within one business day, to law enforcement
personnel by either one of the following methods:
(1) Transmitting a physical copy of the order to a local law
enforcement agency authorized by the Department of Justice to enter
orders into the California Law Enforcement Telecommunications System
(CLETS).
(2) With the approval of the Department of Justice, entering the
order into CLETS directly.
(h) Any A willful and knowing
violation of any an order granted
pursuant to subdivision (a), (b), (c), or (d) shall be
is a misdemeanor punishable under Section 273.65
of the Penal Code.
(i) A juvenile court restraining order related to domestic
violence issued by a court pursuant to this section shall be issued
on forms adopted by the Judicial Council of California
and that have been approved by the Department of Justice
pursuant to subdivision (i) of Section 6380 of the Family Code.
However, the fact that an order issued by a court pursuant to this
section was not issued on forms adopted by the Judicial Council and
approved by the Department of Justice shall not, in and of itself,
make the order unenforceable.
(j) (1) Prior to a hearing on the issuance or denial of an order
under this part, a search shall be conducted as described in
subdivision (a) of Section 6306 of the Family Code.
(2) Prior to deciding whether to issue an order under this part,
the court shall consider the following information obtained pursuant
to a search conducted under paragraph (1): any
a conviction for a violent felony specified in Section
667.5 of the Penal Code or a serious felony specified in Section
1192.7 of the Penal Code; any a
misdemeanor conviction involving domestic violence, weapons, or other
violence; any an outstanding warrant;
parole or probation status; any a prior
restraining order; and any a violation
of a prior restraining order.
(3) (A) If the results of the search conducted pursuant to
paragraph (1) indicate that an outstanding warrant exists against the
subject of the search, the court shall order the clerk of the court
to immediately notify, by the most effective means available,
appropriate law enforcement officials of any
information obtained through the search that the court determines is
appropriate. The law enforcement officials notified shall take all
actions necessary to execute any outstanding
warrants or any other actions, as appropriate and as soon as
practicable.
(B) If the results of the search conducted pursuant to paragraph
(1) indicate that the subject of the search is currently on parole or
probation, the court shall order the clerk of the court to
immediately notify, by the most effective means available, the
appropriate parole or probation officer of any
information obtained through the search that the court determines is
appropriate. The parole or probation officer notified shall take all
actions necessary to revoke any parole or probation, or any other
actions, with respect to the subject person, as appropriate and as
soon as practicable.
(k) Upon making any an order for
custody or visitation pursuant to this section, the court shall
follow the procedures specified in subdivisions (c) and (d) of
Section 6323 of the Family Code.
SEC. 558. Section 258 of the Welfare and Institutions Code is
amended to read:
258. (a) Upon a hearing conducted in accordance with Section 257,
and upon either an admission by the minor of the commission of a
violation charged, or a finding that the minor did in fact commit the
violation, the judge, referee, or juvenile hearing officer may do
any of the following:
(1) Reprimand the minor and take no further action.
(2) Direct that the probation officer undertake a program of
supervision of the minor for a period not to exceed six months, in
addition to or in place of the following orders.
(3) Order that the minor pay a fine up to the amount that an adult
would pay for the same violation, unless the violation is otherwise
specified within this section, in which case the fine shall not
exceed two hundred fifty dollars ($250). This fine may be levied in
addition to or in place of the following orders and the court may
waive any or all of this fine, if the minor is unable to pay. In
determining the minor's ability to pay, the court may
shall not consider the ability of the minor's
family to pay.
(4) Subject to the minor's right to a restitution hearing, order
that the minor pay restitution to the victim, in lieu of all or a
portion of the fine specified in paragraph (3). The total dollar
amount of the fine, restitution, and any program fees ordered
pursuant to paragraph (9) may shall not
exceed the maximum amount which may be ordered pursuant to paragraph
(3). This paragraph may shall not be
construed to limit the right to recover damages, less any amount
actually paid in restitution, in a civil action.
(5) Order that the driving privileges of the minor be suspended or
restricted as provided in the Vehicle Code or, notwithstanding
Section 13203 of the Vehicle Code or any other provision of law, when
the Vehicle Code does not provide for the suspension or restriction
of driving privileges, that, in addition to any other order, the
driving privileges of the minor be suspended or restricted for a
period of not to exceed 30 days.
(6) In the case of a traffic related offense, order the minor to
attend a licensed traffic school, or other court approved program of
traffic school instruction pursuant to Chapter 1.5 (commencing with
Section 11200) of Division 5 of the Vehicle Code, to be completed by
the juvenile within 60 days of the court order.
(7) Order that the minor produce satisfactory evidence that the
vehicle or its equipment has been made to conform with the
requirements of the Vehicle Code pursuant to Section 40150 of the
Vehicle Code if the violation involved an equipment violation.
(8) Order that the minor perform community service work in a
public entity or any private nonprofit entity, for not more than 50
hours over a period of 60 days, during times other than his or her
hours of school attendance or employment. Work performed pursuant to
this paragraph may shall not exceed 30
hours during any 30-day period. The timeframes established by this
paragraph may shall not be modified
except in unusual cases where the interests of justice would best be
served. When the order to work is made by a referee or a juvenile
hearing officer, it shall be approved by a judge of the juvenile
court.
For the purposes of this paragraph, a judge,
referee, or juvenile hearing officer may
shall not, without the consent of the minor, order the minor to
perform work with a private nonprofit entity that is affiliated with
any religion.
(9) In the case of a misdemeanor, order that the minor participate
in and complete a counseling or educational program, or, if the
offense involved a violation of a controlled substance law, a drug
treatment program, if those programs are available. Any fees
Fees for participation shall be subject to the
right to a hearing as the minor's ability to pay and may
shall not, together with any fine or restitution
order, exceed the maximum amount that may be ordered pursuant to
paragraph (3).
(10) Require that the minor attend a school program without
unexcused absence.
(11) If the offense is a misdemeanor committed between 10 p.m. and
6 a.m., require that the minor be at his or her legal residence at
hours to be specified by the juvenile hearing officer between the
hours of 10 p.m. and 6 a.m., except for a medical or other emergency,
unless the minor is accompanied by his or her parent, guardian, or
other person in charge of the minor. The maximum length of an order
made pursuant to this paragraph shall be six months from the
effective date of the order.
(12) Make any or all of the following orders with respect to a
violation of the Fish and Game Code which is not charged as a felony:
(A) That the fishing or hunting license involved be suspended or
restricted.
(B) That the minor work in a park or conservation area for a total
of not to exceed 20 hours over a period not to exceed 30 days,
during times other than his or her hours of school attendance or
employment.
(C) That the minor forfeit, pursuant to Section 12157 of the Fish
and Game Code, any device or apparatus designed to be, and capable of
being, used to take birds, mammals, fish, reptiles, or amphibia and
which that was used in committing the
violation charged. The judge, referee, or juvenile hearing officer
shall, if the minor committed an offense which
that is punishable under Section 12008 of the Fish and
Game Code, order the device or apparatus forfeited pursuant to
Section 12157 of the Fish and Game Code.
(13) If the violation charged is of an ordinance of a city,
county, or local agency relating to loitering, curfew, or fare
evasion on a public transportation system, as defined by Section
99211 of the Public Utilities Code, or is a violation of Section 640
or 640a of the Penal Code, make the order that the minor shall
perform community service for a total time not to exceed 20 hours
over a period not to exceed 30 days, during times other than his or
her hours of school attendance or employment.
(b) If the minor is before the court on the basis of truancy, as
described in subdivision (b) of Section 601, all of the following
procedures and limitations shall apply:
(1) The judge, referee, or juvenile hearing officer shall not
proceed with a hearing unless both of the following have been
provided to the court:
(A) Evidence that the minor's school has undertaken the actions
specified in subdivisions (a), (b), and (c) of Section 48264.5 of the
Education Code. If the school district does not have an attendance
review board, as described in Section 48321 of the Education Code,
the minor's school is not required to provide evidence to the court
of any actions the school has undertaken that demonstrate the
intervention of a school attendance review board.
(B) The available record of previous attempts to address the minor'
s truancy.
(2) The court is encouraged to set the hearing outside of school
hours, so as to avoid causing the minor to miss additional school
time.
(3) Pursuant to paragraph (1) of subdivision (a) of Section 257,
the minor and his or her parents shall be advised of the minor's
right to refuse consent to a hearing conducted upon a written notice
to appear.
(4) The minor's parents shall be permitted to participate in the
hearing.
(5) The judge, referee, or juvenile hearing officer may continue
the hearing to allow the minor the opportunity to demonstrate
improved attendance before imposing any of the orders specified in
paragraph (6). Upon demonstration of improved attendance, the court
may dismiss the case.
(6) Upon a finding that the minor violated subdivision (b) of
Section 601, the judge, referee, or juvenile hearing officer shall
direct his or her orders at improving the minor's school attendance.
The judge, referee, or juvenile hearing officer may do any of the
following:
(A) Order the minor to perform community service work, as
described in Section 48264.5 of the Education Code, which may be
performed at the minor's school.
(B) Order the payment of a fine by the minor of not more than
fifty dollars ($50), for which a parent or legal guardian of the
minor may be jointly liable. The fine described in this subparagraph
shall not be subject to Section 1464 of the Penal Code or additional
penalty pursuant to any other law. The minor, at his or her
discretion, may perform community service, as described in
subparagraph (A), in lieu of any fine imposed under this
subparagraph.
(C) Order a combination of community service work described in
subparagraph (A) and payment of a portion of the fine described in
subparagraph (B).
(D) Restrict driving privileges in the manner set forth in
paragraph (5) of subdivision (a). The minor may request removal of
the driving restrictions if he or she provides proof of school
attendance, high school graduation, GED completion, or enrollment in
adult education, a community college, or a trade program. Any driving
restriction shall be removed at the time the minor attains 18 years
of age.
(c) (1) The judge, referee, or juvenile hearing officer shall
retain jurisdiction of the case until all orders made under this
section have been fully complied with.
(2) If a minor is before the judge, referee, or juvenile hearing
officer on the basis of truancy, jurisdiction shall be terminated
upon the minor attaining 18 years of age.
SEC. 559. Section 300 of the Welfare and Institutions Code is
amended to read:
300. Any A child who comes within
any of the following descriptions is within the jurisdiction of the
juvenile court which may adjudge that person to be a dependent child
of the court:
(a) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child's parent or guardian. For
the purposes of this subdivision, a court may
find there is a substantial risk of serious future injury based on
the manner in which a less serious injury was inflicted, a history of
repeated inflictions of injuries on the child or the child's
siblings, or a combination of these and other actions by the parent
or guardian which that indicate the
child is at risk of serious physical harm. For purposes of this
subdivision, "serious physical harm" does not include reasonable and
age-appropriate spanking to the buttocks where
if there is no evidence of serious physical injury.
(b) (1) The child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness, as a
result of the failure or inability of his or her parent or guardian
to adequately supervise or protect the child, or the willful or
negligent failure of the child's parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with
whom the child has been left, or by the willful or negligent failure
of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the
parent's or guardian's mental illness, developmental disability, or
substance abuse. No A child shall
not be found to be a person described by this subdivision
solely due to the lack of an emergency shelter for the family.
Whenever it is alleged that a child comes within the jurisdiction of
the court on the basis of the parent's or guardian's willful failure
to provide adequate medical treatment or specific decision to provide
spiritual treatment through prayer, the court shall give deference
to the parent's or guardian's medical treatment, nontreatment, or
spiritual treatment through prayer alone in accordance with the
tenets and practices of a recognized church or religious
denomination, by an accredited practitioner thereof, and shall not
assume jurisdiction unless necessary to protect the child from
suffering serious physical harm or illness. In making its
determination, the court shall consider (1) the nature of the
treatment proposed by the parent or guardian, (2) the risks to the
child posed by the course of treatment or nontreatment proposed by
the parent or guardian, (3) the risk, if any, of the course of
treatment being proposed by the petitioning agency, and (4) the
likely success of the courses of treatment or nontreatment proposed
by the parent or guardian and agency. The child shall continue to be
a dependent child pursuant to this subdivision only so long as is
necessary to protect the child from risk of suffering serious
physical harm or illness.
(2) The Legislature finds and declares that a child who is
sexually trafficked, as described in Section 236.1 of the Penal Code,
or who receives food or shelter in exchange for, or who is paid to
perform, sexual acts described in Section 236.1 or 11165.1 of the
Penal Code, and whose parent or guardian failed to, or was unable to,
protect the child, is within the description of this subdivision,
and that this finding is declaratory of existing law. These children
shall be known as commercially sexually
exploited children.
(c) The child is suffering serious emotional damage, or is at
substantial risk of suffering serious emotional damage, evidenced by
severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others, as a result of the conduct of the
parent or guardian or who has no parent or guardian capable of
providing appropriate care. No A child
shall not be found to be a person described by this
subdivision if the willful failure of the parent or guardian to
provide adequate mental health treatment is based on a sincerely held
religious belief and if a less intrusive judicial intervention is
available.
(d) The child has been sexually abused, or there is a substantial
risk that the child will be sexually abused, as defined in Section
11165.1 of the Penal Code, by his or her parent or guardian or a
member of his or her household, or the parent or guardian has failed
to adequately protect the child from sexual abuse when the parent or
guardian knew or reasonably should have known that the child was in
danger of sexual abuse.
(e) The child is under the age of five years and has suffered
severe physical abuse by a parent, or by any person known by the
parent, if the parent knew or reasonably should have known that the
person was physically abusing the child. For the purposes of this
subdivision, "severe physical abuse" means any of the following: any
single act of abuse which causes physical trauma of sufficient
severity that, if left untreated, would cause permanent physical
disfigurement, permanent physical disability, or death; any single
act of sexual abuse which causes significant bleeding, deep bruising,
or significant external or internal swelling; or more than one act
of physical abuse, each of which causes bleeding, deep bruising,
significant external or internal swelling, bone fracture, or
unconsciousness; or the willful, prolonged failure to provide
adequate food. A child may shall not be
removed from the physical custody of his or her parent or guardian
on the basis of a finding of severe physical abuse unless the social
worker has made an allegation of severe physical abuse pursuant to
Section 332.
(f) The child's parent or guardian caused the death of another
child through abuse or neglect.
(g) The child has been left without any provision for support;
physical custody of the child has been voluntarily surrendered
pursuant to Section 1255.7 of the Health and Safety Code and the
child has not been reclaimed within the 14-day period specified in
subdivision (e) (g) of that section;
the child's parent has been incarcerated or institutionalized and
cannot arrange for the care of the child; or a relative or other
adult custodian with whom the child resides or has been left is
unwilling or unable to provide care or support for the child, the
whereabouts of the parent are unknown, and reasonable efforts to
locate the parent have been unsuccessful.
(h) The child has been freed for adoption by one or both parents
for 12 months by either relinquishment or termination of parental
rights or an adoption petition has not been granted.
(i) The child has been subjected to an act or acts of cruelty by
the parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child from an
act or acts of cruelty when the parent or guardian knew or
reasonably should have known that the child was in danger of being
subjected to an act or acts of cruelty.
(j) The child's sibling has been abused or neglected, as defined
in subdivision (a), (b), (d), (e), or (i), and there is a substantial
risk that the child will be abused or neglected, as defined in those
subdivisions. The court shall consider the circumstances surrounding
the abuse or neglect of the sibling, the age and gender of each
child, the nature of the abuse or neglect of the sibling, the mental
condition of the parent or guardian, and any other factors the court
considers probative in determining whether there is a substantial
risk to the child.
It is the intent of the Legislature that nothing in
this section not disrupt the family
unnecessarily or intrude inappropriately into family life, prohibit
the use of reasonable methods of parental discipline, or prescribe a
particular method of parenting. Further, nothing in
this section is not intended to limit the
offering of voluntary services to those families in need of
assistance but who do not come within the descriptions of this
section. To the extent that savings accrue to the state from child
welfare services funding obtained as a result of the enactment of the
act that enacted this section, those savings shall be used to
promote services which support family maintenance and family
reunification plans, such as client transportation, out-of-home
respite care, parenting training, and the provision of temporary or
emergency in-home caretakers and persons teaching and demonstrating
homemaking skills. The Legislature further declares that a physical
disability, such as blindness or deafness, is no bar to the raising
of happy and well-adjusted children and that a court's determination
pursuant to this section shall center upon whether a parent's
disability prevents him or her from exercising care and control. The
Legislature further declares that a child whose parent has been
adjudged a dependent child of the court pursuant to this section
shall not be considered to be at risk of abuse or neglect solely
because of the age, dependent status, or foster care status of the
parent.
As used in this section, "guardian" means the legal guardian of
the child.
SEC. 560. Section 319 of the Welfare and Institutions Code is
amended to read:
319. (a) At the initial petition hearing, the court shall examine
the child's parents, guardians, or other persons having relevant
knowledge and hear the relevant evidence as the child, the child's
parents or guardians, the petitioner, or their counsel desires to
present. The court may examine the child, as provided in Section 350.
(b) The social worker shall report to the court on the reasons why
the child has been removed from the parent's physical custody, the
need, if any, for continued detention, the available services and the
referral methods to those services that could facilitate the return
of the child to the custody of the child's parents or guardians, and
whether there are any relatives who are able and willing to take
temporary physical custody of the child. The court shall order the
release of the child from custody unless a prima facie showing has
been made that the child comes within Section 300, the court finds
that continuance in the parent's or guardian's home is contrary to
the child's welfare, and any of the following circumstances exist:
(1) There is a substantial danger to the physical health of the
child or the child is suffering severe emotional damage, and there
are no reasonable means by which the child's physical or emotional
health may be protected without removing the child from the parent's
or guardian's physical custody.
(2) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(3) The child has left a placement in which he or she was placed
by the juvenile court.
(4) The child indicates an unwillingness to return home, if the
child has been physically or sexually abused by a person residing in
the home.
(c) If the matter is continued pursuant to Section 322 or for any
other reason, the court shall find that the continuance of the child
in the parent's or guardian's home is contrary to the child's welfare
at the initial petition hearing or order the release of the child
from custody.
(d) (1) The court shall also make a determination on the record,
referencing the social worker's report or other evidence relied upon,
as to whether reasonable efforts were made to prevent or eliminate
the need for removal of the child from his or her home, pursuant to
subdivision (b) of Section 306, and whether there are available
services that would prevent the need for further detention. Services
to be considered for purposes of making this determination are case
management, counseling, emergency shelter care, emergency in-home
caretakers, out-of-home respite care, teaching and demonstrating
homemakers, parenting training, transportation, and any other child
welfare services authorized by the State Department of Social
Services pursuant to Chapter 5 (commencing with Section 16500) of
Part 4 of Division 9. The court shall also review whether the social
worker has considered whether a referral to public assistance
services pursuant to Chapter 2 (commencing with Section 11200) and
Chapter 7 (commencing with Section 14000) of Part 3, Chapter 1
(commencing with Section 17000) of Part 5, and Chapter 10 (commencing
with Section 18900) of Part 6 of Division 9 would have eliminated
the need to take temporary custody of the child or would prevent the
need for further detention.
(2) If the child can be returned to the custody of his or her
parent or guardian through the provision of those services, the court
shall place the child with his or her parent or guardian and order
that the services shall be provided. If the child cannot be returned
to the physical custody of his or her parent or guardian, the court
shall determine if there is a relative who is able and willing to
care for the child, and has been assessed pursuant to paragraph (1)
of subdivision (d) of Section 309.
(3) In order to preserve the bond between the child and the parent
and to facilitate family reunification, the court shall consider
whether the child can be returned to the custody of his or her parent
who is enrolled in a certified substance abuse treatment facility
that allows a dependent child to reside with his or her parent. The
fact that the parent is enrolled in a certified substance abuse
treatment facility that allows a dependent child to reside with his
or her parent shall not be, for that reason alone, prima facie
evidence of substantial danger. The court shall specify the factual
basis for its conclusion that the return of the child to the custody
of his or her parent would pose a substantial danger or would not
pose a substantial danger to the physical health, safety, protection,
or physical or emotional well-being of the child.
(e) If a court orders a child detained, the court shall state the
facts on which the decision is based, specify why the initial removal
was necessary, reference the social worker's report or other
evidence relied upon to make its determination whether continuance in
the home of the parent or legal guardian is contrary to the child's
welfare, order temporary placement and care of the child to be vested
with the county child welfare department pending the hearing held
pursuant to Section 355 or further order of the court, and order
services to be provided as soon as possible to reunify the child and
his or her family if appropriate.
(f) (1) If the child is not released from custody, the court may
order that the child shall be placed in the assessed home of a
relative, in an emergency shelter or other suitable licensed place,
in a place exempt from licensure designated by the juvenile court, or
in the assessed home of a nonrelative extended family member as
defined in Section 362.7 for a period not to exceed 15 judicial days.
A runaway and homeless youth shelter licensed by the State
Department of Social Services pursuant to Section 1502.35 of the
Health and Safety Code shall not be a placement option pursuant to
this section.
(2) As used in this section, "relative" means an adult who is
related to the child by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of these persons,
even if the marriage was terminated by death or dissolution. However,
only the following relatives shall be given preferential
consideration for placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling of the child.
(3) The court shall consider the recommendations of the social
worker based on the assessment pursuant to paragraph (1) of
subdivision (d) of Section 309 of the relative's home, including the
results of a criminal records check and prior child abuse
allegations, if any, prior to ordering that the child be placed with
a relative. The court shall order the parent to disclose to the
social worker the names, residences, and any known identifying
information of any maternal or paternal relatives of the child. The
social worker shall initiate the assessment pursuant to Section 361.3
of any relative to be considered for continuing placement.
(g) (1) At the initial hearing upon the petition filed in
accordance with subdivision (c) of Rule 5.520 of the California Rules
of Court or anytime thereafter up until the time that the minor is
adjudged a dependent child of the court or a finding is made
dismissing the petition, the court may temporarily limit the right of
the parent or guardian to make educational or developmental services
decisions for the child and temporarily appoint a responsible adult
to make educational or developmental services decisions for the child
if all of the following conditions are found:
(A) The parent or guardian is unavailable, unable, or unwilling to
exercise educational or developmental services rights for the child.
(B) The county placing agency has made diligent efforts to locate
and secure the participation of the parent or guardian in educational
or developmental services decisionmaking.
(C) The child's educational and developmental services needs
cannot be met without the temporary appointment of a responsible
adult.
(2) If the court limits the parent's educational rights under this
subdivision, the court shall determine whether there is a
responsible adult who is a relative, nonrelative extended family
member, or other adult known to the child and who is available and
willing to serve as the child's educational representative before
appointing an educational representative or surrogate who is not
known to the child.
(3) If the court cannot identify a responsible adult to make
educational decisions for the child and the appointment of a
surrogate parent, as defined in subdivision (a) of Section 56050 of
the Education Code, is not warranted, the court may, with the input
of any interested person, make educational decisions for the child.
If the child is receiving services from a regional center, the
provision of any developmental services related to the court's
decision must shall be consistent with
the child's individual program plan and pursuant to the provisions of
the Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500)). If the court cannot identify a
responsible adult to make developmental services decisions for the
child, the court may, with the input of any interested person, make
developmental services decisions for the child. If the court makes
educational or developmental services decisions for the child, the
court shall also issue appropriate orders to ensure that every effort
is made to identify a responsible adult to make future educational
or developmental services decisions for the child.
(4) Any A temporary appointment of a
responsible adult and temporary limitation on the right of the parent
or guardian to make educational or developmental services decisions
for the child shall be specifically addressed in the court order.
Any An order made under this section
shall expire at the conclusion of the hearing held pursuant to
Section 361 or upon dismissal of the petition. Upon the entering of
disposition orders, any additional needed
limitation on the parent's or guardian's educational or developmental
services rights shall be addressed pursuant to Section 361.
(5) Nothing in this section in any way removes
This section does not remove the obligation to appoint
surrogate parents for students with disabilities who are without
parental representation in special education procedures as required
by state and federal law, including Section 1415(b)(2) of Title 20 of
the United States Code, Section 56050 of the Education Code, Section
7579.5 of the Government Code, and Rule 5.650 of the California
Rules of Court.
(6) If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority to
access the child's information and records pursuant to subdivision
(u) of Section 4514 and subdivision (y) of Section 5328, and to act
on the child's behalf for the purposes of the individual program plan
process pursuant to Sections 4646, 4646.5, and 4648 and the fair
hearing process pursuant to Chapter 7 (commencing with Section 4700),
and as set forth in the court order.
SEC. 561. Section 361.2 of the Welfare and Institutions Code is
amended to read:
361.2. (a) When a court orders removal of a child pursuant to
Section 361, the court shall first determine whether there is a
parent of the child, with whom the child was not residing at the time
that the events or conditions arose that brought the child within
the provisions of Section 300, who desires to assume custody of the
child. If that parent requests custody, the court shall place the
child with the parent unless it finds that placement with that parent
would be detrimental to the safety, protection, or physical or
emotional well-being of the child. The fact that the parent is
enrolled in a certified substance abuse treatment facility that
allows a dependent child to reside with his or her parent shall not
be, for that reason alone, prima facie evidence that placement with
that parent would be detrimental.
(b) If the court places the child with that parent it may do any
of the following:
(1) Order that the parent become legal and physical custodian of
the child. The court may also provide reasonable visitation by the
noncustodial parent. The court shall then terminate its jurisdiction
over the child. The custody order shall continue unless modified by a
subsequent order of the superior court. The order of the juvenile
court shall be filed in any domestic relation proceeding between the
parents.
(2) Order that the parent assume custody subject to the
jurisdiction of the juvenile court and require that a home visit be
conducted within three months. In determining whether to take the
action described in this paragraph, the court shall consider any
concerns that have been raised by the child's current caregiver
regarding the parent. After the social worker conducts the home visit
and files his or her report with the court, the court may then take
the action described in paragraph (1), paragraph (3), or
this paragraph. However, nothing in this paragraph
shall not be interpreted to imply that the court is
required to take the action described in this paragraph as a
prerequisite to the court taking the action described in either
paragraph (1) or (3).
(3) Order that the parent assume custody subject to the
supervision of the juvenile court. In that case the court may order
that reunification services be provided to the parent or guardian
from whom the child is being removed, or the court may order that
services be provided solely to the parent who is assuming physical
custody in order to allow that parent to retain later custody without
court supervision, or that services be provided to both parents, in
which case the court shall determine, at review hearings held
pursuant to Section 366, which parent, if either, shall have custody
of the child.
(c) The court shall make a finding either in writing or on the
record of the basis for its determination under subdivisions (a) and
(b).
(d) Part 6 (commencing with Section 7950) of Division 12 of the
Family Code shall apply applies to the
placement of a child pursuant to paragraphs (1) and (2) of
subdivision (e).
(e) When the court orders removal pursuant to Section 361, the
court shall order the care, custody, control, and conduct of the
child to be under the supervision of the social worker who may place
the child in any of the following:
(1) The home of a noncustodial parent as described in subdivision
(a), regardless of the parent's immigration status.
(2) The approved home of a relative, regardless of the relative's
immigration status.
(3) The approved home of a nonrelative extended family member as
defined in Section 362.7.
(4) The approved home of a resource family as defined in Section
16519.5.
(5) A foster home in which the child has been placed before an
interruption in foster care, if that placement is in the best
interest of the child and space is available.
(6) A suitable licensed community care facility, except a runaway
and homeless youth shelter licensed by the State Department of Social
Services pursuant to Section 1502.35 of the Health and Safety Code.
(7) With a foster family agency to be placed in a suitable
licensed foster family home or certified family home which
that has been certified by the agency as meeting
licensing standards.
(8) A home or facility in accordance with the federal Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.).
(9) A child under six years of age may be placed in a community
care facility licensed as a group home for children, or a temporary
shelter care facility as defined in Section 1530.8 of the Health and
Safety Code, only under any of the following circumstances:
(A) (i) When a case plan indicates that placement is for purposes
of providing short term, specialized, and intensive treatment to the
child, the case plan specifies the need for, nature of, and
anticipated duration of this treatment, pursuant to paragraph (2) of
subdivision (c) of Section 16501.1, the facility meets the applicable
regulations adopted under Section 1530.8 of the Health and Safety
Code and standards developed pursuant to Section 11467.1 of this
code, and the deputy director or director of the county child welfare
department or an assistant chief probation officer or chief
probation officer of the county probation department has approved the
case plan.
(ii) The short term, specialized, and intensive treatment period
shall not exceed 120 days, unless the county has made progress toward
or is actively working toward implementing the case plan that
identifies the services or supports necessary to transition the child
to a family setting, circumstances beyond the county's control have
prevented the county from obtaining those services or supports within
the timeline documented in the case plan, and the need for
additional time pursuant to the case plan is documented by the
caseworker and approved by a deputy director or director of the
county child welfare department or an assistant chief probation
officer or chief probation officer of the county probation
department.
(iii) To the extent that placements pursuant to this paragraph are
extended beyond an initial 120 days, the requirements of clauses (i)
and (ii) shall apply to each extension. In
addition, the deputy director or director of the county child welfare
department or an assistant chief probation officer or chief
probation officer of the county probation department shall approve
the continued placement no less frequently than every 60 days.
(B) When a case plan indicates that placement is for purposes of
providing family reunification services. In addition, the facility
offers family reunification services that meet the needs of the
individual child and his or her family, permits parents to have
reasonable access to their children 24 hours a day, encourages
extensive parental involvement in meeting the daily needs of their
children, and employs staff trained to provide family reunification
services. In addition, one of the following conditions exists:
(i) The child's parent is also a ward of the court and resides in
the facility.
(ii) The child's parent is participating in a treatment program
affiliated with the facility and the child's placement in the
facility facilitates the coordination and provision of reunification
services.
(iii) Placement in the facility is the only alternative that
permits the parent to have daily 24-hour access to the child in
accordance with the case plan, to participate fully in meeting all of
the daily needs of the child, including feeding and personal
hygiene, and to have access to necessary reunification services.
(10) (A) A child who is 6 to 12 years of age, inclusive, may be
placed in a community care facility licensed as a group home for
children only when a case plan indicates that placement is for
purposes of providing short term, specialized, and intensive
treatment for the child, the case plan specifies the need for, nature
of, and anticipated duration of this treatment, pursuant to
paragraph (2) of subdivision (c) of Section 16501.1, and is approved
by the deputy director or director of the county child welfare
department or an assistant chief probation officer or chief probation
officer of the county probation department.
(B) The short term, specialized, and intensive treatment period
shall not exceed six months, unless the county has made progress or
is actively working toward implementing the case plan that identifies
the services or supports necessary to transition the child to a
family setting, circumstances beyond the county's control have
prevented the county from obtaining those services or supports within
the timeline documented in the case plan, and the need for
additional time pursuant to the case plan is documented by the
caseworker and approved by a deputy director or director of the
county child welfare department or an assistant chief probation
officer or chief probation officer of the county probation
department.
(C) To the extent that placements pursuant to this paragraph are
extended beyond an initial six months, the requirements of
subparagraphs (A) and (B) shall apply to each
extension. In addition, the deputy director or director of the county
child welfare department or an assistant chief probation officer or
chief probation officer of the county probation department shall
approve the continued placement no less frequently than every 60
days.
(11) Nothing in this This
subdivision shall not be construed to allow a social
worker to place any dependent child outside the United States, except
as specified in subdivision (f).
(f) (1) A child under the supervision of a social worker
pursuant to subdivision (e) shall not be placed outside the United
States prior to a judicial finding that the placement is in the best
interest of the child, except as required by federal law or treaty.
(2) The party or agency requesting placement of the child outside
the United States shall carry the burden of proof and shall show, by
clear and convincing evidence, that placement outside the United
States is in the best interest of the child.
(3) In determining the best interest of the child, the court shall
consider, but not be limited to, the following factors:
(A) Placement with a relative.
(B) Placement of siblings in the same home.
(C) Amount and nature of any contact between the child and the
potential guardian or caretaker.
(D) Physical and medical needs of the dependent child.
(E) Psychological and emotional needs of the dependent child.
(F) Social, cultural, and educational needs of the dependent
child.
(G) Specific desires of any dependent child who is 12 years of age
or older.
(4) If the court finds that a placement outside the United States
is, by clear and convincing evidence, in the best interest of the
child, the court may issue an order authorizing the social worker to
make a placement outside the United States. A child subject to this
subdivision shall not leave the United States prior to the issuance
of the order described in this paragraph.
(5) For purposes of this subdivision, "outside the United States"
shall does not include the lands of any
federally recognized American Indian tribe or Alaskan Natives.
(6) This subdivision shall does not
apply to the placement of a dependent child with a parent pursuant to
subdivision (a).
(g) (1) If the child is taken from the physical custody of the
child's parent or guardian and unless the child is placed with
relatives, the child shall be placed in foster care in the county of
residence of the child's parent or guardian in order to facilitate
reunification of the family.
(2) In the event that there are no appropriate placements
available in the parent's or guardian's county of residence, a
placement may be made in an appropriate place in another county,
preferably a county located adjacent to the parent's or guardian's
community of residence.
(3) Nothing in this This
section shall not be interpreted as requiring multiple
disruptions of the child's placement corresponding to frequent
changes of residence by the parent or guardian. In determining
whether the child should be moved, the social worker shall take into
consideration the potential harmful effects of disrupting the
placement of the child and the parent's or guardian's reason for the
move.
(4) When it has been determined that it is necessary for a child
to be placed in a county other than the child's parent's or guardian'
s county of residence, the specific reason the out-of-county
placement is necessary shall be documented in the child's case plan.
If the reason the out-of-county placement is necessary is the lack of
resources in the sending county to meet the specific needs of the
child, those specific resource needs shall be documented in the case
plan.
(5) When it has been determined that a child is to be placed out
of county either in a group home or with a foster family agency for
subsequent placement in a certified foster family home, and the
sending county is to maintain responsibility for supervision and
visitation of the child, the sending county shall develop a plan of
supervision and visitation that specifies the supervision and
visitation activities to be performed and specifies that the sending
county is responsible for performing those activities. In addition to
the plan of supervision and visitation, the sending county shall
document information regarding any known or suspected dangerous
behavior of the child that indicates the child may pose a safety
concern in the receiving county. Upon implementation of the Child
Welfare Services Case Management System, the plan of supervision and
visitation, as well as information regarding any known or suspected
dangerous behavior of the child, shall be made available to the
receiving county upon placement of the child in the receiving county.
If placement occurs on a weekend or holiday, the information shall
be made available to the receiving county on or before the end of the
next business day.
(6) When it has been determined that a child is to be placed out
of county and the sending county plans that the receiving county
shall be responsible for the supervision and visitation of the child,
the sending county shall develop a formal agreement between the
sending and receiving counties. The formal agreement shall specify
the supervision and visitation to be provided the child, and shall
specify that the receiving county is responsible for providing the
supervision and visitation. The formal agreement shall be approved
and signed by the sending and receiving counties prior to placement
of the child in the receiving county. In addition, upon completion of
the case plan, the sending county shall provide a copy of the
completed case plan to the receiving county. The case plan shall
include information regarding any known or suspected dangerous
behavior of the child that indicates the child may pose a safety
concern to the receiving county.
(h) Whenever the social worker must change the placement of the
child and is unable to find a suitable placement within the county
and must place the child outside the county, the placement shall not
be made until he or she has served written notice on the parent or
guardian at least 14 days prior to the placement, unless the child's
health or well-being is endangered by delaying the action or would be
endangered if prior notice were given. The notice shall state the
reasons which that require placement
outside the county. The parent or guardian may object to the
placement not later than seven days after receipt of the notice and,
upon objection, the court shall hold a hearing not later than five
days after the objection and prior to the placement. The court shall
order out-of-county placement if it finds that the child's particular
needs require placement outside the county.
(i) Where If the court has ordered
removal of the child from the physical custody of his or her parents
pursuant to Section 361, the court shall consider whether the family
ties and best interest of the child will be served by granting
visitation rights to the child's grandparents. The court shall
clearly specify those rights to the social worker.
(j) Where If the court has ordered
removal of the child from the physical custody of his or her parents
pursuant to Section 361, the court shall consider whether there are
any siblings under the court's jurisdiction, or any nondependent
siblings in the physical custody of a parent subject to the court's
jurisdiction, the nature of the relationship between the child and
his or her siblings, the appropriateness of developing or maintaining
the sibling relationships pursuant to Section 16002, and the impact
of the sibling relationships on the child's placement and planning
for legal permanence.
(k) (1) An agency shall ensure placement of a child in a home
that, to the fullest extent possible, best meets the day-to-day needs
of the child. A home that best meets the day-to-day needs of the
child shall satisfy all of the following criteria:
(A) The child's caregiver is able to meet the day-to-day health,
safety, and well-being needs of the child.
(B) The child's caregiver is permitted to maintain the least
restrictive and most family-like environment that serves the
day-to-day needs of the child.
(C) The child is permitted to engage in reasonable,
age-appropriate day-to-day activities that promote the most
family-like environment for the foster child.
(2) The foster child's caregiver shall use a reasonable and
prudent parent standard, as defined in paragraph (2) of subdivision
(a) of Section 362.04, to determine day-to-day activities that are
age appropriate to meet the needs of the child. Nothing in this
section shall be construed to permit a child's caregiver to permit
the child to engage in day-to-day activities that carry an
unreasonable risk of harm, or subject the child to abuse or neglect.
SEC. 562. Section 391 of the Welfare and Institutions Code is
amended to read:
391. (a) The dependency court shall not terminate jurisdiction
over a nonminor unless a hearing is conducted pursuant to this
section.
(b) At any hearing for a nonminor at which the court is
considering termination of the jurisdiction of the juvenile court,
the county welfare department shall do all of the following:
(1) Ensure that the dependent nonminor is present in court, unless
the nonminor does not wish to appear in court, and elects a
telephonic appearance, or document reasonable efforts made by the
county welfare department to locate the nonminor when the nonminor is
not available.
(2) Submit a report describing whether it is in the nonminor's
best interests to remain under the court's dependency jurisdiction,
which includes a recommended transitional independent living case
plan for the nonminor when the report describes continuing dependency
jurisdiction as being in the nonminor's best interest.
(3) If the county welfare department recommends termination of the
court's dependency jurisdiction, submit documentation of the
reasonable efforts made by the department to provide the nonminor
with the assistance needed to meet or maintain eligibility as a
nonminor dependent, as defined in paragraphs (1) to (5), inclusive,
of subdivision (b) of Section 11403.
(4) If the nonminor has indicated that he or she does not want
dependency jurisdiction to continue, the report shall address the
manner in which the nonminor was advised of his or her options,
including the benefits of remaining in foster care, and of his or her
right to reenter foster care and to file a petition pursuant to
subdivision (e) of Section 388 to resume dependency jurisdiction
prior to attaining 21 years of age.
(c) (1) The court shall continue dependency jurisdiction over a
nonminor who meets the definition of a nonminor dependent as
described in subdivision (v) of Section 11400 unless the court finds
either of the following:
(A) That the nonminor does not wish to remain subject to
dependency jurisdiction.
(B) That the nonminor is not participating in a reasonable and
appropriate transitional independent living case plan.
(2) In making the findings pursuant to paragraph (1), the court
must also find that the nonminor has been informed of his or her
options including the benefits of remaining in foster care and the
right to reenter foster care by filing a petition pursuant to
subdivision (e) of Section 388 to resume dependency jurisdiction and
by completing a voluntary reentry agreement pursuant to subdivision
(z) of Section 11400, and has had an opportunity to confer with his
or her counsel if counsel has been appointed pursuant to Section 317.
(d) (1) The court may terminate its jurisdiction over a nonminor
if the court finds after reasonable and documented efforts the
nonminor cannot be located.
(2) When terminating dependency jurisdiction , the
court shall maintain general jurisdiction over the nonminor to allow
for the filing of a petition to resume dependency jurisdiction under
subdivision (e) of Section 388 until the nonminor attains 21 years of
age, although no review proceedings shall be required. A nonminor
may petition the court pursuant to subdivision (e) of Section 388 to
resume dependency jurisdiction at any time before attaining 21 years
of age.
(e) The court shall not terminate dependency jurisdiction over a
nonminor who has attained 18 years of age until a hearing is
conducted pursuant to this section and the department has submitted a
report verifying that the following information, documents, and
services have been provided to the nonminor, or in the case of a
nonminor who, after reasonable efforts by the county welfare
department, cannot be located, verifying the efforts made to make the
following available to the nonminor:
(1) Written information concerning the nonminor's case, including
any known information regarding the nonminor's Indian heritage or
tribal connections, if applicable, his or her family history and
placement history, any photographs of the nonminor or his or her
family in the possession of the county welfare department, other than
forensic photographs, the whereabouts of any siblings under the
jurisdiction of the juvenile court, unless the court determines that
sibling contact would jeopardize the safety or welfare of the
sibling, directions on how to access the documents the nonminor is
entitled to inspect under Section 827, and the date on which the
jurisdiction of the juvenile court would be terminated.
(2) The following documents:
(A) Social security card.
(B) Certified copy of his or her birth certificate.
(C) Health and education summary, as described in subdivision (a)
of Section 16010.
(D) Driver's license, as described in Section 12500 of the Vehicle
Code, or identification card, as described in Section 13000 of the
Vehicle Code.
(E) A letter prepared by the county welfare department that
includes the following information:
(i) The nonminor's name and date of birth.
(ii) The dates during which the nonminor was within the
jurisdiction of the juvenile court.
(iii) A statement that the nonminor was a foster youth in
compliance with state and federal financial aid documentation
requirements.
(F) If applicable, the death certificate of the parent or parents.
(G) If applicable, proof of the nonminor's citizenship or legal
residence.
(H) An advance health care directive form.
(I) The Judicial Council form that the nonminor would use to file
a petition pursuant to subdivision (e) of Section 388 to resume
dependency jurisdiction.
(J) The written 90-day transition plan prepared pursuant to
Section 16501.1.
(3) Assistance in completing an application for Medi-Cal or
assistance in obtaining other health insurance.
(4) Referrals to transitional housing, if available, or assistance
in securing other housing.
(5) Assistance in obtaining employment or other financial support.
(6) Assistance in applying for admission to college or to a
vocational training program or other educational institution and in
obtaining financial aid, where appropriate.
(7) Assistance in maintaining relationships with individuals who
are important to a nonminor who has been in out-of-home placement for
six months or longer from the date the nonminor entered foster care,
based on the nonminor's best interests.
(8) For nonminors between 18 and 21 years of age, assistance in
accessing the Independent Living Aftercare Program in the nonminor's
county of residence, and, upon the nonminor's request, assistance in
completing a voluntary reentry agreement for care and placement
pursuant to subdivision (z) of Section 11400 and in filing a petition
pursuant to subdivision (e) of Section 388 to resume dependency
jurisdiction.
(9) Written information notifying the child that current or former
dependent children who are or have been in foster care are granted a
preference for student assistant or internship positions with state
agencies pursuant to Section 18220 of the Government Code. The
preference shall be granted to applicants up to 26 years of age.
(f) At the hearing closest to and before a dependent minor's 18th
birthday and every review hearing thereafter for nonminors, the
department shall submit a report describing efforts toward completing
the items described in paragraph (2) of subdivision (e).
(g) The Judicial Council shall develop and implement standards,
and develop and adopt appropriate forms necessary to implement this
provision.
(h) This section shall become operative on January 1, 2012.
SEC. 563. Section 1767 of the Welfare and Institutions Code is
amended to read:
1767. (a) Upon request, written notice of any hearing to consider
the release on parole of any person under the control of the Youth
Authority for the commission of a crime or committed to the authority
as a person described in Section 602 shall be sent by the Department
of the Youth Authority at least 30 days before the hearing to any
victim of a crime committed by the person, or to the next of kin of
the victim if the victim has died or is a minor. The requesting party
shall keep the board apprised of his or her current mailing address.
(b) Any one of the following persons may appear, personally or by
counsel, at the hearing:
(1) The victim of the offense and one support person of his or her
choosing.
(2) In the event that the victim is unable to attend the
proceeding, two support persons designated by the victim may attend
to provide information about the impact of the crime on the victim.
(3) If the victim is no longer living, two members of the victim's
immediate family may attend.
(4) If none of those persons appear personally at the hearing, any
one of them may submit a statement recorded on videotape for the
board's consideration at the hearing. Those persons shall also have
the right to submit a written statement to the board at least 10 days
prior to the scheduled hearing for the board's consideration at the
hearing.
(c) The board, in deciding whether to release the person on
parole, shall consider the statements of victims, next of kin, or
statements made on their behalf pursuant to this section and shall
include in its report a statement of whether the person would pose a
threat to public safety if released on parole. The
provisions of this section shall not be amended by the Legislature
except by statute passed in each house by rollcall vote entered in
the journal, two-thirds of the membership concurring, or by a statute
that becomes effective only when approved by the electors.
(d) A representative designated by the victim or the victim's next
of kin shall be either that person's legal counsel or a family or
household member of the victim, for the purposes of this section.
(e) Support persons may only provide information about the impact
of the crime on the victim and provide physical and emotional support
to the victim or the victim's family.
(f) Nothing in this This section
shall does not prevent the board from
excluding a victim or his or her support person or persons from a
hearing. The board may allow the presence of other support persons
under particular circumstances surrounding the proceeding.
(g) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
SEC. 564. Section 1984 of the Welfare and Institutions Code is
amended to read:
1984. (a) The amount allocated to each county probation
department from the Juvenile Reentry Grant shall be distributed in
two equal payments to be paid on October 30 and May 30 of each fiscal
year, until June 30, 2013. Commencing with the 2013-14 fiscal year,
the amount allocated to each county probation department from the
Juvenile Reentry Grant Special Account established in paragraph (2)
of subdivision (c) of Section 30025 of the Government Code shall be
allocated in monthly installments. In each fiscal year the amount
allocated to each county probation department from the Juvenile
Reentry Grant Special Account shall be distributed pursuant to the
criteria set forth in subdivisions (b) to (h), inclusive, of this
section.
(b) Consistent with Section 1766, funds shall be allocated in the
amount of fifteen thousand dollars ($15,000) on an average daily
population basis per ward discharged to the jurisdiction of the court
and ordered by the court to be supervised by local county probation
for monitoring and services during the previous fiscal year based on
the actual number of discharged wards supervised at the local level.
For each discharged ward, this funding shall be provided for 24
months.
(c) Consistent with Sections 208.5 and 1767.35, funds shall be
allocated in the amount of one hundred fifteen thousand dollars
($115,000) on an average daily population basis per discharged ward
transferred to a local juvenile facility for violating a condition of
court-ordered supervision during the previous fiscal year based on
the actual number of discharged wards housed in a local juvenile
detention facility or court-ordered placement facility where the
costs of the housing is are not
reimbursable to the county through Title IV-E of the federal Social
Security Act, or Medi-Cal. For each discharged ward, this funding
shall be provided for the actual number of months the ward is housed
in a facility up to 12 months. This funding shall not be provided for
wards housed in a jail under any circumstances.
(d) Consistent with Section 731.1, funds shall be allocated in the
amount of fifteen thousand dollars ($15,000) on an average daily
population basis per parolee recalled by the county of commitment for
monitoring and services during the previous fiscal year based on the
actual number of parolees recalled. For each recalled parolee, this
funding shall be provided for the remaining duration of the term of
state supervision, not to exceed 24 months.
(e) Consistent with Section 1766, funds shall be allocated in the
amount of fifteen thousand dollars ($15,000) on an average daily
population basis per discharged ward transferred to the county of
commitment for monitoring and services during the previous fiscal
year based on the actual number of wards transferred. For each ward
transferred on and after July 1, 2014, this funding shall be provided
for the remaining duration of the term of juvenile court
jurisdiction, not to exceed 24 months.
(f) Consistent with Sections 208.5 and 1767.35, no additional
funding, beyond the initial fifteen thousand dollars ($15,000)
provided pursuant to subdivision (b) shall be allocated to counties
for discharged wards who are housed in county jail or in any other
county correctional facility for violating a condition of
court-ordered supervision during the previous fiscal year.
(g) Consistent with Sections 208.5 and 1767.35, no
additional funding, beyond the initial fifteen thousand
dollars ($15,000) provided pursuant to subdivision (b) ,
shall not be allocated to counties for discharged wards
who are housed in a state juvenile facility for violating a condition
of court-ordered supervision during the previous fiscal year.
(h) In each fiscal year, consistent with subdivision (b) of
Section 30029.11 of the Government Code, the Department of Finance
shall use the criteria outlined in subdivisions (b) to (g),
inclusive, to determine each county's allocation as a percentage of
the funds deposited in the Juvenile Reentry Grant Special Account.
Actual allocations provided to counties pursuant to subdivisions (b)
to (g), inclusive, shall vary based on the amount of funds deposited
in the Juvenile Reentry Grant Special Account pursuant to subdivision
(b) of Section 30028.1 of the Government Code.
SEC. 565. Section 4142 of the Welfare and Institutions Code is
amended to read:
4142. (a) Notwithstanding any other law, whenever a patient is
committed to the State Department of State Hospitals, a director of a
state hospital or a clinician, as defined in subdivision (f), shall
obtain the state summary criminal history information for the
patient. The information shall be used to assess the violence risk of
a patient, to assess the appropriate placement of a patient,
for treatment purposes of to treat a
patient, for use in preparing to prepare
periodic reports as required by statute, or to determine the
patient's progress or fitness for release. The state summary criminal
history information shall be placed in the patient's confidential
file for the duration of his or her commitment.
(b) The information may be obtained through use of the California
Law Enforcement Telecommunications System (CLETS). Law enforcement
personnel shall cooperate with requests for state summary criminal
history information authorized pursuant to this section and shall
provide the information to the requesting entity in a timely manner.
(c) A law enforcement officer or person authorized by this section
to receive the information who obtains the information in the record
and knowingly provides the information to a person not authorized by
law to receive the information is guilty of a misdemeanor as
specified in Section 11142 of the Penal Code.
(d) Information obtained pursuant to this section shall not be
used for any purposes other than those described in subdivision (a).
(e) For purposes of this section, the State Department of State
Hospitals law enforcement personnel, pursuant to Section 830.38 of
the Penal Code, may act as the law enforcement personnel described in
subdivision (b).
(f) For purposes of this section, "clinician" means a state
licensed mental health professional working within the State
Department of State Hospitals who has received, and is current in,
CLETS training that is appropriate for a person who has ongoing
access to information from the CLETS and is not a CLETS operator,
following the policies on training, compliance, and inspection
required by the Department of Justice.
(g) State summary criminal history information secured pursuant to
this section shall remain confidential and access shall be limited
to the director of the state hospital or and
the clinician. Within 30 days of discharge from the state
hospital, the state summary criminal history information shall be
removed from the patient's file and destroyed.
SEC. 566. Section 4144 of the Welfare and Institutions Code is
amended to read:
4144. (a) A state hospital psychiatrist or psychologist may refer
a patient to a pilot enhanced treatment program (ETP), as defined in
Section 1265.9 of the Health and Safety Code, for temporary
placement and risk assessment upon determining that the patient may
be at high risk of most dangerous behavior and when safe treatment is
not possible in a standard treatment environment. The referral may
occur after admission to the State Department of State Hospitals, and
after sufficient and documented evaluation of violence risk of the
patient, with notice to the patients' rights advocate
at the time of the referral. A patient
shall not be placed into an ETP as a means of punishment, coercion,
convenience, or retaliation.
(b) Within three business days of placement in an ETP, a dedicated
forensic evaluator, who is not on the patient's treatment team,
shall complete an initial evaluation of the patient that shall
include an interview of the patient's treatment team, an analysis of
diagnosis, past violence, current level of risk, and the need for
enhanced treatment.
(c) (1) Within seven business days of placement in an ETP and with
72-hour notice to the patient and patients' rights advocate, the
forensic needs assessment panel (FNAP) shall conduct a placement
evaluation meeting with the referring psychiatrist or psychologist,
the patient and patients' rights advocate, and the dedicated forensic
evaluator who performed the initial evaluation. A determination
shall be made as to whether the patient clinically requires ETP
treatment.
(2) (A) The threshold standard for treatment in an ETP is met if a
psychiatrist or psychologist, utilizing standard forensic
methodologies for clinically assessing violence risk, determines that
a patient meets the definition of a patient at high risk of most
dangerous behavior and ETP treatment meets the identified needs of
the patient and safe treatment is not possible in a standard
treatment environment.
(B) Factors used to determine a patient's high risk of most
dangerous behavior may include, but are not limited to, an analysis
of past violence, delineation of static and dynamic violence risk
factors, and utilization of valid and reliable violence risk
assessment testing.
(3) If a patient has shown improvement during his or her placement
in an ETP, the FNAP may delay its certification decision for another
seven business days. The FNAP's determination of whether the patient
will benefit from continued or longer term ETP placement and
treatment shall be based on the threshold standard for treatment in
an ETP specified in subparagraph (A) of paragraph (2).
(d) (1) The FNAP shall review all material presented at the FNAP
placement evaluation meeting conducted under subdivision (c), and the
FNAP shall either certify the patient for 90 days of treatment in an
ETP or direct that the patient be returned to a standard treatment
environment in the hospital.
(2) After the FNAP makes a decision to provide ETP treatment and
if ETP treatment will be provided at a facility other than the
current hospital, the transfer may take place as soon as
transportation may reasonably be arranged, but no later than 30 days
after the decision is made.
(3) The FNAP determination shall be in writing and provided to the
patient and patients' rights advocate as soon as possible, but no
later than three business days after the decision is made.
(e) (1) Upon admission to an ETP, a forensic needs assessment team
(FNAT) psychologist who is not on the patient's multidisciplinary
treatment team shall perform an in-depth violence risk assessment and
make an individual treatment plan for the patient based on the
assessment. The individual treatment plan shall:
(A) Be in writing and developed in collaboration with the patient,
when possible. The initial treatment plan shall be developed as soon
as possible, but no later than 72 hours following the patient's
admission. The comprehensive treatment plan shall be developed
following a complete violence risk assessment.
(B) Be based on a comprehensive assessment of the patient's
physical, mental, emotional, and social needs, and focused on
mitigation of violence risk factors.
(C) Be reviewed and updated no less than every 10 days.
(2) The individual treatment plan shall include, but is not
limited to, all of the following:
(A) A statement of the patient's physical and mental condition,
including all mental health and medical diagnoses.
(B) Prescribed medication, dosage, and frequency of
administration.
(C) Specific goals of treatment with intervention and actions that
identify steps toward reduction of violence risk and observable,
measurable objectives.
(D) Identification of methods to be utilized, the frequency for
conducting each treatment method, and the person, or persons, or
discipline, or disciplines, responsible for each treatment method.
(E) Documentation of the success or failure in achieving stated
objectives.
(F) Evaluation of the factors contributing to the patient's
progress or lack of progress toward reduction of violence risk and a
statement of the multidisciplinary treatment decision for followup
action.
(G) An activity plan.
(H) A plan for other services needed by the patient, such as care
for medical and physical ailments, which are not provided by the
multidisciplinary treatment team.
(I) Discharge criteria and goals for an aftercare plan in a
standard treatment environment and a plan for post-ETP discharge
follow up.
(3) An ETP patient shall receive treatment from a
multidisciplinary team consisting of a psychologist, a psychiatrist,
a nurse, a psychiatric technician, a clinical social worker, a
rehabilitation therapist, and any other necessary staff who shall
meet as often as necessary, but no less than once a week, to assess
the patient's response to treatment.
(4) The staff shall observe and note any changes in the patient's
condition and the treatment plan shall be modified in response to the
observed changes.
(5) Social work services shall be organized, directed, and
supervised by a licensed clinical social worker.
(6) (A) Mental health treatment programs shall provide and conduct
organized therapeutic social, recreational, and vocational
activities in accordance with the interests, abilities, and needs of
the patients, including the opportunity for exercise.
(B) Mental health rehabilitation therapy services shall be
designed by and provided under the direction of a licensed mental
health professional, a recreational therapist, or an occupational
therapist.
(7) An aftercare plan for a standard treatment environment shall
be developed.
(A) A written aftercare plan shall describe those services that
should be provided to a patient following discharge, transfer, or
release from an ETP for the purpose of enabling the patient to
maintain stabilization or achieve an optimum level of functioning.
(B) Prior to or at the time of discharge, transfer, or release
from an ETP, each patient shall be evaluated concerning the patient's
need for aftercare services. This evaluation shall consider the
patient's potential housing, probable need for continued treatment
and social services, and need for continued medical and mental health
care.
(C) Aftercare plans shall include, but shall not be limited to,
arrangements for medication administration and follow-up care.
(D) A member of the multidisciplinary treatment team designated by
the clinical director shall be responsible for ensuring that the
aftercare plan has been completed and documented in the
patient's patient's health record.
(E) The patient shall receive a copy of the aftercare plan when
referred to a standard treatment environment.
(f) Prior to the expiration of 90 days from the date of placement
in an ETP and with 72-hour notice provided to the patient and the
patients' rights advocate, the FNAP shall convene a treatment
placement meeting with a psychologist from the treatment team, a
patients' rights advocate, the patient, and the FNAT psychologist who
performed the in-depth violence risk assessment. The FNAP shall
determine whether the patient may return to a standard treatment
environment or whether the patient clinically requires continued
treatment in an ETP. If the FNAP determines that the patient
clinically requires continued ETP placement, the patient shall be
certified for further ETP placement for one year. The FNAP
determination shall be in writing and provided to the patient and the
patients' rights advocate within 24 hours of the meeting. If the
FNAP determines that the patient is ready to be transferred to a
standard treatment environment, the FNAP shall identify appropriate
placement within a standard treatment environment in a state
hospital, and transfer the patient within 30 days of the
determination.
(g) If a patient has been certified for ETP treatment for one year
pursuant to subdivision (f), the FNAP shall review the patient's
treatment summary at least every 90 days to determine if the patient
no longer clinically requires treatment in the ETP. This FNAP
determination shall be in writing and provided to the patient and the
patients' rights advocate within three business days of the meeting.
If the FNAP determines that the patient no longer clinically
requires treatment in the ETP, the FNAP shall identify appropriate
placement, and transfer the patient within 30 days of the
determination.
(h) Prior to the expiration of the one-year certification of ETP
placement under subdivision (f), and with 72-hour notice provided to
the patient and the patients' rights advocate, the FNAP shall convene
a treatment placement meeting with the treatment team, the patients'
rights advocate, the patient, and the FNAT psychologist who
performed the in-depth violence risk assessment. The FNAP shall
determine whether the patient clinically requires continued ETP
treatment. The FNAP determination shall be in writing and provided to
the patient and the patients' rights advocate within 24 hours of the
meeting.
(i) If after the treatment placement meeting described in
subdivision (h), and after discussion with the patient, the patients'
rights advocate, patient's ETP team members, and review of documents
and records, the FNAP determines that the patient clinically
requires continued ETP placement, the patient's case shall be
referred outside of the State Department of State Hospitals to a
forensic psychiatrist or psychologist for an independent medical
review for the purpose of assessing the patient's overall treatment
plan and the need for ongoing ETP treatment. Notice of the referral
shall be provided to the patient and the patients' rights advocate
within 24 hours of the FNAP meeting as part of the FNAP
determination. The notice shall include instructions for the patient
to submit information to the forensic psychiatrist or psychologist
conducting the independent medical review.
(1) The forensic psychiatrist or psychologist conducting the
independent medical review shall be provided with the patient's
medical and psychiatric documents and records, along with any
additional information submitted by the patient, within five business
days from the date of the FNAP's determination that the patient
requires continued ETP placement.
(2) After reviewing the patient's medical and psychiatric
documents and records, along with any additional information
submitted by the patient, but no later than 14 days after the receipt
of the patient's medical and psychiatric documents and records, the
forensic psychiatrist or psychologist conducting the independent
medical review shall provide the State Department of State Hospitals,
the patient, and the patients' rights advocate with a written notice
of the date and time for a hearing. At least one FNAP member is
required to attend the hearing. The notice shall be provided at least
72 hours in advance of the hearing, shall include a statement that
at least one FNAP member is required to attend the hearing, and
advise the patient of his or her right to a hearing or to waive his
or her right to a hearing. The notice shall also include a statement
that the patient may have assistance of a patients' rights advocate
or staff member at the hearing. Seventy-two-hour notice shall also be
provided to any individuals whose presence is requested by the
forensic psychiatrist or psychologist conducting the independent
medical review in order to help assess the patient's overall
treatment plan and the need for ongoing ETP treatment.
(3) If the patient waives his or her right to a hearing, the
forensic psychiatrist or psychologist conducting the independent
medical review shall make recommendations to the FNAP on whether or
not the patient should be certified for ongoing ETP treatment.
(4) If the patient does not waive the right to a hearing, both of
the following shall be provided:
(A) If the patient elects to have the assistance of a patients'
rights advocate or a staff person, including the patients'
rights advocate, the requested person shall provide
assistance relating to the hearing, whether or not the patient is
present at the hearing, unless the forensic psychiatrist or
psychologist conducting the hearing finds good cause why the
requested person should not participate. Good cause includes a
reasonable concern for the safety of a staff member requested to be
present at the hearing.
(B) An opportunity for the patient to present information,
statements, or arguments, either orally or in writing, to show either
that the information relied on for the FNAP's determination for
ongoing treatment is erroneous, or any other relevant information.
(5) The conclusion reached by the forensic psychiatrist or
psychologist who conducts the independent medical review shall be in
writing and provided to the State Department of State Hospitals, the
patient, and the patients' rights advocate within three business days
of the conclusion of the hearing.
(6) If the forensic psychiatrist or psychologist who conducts the
independent medical review concludes that the patient requires
ongoing ETP treatment, the patient shall be certified for further
treatment for an additional year.
(7) If the forensic psychiatrist or psychologist who conducts the
independent medical review determines that the patient no longer
requires ongoing ETP treatment, the FNAP shall identify appropriate
placement and transfer the patient within 30 days of determination.
(j) At any point during the ETP placement, if a patient's
treatment team determines that the patient no longer clinically
requires ETP treatment, a recommendation to transfer the patient out
of the ETP shall be made to the FNAT or FNAP.
(k) The process described in this section may continue until the
patient no longer clinically requires ETP treatment or until the
patient is discharged from the State Department of State Hospitals.
( l ) As used in this section, the following terms have
the following meanings:
(1) "Enhanced treatment program" or "ETP" means a supplemental
treatment unit as defined in Section 1265.9 of the Health and Safety
Code.
(2) "Forensic needs assessment panel" or "FNAP" means a panel that
consists of a psychiatrist, a psychologist, and the medical director
of the hospital or facility, none of whom are involved in the
patient's treatment or diagnosis at the time of the hearing or
placement meetings.
(3) "Forensic needs assessment team" or "FNAT" means a panel of
psychologists with expertise in forensic assessment or violence risk
assessment, each of whom are assigned an ETP case or group of cases.
(4) "In-depth violence risk assessment" means the utilization of
standard forensic methodologies for clinically assessing the risk of
a patient posing a substantial risk of inpatient aggression.
(5) "Patients' rights advocate" means the advocate contracted
under Sections 5370.2 and 5510.
(6) "Patient at high risk of most dangerous behavior" means the
individual has a history of physical violence and currently poses a
demonstrated danger of inflicting substantial physical harm upon
others in an inpatient setting, as determined by an evidence-based,
in-depth violence risk assessment conducted by the State Department
of State Hospitals.
(m) The State Department of State Hospitals may adopt emergency
regulations in accordance with the Administrative Procedures Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code) to implement the treatment
components of this section. The adoption of an emergency regulation
under this paragraph is deemed to address an emergency, for purposes
of Sections 11346.1 and 11349.6 of the Government Code, and the State
Department of State Hospitals is hereby exempted for this purpose
from the requirements of subdivision (b) of Section 11346.1 of the
Government Code.
SEC. 567. Section 4512 of the Welfare and Institutions Code is
amended to read:
4512. As used in this division:
(a) "Developmental disability" means a disability that originates
before an individual attains 18 years of age; continues, or can be
expected to continue, indefinitely; and constitutes a substantial
disability for that individual. As defined by the Director of
Developmental Services, in consultation with the Superintendent of
Public Instruction, this term shall include intellectual disability,
cerebral palsy, epilepsy, and autism. This term shall also include
disabling conditions found to be closely related to intellectual
disability or to require treatment similar to that required for
individuals with an intellectual disability, but shall not include
other handicapping conditions that are solely physical in nature.
(b) "Services and supports for persons with developmental
disabilities" means specialized services and supports or special
adaptations of generic services and supports directed toward the
alleviation of a developmental disability or toward the social,
personal, physical, or economic habilitation or rehabilitation of an
individual with a developmental disability, or toward the achievement
and maintenance of independent, productive, and normal lives. The
determination of which services and supports are necessary for each
consumer shall be made through the individual program plan process.
The determination shall be made on the basis of the needs and
preferences of the consumer or, when appropriate, the consumer's
family, and shall include consideration of a range of service options
proposed by individual program plan participants, the effectiveness
of each option in meeting the goals stated in the individual program
plan, and the cost-effectiveness of each option. Services and
supports listed in the individual program plan may include, but are
not limited to, diagnosis, evaluation, treatment, personal care, day
care, domiciliary care, special living arrangements, physical,
occupational, and speech therapy, training, education, supported and
sheltered employment, mental health services, recreation, counseling
of the individual with a developmental disability and of his or her
family, protective and other social and sociolegal services,
information and referral services, follow-along services, adaptive
equipment and supplies, advocacy assistance, including self-advocacy
training, facilitation and peer advocates, assessment, assistance in
locating a home, child care, behavior training and behavior
modification programs, camping, community integration services,
community support, daily living skills training, emergency and crisis
intervention, facilitating circles of support, habilitation,
homemaker services, infant stimulation programs, paid roommates, paid
neighbors, respite, short-term out-of-home care, social skills
training, specialized medical and dental care, telehealth services
and supports, as defined in Section 2290.5 of the Business and
Professions Code, supported living arrangements, technical and
financial assistance, travel training, training for parents of
children with developmental disabilities, training for parents with
developmental disabilities, vouchers, and transportation services
necessary to ensure delivery of services to persons with
developmental disabilities. Nothing in this subdivision is intended
to expand or authorize a new or different service or support for any
consumer unless that service or support is contained in his or her
individual program plan.
(c) Notwithstanding subdivisions (a) and (b), for any organization
or agency receiving federal financial participation under the
federal Developmental Disabilities Assistance and Bill of Rights Act
of 2000, Chapter 144 (commencing with Section 15001) of Title 42 of
the United States Code, as amended, "developmental disability" and
"services for persons with developmental disabilities" mean the terms
as defined in the federal act to the extent required by federal law.
(d) "Consumer" means a person who has a disability that meets the
definition of developmental disability set forth in subdivision (a).
(e) "Natural supports" means personal associations and
relationships typically developed in the community that enhance the
quality and security of life for people, including, but not limited
to, family relationships, friendships reflecting the diversity of the
neighborhood and the community, associations with fellow students or
employees in regular classrooms and workplaces, and associations
developed through participation in clubs, organizations, and other
civic activities.
(f) "Circle of support" means a committed group of community
members, who may include family members, meeting regularly with an
individual with developmental disabilities in order to share
experiences, promote autonomy and community involvement, and assist
the individual in establishing and maintaining natural supports. A
circle of support generally includes a plurality of members who
neither provide nor receive services or supports for persons with
developmental disabilities and who do not receive payment for
participation in the circle of support.
(g) "Facilitation" means the use of modified or adapted materials,
special instructions, equipment, or personal assistance by an
individual, such as assistance with communications, that will enable
a consumer to understand and participate to the maximum extent
possible in the decisions and choices that affect his or her life.
(h) "Family support services" means services and supports that are
provided to a child with developmental disabilities or his or her
family and that contribute to the ability of the family to reside
together.
(i) "Voucher" means any authorized alternative form of service
delivery in which the consumer or family member is provided with a
payment, coupon, chit, or other form of authorization that enables
the consumer or family member to choose his or her own service
provider.
(j) "Planning team" means the individual with developmental
disabilities, the parents or legally appointed guardian of a minor
consumer or the legally appointed conservator of an adult consumer,
the authorized representative, including those appointed pursuant to
subdivision (d) of Section 4548 and subdivision (e) of Section 4705,
one or more regional center representatives, including the designated
regional center service coordinator pursuant to subdivision (b) of
Section 4640.7, any individual, including a service provider, invited
by the consumer, the parents or legally appointed guardian of a
minor consumer or the legally appointed conservator of an adult
consumer, or the authorized representative, including those appointed
pursuant to subdivision (d) of Section 4548 and subdivision (e) of
Section 4705, and including a minor's, dependent's, or ward's
court-appointed developmental services decisionmaker appointed
pursuant to Section 319, 361, or 726.
(k) "Stakeholder organizations" means statewide organizations
representing the interests of consumers, family members, service
providers, and statewide advocacy organizations.
(l) (1) "Substantial disability" means the
existence of significant functional limitations in three or more of
the following areas of major life activity, as determined by a
regional center, and as appropriate to the age of the person:
(1)
(A) Self-care.
(2)
(B) Receptive and expressive language.
(3)
(C) Learning.
(4)
(D) Mobility.
(5)
(E) Self-direction.
(6)
(F) Capacity for independent living.
(7)
(G) Economic self-sufficiency.
Any
(2) A reassessment of
substantial disability for purposes of continuing eligibility shall
utilize the same criteria under which the individual was originally
made eligible.
(m) "Native language" means the language normally used or the
preferred language identified by the individual and, when
appropriate, his or her parent, legal guardian or conservator, or
authorized representative.
SEC. 568. Section 4520 of the Welfare and Institutions Code is
amended to read:
4520. (a) A State Council on Developmental Disabilities with
authority independent of any single state service agency is hereby
created.
(b) The Legislature finds that in each of the 56 states and
territories, the federal Developmental Disabilities Assistance and
Bill of Rights Act of 2000 (Public Law 106-402 (42 U.S.C. Sec.
15001 et seq.)) establishes State Councils on Developmental
Disabilities that work to promote the core values of the act,
including self-determination, independence, productivity,
integration, and inclusion in all aspects of community life.
(c) The Legislature finds that California's State Council on
Developmental Disabilities was established pursuant to the federal
Developmental Disabilities Assistance and Bill of Rights Act of 2000
to engage in advocacy, capacity building, and systemic change
activities that are consistent with the policy contained in federal
law and contribute to a coordinated, consumer- and family-centered,
consumer- and family-directed, comprehensive system that includes the
provision of needed community services, individualized supports, and
other forms of assistance that promote self-determination for
individuals with developmental disabilities and their families. It is
the intent of the Legislature that the state council independently
exercise its authority and responsibilities under federal law, expend
its federal funding allocation, and exercise all powers and duties
that may be necessary to carry out the purposes contained in
applicable federal law.
(d) The Legislature finds that the federal Developmental
Disabilities Assistance and Bill of Rights Act of 2000 requires the
council to promote certain principles that include all of the
following:
(1) Individuals with developmental disabilities, including those
with the most severe developmental disabilities, are capable of
self-determination, independence, productivity, and integration and
inclusion in all facets of community life, but often require the
provision of community services, individualized supports, and other
forms of assistance.
(2) Individuals with developmental disabilities and their families
have competencies, capabilities, and personal goals that should be
recognized, supported, and encouraged, and any assistance
to these individuals should be
provided in an individualized manner, consistent with the unique
strengths, resources, priorities, concerns, abilities, and
capabilities of these individuals.
(3) Individuals with developmental disabilities and their families
are the primary decisionmakers regarding the services and supports
these individuals and their families receive, including choosing
where an individual lives from available options, and have
decisionmaking roles in policies and programs that affect the lives
of these individuals and their families.
(e) (1) The Legislature finds that the state council faces unique
challenges in ensuring access and furthering these principles due to
the state's size, diversity, and a service delivery system that
promotes significant local control.
(2) Therefore, it is the intent of the Legislature that the state
council, consistent with its authority and responsibilities under
federal law, ensure that the council is accessible and responsive to
the diverse geographic, racial, ethnic, and language needs of
individuals with developmental disabilities and their families
throughout California, which in part may, as determined by the state
council, be achieved through the establishment of regional offices,
the number and location of which may be determined by the state
council.
(f) This chapter, Chapter 3 (commencing with Section 4561), and
Division 4.7 (commencing with Section 4900), are intended by the
Legislature to secure full compliance with the requirements of the
federal Developmental Disabilities Assistance and Bill of Rights Act
of 2000 as amended and extended, which provides federal funds to
assist the state in planning, coordinating, monitoring, and
evaluating services for persons with developmental disabilities and
in establishing a system to protect and advocate the legal and civil
rights of persons with developmental disabilities.
(g) The state council may use funds and other moneys allocated to
the state council in accordance with the purposes of the federal
Developmental Disabilities Assistance and Bill of Rights Act of 2000.
This section does not preclude the state council from using moneys
other than moneys provided through the federal Developmental
Disabilities Assistance and Bill of Rights Act of 2000 in any manner
consistent with applicable federal and state law.
SEC. 569. Section 4520.5 of the Welfare and Institutions Code is
amended to read:
4520.5. Notwithstanding any other law, the state council shall
determine the structure of its organization, as required by the
federal Developmental Disabilities Assistance and Bill of Rights Act
of 2000 (Public Law 106-402 (42 U.S.C. Sec. 15001 et
seq.)).
SEC. 570. Section 4521 of the Welfare and Institutions Code is
amended to read:
4521. (a) (1) All references to "council" or "state council" in
this division shall be a reference to the State Council on
Developmental Disabilities.
(2) "Developmental disability," as used in this chapter, means a
developmental disability as defined in Section 15002(8) of Title 42
of the United State States Code.
(b) There shall be 31 voting members on the state council
appointed by the Governor from among the residents of the state, as
follows:
(1) (A) Twenty members of the council shall be nonagency members
who reflect the socioeconomic, geographic, disability, racial,
ethnic, and language diversity of the state, and who shall be persons
with a developmental disability or their parents, immediate
relatives, guardians, or conservators residing in California. Of the
20 members:
(i) At least seven members shall be persons with developmental
disabilities.
(ii) At least seven members shall be a person who is a parent,
immediate relative, guardian, or conservator of a person with a
developmental disability.
(iii) At least one of the members shall be a person with a
developmental disability who is a current or former resident of an
institution or his or her immediate relative, guardian, or
conservator.
(B) To ensure that state council membership is geographically
representative, as required by federal law, the Governor shall
appoint the members described in clauses (i) and (ii) of subparagraph
(A) from the geographical area of each regional office, if regional
offices have been established by the council. Each member described
in clauses (i) and (ii) of subparagraph (A) may, in the discretion of
the state council, serve as a liaison from the state council to
consumers and family members in the geographical area that he or she
is from.
(2) Eleven members of the council shall include the following:
(A) The Secretary of California Health and Human Services, or his
or her designee, who shall represent the agency and the state agency
that administers funds under Title XIX of the Social Security Act for
people with developmental disabilities.
(B) The Director of Developmental Services or his or her designee.
(C) The Director of Rehabilitation or his or her designee.
(D) The Superintendent of Public Instruction or his or her
designee.
(E) A representative from a nongovernmental agency or group
concerned with the provision of services to persons with
developmental disabilities.
(F) One representative from each of the three university centers
for excellence in the state, pursuant to Section 15061 et seq. of
Title 42 of the United States Code, providing training in the field
of developmental services, or his or her designee. These individuals
shall have expertise in the field of developmental disabilities.
(G) The Director of Health Care Services or his or her designee.
(H) The executive director of the agency established in California
to fulfill the requirements and assurance of Title I, Subtitle C, of
the federal Developmental Disabilities Assistance and Bill of Rights
Act of 2000 for a system to protect and advocate the rights of
persons with developmental disabilities, or his or her designee.
(I) The Director of the California Department of Aging or his or
her designee.
(c) Prior to appointing the members described in paragraph (1) of,
and subparagraph (E) of paragraph (2) of, subdivision (b), the
Governor shall consult with the current members of the council,
including nonagency members of the council, and consider
recommendations from organizations representing persons with a broad
range of developmental disabilities, or persons interested in, or
providing services to, or both, persons with developmental
disabilities.
(d) The term of each member described in paragraph (1) of, and
subparagraph (E) of paragraph (2) of, subdivision (b) shall be for
three years. The term of these members shall begin on the date of
appointment by the Governor and these members shall serve no more
than two terms.
(e) A member may continue to serve following the expiration of his
or her term until the Governor appoints that member's successor. The
state council shall notify the Governor regarding membership
requirements of the council and shall notify the Governor, in
writing, immediately when a vacancy occurs prior to the expiration of
a member's term, at least six months before a member's term expires,
and when a vacancy on the council remains unfilled for more than 60
days.
SEC. 571. Section 4540 of the Welfare and Institutions Code is
amended to read:
4540. The state council, established pursuant to the federal
Developmental Disabilities Assistance and Bill of Rights Act of 2000
(Public Law 106-402 (42 U.S.C. Sec. 15001 et seq.)), shall
do all of the following:
(a) Serve as an advocate for individuals with developmental
disabilities and, through council members, staff, consultants, and
contractors and grantees, conduct advocacy, capacity building, and
systemic change activities.
(b) Develop and implement the state plan in accordance with
requirements issued by the United States Secretary of Health and
Human Services, monitor and evaluate the implementation of this plan,
and submit reports as the United States Secretary of Health and
Human Services may reasonably request. The state council may review
and comment on other plans and programs in the state affecting
individuals with developmental disabilities.
(c) Serve as the official agency responsible for planning the
provision of the federal funds allotted to the state under Public Law
106-402 (42 U.S.C. Sec. 15001 et seq.), by conducting and supporting
advocacy, capacity building, and systemic change activities. The
council may itself conduct these activities and may provide grant
funding to local agencies in compliance with applicable state and
federal law, for those same purposes.
(d) Prepare and approve a budget, for the use of amounts paid to
the state to hire any staff and to obtain the services of any
professional, technical, or clerical personnel consistent with state
and federal law, as the council determines to be necessary to carry
out its functions.
(e) To the extent that resources are available, implement the
state plan by conducting activities including, but not limited to,
all of the activities specified in paragraphs (1) to (11), inclusive.
(1) Encouraging and assisting in the establishment or
strengthening of self-advocacy organizations led by individuals with
developmental disabilities.
(2) Supporting and conducting geographically based outreach
activities to identify individuals with developmental disabilities
and their families who otherwise might not come to the attention of
the council and assist and enable the individuals and families to
obtain services, individualized supports, and other forms of
assistance, including access to special adaptation of generic
community services or specialized services.
(3) Supporting and conducting training for persons who are
individuals with developmental disabilities, their families, and
personnel, including professionals, paraprofessionals, students,
volunteers, and other community members, to enable those persons to
obtain access to, or to provide, community services, individualized
supports, and other forms of assistance, including special adaptation
of generic community services or specialized services for
individuals with developmental disabilities and their families.
(4) Supporting and conducting technical assistance activities to
assist public and private entities to contribute to the objectives of
the state plan.
(5) Supporting and conducting activities to assist neighborhoods
and communities to respond positively to individuals with
developmental disabilities and their families.
(6) Supporting and conducting activities to promote interagency
collaboration and coordination at the state and local levels to
better serve, support, assist, or advocate for individuals with
developmental disabilities and their families.
(7) Coordinating with related councils, committees, and programs
to enhance coordination of services.
(8) Supporting and conducting activities to eliminate barriers to
access and use of community services by individuals with
disabilities, enhance systems design and redesign, and enhance
citizen participation to address issues identified in the state plan.
(9) Supporting and conducting activities to educate the public
about the capabilities, preferences, and needs of individuals with
developmental disabilities and their families, and to develop and
support coalitions that support the policy agenda of the council,
including training in self-advocacy, education of policymakers, and
citizen leadership roles.
(10) Supporting and conducting activities to provide information
to policymakers by supporting and conducting studies and analyses,
gathering information, and developing and disseminating model
policies and procedures, information, approaches, strategies,
findings, conclusions, and recommendations. The council may provide
the information directly to federal, state, and local policymakers,
including the Congress of the United States, the federal executive
branch, the Governor, the Legislature, and state agencies in order to
increase the abilities of those policymakers to offer opportunities
and enhance or adapt generic services to meet the needs of, or
provide specialized services to, individuals with developmental
disabilities and their families.
(11) Supporting, on a time-limited basis, activities to
demonstrate new approaches to serving individuals with developmental
disabilities that are a part of an overall strategy for systemic
change.
(f) Prepare an annual written report of its activities, its
recommendations, and an evaluation of the efficiency of the
administration of this division to the Governor and the Legislature.
This report shall include both the statewide and regional activities
of the state council. This report shall be submitted to the
Legislature in accordance with Section 9795 of the Government Code.
(g) Except as otherwise provided in this division, the state
council shall not engage in the administration of the day-to-day
operation of service programs identified in the state plan, nor in
the financial management and accounting of funds.
SEC. 572. Section 4541 of the Welfare and Institutions Code is
amended to read:
4541. The state council may, in its discretion, and in addition
to the activities specified in subdivision (e) of Section 4540,
implement the state plan by conducting activities that may include,
but are not limited to, the following:
(a) Appointing an authorized representative for persons with
developmental disabilities according to all of the following:
(1) To ensure the protection of civil and service rights of
persons with developmental disabilities, the state council may
appoint a representative to assist the person in expressing his or
her desires and in making decisions and advocating his or her needs,
preferences, and choices, when the person with developmental
disabilities has no parent, guardian, or conservator legally
authorized to represent him or her and the person has either
requested the appointment of a representative or the rights or
interests of the person, as determined by the state council, will not
be properly protected or advocated without the appointment of a
representative.
(2) When there is no guardian or conservator, the individual's
choice, if expressed, including the right to reject the assistance of
a representative, shall be honored. If the person does not express a
preference, the order of preference for selection of the
representative shall be the person's parent, involved family members,
or a volunteer selected by the state council. In establishing these
preferences, it is the intent of the Legislature that parents or
involved family members shall not be required to be appointed
guardian or conservator in order to be selected. Unless the person
with developmental disabilities expresses otherwise, or good cause
otherwise exists, the request of the parents or involved family
members to be appointed the representative shall be honored.
(3) Pursuant to this section, the state council shall appoint a
representative to advocate the rights and protect the interest of a
person residing in a developmental center for whom community
placement is proposed pursuant to Section 4803. The representative
may obtain the advocacy assistance of the regional center clients'
rights advocate.
(b) Conducting public hearings and forums and the evaluation and
issuance of public reports on the programs identified in the state
plan, as may be necessary to carry out the duties of the state
council.
(c) Identifying the denial of rights of persons with disabilities
and informing the appropriate local, state, or federal officials of
their findings, and assisting these officials in eliminating all
forms of discrimination against persons with developmental
disabilities in housing, recreation, education, health and mental
health care, employment, and other service programs available to the
general population.
(d) Reviewing and commenting on pertinent portions of the proposed
plans and budgets of all state agencies serving persons with
developmental disabilities including, but not be
limited to, the State Department of Education, the Department of
Rehabilitation, and the State Department of Developmental Services,
and local agencies to the extent resources allow.
(e) (1) Promoting systems change and implementation by reviewing
the policies and practices of publicly funded agencies that serve or
may serve persons with developmental disabilities to determine if the
programs are meeting their obligations, under local, state, and
federal laws. If the state council finds that the agency is not
meeting its obligations, the state council may inform the director
and the governing board of the noncomplying agency, in writing, of
its findings.
(2) Within 15 days, the agency shall respond, in writing, to the
state council's findings. Following receipt of the agency's response,
if the state council continues to find that the agency is not
meeting its obligations, the state council may pursue informal
efforts to resolve the issue.
(3) If, within 30 days of implementing informal efforts to resolve
the issue, the state council continues to find that the agency is
not meeting its obligations under local, state, or federal statutes,
the state council may conduct a public hearing to receive testimony
on its findings.
(4) The state council may take any action it deems necessary to
resolve the problem.
(f) Reviewing and publicly commenting on significant regulations
proposed to be promulgated by any state agency in the implementation
of this division.
(g) Monitoring and evaluating the effectiveness of appeals
procedures established in this division.
(h) Providing testimony to legislative committees reviewing fiscal
or policy matters pertaining to persons with developmental
disabilities.
(i) Conducting, or causing to be conducted, investigations or
public hearings to resolve disagreements between state agencies, or
between state and regional or local agencies, or between persons with
developmental disabilities and agencies receiving state funds. These
investigations or public hearings shall be conducted at the
discretion of the state council only after all other appropriate
administrative procedures for appeal, as established in state and
federal law, have been fully utilized.
(j) Any other activities prescribed in statute that are consistent
with the purposes of the federal Developmental Disabilities
Assistance and Bill of Rights Act of 2000 (Public Law 106-402 (42
U.S.C. Sec. 15001 et seq.)) and the state plan developed pursuant to
subdivision (b) of Section 4540.
SEC. 573. Section 4648 of the Welfare and Institutions Code is
amended to read:
4648. In order to To achieve the
stated objectives of a consumer's individual program plan, the
regional center shall conduct activities, including, but not limited
to, all of the following:
(a) Securing needed services and supports.
(1) It is the intent of the Legislature that services and supports
assist individuals with developmental disabilities in achieving the
greatest self-sufficiency possible and in exercising personal
choices. The regional center shall secure services and supports that
meet the needs of the consumer, as determined in the consumer's
individual program plan, and within the context of the individual
program plan, the planning team shall give highest preference to
those services and supports which that
would allow minors with developmental disabilities to live with their
families, adult persons with developmental disabilities to live as
independently as possible in the community, and that allow all
consumers to interact with persons without disabilities in positive,
meaningful ways.
(2) In implementing individual program plans, regional centers,
through the planning team, shall first consider services and supports
in natural community, home, work, and recreational settings.
Services and supports shall be flexible and individually tailored to
the consumer and, where appropriate, his or her family.
(3) A regional center may, pursuant to vendorization or a
contract, purchase services or supports for a consumer from any
individual or agency that the regional center and consumer or, when
appropriate, his or her parents, legal guardian, or conservator, or
authorized representatives, determines will best accomplish all or
any part of that consumer's program plan.
(A) Vendorization or contracting is the process for
identification, selection, and utilization of service vendors or
contractors, based on the qualifications and other requirements
necessary in order to provide the service.
(B) A regional center may reimburse an individual or agency for
services or supports provided to a regional center consumer if the
individual or agency has a rate of payment for vendored or contracted
services established by the department, pursuant to this division,
and is providing services pursuant to an emergency vendorization or
has completed the vendorization procedures or has entered into a
contract with the regional center and continues to comply with the
vendorization or contracting requirements. The director shall adopt
regulations governing the vendorization process to be utilized by the
department, regional centers, vendors, and the individual or agency
requesting vendorization.
(C) Regulations shall include, but not be limited to: the vendor
application process, and the basis for accepting or denying an
application; the qualification and requirements for each category of
services that may be provided to a regional center consumer through a
vendor; requirements for emergency vendorization; procedures for
termination of vendorization; the procedure for an individual or an
agency to appeal any vendorization decision made by the department or
regional center.
(D) A regional center may vendorize a licensed facility for
exclusive services to persons with developmental disabilities at a
capacity equal to or less than the facility's licensed capacity. A
facility already licensed on January 1, 1999, shall continue to be
vendorized at their full licensed capacity until the facility agrees
to vendorization at a reduced capacity.
(E) Effective July 1, 2009, notwithstanding any other law or
regulation, a regional center shall not newly vendor a State
Department of Social Services licensed 24-hour residential care
facility with a licensed capacity of 16 or more beds, unless the
facility qualifies for receipt of federal funds under the Medicaid
Program.
(4) Notwithstanding subparagraph (B) of paragraph (3), a regional
center may contract or issue a voucher for services and supports
provided to a consumer or family at a cost not to exceed the maximum
rate of payment for that service or support established by the
department. If a rate has not been established by the department, the
regional center may, for an interim period, contract for a specified
service or support with, and establish a rate of payment for, any
provider of the service or support necessary to implement a consumer'
s individual program plan. Contracts may be negotiated for a period
of up to three years, with annual review and subject to the
availability of funds.
(5) In order to ensure the maximum flexibility and availability of
appropriate services and supports for persons with developmental
disabilities, the department shall establish and maintain an
equitable system of payment to providers of services and supports
identified as necessary to the implementation of a consumers'
consumer's individual program plan. The system
of payment shall include a provision for a rate to ensure that the
provider can meet the special needs of consumers and provide quality
services and supports in the least restrictive setting as required by
law.
(6) The regional center and the consumer, or when appropriate, his
or her parents, legal guardian, conservator, or authorized
representative, including those appointed pursuant to subdivision (a)
of Section 4541, subdivision (b) of Section 4701.6, or subdivision
(e) of Section 4705, shall, pursuant to the individual program plan,
consider all of the following when selecting a provider of consumer
services and supports:
(A) A provider's ability to deliver quality services or supports
that can accomplish all or part of the consumer's individual program
plan.
(B) A provider's success in achieving the objectives set forth in
the individual program plan.
(C) Where If appropriate, the
existence of licensing, accreditation, or professional certification.
(D) The cost of providing services or supports of comparable
quality by different providers, if available, shall be reviewed, and
the least costly available provider of comparable service, including
the cost of transportation, who is able to accomplish all or part of
the consumer's individual program plan, consistent with the
particular needs of the consumer and family as identified in the
individual program plan, shall be selected. In determining the least
costly provider, the availability of federal financial participation
shall be considered. The consumer shall not be required to use the
least costly provider if it will result in the consumer moving from
an existing provider of services or supports to more restrictive or
less integrated services or supports.
(E) The consumer's choice of providers, or, when appropriate, the
consumer's parent's, legal guardian's, authorized representative's,
or conservator's choice of providers.
(7) No A service or support provided
by any an agency or individual shall
not be continued unless the consumer or, when appropriate,
his or her parents, legal guardian, or conservator, or authorized
representative, including those appointed pursuant to subdivision (a)
of Section 4541, subdivision (b) of Section 4701.6, or subdivision
(e) of Section 4705, is satisfied and the regional center and the
consumer or, when appropriate, the person's parents or legal guardian
or conservator agree that planned services and supports have been
provided, and reasonable progress toward objectives have been made.
(8) Regional center funds shall not be used to supplant the budget
of any agency that has a legal responsibility to serve all members
of the general public and is receiving public funds for providing
those services.
(9) (A) A regional center may, directly or through an agency
acting on behalf of the center, provide placement in, purchase of, or
follow-along services to persons with developmental disabilities in,
appropriate community living arrangements, including, but not
limited to, support service for consumers in homes they own or lease,
foster family
placements, health care facilities, and licensed community care
facilities. In considering appropriate placement alternatives for
children with developmental disabilities, approval by the child's
parent or guardian shall be obtained before placement is made.
(B) Effective July 1, 2012, notwithstanding any other law or
regulation, a regional center shall not purchase residential services
from a State Department of Social Services licensed 24-hour
residential care facility with a licensed capacity of 16 or more
beds. This prohibition on regional center purchase of residential
services shall does not apply to any of
the following:
(i) A residential facility with a licensed capacity of 16 or more
beds that has been approved to participate in the department's Home
and Community Based Services Waiver or another existing waiver
program or certified to participate in the Medi-Cal program.
(ii) A residential facility service provider that has a written
agreement and specific plan prior to July 1, 2012, with the vendoring
regional center to downsize the existing facility by transitioning
its residential services to living arrangements of 15 beds or less or
restructure the large facility to meet federal Medicaid eligibility
requirements on or before June 30, 2013.
(iii) A residential facility licensed as a mental health
rehabilitation center by the State Department of Mental Health or
successor agency under any of the following circumstances:
(I) The facility is eligible for Medicaid reimbursement.
(II) The facility has a department-approved plan in place by June
30, 2013, to transition to a program structure eligible for federal
Medicaid funding, and this transition will be completed by June 30,
2014. The department may grant an extension for the date by which the
transition will be completed if the facility demonstrates that it
has made significant progress toward transition, and states with
specificity the timeframe by which the transition will be completed
and the specified steps that will be taken to accomplish the
transition. A regional center may pay for the costs of care and
treatment of a consumer residing in the facility on June 30, 2012,
until June 30, 2013, inclusive, and, if the facility has a
department-approved plan in place by June 30, 2013, may continue to
pay the costs under this subparagraph until June 30, 2014, or until
the end of any period during which the department has granted an
extension.
(III) There is an emergency circumstance in which the regional
center determines that it cannot locate alternate federally eligible
services to meet the consumer's needs. Under such an emergency
circumstance, an assessment shall be completed by the regional center
as soon as possible and within 30 days of admission. An individual
program plan meeting shall be convened immediately following the
assessment to determine the services and supports needed for
stabilization and to develop a plan to transition the consumer from
the facility into the community. If transition is not expected within
90 days of admission, an individual program plan meeting shall be
held to discuss the status of transition and to determine if the
consumer is still in need of placement in the facility. Commencing
October 1, 2012, this determination shall be made after also
considering resource options identified by the statewide specialized
resource service. If it is determined that emergency services
continue to be necessary, the regional center shall submit an updated
transition plan that can cover a period of up to 90 days. In no
event shall placements under these emergency circumstances exceed 180
days.
(C) (i) Effective July 1, 2012, notwithstanding any other law or
regulation, a regional center shall not purchase new residential
services from, or place a consumer in, institutions for mental
disease, as described in Part 5 (commencing with Section 5900) of
Division 5, for which federal Medicaid funding is not available.
Effective July 1, 2013, this prohibition applies regardless of the
availability of federal funding.
(ii) The prohibition described in clause (i) shall
does not apply to emergencies, as determined by
the regional center, when a regional center cannot locate alternate
services to meet the consumer's needs. As soon as possible within 30
days of admission due to an emergency, an assessment shall be
completed by the regional center. An individual program plan meeting
shall be convened immediately following the assessment, to determine
the services and supports needed for stabilization and to develop a
plan to transition the consumer from the facility to the community.
If transition is not expected within 90 days of admission, an
emergency program plan meeting shall be held to discuss the status of
the transition and to determine if the consumer is still in need of
placement in the facility. If emergency services continue to be
necessary, the regional center shall submit an updated transition
plan to the department for an extension of up to 90 days. Placement
shall not exceed 180 days.
(iii) To the extent feasible, prior to any admission, the regional
center shall consider resource options identified by the statewide
specialized resource service established pursuant to subdivision (b)
of Section 4418.25.
(iv) The clients' rights advocate shall be notified of each
admission and individual program planning meeting pursuant to this
subparagraph and may participate in all individual program planning
meetings unless the consumer objects on his or her own behalf. For
purposes of this clause, notification to the clients' rights advocate
shall include a copy of the most recent comprehensive assessment or
updated assessment and the time, date, and location of the meeting,
and shall be provided as soon as practicable, but not less than seven
calendar days prior to the meeting.
(v) Regional centers shall complete a comprehensive assessment of
any consumer residing in an institution for mental disease as of July
1, 2012, for which federal Medicaid funding is not available, and
for any consumer residing in an institution for mental disease as of
July 1, 2013, without regard to federal funding. The comprehensive
assessment shall be completed prior to the consumer's next scheduled
individual program plan meeting and shall include identification of
the services and supports needed and the timeline for identifying or
developing those services needed to transition the consumer back to
the community. Effective October 1, 2012, the regional center shall
also consider resource options identified by the statewide
specialized resource service. For each individual program plan
meeting convened pursuant to this subparagraph, the clients' rights
advocate for the regional center shall be notified of the meeting and
may participate in the meeting unless the consumer objects on his or
her own behalf. For purposes of this clause, notification to the
clients' rights advocate shall include the time, date, and location
of the meeting, and shall be provided as soon as practicable, but not
less than seven calendar days prior to the meeting.
(D) A person with developmental disabilities placed by the
regional center in a community living arrangement shall have
has the rights specified in this division.
These rights shall be brought to the person's attention by any means
necessary to reasonably communicate these rights to each resident,
provided that, at a minimum, the Director of Developmental Services
prepare, provide, and require to be clearly posted in all residential
facilities and day programs a poster using simplified language and
pictures that is designed to be more understandable by persons with
intellectual disabilities and that the rights information shall also
be available through the regional center to each residential facility
and day program in alternative formats, including, but not limited
to, other languages, braille, and audiotapes, when necessary to meet
the communication needs of consumers.
(E) Consumers are eligible to receive supplemental services
including, but not limited to, additional staffing, pursuant to the
process described in subdivision (d) of Section 4646. Necessary
additional staffing that is not specifically included in the rates
paid to the service provider may be purchased by the regional center
if the additional staff are in excess of the amount required by
regulation and the individual's planning team determines the
additional services are consistent with the provisions of the
individual program plan. Additional staff should be periodically
reviewed by the planning team for consistency with the individual
program plan objectives in order to determine if continued use of the
additional staff is necessary and appropriate and if the service is
producing outcomes consistent with the individual program plan.
Regional centers shall monitor programs to ensure that the additional
staff is being provided and utilized appropriately.
(10) Emergency and crisis intervention services including, but not
limited to, mental health services and behavior modification
services, may be provided, as needed, to maintain persons with
developmental disabilities in the living arrangement of their own
choice. Crisis services shall first be provided without disrupting a
person's living arrangement. If crisis intervention services are
unsuccessful, emergency housing shall be available in the person's
home community. If dislocation cannot be avoided, every effort shall
be made to return the person to his or her living arrangement of
choice, with all necessary supports, as soon as possible.
(11) Among other service and support options, planning teams shall
consider the use of paid roommates or neighbors, personal
assistance, technical and financial assistance, and all other service
and support options which would result in greater self-sufficiency
for the consumer and cost-effectiveness to the state.
(12) When facilitation as specified in an individual program plan
requires the services of an individual, the facilitator shall be of
the consumer's choosing.
(13) The community support may be provided to assist individuals
with developmental disabilities to fully participate in community and
civic life, including, but not limited to, programs, services, work
opportunities, business, and activities available to persons without
disabilities. This facilitation shall include, but not be limited to,
any of the following:
(A) Outreach and education to programs and services within the
community.
(B) Direct support to individuals that would enable them to more
fully participate in their community.
(C) Developing unpaid natural supports when possible.
(14) When feasible and recommended by the individual program
planning team, for purposes of facilitating better and cost-effective
services for consumers or family members, technology, including
telecommunication technology, may be used in conjunction with other
services and supports. Technology in lieu of a consumer's in-person
appearances at judicial proceedings or administrative due process
hearings may be used only if the consumer or, when appropriate, the
consumer's parent, legal guardian, conservator, or authorized
representative, gives informed consent. Technology may be used in
lieu of, or in conjunction with, in-person training for providers, as
appropriate.
(15) Other services and supports may be provided as set forth in
Sections 4685, 4686, 4687, 4688, and 4689, when necessary.
(16) Notwithstanding any other law or regulation, effective July
1, 2009, regional centers shall not purchase experimental treatments,
therapeutic services, or devices that have not been clinically
determined or scientifically proven to be effective or safe or for
which risks and complications are unknown. Experimental treatments or
therapeutic services include experimental medical or nutritional
therapy when the use of the product for that purpose is not a general
physician practice. For regional center consumers receiving these
services as part of their individual program plan (IPP) or
individualized family service plan (IFSP) on July 1, 2009, this
prohibition shall apply on August 1, 2009.
(b) (1) Advocacy for, and protection of, the civil, legal, and
service rights of persons with developmental disabilities as
established in this division.
(2) Whenever the advocacy efforts of a regional center to secure
or protect the civil, legal, or service rights of any of its
consumers prove ineffective, the regional center or the person with
developmental disabilities or his or her parents, legal guardian, or
other representative may request advocacy assistance from the state
council.
(c) The regional center may assist consumers and families
directly, or through a provider, in identifying and building circles
of support within the community.
(d) In order to increase the quality of community services and
protect consumers, the regional center shall, when appropriate, take
either of the following actions:
(1) Identify services and supports that are ineffective or of poor
quality and provide or secure consultation, training, or technical
assistance services for any agency or individual provider to assist
that agency or individual provider in upgrading the quality of
services or supports.
(2) Identify providers of services or supports that may not be in
compliance with local, state, and federal statutes and regulations
and notify the appropriate licensing or regulatory authority to
investigate the possible noncompliance.
(e) When necessary to expand the availability of needed services
of good quality, a regional center may take actions that include, but
are not limited to, the following:
(1) Soliciting an individual or agency by requests for proposals
or other means, to provide needed services or supports not presently
available.
(2) Requesting funds from the Program Development Fund, pursuant
to Section 4677, or community placement plan funds designated from
that fund, to reimburse the startup costs needed to initiate a new
program of services and supports.
(3) Using creative and innovative service delivery models,
including, but not limited to, natural supports.
(f) Except in emergency situations, a regional center shall not
provide direct treatment and therapeutic services, but shall utilize
appropriate public and private community agencies and service
providers to obtain those services for its consumers.
(g) When there are identified gaps in the system of services and
supports or when there are identified consumers for whom no provider
will provide services and supports contained in his or her individual
program plan, the department may provide the services and supports
directly.
(h) At least annually, regional centers shall provide the
consumer, his or her parents, legal guardian, conservator, or
authorized representative a statement of services and supports the
regional center purchased for the purpose of ensuring that they are
delivered. The statement shall include the type, unit, month, and
cost of services and supports purchased.
SEC. 574. Section 5840.2 of the Welfare and Institutions Code is
amended to read:
5840.2. (a) The department
shall contract for the provision of services pursuant to this part
with each county mental health program in the manner set forth in
Section 5897.
SEC. 575. The heading of Article 8 (commencing with Section 5869)
of Chapter 1 of Part 4 of Division 5 of the Welfare and Institutions
Code is amended to read:
Article 8. State Department of Mental
Health Care Services Requirements
SEC. 576. Section 5892.5 of the Welfare and Institutions Code is
amended to read:
5892.5. (a) (1) The California Housing Finance Agency, with the
concurrence of the State Department of Health Care Services, shall
release unencumbered Mental Health Services Fund moneys dedicated to
the Mental Health Services Act Housing Program
housing program upon the written request of the respective
county. The county shall use these Mental Health Services Fund
moneys released by the agency to provide housing assistance to the
target populations who are identified in Section 5600.3.
(2) For purposes of this section, "housing assistance" means each
of the following:
(A) Rental assistance or capitalized operating subsidies.
(B) Security deposits, utility deposits, or other move-in cost
assistance.
(C) Utility payments.
(D) Moving cost assistance.
(E) Capital funding to build or rehabilitate housing for homeless,
mentally ill persons or mentally ill persons who are at risk of
being homeless.
(b) For purposes of administering those funds released to a
respective county pursuant to subdivision (a), the county shall
comply with all of the requirements described in the Mental Health
Services Act, including, but not limited to, Sections 5664, 5847,
subdivision (h) of Section 5892, and 5899.
SEC. 577. The heading of Article 1 (commencing with Section 6331)
is added to Chapter 2 of Part 2 of Division 6 of the Welfare and
Institutions Code, to read:
Article 1. Mentally Disordered Sex Offenders (Repealed)
SEC. 578. Section 9757.5 of the Welfare and Institutions Code is
amended and renumbered to read:
9757.5. 9541.5. (a) The California
Department of Aging shall assess annually a fee of not less than one
dollar and forty cents ($1.40), but not more than one dollar and
sixty-five cents ($1.65), on a health care service plan for each
person enrolled in a health care service plan as of December 31 of
the previous year under a prepaid Medicare program that serves
Medicare eligible beneficiaries within the state, and on a health
care service plan for each enrollee under a Medicare supplement
contract, including a Medicare Select contract, as of December 31 of
the previous year, to offset the cost of counseling Medicare eligible
beneficiaries on the benefits and programs available through health
maintenance organizations instead of the traditional Medicare
provider system.
(b) All fees collected pursuant to this section shall be deposited
into the State HICAP Fund for the implementation of the Health
Insurance Counseling and Advocacy Program, and shall be available for
expenditure for activities as specified in Section 9541 when
appropriated by the Legislature.
(c) The department may use up to 7 percent of the fee collected
pursuant to subdivision (a) for the administration, assessment, and
collection of that fee.
(d) It is the intent of the Legislature, in enacting this act and
funding the Health Insurance Counseling and Advocacy Program, to
maintain a ratio of two dollars ($2) collected from the Insurance
Fund to every one dollar ($1) collected pursuant to subdivision (a).
This ratio shall be reviewed by the Department of Finance within 30
days of January 1, 1999, and biennially thereafter to examine changes
in the demographics of Medicare imminent populations, including, but
not limited to, the number of citizens residing in California 55
years of age and older, the number and average duration of counseling
sessions performed by counselors of the Health Insurance Counseling
and Advocacy Program, particularly the number of counseling sessions
regarding prepaid Medicare programs and counseling sessions regarding
Medi-Gap programs, and the use of other long-term care and
health-related products. Upon review, the Department of Finance shall
make recommendations to the Joint Legislative Budget Committee
regarding appropriate changes to the ratio of funding from the
Insurance Fund and the fees collected pursuant to subdivision (a).
(e) It is the intent of the Legislature that the revenue raised
from the fee assessed pursuant to subdivision (a), and according to
the ratio established pursuant to subdivision (d), be used to
partially offset and reduce the amount of revenue appropriated
annually from the Insurance Fund for funding of the Health Insurance
Counseling and Advocacy Program.
(f) There shall be established in the State Treasury a "State
HICAP Fund" administered by the California Department of Aging for
the purpose of collecting fee assessments described in subdivision
(a), and for the sole purpose of funding the Health Insurance
Counseling and Advocacy Program.
(g) The department shall issue a supplemental billing during the
2005-06 fiscal year to generate additional revenue authorized by the
act that amended this section during the 2005 portion of the 2005-06
Regular Session. Notwithstanding subdivision (h), the department may
use a portion of the additional revenue generated in the 2005-06
fiscal year to pay for the costs associated with issuing this
supplemental billing.
(h)
(g) It is the intent of the Legislature that, starting
in the 2005-06 fiscal year, two million dollars ($2,000,000) of
additional funding shall be made available to local HICAP programs,
to be derived from an increase in the HICAP fee and the corresponding
Insurance Fund pursuant to subdivision (d). Any additional funding
shall only be used for local HICAP funding and shall not be used for
department or local area agencies on aging administration.
SEC. 579. Section 10104 of the Welfare and Institutions Code is
amended to read:
10104. (a) It is the intent of the Legislature to ensure that the
impacts of the 2011 realignment of child welfare services, foster
care, adoptions, and adult protective services programs are
identified and evaluated initially and over time. It is further the
intent of the Legislature to ensure that information regarding these
impacts is publicly available and accessible and can be utilized to
support the state's and counties' effectiveness in delivering these
critical services and supports.
(b) The State Department of Social Services shall annually report
to the appropriate fiscal and policy committees of the Legislature,
and publicly post on the department's Internet Web site ,
a summary of outcome and expenditure data that allows for monitoring
of changes over time.
(c) The report shall be submitted and posted by April 15 of each
year and shall contain expenditures for each county for the programs
described in clauses (i) to (vii), inclusive, of subparagraph (A) of
paragraph (16) of subdivision (f) of Section 30025 of the Government
Code. To the extent that the information is readily or publicly
available, the report shall also contain the amount of funds each
county receives from the Protective Services Growth Special Account
created pursuant to Section 30025 of the Government Code, child
welfare services social worker caseloads per county, and the number
of authorized positions in the local child welfare services agency.
(d) The department shall consult with legislative staff and with
stakeholders to develop a reporting format consistent with the
Legislature's desired level of outcome and expenditure reporting
detail.
SEC. 580. Section 11253.5 of the Welfare and Institutions Code is
amended to read:
11253.5. (a) All children in an assistance unit for whom school
attendance is compulsory, except individuals who are eligible for the
Cal-Learn Program under Article 3.5 (commencing with Section 11331),
for any period during which that article is operative, and children
subject to a county school attendance project under Article 2
(commencing with Section 18236) of Chapter 3.3 of Part 6, shall be
required to attend school pursuant to subdivision (f).
(b) Applicants for and recipients of aid under this chapter shall
be informed of the attendance requirement in subdivision (a) and it
shall be included in the recipients' welfare-to-work plan under
Section 11325.21.
(c) A recipient shall cooperate in providing the county with
documentation routinely available from the school or school district
of regular attendance of all applicable children
described in subdivision (a) in the assistance unit when the county
determines it is appropriate, unless there is good cause for the
inability to secure that documentation.
(d) If it is determined by the county that any child in the
assistance unit is not attending school as required by subdivision
(a), the family may be informed of how to enroll the child in a
continuation school within the county and may be screened to
determine eligibility for family stabilization services pursuant to
Section 11325.24 and in accordance with county policy and procedures.
If applicable, the county shall document that the family was given
this information and was screened for those services. The needs of a
child in the assistance unit who is 16 years of age or older shall
not be considered in computing the grant of the family under Section
11450 for any month in which the county is informed by a school
district or a county school attendance review board that the child
did not attend school pursuant to subdivision (f), unless at least
one of the following conditions is present:
(1) The county is provided with evidence that the child's
attendance records are not available.
(2) The county is provided with evidence that the child has been
attending school.
(3) Good cause for school nonparticipation exists at any time
during the month.
(4) Any member of the household is eligible to participate in
family stabilization pursuant to Section 11325.24.
(5) The county is provided with evidence that the child, parent,
or caregiver is complying with requirements imposed by a school
attendance review board, the county probation department, or the
district attorney pursuant to Section 48263 or 48263.5 of the
Education Code.
(6) A member of the household is cooperating with a plan developed
by a county child welfare agency.
(e) A child whose needs have not been considered in computing the
grant of the family pursuant to this section shall remain eligible
for services that may lead to attendance in school.
(f) For the purposes of this section, a child shall be presumed to
be attending school unless he or she has been deemed a chronic
truant pursuant to Section 48263.6 of the Education Code.
SEC. 581. Section 11325.24 of the Welfare and Institutions Code is
amended to read:
11325.24. (a) If, in the course of appraisal pursuant to Section
11325.2 or at any point during an individual's participation in
welfare-to-work activities in accordance with paragraph (1) of
subdivision (a) of Section 11322.85, it is determined that a
recipient meets the criteria described in subdivision (b), the
recipient shall be is eligible to
participate in family stabilization.
(b) (1) A recipient shall be is
eligible to participate in family stabilization if the county
determines that his or her family is experiencing an identified
situation or crisis that is destabilizing the family and would
interfere with participation in welfare-to-work activities and
services.
(2) A situation or a crisis that is destabilizing the family in
accordance with paragraph (1) may include, but shall not be limited
to:
(A) Homelessness or imminent risk of homelessness.
(B) A lack of safety due to domestic violence.
(C) Untreated or undertreated behavioral needs, including mental
health or substance abuse-related needs.
(c) Family stabilization shall include intensive case management
and services designed to support the family in overcoming the
situation or crisis, which may include, but are not limited to,
welfare-to-work activities.
(d) Funds allocated for family stabilization in accordance with
this section shall be in addition to, and independent of, the county
allocations made pursuant to Section 15204.2.
(e) Funds allocated for family stabilization in accordance with
this section, or the county allocations made pursuant to Section
15204.2, may be used to provide housing and other needed services to
a family during any month that a family is participating in family
stabilization.
(f) Each county shall submit to the department a plan, as defined
by the department, regarding how it intends to implement the
provisions of this section and shall report information to the
department, including, but not limited to, the number of recipients
served pursuant to this section, information regarding the services
provided, outcomes for the families served, and any lack of
availability of services. The department shall provide an update
regarding this information to the Legislature during the 2014-15
budget process.
(g) It is the intent of the Legislature that family stabilization
is be a voluntary component intended to
provide needed services and constructive interventions for parents
and to assist in barrier removal for families facing very difficult
needs. Participants in family stabilization are encouraged to
participate, but the Legislature does not intend that parents be
sanctioned as part of their experience in this program component. The
Legislature further intends that recipients refusing or unable to
follow their family stabilization plans without good cause be
returned to the traditional welfare-to-work program.
SEC. 582. Section 11363 of the Welfare and Institutions Code is
amended to read:
11363. (a) Aid in the form of state-funded Kin-GAP shall be
provided under this article on behalf of any child under 18 years of
age and to any eligible youth under 19 years of age as provided in
Section 11403, who satisfies all of the following conditions:
(1) Has been adjudged a dependent child of the juvenile court
pursuant to Section 300, or, effective October 1, 2006, a ward of the
juvenile court pursuant to Section 601 or 602.
(2) Has been residing for at least six consecutive months in the
approved home of the prospective relative guardian while under the
jurisdiction of the juvenile court or a voluntary placement
agreement.
(3) Has had a kinship guardianship established pursuant to Section
360 or 366.26.
(4) Has had his or her dependency jurisdiction terminated after
January 1, 2000, pursuant to Section 366.3, or his or her wardship
terminated pursuant to subdivision (d) (e)
of Section 728, concurrently or subsequently to the
establishment of the kinship guardianship.
(b) If the conditions specified in subdivision (a) are met and,
subsequent to the termination of dependency jurisdiction, any parent
or person having an interest files with the juvenile court a petition
pursuant to Section 388 to change, modify, or set aside an order of
the court, Kin-GAP payments shall continue unless and until the
juvenile court, after holding a hearing, orders the child removed
from the home of the guardian, terminates the guardianship, or
maintains dependency jurisdiction after the court concludes the
hearing on the petition filed under Section 388.
(c) A child or nonminor former dependent or ward shall be eligible
for Kin-GAP payments if he or she meets one of the following age
criteria:
(1) He or she is under 18 years of age.
(2) He or she is under 21 years of age and has a physical or
mental disability that warrants the continuation of assistance.
(3) Through December 31, 2011, he or she satisfies the conditions
of Section 11403, and on and after January 1, 2012, he or she
satisfies the conditions of Section 11403.01.
(4) He or she satisfies the conditions as described in subdivision
(d).
(d) Commencing January 1, 2012, state-funded Kin-GAP payments
shall continue for youths who have attained 18 years of age and who
are under 19 years of age, if they reached 16 years of age before the
Kin-GAP negotiated agreement payments commenced, and as described in
Section 10103.5. Effective January 1, 2013, Kin-GAP payments shall
continue for youths who have attained 18 years of age and are under
20 years of age, if they reached 16 years of age before the Kin-GAP
negotiated agreement payments commenced, and as described in Section
10103.5. Effective January 1, 2014, Kin-GAP payments shall continue
for youths who have attained 18 years of age and are under 21 years
of age, if they reached 16 years of age before the Kin-GAP negotiated
agreement payments commenced. To be eligible for continued payments,
the youth shall satisfy one or more of the conditions specified in
paragraphs (1) to (5), inclusive, of subdivision (b) of Section
11403.
(e) Termination of the guardianship with a kinship guardian shall
terminate eligibility for Kin-GAP unless the conditions in Section
11403 apply; provided, however, that if an alternate guardian or
coguardian is appointed pursuant to Section 366.3 who is also a
kinship guardian, the alternate or coguardian shall be entitled to
receive Kin-GAP on behalf of the child pursuant to this article. A
new period of six months of placement with the alternate guardian or
coguardian shall not be required if that alternate guardian or
coguardian has been assessed pursuant to Sections 361.3 and 361.4 and
the court terminates dependency jurisdiction. When a nonminor former
dependent is receiving Kin-GAP after 18 years of age and the
nonminor former dependent's former guardian dies, the nonminor former
dependent may petition the court for a hearing pursuant to
subdivision (e) of Section 388.
388.1.
SEC. 583. Section 11403 of the Welfare and Institutions Code is
amended to read:
11403. (a) It is the intent of the Legislature to exercise the
option afforded states under Section 475(8) (42 U.S.C. Sec. 675(8)),
and Section 473(a)(4) (42 U.S.C. Sec. 673(a)(4)) of the federal
Social Security Act, as contained in the federal Fostering
Connections to Success and Increasing Adoptions Act of 2008 (Public
Law 110-351), to receive federal financial participation for nonminor
dependents of the juvenile court who satisfy the conditions of
subdivision (b), consistent with their transitional independent
living case plan. Effective January 1, 2012, these nonminor
dependents shall be eligible to receive support up to 19 years of
age, effective January 1, 2013, up to 20 years of age, and effective
January 1, 2014, up to 21 years of age, consistent with their
transitional independent living case plan and as described in Section
10103.5. It is the intent of the Legislature both at the time of
initial determination of the nonminor dependent's eligibility and
throughout the time the nonminor dependent is eligible for aid
pursuant to this section, that the social worker or probation officer
or Indian tribal placing entity and the nonminor dependent shall
work together to ensure the nonminor dependent's ongoing eligibility.
All case planning shall be a collaborative effort between the
nonminor dependent and the social worker, probation officer, or
Indian tribe, with the nonminor dependent assuming increasing levels
of responsibility and independence.
(b) A nonminor dependent receiving aid pursuant to this chapter,
who satisfies the age criteria set forth in subdivision (a), shall
meet the legal authority for placement and care by being under a
foster care placement order by the juvenile court, or the voluntary
reentry agreement as set forth in subdivision (z) of Section 11400,
and is otherwise eligible for AFDC-FC payments pursuant to Section
11401. A nonminor who satisfies the age criteria set forth in
subdivision (a), and who is otherwise eligible, shall continue to
receive CalWORKs payments pursuant to Section 11253 or, as a nonminor
former dependent or ward, aid pursuant to Kin-GAP under Article 4.5
(commencing with Section 11360) or Article 4.7 (commencing with
Section 11385) or adoption assistance payments as specified in
Chapter 2.1 (commencing with Section 16115) of Part 4. Effective
January 1, 2012, a nonminor former dependent child or ward of the
juvenile court who is receiving AFDC-FC benefits pursuant to Section
11405 and who satisfies the criteria set forth in subdivision (a)
shall be eligible to continue to receive aid as long as the nonminor
is otherwise eligible for AFDC-FC benefits under this subdivision.
This subdivision shall apply applies
when one or more of the following conditions exist:
(1) The nonminor is completing secondary education or a program
leading to an equivalent credential.
(2) The nonminor is enrolled in an institution which provides
postsecondary or vocational education.
(3) The nonminor is participating in a program or activity
designed to promote, or remove barriers to employment.
(4) The nonminor is employed for at least 80 hours per month.
(5) The nonminor is incapable of doing any of the activities
described in subparagraphs (1) to (4), inclusive, due to a medical
condition, and that incapability is supported by regularly updated
information in the case plan of the nonminor. The requirement to
update the case plan under this section shall not apply to nonminor
former dependents or wards in receipt of Kin-GAP program or Adoption
Assistance Program payments.
(c) The county child welfare or probation department, Indian
tribe, consortium of tribes, or tribal organization that has entered
into an agreement pursuant to Section 10553.1, shall work together
with a nonminor dependent who is in foster care on his or her 18th
birthday and thereafter or a nonminor former dependent receiving aid
pursuant to Section 11405, to satisfy one or more of the conditions
described in paragraphs (1) to (5), inclusive, of subdivision (b) and
shall certify the nonminor's applicable condition or conditions in
the nonminor's six-month transitional independent living case plan
update, and provide the certification to the eligibility worker and
to the court at each six-month case plan review hearing for the
nonminor dependent. Relative guardians who receive Kin-GAP payments
and adoptive parents who receive adoption assistance payments shall
be responsible for reporting to the county welfare agency that the
nonminor does not satisfy at least one of the conditions described in
subdivision (b). The social worker, probation officer, or tribal
entity shall verify and obtain assurances that the nonminor dependent
continues to satisfy at least one of the conditions in paragraphs
(1) to (5), inclusive, of subdivision (b) at each six-month
transitional independent living case plan update. The six-month case
plan update shall certify the nonminor's eligibility pursuant to
subdivision (b) for the next six-month period. During the six-month
certification period, the payee and nonminor shall report any change
in placement or other relevant changes in circumstances that may
affect payment. The nonminor dependent, or nonminor former dependent
receiving aid pursuant to subdivision (e) of Section 11405, shall be
informed of all due process requirements, in accordance with state
and federal law, prior to an involuntary termination of aid, and
shall simultaneously be provided with a written explanation of how to
exercise his or her due process rights and obtain referrals to legal
assistance. Any notices of action regarding eligibility shall be
sent to the nonminor dependent or former dependent, his or her
counsel, as applicable, and the placing worker, in addition to any
other payee. Payments of aid pursuant to Kin-GAP under Article 4.5
(commencing with Section 11360) or Article 4.7 (commencing with
Section 11385), adoption assistance payments as specified in Chapter
2.1 (commencing with Section 16115) of Part 4, or aid pursuant to
subdivision (e) of Section 11405 that are made on behalf of a
nonminor former dependent shall terminate subject to the terms of the
agreements. Subject to federal approval of amendments to the state
plan, aid payments may be suspended and resumed based on changes of
circumstances that affect eligibility. Nonminor former dependents, as
identified in paragraph (2) of subdivision (aa) of Section 11400,
are not eligible for reentry under subdivision (e) of Section 388 as
nonminor dependents under the jurisdiction of the juvenile court,
unless but may be eligible for reentry
pursuant to Section 388.1 if (1) the nonminor former dependent
was receiving aid pursuant to Kin-GAP under Article 4.5 (commencing
with Section 11360) or Article 4.7 (commencing with Section 11385),
or the nonminor former dependent was receiving aid
pursuant to subdivision (e) of Section 11405, or the nonminor was
receiving adoption assistance payments as specified in Chapter 2.1
(commencing with Section 16115) of Part 3 , and (2) the
nonminor's former guardian or adoptive parent dies, or no longer
provides ongoing support to, and no longer receives benefits on
behalf of, the nonminor after the nonminor turns 18 years of age but
before the nonminor turns 21 years of age. Nonminor former dependents
requesting the resumption of AFDC-FC payments pursuant to
subdivision (e) of Section 11405 shall complete the applicable
portions of the voluntary reentry agreement, as described in
subdivision (z) of Section 11400.
(d) A nonminor dependent may receive all of the payment directly
provided that the nonminor is living independently in a supervised
placement, as described in subdivision (w) of Section 11400, and that
both the youth and the agency responsible for the foster care
placement have signed a mutual agreement, as defined in subdivision
(u) of Section 11400, if the youth is capable of making an informed
agreement, that documents the continued need for supervised
out-of-home placement, and the nonminor's and social worker's or
probation officer's agreement to work together to facilitate
implementation of the mutually developed supervised placement
agreement and transitional independent living case plan.
(e) Eligibility for aid under this section shall not terminate
until the nonminor dependent attains the age criteria, as set forth
in subdivision (a), but aid may be suspended when the nonminor
dependent no longer resides in an eligible facility, as described in
Section 11402, or is otherwise not eligible for AFDC-FC benefits
under Section 11401, or terminated at the request of the nonminor, or
after a court terminates dependency jurisdiction pursuant to Section
391, delinquency jurisdiction pursuant to Section 607.2, or
transition jurisdiction pursuant to Section 452. AFDC-FC benefits to
nonminor dependents, may be resumed at the request of the nonminor by
completing a voluntary reentry agreement pursuant to subdivision (z)
of Section 11400, before or after the filing of a petition filed
pursuant to subdivision (e) of Section 388 after a court terminates
dependency or transitional jurisdiction pursuant to Section 391, or
delinquency jurisdiction pursuant to Section 607.2. The county
welfare or probation department or Indian tribal entity that has
entered into an agreement pursuant to Section 10553.1 shall complete
the voluntary reentry agreement with the nonminor who agrees to
satisfy the criteria of the agreement, as described in subdivision
(z) of Section 11400. The county welfare department or tribal entity
shall establish a new child-only Title IV-E eligibility determination
based on the nonminor's completion of the voluntary reentry
agreement pursuant to Section 11401. The beginning date of aid for
either federal or state AFDC-FC for a reentering nonminor who is
placed in foster care is the date the voluntary reentry agreement is
signed or the nonminor is placed, whichever is later. The county
welfare department, county probation department, or tribal entity
shall provide a nonminor dependent who wishes to continue receiving
aid with the assistance necessary to meet and maintain eligibility.
(f) (1) The county having jurisdiction of the nonminor dependent
shall remain the county of payment under this section regardless of
the youth's physical residence. Nonminor former dependents receiving
aid pursuant to subdivision (e) of Section 11405 shall be paid by
their county of residence. Counties may develop courtesy supervision
agreements to provide case management and independent living services
by the county of residence pursuant to the nonminor dependent's
transitional independent living case plan. Placements made out of
state are subject to the applicable requirements of the Interstate
Compact on Placement of Children, pursuant to Part 5 (commencing with
Section 7900) of Division 12 of the Family Code.
(2) The county welfare department, county probation department, or
tribal entity shall notify all foster youth who attain 16 years of
age and are under the jurisdiction of that county or tribe, including
those receiving Kin-GAP, and AAP, of the existence of the aid
prescribed by this section.
(3) The department shall seek any waiver to amend its Title IV-E
State Plan with the Secretary of the United States Department of
Health and Human Services necessary to implement this section.
(g) (1) Subject to paragraph (3), a county shall pay the
nonfederal share of the cost of extending aid pursuant to this
section to eligible nonminor dependents who have reached 18 years of
age and who are under the jurisdiction of the county, including
AFDC-FC payments pursuant to Section 11401, aid pursuant to Kin-GAP
under Article 4.7 (commencing with Section 11385), adoption
assistance payments as specified in Chapter 2.1 (commencing with
Section 16115) of Part 4, and aid pursuant to Section 11405 for
nonminor dependents who are residing in the county as provided in
paragraph (1) of subdivision (f). A county shall contribute to the
CalWORKs payments pursuant to Section 11253 and aid pursuant to
Kin-GAP under Article 4.5 (commencing with Section 11360) at the
statutory sharing ratios in effect on January 1, 2012.
(2) Subject to paragraph (3), a county shall pay the nonfederal
share of the cost of providing permanent placement services pursuant
to subdivision (c) of Section 16508 and administering the Aid to
Families with Dependent Children Foster Care program pursuant to
Section 15204.9. For purposes of budgeting, the department shall use
a standard for the permanent placement services that is equal to the
midpoint between the budgeting standards for family maintenance
services and family reunification services.
(3) (A) (i) Notwithstanding any other law, a county's required
total contribution pursuant to paragraphs (1) and (2), excluding
costs incurred pursuant to Section 10103.5, shall not exceed the
amount of savings in Kin-GAP assistance grant expenditures realized
by the county from the receipt of federal funds due to the
implementation of Article 4.7 (commencing with Section 11385), and
the amount of funding specifically included in the Protective
Services Subaccount within the Support Services Account within the
Local Revenue Fund 2011, plus any associated growth funding from the
Support Services Growth Subaccount within the Sales and Use Tax
Growth Account to pay the costs of extending aid pursuant to this
section.
(ii) A county, at its own discretion, may expend additional funds
beyond the amounts identified in clause (i). These additional amounts
shall not be included in any cost and savings calculations or
comparisons performed pursuant to this section.
(B) Beginning in the 2011-12 fiscal year, and for each fiscal year
thereafter, funding and expenditures for programs and activities
under this section shall be in accordance with the requirements
provided in Sections 30025 and 30026.5 of the Government Code. In
addition, the following are available to the counties for the purpose
of funding costs pursuant to this section:
(i) The savings in Kin-GAP assistance grant expenditures realized
from the receipt of federal funds due to the implementation of
Article 4.7 (commencing with Section 11385).
(ii) The savings realized from the change in federal funding for
adoption assistance resulting from the enactment of Public Law
110-351 and consistent with subdivision (d) of Section 16118.
(4) (A) The limit on the county's total contribution pursuant to
paragraph (3) shall be assessed by the State Department of Social
Services, in conjunction with the California State Association of
Counties, in 2015-16, to determine if it shall be removed. The
assessment of the need for the limit shall be based on a
determination on a statewide basis of whether the actual county costs
of providing extended care pursuant to this section, excluding costs
incurred pursuant to Section 10103.5, are fully funded by the amount
of savings in Kin-GAP assistance grant expenditures realized by the
counties from the receipt of federal funds due to the implementation
of Article 4.7 (commencing with Section 11385) and the amount of
funding specifically included in the Protective Services Subaccount
within the Support Services Account within the Local Revenue Fund
2011 plus any associated growth funding from the Support Services
Growth Subaccount within the Sales and Use Tax Growth Account to pay
the costs of extending aid pursuant to this section.
(B) If the assessment pursuant to subparagraph (A) shows that the
statewide total costs of extending aid pursuant to this section,
excluding costs incurred pursuant to Section 10103.5, are fully
funded by the amount of savings in Kin-GAP assistance grant
expenditures realized by the counties from the receipt of federal
funds due to the implementation of Article 4.7 (commencing with
Section 11385) and the amount of funding specifically included in the
Protective Services Subaccount within the Support Services Account
within the Local Revenue Fund 2011 plus any associated growth funding
from the Support Services Growth Subaccount within the Sales and Use
Tax Growth Account to pay the costs of extending aid pursuant to
this section, the Department of Finance shall certify that fact, in
writing, and shall post the certification on its Internet Web site,
at which time subparagraph (A) of paragraph (3) shall no longer be
implemented.
(h) It is the intent of the Legislature that no
a county currently participating in the Child Welfare
Demonstration Capped Allocation Project not be adversely
impacted by the department's exercise of its option to extend foster
care benefits pursuant to Section 673(a)(4) and Section 675(8) of
Title 42 of the United States Code in the federal Social Security
Act, as contained in the federal Fostering Connections to Success and
Increasing Adoptions Act of 2008 (Public Law 110-351). Therefore,
the department shall negotiate with the United States Department of
Health and Human Services on behalf of those counties that are
currently participating in the demonstration project to ensure that
those counties receive reimbursement for these new programs outside
of the provisions of those counties' waiver under Subtitle IV-E
(commencing with Section 470) of the federal Social Security Act (42
U.S.C. Sec. 670 et seq.).
(i) The department, on or before July 1, 2013, shall develop
regulations to implement this section in consultation with concerned
stakeholders, including, but not limited to, representatives of the
Legislature, the County Welfare Directors Association, the Chief
Probation Officers of California, the Judicial Council,
representatives of Indian tribes, the California Youth Connection,
former foster youth, child advocacy organizations, labor
organizations, juvenile justice advocacy organizations, foster
caregiver organizations, and researchers. In the development of these
regulations, the department shall consider its Manual of Policy and
Procedures, Division 30, Chapter 30-912, 913, 916, and 917, as
guidelines for developing regulations that are appropriate for young
adults who can exercise incremental responsibility concurrently with
their growth and development. The department, in its consultation
with stakeholders, shall take into consideration the impact to the
Automated Child Welfare Services Case Management Services (CWS-CMS)
and required modifications needed to accommodate eligibility
determination under this section, benefit issuance, case management
across counties, and recognition of the legal status of nonminor
dependents as adults, as well as changes to data tracking and
reporting requirements as required by the Child Welfare System
Improvement and Accountability Act as specified in Section 10601.2,
and federal outcome measures as required by the federal John H.
Chafee Foster Care Independence Program (42 U.S.C. Sec. 677(f)). In
addition, the department, in its consultation with stakeholders,
shall define the supervised independent living setting which shall
include, but not be limited to, apartment living, room and board
arrangements, college or university dormitories, and shared roommate
settings, and define how those settings meet health and safety
standards suitable for nonminors. The department, in its consultation
with stakeholders, shall define the six-month certification of the
conditions of eligibility pursuant to subdivision (b) to be
consistent with the flexibility provided by federal policy guidance,
to ensure that there are ample supports for a nonminor to achieve the
goals of his or her transition independent living case plan. The
department, in its consultation with stakeholders, shall ensure that
notices of action and other forms created to inform the nonminor of
due process rights and how to access them shall be developed, using
language consistent with the special needs of the nonminor dependent
population.
(j) Notwithstanding the Administrative Procedure Act, Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, the department shall prepare for implementation
of the applicable
provisions of this section by publishing, after consultation with the
stakeholders listed in subdivision (i), all-county letters or
similar instructions from the director by October 1, 2011, to be
effective January 1, 2012. Emergency regulations to implement the
applicable provisions of this act may be adopted by the director in
accordance with the Administrative Procedure Act. The initial
adoption of the emergency regulations and one readoption of the
emergency regulations shall be deemed to be an emergency and
necessary for the immediate preservation of the public peace, health,
safety, or general welfare. Initial emergency regulations and the
first readoption of those emergency regulations shall be exempt from
review by the Office of Administrative Law. The emergency regulations
authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and shall
remain in effect for no more than 180 days.
SEC. 584. Section 11460 of the Welfare and Institutions Code is
amended to read:
11460. (a) Foster care providers shall be paid a per child per
month rate in return for the care and supervision of the AFDC-FC
child placed with them. The department is designated as
the single organizational unit whose duty it shall be to administer a
state system for establishing rates in the AFDC-FC program. State
functions shall be performed by the department or by delegation of
the department to county welfare departments or Indian tribes,
consortia of tribes, or tribal organizations that have entered into
an agreement with the department pursuant to Section
10553.1.
(b) "Care and supervision" includes food, clothing, shelter, daily
supervision, school supplies, a child's personal incidentals,
liability insurance with respect to a child, reasonable travel to the
child's home for visitation, and reasonable travel for the child to
remain in the school in which he or she is enrolled at the time of
placement. Reimbursement for the costs of educational travel, as
provided for in this subdivision, shall be made pursuant to
procedures determined by the department, in consultation with
representatives of county welfare and probation directors, and
additional stakeholders, as appropriate.
(1) For a child placed in a group home, care and supervision shall
also include reasonable administration and operational activities
necessary to provide the items listed in this subdivision.
(2) For a child placed in a group home, care and supervision may
also include reasonable activities performed by social workers
employed by the group home provider which
that are not otherwise considered daily supervision or
administration activities.
(c) It is the intent of the Legislature to establish the maximum
level of state participation in out-of-state foster care group home
program rates effective January 1, 1992.
(1) The department shall develop regulations that establish the
method for determining the level of state participation for each
out-of-state group home program. The department shall consider all of
the following methods:
(A) A standardized system based on the level of care and services
per child per month as detailed in Section 11462.
(B) A system which that considers
the actual allowable and reasonable costs of care and supervision
incurred by the program.
(C) A system which that considers
the rate established by the host state.
(D) Any other appropriate methods as determined by the department.
(2) State reimbursement for the AFDC-FC group home rate to be paid
to an out-of-state program on or after January 1, 1992, shall only
be paid to programs which have done both of the following:
(A) Submitted a rate application to the department and received a
determination of the level of state participation.
(i) The level of state participation shall not exceed the current
fiscal year's standard rate for rate classification level 14.
(ii) The level of state participation shall not exceed the rate
determined by the ratesetting authority of the state in which the
facility is located.
(iii) The level of state participation shall not decrease for any
child placed prior to January 1, 1992, who continues to be placed in
the same out-of-state group home program.
(B) Agreed to comply with information requests, and program and
fiscal audits as determined necessary by the department.
(3) State reimbursement for an AFDC-FC rate paid on or after
January 1, 1993, shall only be paid to a group home organized and
operated on a nonprofit basis.
(d) A foster care provider that accepts payments, following the
effective date of this section, based on a rate established under
this section, shall not receive rate increases or retroactive
payments as the result of litigation challenging rates established
prior to the effective date of this section. This shall
apply subdivision applies regardless of whether
a provider is a party to the litigation or a member of a class
covered by the litigation.
(e) Nothing shall preclude a A
county is not precluded from using a portion of its
county funds to increase rates paid to family homes and foster family
agencies within that county, and to make payments for specialized
care increments, clothing allowances, or infant supplements to homes
within that county, solely at that county's expense.
(f) Nothing shall preclude a A
county is not precluded from providing a supplemental rate
to serve commercially sexually exploited foster children to provide
for the additional care and supervision needs of these children. To
the extent that federal financial participation is available, it is
the intent of the Legislature that the federal funding shall
be utilized.
SEC. 585. Section 11461.3 of the Welfare and Institutions Code is
amended to read:
11461.3. (a) The Approved Relative Caregiver Funding Option
Program is hereby established for the purpose of making the amount
paid to approved relative caregivers for the in-home care of children
placed with them who are ineligible for AFDC-FC payments equal to
the amount paid on behalf of children who are eligible for AFDC-FC
payments. This is an optional program for counties choosing to
participate, and in so doing, participating counties agree to the
terms of this section as a condition of their participation. It is
the intent of the Legislature that the funding described in paragraph
(1) of subdivision (e) for the Approved Relative Caregiver Funding
Option Program be appropriated, appropriated
and available for use from January through December of each
year, unless otherwise specified.
(b) Subject to subdivision (c), effective January 1, 2015,
counties shall pay an approved relative caregiver a per child per
month rate in return for the care and supervision, as defined in
subdivision (b) of Section 11460, of a child that is placed with the
relative caregiver that is equal to the basic rate paid to foster
care providers pursuant to subdivision (g) of Section 11461, if both
of the following conditions are met:
(1) The county with payment responsibility has
notified the department in writing by October 1 of the year before
participation begins of its decision to participate in the Approved
Relative Caregiver Funding Option Program.
(2) The related child placed in the home meets all of the
following requirements:
(A) The child resides in the State of California.
(B) The child is described by subdivision (b), (c), or (e) of
Section 11401 and the county welfare department or the county
probation department is responsible for the placement and care of the
child.
(C) The child is not eligible for AFDC-FC while placed with the
approved relative caregiver because the child is not eligible for
federal financial participation in the AFDC-FC payment.
(c) A county's election to participate in the Approved Relative
Caregiver Funding Option Program shall affirmatively indicate that
the county understands and agrees to all of the following conditions:
(1) Commencing October 1, 2014, the county shall notify the
department in writing of its decision to participate in the Approved
Relative Caregiver Funding Option Program. Failure to make timely
notification, without good cause as determined by the department,
shall preclude the county from participating in the program for the
upcoming year. Annually thereafter, any county not presently
participating who elects to do so shall notify the department in
writing no later than October 1 of its decision to participate for
the upcoming calendar year.
(2) The county shall confirm that it will make per child per month
payments to all approved relative caregivers on behalf of eligible
children in the amount specified in subdivision (b) for the duration
of the participation of the county in this program.
(3) The county shall confirm that it will be solely responsible to
pay any additional costs needed to make all payments pursuant to
subdivision (b) if the state and federal funds allocated to the
Approved Relative Caregiver Funding Option Program pursuant to
paragraph (1) of subdivision (e) are insufficient to make all
eligible payments.
(d) (1) A county deciding to opt out of the Approved Relative
Caregiver Funding Option Program shall provide at least 120 days'
prior written notice of that decision to the department.
Additionally, the county shall provide at least 90 days' prior
written notice to the approved relative caregiver or caregivers
informing them that his or her per child per month payment will be
reduced and the date that the reduction will occur.
(2) The department shall presume all counties have opted out of
the Approved Relative Caregiver Funding Option Program if the funding
appropriated in subclause (II) of clause (i) of subparagraph (B) of
paragraph (1) of subdivision (e), including any additional funds
appropriated pursuant to clause (ii) of subparagraph (B) of paragraph
(1) of subdivision (e), is reduced, unless a county notifies the
department in writing of its intent to opt in within 60 days of
enactment of the State Budget. The counties shall provide at least 90
days' prior written notice to the approved relative caregiver or
caregivers informing them that his or her per child per month payment
will be reduced, and the date that the reduction will occur.
(3) Any A reduction in payments
received by an approved relative caregiver on behalf of a child under
this section that results from a decision by a county, including the
presumed opt-out pursuant to paragraph (2), to not participate in
the Approved Relative Caregiver Funding Option Program shall be
exempt from state hearing jurisdiction under Section 10950.
(e) (1) The following funding shall be used for the Approved
Relative Caregiver Funding Option Program:
(A) The applicable regional per-child CalWORKs grant.
(B) (i) General Fund resources that do not count toward the state'
s maintenance of effort requirements under Section 609(a)(7)(B)(i) of
Title 42 of the United States Code. For this purpose, the following
money is hereby appropriated:
(I) The sum of thirty million dollars ($30,000,000) from the
General Fund for the period January 1, 2015, through December 31,
2015.
(II) The sum of thirty million dollars ($30,000,000) from the
General Fund in each calendar year thereafter, as cumulatively
adjusted annually by the California Necessities Index used for each
May Revision of the Governor's Budget, to be used in each respective
calendar year.
(ii) To the extent that the appropriation made in subclause (I)
of clause (i) is insufficient to fully fund the base
caseload of approved relative caregivers as of July 1, 2014, for the
period of time described in subclause (I) of clause (i) ,
as jointly determined by the department and the County Welfare
Directors' Directors Association and
approved by the Department of Finance on or before October 1, 2015,
the amounts specified in subclauses (I) and (II) of clause (i)
shall be increased in the respective amounts necessary to fully
fund that base caseload. Thereafter, the adjusted amount of
subclause (II) of clause (i) , and the other terms of that
provision, including an annual California Necessities Index
adjustment to its amount, shall apply.
(C) County funds only to the extent required under paragraph (3)
of subdivision (c).
(D) This section is intended to appropriate the funding necessary
to fully fund the base caseload of approved relative caregivers,
defined as the number of approved relative caregivers caring for a
child who is not eligible to receive AFDC-FC payments, as of July 1,
2014.
(2) Funds available pursuant to subparagraphs (A) and (B) of
paragraph (1) shall be allocated to participating counties
proportionate to the number of their approved relative caregiver
placements, using a methodology and timing developed by the
department, following consultation with county human services
agencies and their representatives.
(3) Notwithstanding subdivision (c), if in any calendar year the
entire amount of funding appropriated by the state for the Approved
Relative Caregiver Funding Option Program has not been fully
allocated to , or utilized by , counties, a
county that has paid any funds pursuant to subparagraph (C) of
paragraph (1) of subdivision (e) may request reimbursement for those
funds from the department. The authority of the department to approve
the requests shall be limited by the amount of available unallocated
funds.
(f) An approved relative caregiver receiving payments on behalf of
a child pursuant to this section shall not be eligible to receive
additional CalWORKs payments on behalf of the same child under
Section 11450.
(g) To the extent permitted by federal law, payments received by
the approved relative caregiver from the Approved Relative Caregiver
Funding Option Program shall not be considered income for the purpose
of determining other public benefits.
(h) Prior to referral of any individual or recipient, or that
person's case, to the local child support agency for child support
services pursuant to Section 17415 of the Family Code, the county
human services agency shall determine if an applicant or recipient
has good cause for noncooperation, as set forth in Section 11477.04.
If the applicant or recipient claims good cause exception at any
subsequent time to the county human services agency or the local
child support agency, the local child support agency shall suspend
child support services until the county social services agency
determines the good cause claim, as set forth in Section 11477.04. If
good cause is determined to exist, the local child support agency
shall suspend child support services until the applicant or recipient
requests their resumption, and shall take other measures that are
necessary to protect the applicant or recipient and the children. If
the applicant or recipient is the parent of the child for whom aid is
sought and the parent is found to have not cooperated without good
cause as provided in Section 11477.04, the applicant's or recipient's
family grant shall be reduced by 25 percent for the time the failure
to cooperate lasts.
(i) Consistent with Section 17552 of the Family Code, if aid is
paid under this chapter on behalf of a child who is under the
jurisdiction of the juvenile court and whose parent or guardian is
receiving reunification services, the county human services agency
shall determine, prior to referral of the case to the local child
support agency for child support services, whether the referral is in
the best interest of the child, taking into account both of the
following:
(1) Whether the payment of support by the parent will pose a
barrier to the proposed reunification in that the payment of support
will compromise the parent's ability to meet the requirements of the
parent's reunification plan.
(2) Whether the payment of support by the parent will pose a
barrier to the proposed reunification in that the payment of support
will compromise the parent's current or future ability to meet the
financial needs of the child.
SEC. 586. Section 11477 of the Welfare and Institutions Code is
amended to read:
11477. As a condition of eligibility for aid paid under this
chapter, each applicant or recipient shall do all of the following:
(a) (1) Do either of the following:
(i)
(A) For applications received before October 1, 2009,
assign to the county any rights to support from any other person the
applicant or recipient may have on his or her own behalf or on behalf
of any other family member for whom the applicant or recipient is
applying for or receiving aid, not exceeding the total amount of cash
assistance provided to the family under this chapter. Receipt of
public assistance under this chapter shall operate
operates as an assignment by operation of law. An
assignment of support rights to the county shall also constitute an
assignment to the state. If support rights are assigned pursuant to
this subdivision, the assignee may become an assignee of record by
the local child support agency or other public official filing with
the court clerk an affidavit showing that an assignment has been made
or that there has been an assignment by operation of law. This
procedure does not limit any other means by which the assignee may
become an assignee of record.
(ii)
(B) For applications received on or after October 1,
2009, assign to the county any rights to support from any other
person the applicant or recipient may have on his or her own behalf,
or on behalf of any other family member for whom the applicant or
recipient is applying for or receiving aid. The assignment shall
apply only to support that accrues during the period of time that the
applicant is receiving assistance under this chapter, and shall not
exceed the total amount of cash assistance provided to the family
under this chapter. Receipt of public assistance under this chapter
shall operate as an assignment by operation of law. An assignment of
support rights to the county shall also constitute an assignment to
the state. If support rights are assigned pursuant to this
subdivision, the assignee may become an assignee of record by the
local child support agency or other public official filing with the
court clerk an affidavit showing that an assignment has been made or
that there has been an assignment by operation of law. This procedure
does not limit any other means by which the assignee may become an
assignee of record.
(2) Support that has been assigned pursuant to paragraph (1) and
that accrues while the family is receiving aid under this chapter
shall be permanently assigned until the entire amount of aid paid has
been reimbursed.
(3) If the federal government does not permit states to adopt the
same order of distribution for preassistance and postassistance child
support arrears that are assigned on or after October 1, 1998,
support arrears that accrue before the family receives aid under this
chapter that are assigned pursuant to this subdivision shall be
assigned as follows:
(A) Child support assigned prior to January 1, 1998, shall be
permanently assigned until aid is no longer received and the entire
amount of aid has been reimbursed.
(B) Child support assigned on or after January 1, 1998, but prior
to October 1, 2000, shall be temporarily assigned until aid under
this chapter is no longer received and the entire amount of aid paid
has been reimbursed or until October 1, 2000, whichever comes first.
(C) On or after October 1, 2000, support assigned pursuant to this
subdivision that was not otherwise permanently assigned shall be
temporarily assigned to the county until aid is no longer received.
(D) On or after October 1, 2000, support that was temporarily
assigned pursuant to this subdivision shall, when a payment is
received from the federal tax intercept program, be temporarily
assigned until the entire amount of aid paid has been reimbursed.
(4) If the federal government permits states to adopt the same
order of distribution for preassistance and postassistance child
support arrears, child support arrears shall be assigned, as follows:
(A) Child support assigned pursuant to this subdivision prior to
October 1, 1998, shall be assigned until aid under this chapter is no
longer received and the entire amount has been reimbursed.
(B) On or after October 1, 1998, child support assigned pursuant
to this subdivision that accrued before the family receives aid under
this chapter and that was not otherwise permanently assigned, shall
be temporarily assigned until aid under this chapter is no longer
received.
(C) On or after October 1, 1998, support that was temporarily
assigned pursuant to this subdivision shall, when a payment is
received from the federal tax intercept program, be temporarily
assigned until the entire amount of aid paid has been reimbursed.
(b) (1) Cooperate with the county welfare department and local
child support agency in establishing the paternity of a child of the
applicant or recipient born out of wedlock with respect to whom aid
is claimed, and in establishing, modifying, or enforcing a support
order with respect to a child of the individual for whom aid is
requested or obtained, unless the applicant or recipient qualifies
for a good cause exception pursuant to Section 11477.04. The granting
of aid shall not be delayed or denied if the applicant is otherwise
eligible, if the applicant completes the necessary
forms , and agrees to cooperate with the local child
support agency in securing support and determining paternity, if
applicable. The local child support agency shall have staff
available, in person or by telephone, at all county welfare offices
and shall conduct an interview with each applicant to obtain
information necessary to establish paternity and establish, modify,
or enforce a support order at the time of the initial interview with
the welfare office. The local child support agency shall make the
determination of cooperation. If the applicant or recipient attests
under penalty of perjury that he or she cannot provide the
information required by this subdivision, the local child support
agency shall make a finding regarding whether the individual could
reasonably be expected to provide the information before the local
child support agency determines whether the individual is
cooperating. In making the finding, the local child support agency
shall consider all of the following:
(A) The age of the child for whom support is sought.
(B) The circumstances surrounding the conception of the child.
(C) The age or mental capacity of the parent or caretaker of the
child for whom aid is being sought.
(D) The time that has elapsed since the parent or caretaker last
had contact with the alleged father or obligor.
(2) Cooperation includes all of the following:
(A) Providing the name of the alleged parent or obligor and other
information about that person if known to the applicant or recipient,
such as address, social security number, telephone number, place of
employment or school, and the names and addresses of relatives or
associates.
(B) Appearing at interviews, hearings, and legal proceedings
, provided the applicant or recipient is provided with
reasonable advance notice of the interview, hearing, or legal
proceeding and does not have good cause not to appear.
(C) If paternity is at issue, submitting to genetic tests,
including genetic testing of the child, if necessary.
(D) Providing any additional information known to , or
reasonably obtainable by , the applicant or recipient
necessary to establish paternity or to establish, modify, or enforce
a child support order.
(3) A recipient or applicant shall not be required to sign a
voluntary declaration of paternity, as set forth in Chapter 3
(commencing with Section 7570) of Part 2 of Division 12 of the Family
Code, as a condition of cooperation.
(c) (1) This section shall does not
apply if all of the adults are excluded from the assistance unit
pursuant to Section 11251.3, 11454, or 11486.5.
(2) It is the intent of the Legislature that the regular receipt
of child support in the preceding reporting period be considered in
determining reasonably anticipated income for the following reporting
period.
(3) In accordance with Sections 11265.2 and 11265.46, if the
income of an assistance unit described in paragraph (1) includes
reasonably anticipated income derived from child support, the amount
established in Section 17504 of the Family Code and Section 11475.3
of the Welfare and Institutions Code of any amount of child support
received each month shall not be considered income or resources and
shall not be deducted from the amount of aid to which the assistance
unit otherwise would be eligible.
SEC. 587. Section 12104 of the Welfare and Institutions Code, as
added by Section 3 of Chapter 27 of the 3rd Extraordinary Session of
the Statutes of 2009, is repealed.
12104. Notwithstanding any other provision of law, upon the order
of the Director of Finance, the Director of Social Services shall
defer all supplemental payments to the federal government required
pursuant to subdivision (b) of Section 12100 in February 2010 and
March 2010 and, instead, make payments for those months after April
20, 2010, but no later than May 31, 2010.
SEC. 588. Section 12104 of the Welfare and Institutions Code, as
added by Section 5 of Chapter 633 of the Statutes of 2009, is amended
to read:
12104. Notwithstanding any other provision of
law, upon the order of the Director of Finance, the Director of
Social Services shall defer all supplemental payments to the federal
government required pursuant to subdivision (b) of Section 12100 in
February 2010 and March 2010 and, instead, make payments for those
months after April 20, 2010, but no later than May 31, 2010.
SEC. 589. Section 12300.4 of the Welfare and Institutions Code is
amended to read:
12300.4. (a) Notwithstanding any other law, including, but not
limited to, Chapter 10 (commencing with Section 3500) of Division 4
of Title 1 of the Government Code and Title 23 (commencing with
Section 110000) of the Government Code, a recipient who is authorized
to receive in-home supportive services pursuant to this article, or
Section 14132.95, 14132.952, or 14132.956, administered by the State
Department of Social Services, or waiver personal care services
pursuant to Section 14132.97, administered by the State Department of
Health Care Services, or any combination of these services, shall
direct these authorized
services, and the authorized services shall be performed by a
provider or providers within a workweek and in a manner that complies
with the requirements of this section.
(b) (1) A workweek is defined as beginning at 12:00 a.m. on Sunday
and includes the next consecutive 168 hours, terminating at 11:59
p.m. the following Saturday.
(2) A provider of services specified in subdivision (a) shall not
work a total number of hours within a workweek that exceeds 66, as
reduced by the net percentage defined by Sections 12301.02 and
12301.03, as applicable, and in accordance with subdivision (d). The
total number of hours worked within a workweek by a provider is
defined as the sum of the following:
(A) All hours worked providing authorized services specified in
subdivision (a).
(B) Travel time as defined in subdivision (f), only if federal
financial participation is not available to compensate for that
travel time. If federal financial participation is available for
travel time as defined in subdivision (f), the travel time shall not
be included in the calculation of the total weekly hours worked
within a workweek.
(3) (A) If the authorized in-home supportive services of a
recipient cannot be provided by a single provider as a result of the
limitation specified in paragraph (2), it is the responsibility of
the recipient to employ an additional provider or providers, as
needed, to ensure his or her authorized services are provided within
his or her total weekly authorized hours of services established
pursuant to subdivision (b) of Section 12301.1.
(B) (i) It is the intent of the Legislature that this section
shall not result in reduced services authorized to
recipients of waiver personal care services defined in subdivision
(a).
(ii) The State Department of Health Care Services shall work with
and assist recipients receiving services pursuant to the Nursing
Facility/Acute Hospital Waiver who are at or near their individual
cost cap, as that term is used in the waiver, to avoid a reduction in
the recipient's services that may result because of increased
overtime pay for providers. As part of this effort, the department
shall consider allowing the recipient to exceed the individual cost
cap, if appropriate. The department shall provide timely information
to waiver recipients as to the steps that will be taken to implement
this clause.
(4) (A) A provider shall inform each of his or her recipients of
the number of hours that the provider is available to work for that
recipient, in accordance with this section.
(B) A recipient, his or her authorized representative, or any
other entity, including any person or entity providing services
pursuant to Section 14186.35, shall not authorize any provider to
work hours that exceed the applicable limitation or limitations of
this section.
(C) A recipient may authorize a provider to work hours in excess
of the recipient's weekly authorized hours established pursuant to
Section 12301.1 without notification of the county welfare
department, in accordance with both of the following:
(i) The authorization does not result in more than 40 hours of
authorized services per week being provided.
(ii) The authorization does not exceed the recipient's authorized
hours of monthly services pursuant to paragraph (1) of subdivision
(b) of Section 12301.1.
(5) For providers of in-home supportive services, the State
Department of Social Services or a county may terminate the provider
from providing services under the IHSS program if a provider
continues to violate the limitations of this section on multiple
occasions.
(c) Notwithstanding any other law, only federal law and
regulations regarding overtime compensation apply to providers of
services defined in subdivision (a).
(d) A provider of services defined in subdivision (a) is subject
to all of the following, as applicable to his or her situation:
(1) (A) A provider who works for one individual recipient of those
services shall not work a total number of hours within a workweek
that exceeds 66 hours, as reduced by the net percentage defined by
Sections 12301.02 and 12301.03, as applicable. In no circumstance
shall the provision of these services by that provider to the
individual recipient exceed the total weekly hours of the services
authorized to that recipient, except as additionally authorized
pursuant to subparagraph (C) of paragraph (4) of subdivision (b). If
multiple providers serve the same recipient, it shall continue to be
the responsibility of that recipient or his or her authorized
representative to schedule the work of his or her providers to ensure
the authorized services of the recipient are provided in accordance
with this section.
(B) When a recipient's weekly authorized hours are adjusted
pursuant to subparagraph (C) of paragraph (1) of subdivision (b) of
Section 12301.1 and exceed 66 hours, as reduced by the net percentage
defined by Sections 12301.02 and 12301.03, as applicable, and at the
time of adjustment the recipient currently receives all authorized
hours of service from one provider, that provider shall be deemed
authorized to work the recipient's county-approved adjusted hours for
that week, but only if the additional hours of work, based on the
adjustment, do not exceed the total number of hours worked that are
compensable at an overtime pay rate that the provider would have been
authorized to work in that month if the weekly hours had not been
adjusted.
(2) A provider of in-home supportive services described in
subdivision (a) who serves multiple recipients is not authorized to,
and shall not, work more than 66 total hours in a workweek, as
reduced by the net percentage defined by Sections 12301.02 and
12301.03, as applicable, regardless of the number of recipients for
whom the provider provides services authorized by subdivision (a).
Providers are subject to the limits of each recipient's total
authorized weekly hours of in-home supportive services described in
subdivision (a), except as additionally authorized pursuant to
subparagraph (C) of paragraph (4) of subdivision (b).
(e) Recipients and providers shall be informed of the limitations
and requirements contained in this section, through notices at
intervals and on forms as determined by the State Department of
Social Services or the State Department of Health Care Services, as
applicable, following consultation with stakeholders.
(f) (1) A provider of services described in subdivision (a) shall
not engage in travel time in excess of seven hours per week. For
the purposes of this subdivision, "travel time"
means time spent traveling directly from a location where authorized
services specified in subdivision (a) are provided to one
recipient, recipient to another location where
authorized services are to be provided to another recipient. A
provider shall coordinate hours of work with his or her recipients to
comply with this section.
(2) The hourly wage to compensate a provider for travel time
described in this subdivision when the travel is between two counties
shall be the hourly wage of the destination county.
(3) Travel time, and compensation for that travel time, between a
recipient of authorized in-home supportive services specified in
subdivision (a) and a recipient of authorized waiver personal care
services specified in subdivision (a), (a)
shall be attributed to the program authorizing services for the
recipient to whom the provider is traveling.
(4) Hours spent by a provider while engaged in travel time shall
not be deducted from the authorized hours of service of any recipient
of services specified in subdivision (a).
(5) The State Department of Social Services and the State
Department of Health Care Services shall issue guidance and processes
for travel time between recipients that will assist the provider and
recipient to comply with this subdivision. Each county shall provide
technical assistance to providers and recipients, as necessary, to
implement this subdivision.
(g) A provider of authorized in-home supportive services specified
in subdivision (a) shall timely submit, deliver, or mail, verified
by postmark or request for delivery, a signed payroll timesheet
within two weeks after the end of each bimonthly payroll period.
Notwithstanding any other law, a provider who submits an untimely
payroll timesheet for providing authorized in-home supportive
services specified in subdivision (a) shall be paid by the state
within 30 days of the receipt of the signed payroll timesheet.
(h) This section does not apply to a contract entered into
pursuant to Section 12302 or 12302.6 for authorized in-home
supportive services. Contract rates negotiated pursuant to Section
12302 or 12302.6 shall be based on costs consistent with a 40-hour
workweek.
(i) The state and counties are immune from any liability resulting
from implementation of this section.
(j) Any action authorized under this section that is implemented
in a program authorized pursuant to Section 14132.95,
14132.97, 14132.952, or 14132.956 , or 14132.97
shall be compliant with federal Medicaid requirements, as determined
by the State Department of Health Care Services.
(k) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
the State Department of Social Services and the State Department of
Health Care Services may implement, interpret, or make specific this
section by means of all-county letters or similar instructions,
without taking any regulatory action.
(l) (1) This section shall become operative only when the
regulatory amendments made by RIN 1235-AA05 to Part 552 of Title 29
of the Code of Federal Regulations are deemed effective, either on
the date specified in RIN 1235-AA05 or at a later date specified by
the Federal United States Department of
Labor, whichever is later.
(2) If the regulatory amendments described in paragraph (1) become
only partially effective by the date specified in paragraph (1),
this section shall become operative only for those persons for whom
federal financial participation is available as of that date.
SEC. 590. Section 12300.41 of the Welfare and Institutions Code is
amended to read:
12300.41. (a) For three months following the effective date
specified in paragraph (1) of subdivision (l) of Section 12300.4,
timesheets submitted by providers may be paid in excess of the
limitations specified in Section 12300.4, so long as the number of
hours worked by the provider within a month do not exceed the
authorized hours of the recipient or recipients served by that
provider.
(b) The State Department of Social Services, in consultation with
stakeholders, shall oversee a study of the implementation of Section
12300.4, Section 12301.1, and this section. This study shall cover
the 24-month period subsequent to the three-month period specified in
subdivision (a). Information collected for the study shall
periodically be made available to stakeholders, including ,
but not limited to , representatives of recipients
and providers, counties, and the legislative staff. Upon completion
of the study, a report shall be submitted to the Legislature.
(c) Using the study described in (b), it is the intent of the
Legislature to evaluate implementation of the federal regulations
described in paragraph (1) of subdivision (l) of Section 12300.4 and
make any adjustments determined appropriate or necessary through
subsequent legislation.
SEC. 591. Section 12301.1 of the Welfare and Institutions Code is
amended to read:
12301.1. (a) The department shall adopt regulations establishing
a uniform range of services available to all eligible recipients
based upon individual needs. The availability of services under these
regulations is subject to the provisions of Section 12301 and county
plans developed pursuant to Section 12302.
(b) (1) The county welfare department shall assess each recipient'
s continuing monthly need for in-home supportive services at varying
intervals as necessary, but at least once every 12 months. The
results of this assessment of monthly need for hours of in-home
supportive services shall be divided by 4.33, to establish a
recipient's weekly authorized number of hours of in-home supportive
services, subject to any of the following, as applicable:
(A) Within the limit of the assessed monthly need for hours of
in-home supportive services, a county welfare department may adjust
the authorized weekly hours of a recipient for any particular week
for known recurring or periodic needs of the recipient.
(B) Within the limit of the assessed monthly need for hours of
in-home supportive services, a county welfare department may
temporarily adjust the authorized weekly hours of a recipient at the
request of the recipient, to accommodate unexpected extraordinary
circumstances.
(C) In addition to the flexibility provided to a recipient
pursuant to subparagraph (C) of paragraph (4) of subdivision (b) of
Section 12300.4, a recipient may request the county welfare
department to adjust his or her weekly authorized hours of services
to exceed 40 hours of weekly authorized hours of services per week,
within his or her total monthly authorized hours of services. A
request for adjustment may be made retrospective
retroactive to the hours actually worked. The county
welfare department shall not unreasonably withhold approval of a
recipient request made pursuant to this subparagraph.
(2) For purposes of subparagraph (C) of paragraph (1), and prior
to its implementation, the State Department of Social Services shall
develop a process for requests made pursuant to that
subparagraph. The process shall include all of the following:
(A) The procedure, standards, and timeline for making a request to
adjust the authorized weekly hours of service for a recipient
defined described in this section.
(B) The language to be used for notices about the
process.
(C) Provisions for adjustments to authorization, and for
authorization after services have been provided, when the criteria
for approval have been met.
(D) A requirement that the opportunity for a revision to the
limitations of this section shall be discussed at each annual
reassessment, and also may be authorized by the county welfare
department outside of the reassessment process.
(3) Recipients shall be timely informed of their total monthly and
weekly authorized hours.
(4) The weekly authorization of services defined in this section
shall be used solely for the purposes of ensuring compliance with the
federal Fair Labor Standards Act and its implementing regulations.
(5) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
the department may implement, interpret, or make specific this
subdivision by means of all-county letters, or similar instructions,
without taking any regulatory action.
(c) (1) Notwithstanding subdivision (b), at the county's option,
assessments may be extended, on a case-by-case basis, for up to six
months beyond the regular 12-month period, provided that the county
documents that all of the following conditions exist:
(A) The recipient has had at least one reassessment since the
initial program intake assessment.
(B) The recipient's living arrangement has not changed since the
last annual reassessment and the recipient lives with others, or has
regular meaningful contact with persons other than his or her service
provider.
(C) The recipient or, if the recipient is a minor, his or her
parent or legal guardian, or if incompetent, his or her conservator,
is able to satisfactorily direct the recipient's care.
(D) There has not been no a
known change in the recipient's supportive service needs within
the previous 24 months.
(E) No reports have A report
has not been made to, and there has been no involvement of, an
adult protective services agency or agencies since the county last
assessed the recipient.
(F) The recipient has not had a change in provider or providers
for at least six months.
(G) The recipient has not reported a change in his or her need for
supportive services that requires a reassessment.
(H) The recipient has not been hospitalized within the last three
months.
(2) If some, but not all, of the conditions specified in paragraph
(1) of subdivision (c) are met, the county may
consider other factors in determining whether an extended assessment
interval is appropriate, including, but not limited to, involvement
in the recipient's care of a social worker, case manager, or other
similar representative from another human services agency, such as a
regional center or county mental health program, or communications,
or other instructions from a physician or other licensed health care
professional that the recipient's medical condition is unlikely to
change.
(3) A county may reassess a recipient's need for services at a
time interval of less than 12 months from a recipient's initial
intake or last assessment if the county social worker has information
indicating that the recipient's need for services is expected to
decrease in less than 12 months.
(d) A county shall assess a recipient's need for supportive
services any time that the recipient notifies the county of a need to
adjust the supportive services hours authorized, or when
if there are other indications or expectations
of a change in circumstances affecting the recipient's need for
supportive services.
(e) (1) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act, Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code,
until emergency regulations are filed with the Secretary of State,
the department may implement this section through all-county letters
or similar instructions from the director. The department shall adopt
emergency regulations implementing this section no later than
September 30, 2005, unless notification of a delay is made to the
Chair of the Joint Legislative Budget Committee prior to that date.
The notification shall include the reason for the delay, the current
status of the emergency regulations, a date by which the emergency
regulations shall be adopted, and a statement of need to continue use
of all-county letters or similar instructions. Under no
circumstances shall the The adoption of
emergency regulations shall not be delayed, or the use of
all-county letters or similar instructions be extended, beyond June
30, 2006.
(2) The adoption of regulations implementing this section shall be
deemed an emergency and necessary for the immediate preservation of
the public peace, health, safety, or general welfare. The emergency
regulations authorized by this section shall be
are exempt from review by the Office of Administrative
Law. The emergency regulations authorized by this section shall be
submitted to the Office of Administrative Law for filing with the
Secretary of State and shall remain in effect for no more than 180
days by which time final regulations shall be adopted. The department
shall seek input from the entities listed in Section 12305.72 when
developing all-county letters or similar instructions and the
regulations.
SEC. 592. Section 14005.75 of the Welfare and Institutions Code,
as added by Section 1 of Chapter 1144 of the Statutes of 1985, is
amended and renumbered to read:
14005.75. 14005.73. A person who is
otherwise eligible for Medi-Cal benefits under either Section
14005.4 or 14005.7, except for income and resource eligibility, and
who is receiving Medi-Cal services for the treatment of multiple
sclerosis, shall continue to be eligible to receive benefits only for
these services under Medi-Cal, provided that all other conditions of
eligibility for the Medi-Cal program are met. These restricted
benefits shall continue until such time as the person is eligible
for, and receives, third party coverage for these treatments.
However, restricted benefits under this section shall not continue
for more than two years.
SEC. 593. Section 14005.271 of the Welfare and Institutions Code
is amended to read:
14005.271. (a) The Healthy Families Advisory Board established by
former Section 12693.90 of the Insurance Code is hereby renamed the
Medi-Cal Children's Health Advisory Panel.
(b) The Medi-Cal Children's Health Advisory Panel shall be an
independent, statewide advisory board that shall advise the State
Department of Health Care Services on matters relevant to all
children enrolled in Medi-Cal and their families, including, but not
limited to, emerging trends in the care of children, quality
measurements, communications between the State Department of Health
Care Services and Medi-Cal families, provider network issues, and
Medi-Cal enrollment issues.
(c) The membership of the advisory panel shall be composed of the
following 15 members:
(1) One member who is a licensed, practicing dentist.
(2) One physician and surgeon who is board certified in the area
of family practice medicine.
(3) One physician and surgeon who is board certified in
pediatrics.
(4) One representative from a licensed nonprofit primary care
clinic.
(5) One representative from the mental health provider community.
(6) One representative of the substance abuse provider community.
(7) One representative of the county public health provider
community.
(8) One representative from a licensed hospital that is on the
disproportionate share list maintained by the State Department of
Health Care Services.
(9) A current or former foster youth; an attorney, social worker,
probation officer, or court appointed special advocate who currently
represents one or more foster youth; a foster care service provider;
or a child welfare advocate.
(10) A parent of a Medi-Cal enrollee who has received treatment
services under the California Children's Services Program within the
past six months.
(11) A Medi-Cal enrollee who has received services under the
Access for Infants and Mothers Program within the past six months.
(12) A parent or legal guardian of a Medi-Cal enrollee under 21
years of age who has received mental health services under the Early
and Periodic Screening, Diagnostic, and Treatment Program (EPSDT)
within the past six months.
(13) One representative from the health plan community.
(14) One representative from the business community.
(15) One representative from the education community.
(d) The advisory panel shall elect, from among its members, its
chair. In order to coordinate the activities of the advisory panel
with other advisory bodies whose scope includes children enrolled in
Medi-Cal, the chair shall keep apprised of relevant Medi-Cal
stakeholder meetings by communicating with State Department of Health
Care Services staff assisting the advisory panel.
(e) The advisory panel members, except as otherwise
specified in paragraphs (4) and (5) of subdivision (c),
members shall be appointed by the State Department of
Health Care Services, or in the case of vacancies of three months or
greater, by the chair.
(f) The advisory panel's powers and duties include, but are not
limited to, both of the following:
(1) To advise the Director of Health Care Services on all
policies, regulations, and operations of the Medi-Cal program related
to providing health care services to children.
(2) To meet at least quarterly, unless deemed unnecessary by the
chair.
(g) The State Department of Health Care Services' powers and
duties shall include, but not be limited to, all of the following:
(1) To provide general support and staff assistance to the
advisory panel.
(2) To convene and attend meetings of the advisory panel at least
quarterly, unless deemed unnecessary by the chair, at locations that
are easily accessible to the public and advisory panel members, are
of sufficient duration for presentation, discussion, and public
comment on each agenda item, and are in accordance with the
Bagley-Keene Open Meeting Act (Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the
Government Code).
(3) To reimburse the members of the advisory panel for all
necessary travel expenses associated with the activities of the
advisory panel, and to provide a stipend of one hundred dollars
($100) per meeting attended to each panel member who is a Medi-Cal
enrollee or a parent of a Medi-Cal enrollee.
(4) To maintain an Internet Web page on the department's Internet
Web site dedicated to the advisory panel that shall include, but not
be limited to, all of the following:
(A) The purpose and scope of the advisory panel.
(B) The current membership of the advisory panel.
(C) A list of past and future meetings.
(D) Agendas and other materials made available for past and future
meetings.
(E) Recommendations submitted to the department by the advisory
panel.
(F) The department's responses to recommendations submitted by the
advisory panel.
(G) Contact information for department staff assisting the
advisory panel.
(5) To inform advisory panel members when new information is
posted to the Internet Web page dedicated to the advisory panel.
(6) Notwithstanding Section 10231.5 of the Government Code, to
submit on or before January 1, 2018, a report to the Legislature on
the advisory panel's accomplishments, effectiveness, efficiency, and
any recommendations for statutory changes needed to improve the
ability of the advisory panel to fulfill its purpose. The report
shall be submitted in compliance with Section 9795 of the Government
Code.
(h) The Legislature does not intend the addition of this section
to result in a new panel, but rather a continuation of the prior
panel established by former Section 12693.90 of the Insurance Code.
New panel members shall not be appointed until a vacancy occurs.
SEC. 594. Section 14011.2 of the Welfare and Institutions Code, as
added by Section 34 of Chapter 171 of the Statutes of 2001, is
amended and renumbered to read:
14011.2. 14011.25. To the extent
federal financial participation is available, the department shall
take all steps necessary to comply with the terms and conditions of
the State Child Health Insurance Program waiver described in Section
12693.755 of the Insurance Code extending eligibility under the
Healthy Families Program to parents and certain other adults. The
department shall seek any state plan
amendments or other waivers under Title XIX of the
Social Security Act (42 U.S.C. Sec. 1396 et seq.) necessary to
implement this section.
SEC. 595. Section 14011.10 of the Welfare and Institutions Code is
amended to read:
14011.10. (a) Except as provided in Sections 14011.11,
14053.7, 14053.7 and 14053.8, benefits provided
under this chapter to an individual who is an inmate of a public
institution shall be suspended in accordance with Section 1396d(a)
(29)(A) of Title 42 of the United States Code as provided in
subdivision (c).
(b) County welfare departments shall notify the department within
10 days of receiving information that an individual on Medi-Cal in
the county is or will be an inmate of a public institution.
(c) If an individual is a Medi-Cal beneficiary on the date he or
she becomes an inmate of a public institution, his or her benefits
under this chapter and under Chapter 8 (commencing with Section
14200) shall be suspended effective the date he or she becomes an
inmate of a public institution. The suspension shall end on the date
he or she is no longer an inmate of a public institution or one year
from the date he or she becomes an inmate of a public institution,
whichever is sooner.
(d) Nothing in this This section
shall does not create a state-funded
benefit or program. Health care services under this chapter and
Chapter 8 (commencing with Section 14200) shall not be available to
inmates of public institutions whose Medi-Cal benefits have been
suspended under this section.
(e) This section shall be implemented only if and to the extent
allowed by federal law. This section shall be implemented only to the
extent that any necessary federal approval of state plan amendments
or other federal approvals are obtained.
(f) If any part of this section is in conflict with or does not
comply with federal law, this entire section shall be inoperative.
(g) This section shall be implemented on January 1, 2010, or the
date when all necessary federal approvals are obtained, whichever is
later.
(h) By January 1, 2010, or the date when all necessary federal
approvals are obtained, whichever is later, the department, in
consultation with the Chief Probation Officers of California and the
County Welfare Directors Association, shall establish the protocols
and procedures necessary to implement this section, including any
needed changes to the protocols and procedures previously established
to implement Section 14029.5.
(i) The department shall determine whether federal financial
participation will be jeopardized by implementing this section and
shall implement this section only if and to the extent that federal
financial participation is not jeopardized.
(j) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department shall implement this section by means of all-county
letters or similar instructions without taking regulatory action.
Thereafter, the department shall adopt regulations in accordance with
the requirements of Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code.
SEC. 596. Section 14021.6 of the Welfare and Institutions Code is
amended to read:
14021.6. (a) For the fiscal years prior to fiscal year 2004-05,
and subject to the requirements of federal law, the maximum allowable
rates for the Medi-Cal Drug Treatment Program shall be determined by
computing the median rate from available cost data by modality from
the fiscal year that is two years prior to the year for which the
rate is being established.
(b) (1) For the fiscal year 2007-08, and subsequent fiscal years,
and subject to the requirements of federal law, the maximum allowable
rates for the Medi-Cal Drug Treatment Program shall be determined by
computing the median rate from the most recently completed cost
reports, by specific service codes that are consistent with the
federal Health Insurance Portability and Accountability Act of 1996
(42 U.S.C. Sec. 300gg).
(2) For the fiscal years 2005-06 and 2006-07, if the State
Department of Health Care Services and the State Department
of Alcohol and Drug Programs determine determines
that reasonably reliable and complete cost report data are
available, the methodology specified in this subdivision shall be
applied to either or both of those years. If reasonably reliable and
complete cost report data are not available, the State Department of
Health Care Services and the State Department of Alcohol and
Drug Programs shall establish rates for either or both of
those years based upon the usual, customary, and reasonable charge
for the services to be provided, as these two departments
the department may determine in their
its discretion. This subdivision is not intended
to modify subdivision (h) of Section 14124.24, which requires
certain providers to submit performance reports.
(c) Notwithstanding subdivision (a), for the 1996-97 fiscal year,
the rates for nonperinatal outpatient methadone maintenance services
shall be set at the rate established for the 1995-96 fiscal year.
(d) Notwithstanding subdivision (a), the maximum allowable rate
for group outpatient drug free services shall be set on a per person
basis. A group shall consist of a minimum of 2 and a maximum of 12
individuals, at least one of which shall be a Medi-Cal eligible
beneficiary. For groups consisting of two individuals, if one of the
individuals is ineligible for Medi-Cal, the individual who is
ineligible for Medi-Cal shall be receiving outpatient drug free
services for a substance abuse disorder diagnosed by a physician.
(e) The department shall develop individual and group rates for
extensive counseling for outpatient drug free treatment, based on a
50-minute individual or a 90-minute group hour, not to exceed the
total rate established for subdivision (d).
(f) The department may adopt regulations as necessary to implement
subdivisions (a), (b), and (c), or to implement cost containment
procedures. These regulations may be adopted as emergency regulations
in accordance with Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code. The adoption
of these emergency regulations shall be deemed an emergency necessary
for the immediate preservation of the public peace, health and
safety, or general welfare.
SEC. 597. Section 14022 of the Welfare and Institutions Code is
amended to read:
14022. (a) This section shall be known as the "Medi-Cal Conflict
of Interest Law."
It is the intent of the Legislature that provisions be made for
disclosure of the interests of providers of service in the services,
facilities and organizations to which they refer Medi-Cal recipients
so that it is possible to determine the extent to which conflicts of
interests may exist because of such referrals.
(b) As used in this section, the term "referral" means (1) the
referral of a recipient by a provider of service to any other
provider of service; (2) the placement of a recipient by a provider
of service in any facility; or (3) the obtaining, requesting,
ordering or prescribing of services or supplies by a provider of
service on behalf of a recipient from any other provider of service.
As used in this section, the term "immediate family" includes the
spouse and children of the provider of service, the parents of the
provider of service and his spouse, and the spouses of the children
of the provider of service.
(c) No A payment under this chapter
shall not be made to a provider of service or to any
facility or organization in which he or his immediate family has a
significant beneficial interest, for services rendered in connection
with any referral of a recipient, unless there is on file with the
director and the Advisory Health Council a statement of the nature
and extent of such interest.
This
(d) This section shall become
operative only upon the date of which Section 1902(a)(4)(C) of the
federal Social Security Act, as added by Public Law 95-559 is
repealed, held invalid by a court of appeal, or otherwise made
inoperative.
SEC. 598. Section 14029.91 of the Welfare and Institutions Code is
amended to read:
14029.91. (a) The department shall require all managed care plans
contracting with the department to provide Medi-Cal services to
provide language assistance services to limited-English-proficient
(LEP) Medi-Cal beneficiaries who are mandatorily enrolled in managed
care in the following manner:
(1) Oral interpretation services shall be provided in any language
on a 24-hour basis at key points of contact.
(2) Translation services shall be provided to the language groups
identified by the department.
(b) The department shall determine when an LEP population meets
the requirement for translation services using one of the following
numeric thresholds:
(1) A population group of at least 3,000 or 5 percent of the
beneficiary population, whichever is fewer, mandatory managed
care Medi-Cal beneficiaries, residing in the service area, who
indicate their primary language as other than English.
(2) A population group of mandatory managed care
Medi-Cal beneficiaries, residing in the service area, who indicate
their primary language as other than English, and that meet a
concentration standard of 1,000 beneficiaries in a single ZIP Code or
1,500 beneficiaries in two contiguous ZIP Codes.
(c) The department shall make this determination if any of the
following occurs:
(1) A nonmanaged care county becomes a new managed care county.
(2) A new population group becomes a mandatory Medi-Cal managed
care beneficiary population.
(3) A period of three years has passed since the last
determination.
(d) The department shall instruct managed care plans, by means of
incorporating the requirement into plan contracts, all-plan letters,
or similar instructions, of the language groups that meet the numeric
thresholds.
(e) For purposes of this section, a person is
"limited-English-proficient" if he or she speaks English less than
very well.
(f) This section shall does not
apply to mental health plans contracting with the department pursuant
to Section 14712.
SEC. 599. The heading of Article 2.93 (commencing with Section
14091.3) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code is repealed.
Article 2.93. Payments to Hospitals
SEC. 600. Section 14103 of the Welfare and Institutions Code, as
added by Section 25 of Chapter 3 of the 1st Extraordinary Session of
the Statutes of 2013, is repealed.
14103. (a) The implementation of the optional expansion of
Medi-Cal benefits to adults who meet the eligibility requirements of
Section 1902(a)(10)(A)(i)(VIII) of Title XIX of the federal Social
Security Act (42 U.S.C. Sec. 1396a(a)(10)(A)(i)(VIII)), shall be
contingent upon the following:
(1) If the federal medical assistance percentage payable to the
state under the ACA for the optional expansion of Medi-Cal benefits
to adults is reduced below 90 percent, that reduction shall be
addressed in a timely manner through the annual state budget or
legislative process. Upon receiving notification of any reduction in
federal assistance pursuant to this paragraph, the Director of
Finance shall immediately notify the Chairpersons of the Senate and
Assembly Health Committees and the Chairperson of the Joint
Legislative Budget Committee.
(2) If, prior to January 1, 2018, the federal medical assistance
percentage payable to the state under the ACA for the optional
expansion of Medi-Cal benefits to adults is reduced to 70 percent or
less, the implementation of any provision in this chapter authorizing
the optional expansion of Medi-Cal benefits to adults shall cease 12
months after the effective date of the federal law or other action
reducing the federal medical assistance percentage.
(b) For purposes of this section, "ACA" means the federal Patient
Protection and Affordable Care Act (Public Law 111-148) as originally
enacted and as amended by the federal Health Care and Education
Reconciliation Act of 2010 (Public Law 111-152) and any subsequent
amendments.
SEC. 601. Section 14105.18 of the Welfare and Institutions Code is
amended to read:
14105.18. (a) Notwithstanding any other provision of
law, provider rates of payment for services rendered in all
of the following programs shall be identical to the rates of payment
for the same service performed by the same provider type pursuant to
the Medi-Cal program:
(1) The California Children's Services Program established
pursuant to Article 5 (commencing with Section 123800) of Chapter 3
of Part 2 of Division 106 of the Health and Safety Code.
(2) The Genetically Handicapped Person's
Persons Program established pursuant to Article 1 (commencing
with Section 125125) of Chapter 2 of Part 5 of Division 106 of the
Health and Safety Code.
(3) The Breast and Cervical Cancer Early Detection Program
established pursuant to Article 1.3 (commencing with Section 104150)
of Chapter 2 of Part 1 of Division 103 of the Health and Safety Code
and the breast cancer programs specified in Section 30461.6 of the
Revenue and Taxation Code.
(4) The State-Only Family Planning Program established pursuant to
Division 24 (commencing with Section 24000).
(5) The Family Planning, Access, Care, and Treatment (Family PACT)
Program established pursuant to subdivision (aa) of Section 14132.
(6) The Healthy Families Program established pursuant to Part 6.2
(commencing with Section 12693) of Division 2 of the Insurance Code
if the health care services are provided by a Medi-Cal provider
pursuant to subdivision (b) of Section 12693.26 of the Insurance
Code.
(7) The Access for Infants and Mothers Program established
pursuant to Part 6.3 (commencing with Section 12695) of Division 2 of
the Insurance Code if the health care services are provided by a
Medi-Cal provider.
(b) The director may identify in regulations other programs not
listed in subdivision (a) in which providers shall be paid rates of
payment that are identical to the rates of payments in the Medi-Cal
program pursuant to subdivision (a).
(c) Notwithstanding subdivision (a), services provided under any
of the programs described in subdivisions (a) and (b) may be
reimbursed at rates greater than the Medi-Cal rate that would
otherwise be applicable if those rates are adopted by the director in
regulations.
(d) Payment increases made pursuant to Section 14105.196 shall not
apply to provider rates of payment described in this section for
services provided to individuals not eligible for Medi-Cal or Family
PACT.
(e) This section shall become operative on January 1, 2011.
SEC. 602. Section 14105.336 of the Welfare and Institutions Code
is repealed.
14105.336. (a) The department shall reduce reimbursements to
pharmacists by fifty cents ($0.50) per prescription, effective
January 1, 1995, for all drug prescription claims reimbursed through
the Medi-Cal program.
(b) This section shall become inoperative on September 1, 2004.
SEC. 603. Section 14105.337 of the Welfare and Institutions Code
is repealed.
14105.337. (a) Effective January 1, 2000, the department shall
increase reimbursement to pharmacists by twenty-five cents ($0.25)
per prescription for all drug prescription claims reimbursed through
the Medi-Cal program.
(b) Effective July 1, 2002, the department shall increase
reimbursement to pharmacists by an additional fifteen cents ($0.15)
per prescription for all drug prescription claims reimbursed through
the Medi-Cal program.
(c) (1) The department shall reduce reimbursement to pharmacists
in the amount reimbursement was increased pursuant to subdivisions
(a) and (b) with respect to pharmacy services rendered on and after
the date that this subdivision is enacted. Claims submitted by
pharmacists for beneficiaries residing in a nursing facility shall be
exempt from this subdivision.
(2) This subdivision shall become inoperative on July 1, 2004.
(d) This section shall become inoperative on September 1, 2004.
SEC. 604. Section 14124.24 of the Welfare and Institutions Code is
amended to read:
14124.24. (a) For purposes of this section, "Drug Medi-Cal
reimbursable services" means the substance use disorder services
described in the California State Medicaid Plan and includes, but is
not limited to, all of the following services, administered by the
department, and to the extent consistent with state and federal law:
(1) Narcotic treatment program services, as set forth in Section
14021.51.
(2) Day care rehabilitative services.
(3) Perinatal residential services for pregnant women and women in
the postpartum period.
(4) Naltrexone services.
(5) Outpatient drug-free services.
(6) Other services upon approval of a federal Medicaid state plan
amendment or waiver authorizing federal financial participation.
(b) (1) While seeking federal approval for any federal Medicaid
state plan amendment or waiver associated with Drug Medi-Cal
services, the department shall consult with the counties and
stakeholders in the development of the state plan amendment or
waiver.
(2) Upon federal approval of a federal Medicaid state plan
amendment authorizing federal financial participation in the
following services, and subject to appropriation of funds, "Drug
Medi-Cal reimbursable services" shall also include the following
services, administered by the department, and to the extent
consistent with state and federal law:
(A) Notwithstanding subdivision (a) of Section 14132.90, day care
habilitative services, which, for purposes of this paragraph, are
outpatient counseling and rehabilitation services provided to persons
with substance use disorder diagnoses.
(B) Case management services, including supportive services to
assist persons with substance use disorder diagnoses in gaining
access to medical, social, educational, and other needed services.
(C) Aftercare services.
(c) (1) The nonfederal share for Drug Medi-Cal services shall be
funded through a county's Behavioral Health Subaccount of the Support
Services Account of the Local Revenue Fund 2011, and any other
available county funds eligible under federal law for federal
Medicaid reimbursement. The funds contained in each county's
Behavioral Health Subaccount of the Support Services Account of the
Local Revenue Fund 2011 shall be considered state funds distributed
by the principal state agency for the purposes of receipt of the
federal block grant funds for prevention and treatment of substance
abuse found at Subchapter XVII of Chapter 6A of Title 42 of the
United States Code. Pursuant to applicable federal Medicaid law and
regulations including Section 433.51 of Title 42 of the Code of
Federal Regulations, counties may claim allowable Medicaid federal
financial participation for Drug Medi-Cal services based on the
counties certifying their actual total funds expenditures for
eligible Drug Medi-Cal services to the department.
(2) (A) If the director determines that a county's provision of
Drug Medi-Cal treatment services are disallowed by the federal
government or by state or federal audit or review, the impacted
county shall be responsible for repayment of all disallowed federal
funds. In addition to any other recovery methods available,
including, but not limited to, offset of Medicaid federal financial
participation funds owed to the impacted county, the director may
offset these amounts in accordance with Section 12419.5 of the
Government Code.
(B) A county subject to an action by the director pursuant to
subparagraph (A) may challenge that action by requesting a hearing in
writing no later than 30 days from receipt of notice of the
department's action. The proceeding shall be conducted in accordance
with Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code, and the director has all the
powers granted therein. Upon a county's timely request for hearing,
the county's obligation to make payment as determined by the director
shall be stayed pending the county's exhaustion of administrative
remedies provided herein but no longer than will ensure the
department's compliance with Section 1903(d)(2)(C) of the federal
Social Security Act (42 U.S.C. Sec. 1396b).
(d) Drug Medi-Cal services are only reimbursable to Drug Medi-Cal
providers with an approved Drug Medi-Cal contract.
(e) Counties shall negotiate contracts only with providers
certified to provide Drug Medi-Cal services.
(f) The department shall develop methods to ensure timely payment
of Drug Medi-Cal claims.
(g) (1) A county or a contracted provider, except for a provider
to whom subdivision (h) applies, shall submit accurate and complete
cost reports for the previous fiscal year by November 1, following
the end of the fiscal year. The department may settle Drug Medi-Cal
reimbursable services, based on the cost report as the final
amendment to the approved county Drug Medi-Cal contract.
(2) Amounts paid for services provided to Drug Medi-Cal
beneficiaries shall be audited by the department in the manner and
form described in Section 14170.
(3) Administrative appeals to review grievances or complaints
arising from the findings of an audit or examination made pursuant to
this section shall be subject to Section 14171.
(h) Certified narcotic treatment program providers that are
exclusively billing the state or the county for services rendered to
persons subject to Section 1210.1 or 3063.1 of the Penal Code or
Section 14021.52 of this code shall submit accurate and complete
performance reports for the previous state fiscal year by November 1
following the end of that fiscal year. A provider to which this
subdivision applies shall estimate its budgets using the uniform
state daily reimbursement rate. The format and content of the
performance reports shall be mutually agreed to by the department,
the County Alcohol and Drug Program Administrators' Association of
California, and representatives of the treatment providers.
(i) Contracts entered into pursuant to this section shall be
exempt from the requirements of Chapter 1 (commencing with Section
10100) and Chapter 2 (commencing with Section 10290) of Part 2 of
Division 2 of the Public Contract Code.
(j) Annually, the department shall publish procedures for
contracting for Drug Medi-Cal services with certified providers and
for claiming payments, including procedures and specifications for
electronic data submission for services rendered.
(k) If the department commences a preliminary criminal
investigation of a certified provider, the department shall promptly
notify each county that currently contracts with the provider for
Drug Medi-Cal services that a preliminary criminal investigation has
commenced. If the department concludes a preliminary criminal
investigation of a certified provider, the department shall promptly
notify each county that currently contracts with the provider for
Drug Medi-Cal services that a preliminary criminal investigation has
concluded.
(1) Notice of the commencement and conclusion of a preliminary
criminal investigation pursuant to this section shall be made to the
county behavioral health director or his or her equivalent.
(2) Communication between the department and a county specific to
the commencement or conclusion of a preliminary criminal
investigation pursuant to this section shall be deemed confidential
and shall not be subject to any disclosure request, including, but
not limited to, the Information Practices Act of 1997
1977 (Chapter 1 (commencing with Section 1798)
of Title 1.8 of Part 4 of Division 3 of the Code of Civil
Procedure), Civil Code), the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code), requests pursuant to a subpoena,
or for any other public purpose, including, but not limited to,
court testimony.
(3) Information shared by the department with a county regarding a
preliminary criminal investigation shall be maintained in a manner
to ensure protection of the confidentiality of the criminal
investigation.
(4) The information provided to a county pursuant to this section
shall only include the provider name, national provider identifier
(NPI) number, address, and the notice that an investigation has
commenced or concluded.
(5) A county shall not take any adverse action against a provider
based solely upon the preliminary criminal investigation information
disclosed to the county pursuant to this section.
(6) In the event of a preliminary criminal investigation of a
county owned or operated program, the department has the option to,
but is not required to, notify the county pursuant to this section
when the department commences or concludes a preliminary criminal
investigation.
(7) This section shall does not
limit the voluntary or otherwise legally mandated or contractually
mandated sharing of information between the department and a county
of information regarding audits and investigations of Drug Medi-Cal
providers.
(8) "Commenced" means the time at which a complaint or allegation
is assigned to an investigator for a field investigation.
(9) "Preliminary criminal investigation" means an investigation to
gather information to determine if criminal law or statutes have
been violated.
SEC. 605. Section 14132.90 of the Welfare and Institutions Code is
repealed.
14132.90. (a) As of September 15, 1995, day care habilitative
services, pursuant to subdivision (c) of Section 14021 shall be
provided only to alcohol and drug exposed pregnant women and women in
the postpartum period, or as required by federal law.
(b) (1) Notwithstanding any other provision of law, except to the
extent required by federal law, if, as of May 15, 2000, the projected
costs for the 1999-2000 fiscal year for outpatient drug abuse
services, as described in Section 14021, exceed forty-five million
dollars ($45,000,000) in state General Fund moneys, then the
outpatient drug free services, as
defined in Section 51341.1 of Title 22 of the California Code
of Regulations, shall not be a benefit under this chapter as of July
1, 2000.
(2) Notwithstanding paragraph (1), narcotic replacement therapy
and Naltrexone shall remain benefits under this chapter.
(3) Notwithstanding paragraph (1), residential care, outpatient
drug free services, and day care habilitative services, for alcohol
and drug exposed pregnant women and women in the postpartum period
shall remain benefits under this chapter.
(c) Expenditures for services purchased at the direction of county
welfare departments on behalf of CalWORKs recipients shall not be
included in the computation of costs for subdivision (b).
(d) For the 1999-2000 fiscal year and each fiscal year thereafter,
there shall be separate annual fiscal year General Fund
appropriations for drug Medi-Cal perinatal services (Item
4200-104-0001 of the Budget Act), drug Medi-Cal nonperinatal services
(Item 4200-103-0001 of the Budget Act), nondrug Medi-Cal perinatal
services (Item 4200-102-0001 of the Budget Act), and nondrug Medi-Cal
nonperinatal services (Item 4200-101-0001 of the Budget Act).
(e) Notwithstanding any other provision of law, the State
Department of Alcohol and Drug Programs shall maintain a contingency
reserve of the reappropriated General Fund moneys for the purpose of
drug Medi-Cal program expenditures.
(f) Unexpended General Fund moneys appropriated for the drug
Medi-Cal program may be transferred for use as nondrug Medi-Cal
county expenditures in the current or budget years. Unexpended
General Fund moneys shall not be transferred from nondrug Medi-Cal to
the drug Medi-Cal program for purposes of providing matching funds
for federal financial participation.
(g) This section shall become inoperative on July 1, 2013.
SEC. 606. Section 14132.99 of the Welfare and Institutions Code,
as amended by Section 237 of Chapter 664 of the Statutes of 2002, is
amended and renumbered to read:
14132.99. 14132.985. For services
provided pursuant to Chapter 7 (commencing with Section 14000) of
Part 3 of Division 9, Section 14499.5, or Chapter 1 (commencing with
Section 101525) to Chapter 4 (commencing with Section 101825),
inclusive, of Part 4 of Division 101 of the Health and Safety Code,
the cost for services defined in Section 1370.6 of the Health and
Safety Code, and Sections 14087.11 and 14132.98 shall be provided by
state only state-only funds if federal
financial participation is not available.
SEC. 607. Section 14132.277 of the Welfare and Institutions Code
is amended to read:
14132.277. (a) For purposes of this section, the following
definitions shall apply:
(1) "Alternate health care service plan" means a prepaid health
plan that is a nonprofit health care service plan with at least 3.5
million enrollees statewide, that owns or operates its own
pharmacies, and that provides medical services to enrollees in
specific geographic regions through an exclusive contract with a
single medical group in each specific geographic region in which it
operates to provide services to enrollees.
(2) "Cal MediConnect plan" means a health plan or other qualified
entity jointly selected by the state and CMS for participation in the
demonstration project.
(3) "CMS" means the federal Centers for Medicare and Medicaid
Services.
(4) "Coordinated Care Initiative county" means the Counties of
Alameda, Los Angeles, Orange, Riverside, San Bernardino, San Diego,
San Mateo, and Santa Clara, and any other county identified in
Appendix 3 of the Memorandum of Understanding Between the Centers for
Medicare and Medicaid Services and the State of California,
Regarding a Federal-State Partnership to Test a Capitated Financial
Alignment Model for Medicare-Medicaid Enrollees, inclusive of all
amendments, as authorized by Section 14132.275.
(5) "D-SNP plan" means a Medicare Advantage Dual Special Needs
Plan.
(6) "D-SNP contract" means a federal Medicare Improvements for
Patients and Provider Act of 2008 (Public Law 110-275) compliant
contract between the department and a D-SNP plan.
(7) "Demonstration project" means the demonstration project
authorized by Section 14132.275.
(8) "Excluded beneficiaries" means those beneficiaries who are not
eligible to participate in the demonstration project pursuant to
subdivision (l) of Section 14132.275.
(9) "FIDE-SNP plan" means a Medicare Advantage Fully-Integrated
Dual Eligible Special Needs Plan.
(10) "Non-Coordinated Care Initiative counties" means counties not
participating in the demonstration project.
(b) For the 2014 calendar year, the department shall offer D-SNP
contracts to existing D-SNP plans to continue to provide benefits to
their enrollees in their service areas as approved on January 1,
2013. The director may include in any D-SNP contract provisions
requiring that the D-SNP plan do the following:
(1) Submit to the department a complete and accurate copy of the
bid submitted by the plan to CMS for its D-SNP contract.
(2) Submit to the department copies of all utilization and quality
management reports submitted to CMS.
(c) In Coordinated Care Initiative counties, Medicare Advantage
plans and D-SNP plans may continue to enroll beneficiaries in 2014.
In the 2014 calendar year, beneficiaries enrolled in a Medicare
Advantage or D-SNP plan operating in a Coordinated Care Initiative
county shall be exempt from the enrollment provisions of subparagraph
(A) of paragraph (1) of subdivision (l) of Section 14132.275. Those
beneficiaries may at any time voluntarily choose to disenroll from
their Medicare Advantage or D-SNP plan and enroll in a demonstration
site operating pursuant to subdivision (g) of Section 14132.275. If a
beneficiary chooses to do so, that beneficiary may subsequently
disenroll from the demonstration site and return to fee-for-service
Medicare or to a D-SNP plan or Medicare Advantage plan.
(d) For the 2015 calendar year and the remainder of the
demonstration project, in Coordinated Care Initiative counties, the
department shall offer D-SNP contracts to D-SNP plans that were
approved for the D-SNP plan's service areas as of January 1, 2013. In
Coordinated Care Initiative counties, the department shall enter
into D-SNP contracts with D-SNP plans only for excluded beneficiaries
and for those beneficiaries identified in paragraphs (2) and (5) of
subdivision (g).
(e) For the 2015 calendar year and the remainder of the
demonstration project, in non-Coordinated Care Initiative counties,
the department shall offer D-SNP contracts to D-SNP plans.
(f) The director may include in a D-SNP contract offered pursuant
to subdivision (d) or (e) provisions requiring that the D-SNP plan do
the following:
(1) Submit to the department a complete and accurate copy of the
bid submitted by the plan to CMS for its D-SNP contract.
(2) Submit to the department copies of all utilization and quality
management reports submitted to CMS.
(g) For the 2015 calendar year and the remainder of the
demonstration project, in Coordinated Care Initiative counties, the
enrollment provisions of subdivision (l) of Section 14132.275 shall
apply subject to the following:
(1) Beneficiaries enrolled in a FIDE-SNP plan or a Medicare
Advantage plan, other than a D-SNP plan, shall be exempt from the
enrollment provisions of subparagraph (A) of paragraph (1) of
subdivision (l) of Section 14132.275.
(2) Where If the D-SNP plan is not a
Cal MediConnect plan, beneficiaries enrolled as of December 31,
2014, in a D-SNP plan shall be exempt from the enrollment provisions
of subparagraph (A) of paragraph (1) of subdivision (l) of Section
14132.275. Those beneficiaries may at any time voluntarily choose to
disenroll from their D-SNP plan and enroll in a demonstration site
operating pursuant to subdivision (g) of Section 14132.275. A dual
eligible beneficiary who is enrolled as of December 31, 2014, in a
D-SNP plan that is not a Cal MediConnect plan and who opts out of a
demonstration site during the course of the demonstration project may
choose to reenroll in that D-SNP plan.
(3) Where If the D-SNP is a Cal
MediConnect plan, beneficiaries enrolled in a D-SNP plan who are
eligible for the demonstration project shall be subject to the
enrollment provisions of subparagraph (A) of paragraph (1) of
subdivision (l) of Section 14132.275.
(4) For FIDE-SNP plans serving beneficiaries in Coordinated Care
Initiative counties, the department shall require the following
provisions:
(A) After December 31, 2014, enrollment in the County of
Los Angeles County shall not exceed 6,000
additional beneficiaries at any point during the term of the
demonstration project. After December 31, 2014, enrollment in the
combined Counties of Riverside and San Bernardino
counties shall not exceed 1,500 additional beneficiaries
at any point during the term of the demonstration project.
(B) Any necessary data or information requirements provided by the
FIDE-SNP to ensure contract compliance.
(5) Beneficiaries enrolled in an alternate health care service
plan (AHCSP) who become dually eligible for Medicare and Medicaid
benefits while enrolled in that AHCSP may elect to enroll in the
AHCSP's D-SNP plan subject to the following requirements:
(A) The beneficiary was a member of the AHCSP immediately prior to
becoming dually eligible for Medicare and Medicaid benefits.
(B) Upon mutual agreement between a Cal MediConnect Plan operated
by a health authority or commission contracting with the department
and the AHCSP, the AHCSP shall take full financial and programmatic
responsibility for the long-term supports and services of the D-SNP
enrollee, including, but not limited to, in-home supportive services,
long term skilled nursing care, community based adult services,
multipurpose senior services program services, and other Medi-Cal
benefits offered in the demonstration project.
(6) Prior to assigning a beneficiary in a Medi-Cal managed care
health plan pursuant to Section 14182.16, the department shall
determine whether the beneficiary is already a member of the AHCSP.
If so, the beneficiary shall be assigned to a Medi-Cal managed care
health plan operated by a health authority or commission contracting
with the department and subcontracting with the AHCSP.
SEC. 608. Section 14148.67 of the Welfare and Institutions Code is
amended to read:
14148.67. (a) When implementing the premium and cost-sharing
payments required under Sections 14102 and 14148.65, the department
shall make the premium and cost-sharing payments required under those
sections to the beneficiary's qualified health plan in conformity
with the requirements of this section.
(b) (1) The beneficiary shall not be charged, billed, asked, or
required to make any premium or cost-sharing payments to his or her
qualified health plan or service provider for any services that are
subject to premium or cost-sharing payments by the department under
Section 14102 or 14148.65.
(2) If the beneficiary makes any premium or cost-sharing payments
to his or her plan or provider for services that are subject to
premium or cost-sharing payments by the department under Section
14102 or 14148.65, the department shall reimburse the beneficiary for
those payments. The department shall make every reasonable effort to
do both of the following:
(A) Make the reimbursement process simple and easy for
beneficiaries to use.
(B) Promptly reimburse beneficiaries under this paragraph.
(3) If, as a result of reconciliation in a tax year where
in which the beneficiary was eligible for
covered premium payments under Section 14102 or 14148.65, the
beneficiary owes and makes a tax payment to the federal government to
return a portion of the advanced premium tax credit to which the
beneficiary was not entitled and the beneficiary notifies the
department, the department shall reimburse the beneficiary for the
amount of the tax payment related to the tax credits for covered
premium payments under Section 14102 or 14148.65.
(4) If, as a result of reconciliation in a tax year where
in which the beneficiary was eligible for
covered premium payments under Section 14102 or 14148.65, the federal
government owes and makes a tax refund to the beneficiary based upon
the beneficiary's advanced premium tax credit, the beneficiary shall
reimburse the department for the portion of the refund that is
related to the tax credits that were applied to the premium payments
made by the department.
(c) (1) Except as provided in paragraph (2), beneficiaries who are
eligible for benefits under Section 14102 or 14148.65 shall be
eligible for the premium and cost-sharing payments required under
those sections only up to the amount necessary to pay for the second
lowest silver level plan in his or her qualified health plan pricing
region, as modified by cost-sharing reductions.
(2) If a beneficiary selects or remains in a metal level plan that
is more expensive than the metal level plan amount limit required
under paragraph (1), the beneficiary may select or remain in that
plan only if he or she agrees to be responsible for paying all
applicable premium and cost-sharing charges that are in excess of
what is covered by the department. The department shall
is not be responsible for
paying for any premium or cost sharing that is in excess of the metal
level plan amount limit required under paragraph (1).
(d) The department shall consult with the Exchange, Exchange
contracting health care service plans and health insurers, and
stakeholders, including consumer advocates, Medi-Cal providers, and
the counties, in the development and implementation of the following:
(1) Processes and procedures to inform affected applicants and
beneficiaries in a clear, consumer-friendly manner of all of their
enrollment options under the Medi-Cal program and the Exchange, of
the manner in which they may receive the benefits and services
covered through the Exchange coverage, and of the manner in which
they may receive benefits and services under Section 14102.
(2) Provider notices to ensure that Medi-Cal providers are aware
of the Medi-Cal program under Section 14102 and that providers comply
with state laws applicable to Medi-Cal coverage for individuals
eligible under Section 14102.
(e) All notices developed under subdivision (d) shall be
accessible to persons with limited English language proficiency and
persons with disabilities consistent with all federal and state
requirements.
(f) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department, without taking any further regulatory action, shall
implement, interpret, or make specific this section by means of
all-county letters, plan letters, plan or provider bulletins, or
similar instructions until the time regulations are adopted. The
department shall adopt regulations by July 1, 2017, in accordance
with the requirements of Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code.
Notwithstanding Section 10231.5 of the Government Code, beginning six
months after the effective date of this section, the department
shall provide a status report to the Legislature on a semiannual
basis, in compliance with Section 9795 of the Government Code, until
regulations have been adopted.
(g) This section shall be implemented only if and to the extent
that federal financial participation is available and any necessary
federal approvals have been obtained.
SEC. 609. Section 14148.9 of the Welfare and Institutions Code, as
added by Section 4 of Chapter 1171 of the Statutes of 1991, is
amended and renumbered to read:
14148.9. 14148.85 The department
shall provide for the receipt and initial processing of Medi-Cal
applications from (a) pregnant women; and (b) children born after
September 30, 1983, who have not yet attained 19 years of age, at
facilities other than the county welfare department as described in
Title XIX of the Social Security Act (42 U.S.C., Sec. 1396 and
following).
SEC. 610. Section 14154 of the Welfare and Institutions Code is
amended to read:
14154. (a) (1) The department shall establish and maintain a plan
whereby costs for county administration of the determination of
eligibility for benefits under this chapter will be effectively
controlled within the amounts annually appropriated for that
administration. The plan, to be known as the County Administrative
Cost Control Plan, shall establish standards and performance
criteria, including workload, productivity, and support services
standards, to which counties shall adhere. The plan shall include
standards for controlling eligibility determination costs that are
incurred by performing eligibility determinations at county
hospitals, or that are incurred due to the outstationing of any other
eligibility function. Except as provided in Section 14154.15,
reimbursement to a county for outstationed eligibility functions
shall be based solely on productivity standards applied to that
county's welfare department office.
(2) (A) The plan shall delineate both of the following:
(i) The process for determining county administration base costs,
which include salaries and benefits, support costs, and staff
development.
(ii) The process for determining funding for caseload changes,
cost-of-living adjustments, and program and other changes.
(B) The annual county budget survey document utilized under the
plan shall be constructed to enable the counties to provide
sufficient detail to the department to support their budget requests.
(3) The plan shall be part of a single state plan, jointly
developed by the department and the State Department of Social
Services, in conjunction with the counties, for administrative cost
control for the California Work Opportunity and Responsibility to
Kids (CalWORKs), CalFresh, and Medical Assistance (Medi-Cal)
programs. Allocations shall be made to each county and shall be
limited by and determined based upon the County Administrative Cost
Control Plan. In administering the plan to control county
administrative costs, the department shall not allocate state funds
to cover county cost overruns that result from county failure to meet
requirements of the plan. The department and the State Department of
Social Services shall budget, administer, and allocate state funds
for county administration in a uniform and consistent manner.
(4) The department and county welfare departments shall develop
procedures to ensure the data clarity, consistency, and reliability
of information contained in the county budget survey document
submitted by counties to the department. These procedures shall
include the format of the county budget survey document and process,
data submittal and its documentation, and the use of the county
budget survey documents for the development of determining county
administration costs. Communication between the department and the
county welfare departments shall be ongoing as needed regarding the
content of the county budget surveys and any potential issues to
ensure the information is complete and well understood by involved
parties. Any changes Changes developed
pursuant to this section shall be incorporated within the state's
annual budget process by no later than the 2011-12 fiscal year.
(5) The department shall provide a clear narrative description
along with fiscal detail in the Medi-Cal estimate package, submitted
to the Legislature in January and May of each year, of each component
of the county administrative funding for the Medi-Cal program. This
shall describe how the information obtained from the county budget
survey documents was utilized and, if applicable, modified and the
rationale for the changes.
(6) Notwithstanding any other law, the department shall develop
and implement, in consultation with county program and fiscal
representatives, a new budgeting methodology for Medi-Cal county
administrative costs that reflects the impact of PPACA implementation
on county administrative work. The new budgeting methodology shall
be used to reimburse counties for eligibility processing and case
maintenance for applicants and beneficiaries.
(A) The budgeting methodology may include, but is not limited to,
identification of the costs of eligibility determinations for
applicants, and the costs of eligibility redeterminations and case
maintenance activities for recipients, for different groupings of
cases, based on variations in time and resources needed to conduct
eligibility determinations. The calculation of time and resources
shall be based on the following factors: complexity of eligibility
rules, ongoing eligibility requirements, and other factors as
determined appropriate by the department. The development of the new
budgeting methodology may include, but is not limited to, county
survey of costs, time and motion studies, in-person observations by
department staff, data reporting, and other factors deemed
appropriate by the department.
(B) The new budgeting methodology shall be clearly described,
state the necessary data elements to be collected from the counties,
and establish the timeframes for counties to provide the data to the
state.
(C) The new budgeting methodology developed pursuant to this
paragraph shall be implemented no sooner than the 2015-16 fiscal
year. The department may develop a process for counties to phase in
the requirements of the new budgeting methodology.
(D) The department shall provide the new budgeting methodology to
the legislative fiscal committees by March 1 of the fiscal year
immediately preceding the first fiscal year of implementation of the
new budgeting methodology.
(E) To the extent that the funding for the county budgets
developed pursuant to the new budget methodology is not fully
appropriated in any given fiscal year, the department, with input
from the counties, shall identify and consider options to align
funding and workload responsibilities.
(F) For purposes of this paragraph, "PPACA" means the federal
Patient Protection and Affordable Care Act (Public Law 111-148), as
amended by the federal Health Care and Education Reconciliation Act
of 2010 (Public Law 111-152) and any subsequent amendments.
(G) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department may implement, interpret, or make specific this paragraph
by means of all-county letters, plan letters, plan or provider
bulletins, or similar instructions until the time any necessary
regulations are adopted. The department shall adopt regulations by
July 1, 2017, in accordance with the requirements of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code. Beginning six months after the implementation
of the new budgeting methodology pursuant to this paragraph, and
notwithstanding Section 10231.5 of the Government Code, the
department shall provide a status report to the Legislature on a
semiannual basis, in compliance with Section 9795 of the Government
Code, until regulations have been adopted.
(b) Nothing in this This section,
Section 15204.5, or Section 18906 shall not be construed
to limit the administrative or budgetary responsibilities of the
department in a manner that would violate Section 14100.1, and
thereby jeopardize federal financial participation under the Medi-Cal
program.
(c) (1) The Legislature finds and declares that in order for
counties to do the work that is expected of them, it is necessary
that they receive adequate funding, including adjustments for
reasonable annual cost-of-doing-business increases. The Legislature
further finds and declares that linking appropriate funding for
county Medi-Cal administrative operations, including annual
cost-of-doing-business adjustments, with performance standards will
give counties the incentive to meet the performance standards and
enable them to continue to do the work they do on behalf of the
state. It is therefore the Legislature's intent to provide
appropriate funding to the counties for the effective administration
of the Medi-Cal program at the local level to ensure that counties
can reasonably meet the purposes of the performance measures as
contained in this section.
(2) It is the intent of the Legislature to not appropriate funds
for the cost-of-doing-business adjustment for the 2008-09, 2009-10,
2010-11, 2011-12, 2012-13, and 2014-15 fiscal years.
(d) The department is responsible for the Medi-Cal program in
accordance with state and federal law. A county shall determine
Medi-Cal eligibility in accordance with state and federal law. If in
the course of its duties the department becomes aware of accuracy
problems in any county, the department shall, within available
resources, provide training and technical assistance as appropriate.
Nothing in this This section shall
not be interpreted to eliminate any remedy otherwise available
to the department to enforce accurate county administration of the
program. In administering the Medi-Cal eligibility process, each
county shall meet the following performance standards each fiscal
year:
(1) Complete eligibility determinations as follows:
(A) Ninety percent of the general applications without applicant
errors and are complete shall be completed within 45 days.
(B) Ninety percent of the applications for Medi-Cal based on
disability shall be completed within 90 days, excluding delays by the
state.
(2) (A) The department shall establish best-practice guidelines
for expedited enrollment of newborns into the Medi-Cal program,
preferably with the goal of enrolling newborns within 10 days after
the county is informed of the birth. The department, in consultation
with counties and other stakeholders, shall work to develop a process
for expediting enrollment for all newborns, including those born to
mothers receiving CalWORKs assistance.
(B) Upon the development and implementation of the best-practice
guidelines and expedited processes, the department and the counties
may develop an expedited enrollment timeframe for newborns that is
separate from the standards for all other applications, to the extent
that the timeframe is consistent with these guidelines and
processes.
(3)
Perform timely annual redeterminations, as follows:
(A) Ninety percent of the annual redetermination forms shall be
mailed to the recipient by the anniversary date.
(B) Ninety percent of the annual redeterminations shall be
completed within 60 days of the recipient's annual redetermination
date for those redeterminations based on forms that are complete and
have been returned to the county by the recipient in a timely manner.
(C) Ninety percent of those annual redeterminations where
for which the redetermination form has not been
returned to the county by the recipient shall be completed by
sending a notice of action to the recipient within 45 days after the
date the form was due to the county.
(D) If a child is determined by the county to change from no share
of cost to a share of cost and the child meets the eligibility
criteria for the Healthy Families Program established under Section
12693.98 of the Insurance Code, the child shall be placed in the
Medi-Cal-to-Healthy Families Bridge Benefits Program, and these cases
shall be processed as follows:
(i) Ninety percent of the families of these children shall be sent
a notice informing them of the Healthy Families Program within five
working days from the determination of a share of cost.
(ii) Ninety percent of all annual redetermination forms for these
children shall be sent to the Healthy Families Program within five
working days from the determination of a share of cost if the parent
has given consent to send this information to the Healthy Families
Program.
(iii) Ninety percent of the families of these children placed in
the Medi-Cal-to-Healthy Families Bridge Benefits Program who have not
consented to sending the child's annual redetermination form to the
Healthy Families Program shall be sent a request, within five working
days of the determination of a share of cost, to consent to send the
information to the Healthy Families Program.
(E) Subparagraph (D) shall not be implemented until 60 days after
the Medi-Cal and Joint Medi-Cal and Healthy Families applications and
the Medi-Cal redetermination forms are revised to allow the parent
of a child to consent to forward the child's information to the
Healthy Families Program.
(e) The department shall develop procedures in collaboration with
the counties and stakeholder groups for determining county review
cycles, sampling methodology and procedures, and data reporting.
(f) On January 1 of each year, each applicable county, as
determined by the department, shall report to the department on the
county's results in meeting the performance standards specified in
this section. The report shall be is
subject to verification by the department. County reports shall be
provided to the public upon written request.
(g) If the department finds that a county is not in compliance
with one or more of the standards set forth in this section, the
county shall, within 60 days, submit a corrective action plan to the
department for approval. The corrective action plan shall, at a
minimum, include steps that the county shall take to improve its
performance on the standard or standards with which the county is out
of compliance. The plan shall establish interim benchmarks for
improvement that shall be expected to be met by the county in order
to avoid a sanction.
(h) (1) If a county does not meet the performance standards for
completing eligibility determinations and redeterminations as
specified in this section, the department may, at its sole
discretion, reduce the allocation of funds to that county in the
following year by 2 percent. Any funds Funds
so reduced may be restored by the department if, in the
determination of the department, sufficient improvement has been made
by the county in meeting the performance standards during the year
for which the funds were reduced. If the county continues not to meet
the performance standards, the department may reduce the allocation
by an additional 2 percent for each year thereafter in which
sufficient improvement has not been made to meet the performance
standards.
(2) No A reduction of the allocation
of funds to a county shall not be imposed pursuant to this
subdivision for failure to meet performance standards during any
period of time in which the cost-of-doing-business increase is
suspended.
(i) The department shall develop procedures, in collaboration with
the counties and stakeholders, for developing instructions for the
performance standards established under subparagraph (D) of paragraph
(3) of subdivision (d), no later than September 1, 2005.
(j) No later than September 1, 2005, the department shall issue a
revised annual redetermination form to allow a parent to indicate
parental consent to forward the annual redetermination form to the
Healthy Families Program if the child is determined to have a share
of cost.
(k) The department, in coordination with the Managed Risk Medical
Insurance Board, shall streamline the method of providing the Healthy
Families Program with information necessary to determine Healthy
Families eligibility for a child who is receiving services under the
Medi-Cal-to-Healthy Families Bridge Benefits Program.
( l ) Notwithstanding Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code, and except as provided in subparagraph (G) of paragraph (6) of
subdivision (a), the department shall, without taking any further
regulatory action, implement, interpret, or make specific this
section and any applicable federal waivers and state plan amendments
by means of all-county letters or similar instructions.
SEC. 611. Section 14165.50 of the Welfare and Institutions Code is
amended to read:
14165.50. (a) To facilitate the financial viability of a new
private nonprofit hospital that will serve the population of South
Los Angeles that was formerly served by the Los Angeles County Martin
Luther King, Jr.-Harbor Hospital, Medi-Cal funding shall, at a
minimum, be made available, as specified in this section, or pursuant
to mechanisms that provide equivalent funding under successor or
modified Medi-Cal payment systems.
(b) Medi-Cal payment for hospital services provided by the new
hospital, exclusive of any payments under the Medi-Cal Hospital
Reimbursement Improvement Act of 2013 (Article 5.230 (commencing with
Section 14169.50)) or funded by another statewide hospital fee
program, and exclusive of the supplemental payments specified in
subdivision (d), shall include consideration of the new hospital's
projected Medi-Cal costs for providing the services as set forth in
this section.
(1) (A) Subject to paragraph (2) of subdivision (c), and
notwithstanding any other law, Medi-Cal payments made to the new
hospital on a fee-for-service basis, including payments made pursuant
to the methodology authorized under Section 14105.28 or successor or
modified methodologies, shall provide compensation that is, at a
minimum, equal to 100 percent of the new hospital's projected
Medi-Cal costs for each fiscal year.
(B) To the extent supplemental payments are necessary for any
fiscal year to meet the applicable minimum reimbursement level as
described in subparagraph (A), the department shall seek federal
approval, as necessary, to enable the new hospital to receive the
Medi-Cal supplemental payments.
(2) (A) To the extent permitted under federal law, the department
shall require Medi-Cal managed care plans serving Medi-Cal
beneficiaries in the County of Los Angeles to pay the new hospital
amounts determined necessary to meet compensation levels for services
provided to managed care enrollees that are no less than the amount
to which the new hospital would have received on a fee-for-service
basis pursuant to paragraph (1). The amounts shall be determined in
consultation with the new hospital, the County of Los Angeles, and
the Medi-Cal managed care plan, and shall be subject to paragraph (2)
of subdivision (c).
(B) Consistent with federal law, the capitation rates paid to
Medi-Cal managed care plans serving Medi-Cal beneficiaries in the
County of Los Angeles shall be determined to reflect the obligations
described in subparagraph (A). The increased payments to Medi-Cal
managed care plans that would be paid consistent with actuarial
certification and enrollment in the absence of this paragraph shall
not be reduced as a consequence of this paragraph.
(C) A Medi-Cal managed care plan receiving the increased payments
described in subparagraph (B) shall not impose a fee or retention
amount, or reduce other payments to the new hospital that would
result in a direct or indirect reduction to the amounts required to
be paid under subparagraph (A).
(3) This subdivision shall not be construed to result in payments
that are less than the rates of compensation that would be payable to
the new hospital for Medi-Cal services without regard to the
requirements of paragraphs (1) and (2).
(c) If the applicable minimum reimbursement levels required in
subdivision (b) result in payments to the new hospital that are above
the levels of compensation that would have been payable absent that
requirement, and to the extent a nonfederal share is necessary with
respect to the additional compensation, the following provisions
shall apply:
(1) (A) For each fiscal year through the 2016-17 fiscal year,
General Fund amounts appropriated in the annual Budget Act for the
Medi-Cal program shall fund the nonfederal share of the additional
payments to the extent that the rates of compensation for inpatient
hospital services provided by the new hospital that would have been
payable in the absence of the requirements of subdivision (b) are
less than 77 percent of the new hospital's projected Medi-Cal costs.
With respect to the nonfederal share of the additional payments
described in paragraph (2) of subdivision (b), however, this
subparagraph shall be applicable only for inpatient services provided
in conjunction with the implementation of Section 14182, and other
mandatory managed care enrollment provisions implemented subsequent
to January 1, 2011.
(B) For the 2017-18 fiscal year and each subsequent fiscal year,
General Fund amounts appropriated in the annual Budget Act for the
Medi-Cal program shall fund the nonfederal share of the additional
payments to the extent that the rates of compensation for inpatient
hospital services provided by the new hospital that would have been
payable in the absence of the requirements of subdivision (b) are
less than 72 percent of the new hospital's projected Medi-Cal costs.
With respect to the nonfederal share of the additional payments
described in paragraph (2) of subdivision (b), however, this
subparagraph shall be applicable only for inpatient services provided
in conjunction with the implementation of Section 14182, and other
mandatory managed care enrollment provisions implemented subsequent
to January 1, 2011.
(2) (A) The remaining necessary nonfederal share of the additional
payments, after taking into account the General Fund amounts
described in paragraph (1), may be funded with public funds that are
transferred to the state from the County of Los Angeles, at the
county's election, pursuant to Section 14164. To the extent the
county elects not to fund any portion of the remaining necessary
nonfederal share, the applicable minimum reimbursement levels
required in subdivision (b) shall be reduced accordingly.
(B) Any public Public funds
transferred to the state for payments to the new hospital as
described in this paragraph with respect to a fiscal period shall be
expended solely for the nonfederal share of the payments.
Notwithstanding any other law, except as provided in subdivision (m),
the department shall not impose any fee or assessment in connection
with the transferred funds or the payments provided for under this
section, including, but not limited to, reimbursement for state
staffing or administrative costs.
(C) If any portion of the funds transferred pursuant to this
paragraph is not expended, or not expected to be expended, for the
specified rate amounts required in subdivision (b), the unexpended
funds shall be returned promptly to the transferring county.
(3) This subdivision shall not be construed to reduce the
nonfederal share of payments funded by General Fund amounts below the
amounts that would be funded without regard to the minimum payment
levels required under this section.
(d) (1) In addition to payments meeting the applicable minimum
reimbursement levels described in subdivision (b), the new hospital
shall be eligible to receive supplemental payments. The supplemental
payments shall be provided annually in amounts determined in
consultation with the new hospital and the County of Los Angeles, and
subject to paragraph (3).
(2) The department shall seek federal approval, as necessary, to
enable the new hospital to receive supplemental payments that are in
addition to the applicable minimum reimbursement levels required in
subdivision (b). The supplemental payments may be provided for under
the mechanisms described in Sections 14166.12 and 14301.4 or
successor or modified mechanisms, or any other federally permissible
payment mechanism. Supplemental payments that are payable through a
Medi-Cal managed care plan shall be subject to the same requirements
described in subparagraph (C) of paragraph (2) of subdivision (b).
(3) If a nonfederal share is necessary to fund the supplemental
payments, the County of Los Angeles may voluntarily provide public
funds that are transferred to the state pursuant to Section 14164.
The county may specify the type of supplemental payment for which it
is transferring funds, and any other category relevant to the
payment, including, but not limited to, fee-for-service supplemental
payment, managed care rate range payment, and payment for services
rendered to newly eligible beneficiaries as defined in subdivision
(s) of Section 17612.2.
(4) Any public Public funds
transferred to the state for supplemental payments to the new
hospital as described in this subdivision with respect to a fiscal
period shall be expended solely for the nonfederal share of the
supplemental payments as specified pursuant to paragraph (3).
Notwithstanding any other law, subdivision (o) of Section 14166.12
shall not apply, and the department shall not assess the fee
described in subdivision (d) of Section 14301.4, or any other similar
fee, except as provided in subdivision (m). If any portion of the
funds transferred pursuant to this subdivision is not expended, or
not expected to be expended, for the specified supplemental payments,
the unexpended funds shall be returned promptly to the transferring
county.
(e) Notwithstanding any other law, all payments provided for under
this section shall be treated as having been paid for purposes of
any determination of available room under the federal upper payment
limit, as specified in Part 447 of Title 42 of the Code of Federal
Regulations, with respect to the applicable class of services and
class of health care provider.
(f) (1) For purposes of this article, "new hospital" means a
health facility that is certified under Title XVIII and Title XIX of
the federal Social Security Act, and is licensed pursuant to Chapter
2 (commencing with Section 1250) of Division 2 of the Health and
Safety Code to provide acute inpatient hospital services, and
includes all components of the facility, with an inpatient hospital
service location on the campus of the former Los Angeles County
Martin Luther King, Jr.-Harbor Hospital.
(2) "Medi-Cal managed care plan" shall have the meaning provided
in paragraph (5) of subdivision (b) of Section 14199.1.
(g) For purposes of this article, the new hospital's projected
Medi-Cal costs shall be based on the cost finding principles applied
under subdivision (b) of Section 14166.4, except that the projected
costs shall not be multiplied by the federal medical assistance
percentage and are not subject to the reimbursement limitations set
forth in Article 7.5 (commencing with Section 51536) of Chapter 3 of
Subdivision 1 of Division 3 of Title 22 of the California Code of
Regulations. The projected Medi-Cal costs shall be determined prior
to the start of each fiscal year in consultation with the new
hospital, using the best available and reasonable current estimates
or projections made with respect to the new hospital for an annual
period, and shall be considered final as of the start of the fiscal
year for purposes of the minimum payment levels described in
subdivision (b).
(h) Notwithstanding any other law, the new hospital shall not be
eligible to receive payments pursuant to Section 14166.11. This
subdivision, however, shall not be construed to preclude the hospital
from eligibility for disproportionate share status, or from receipt
of any federal Medicaid disproportionate share hospital payments to
which it would be entitled, pursuant to the Medi-Cal State Plan.
(i) Except as specified in subdivision (h), this section shall not
be construed to preclude the new hospital from receiving any other
payment for which it is eligible in addition to the payments provided
for by this section.
(j) Notwithstanding any other law, for purposes of Article 12
(commencing with Section 17612.1) of Chapter 6 of Part 5, the
intergovernmental transfers described in this section as reflected in
the actual net expenditures for all operating budget units of the
County of Los Angeles Department of Health Services shall not be
reduced in any manner in the determination of total costs under
paragraph (6) of subdivision (b) of Section 17612.5, by application
of the imputed other entity intergovernmental transfer amounts or
otherwise.
(k) Notwithstanding the rulemaking provisions of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, the department may implement this section by
means of all-facility letters, all-county letters, or similar
instructions, without taking further regulatory action. This section
shall not be construed to preclude the department from adopting
regulations.
( l ) (1) The department shall obtain federal approvals
or waivers as necessary to implement this section and to obtain
federal matching funds to the maximum extent permitted by federal
law. This section shall be implemented only if, and to the extent
that, federal financial participation is available and this section
does not jeopardize the federal financial participation available for
any other state program.
(2) This section shall be implemented only if, and to the extent
that, any necessary federal approvals are obtained.
(m) As part of its voluntary participation to provide the
nonfederal share of payments under this section, the County of Los
Angeles shall agree to reimburse the state for the nonfederal share
of state staffing and administrative costs directly attributable to
the cost of administrating the payments and associated
intergovernmental transfers. The costs shall be documented and
subject to review by the county.
SEC. 612. Section 14166.22 of the Welfare and Institutions Code is
amended to read:
14166.22. (a) To the extent required to maximize available
federal funds under the demonstration project and to the extent
authorized by the Special Terms and Conditions for the demonstration
project, the department may claim federal reimbursement for
expenditures, consistent with the equitable distribution established
under this article, in the following priority order:
(1) The medically indigent adults long-term care program.
(2) The Genetically Handicapped Person's
Persons Program established pursuant to Article 1 (commencing
with Section 125125) of Chapter 2 of Part 5 of Division 106 of the
Health and Safety Code.
(3) The Breast and Cervical Cancer Treatment Program established
pursuant to Article 1.5 (commencing with Section 104160) of Chapter 2
of Part 1 of Division 103 of the Health and Safety Code.
(4) The California Children's Services Program established
pursuant to Article 5 (commencing with Section 123800) of Chapter 3
of Part 2 of Division 106 of the Health and Safety Code.
(b) Notwithstanding any other state law, the
federal reimbursement received as a result of a claim made pursuant
to subdivision (a) shall be used to create General Fund savings
solely for the department for use in support of safety net hospitals
under the demonstration project.
(c) The federal reimbursement received as a result of a claim made
pursuant to subdivision (a) is hereby appropriated to the department
for the program in which the claimed expenditures were made.
(d) An amount of General Fund moneys appropriated to the
department for programs specified in subdivision (a) equal to the
amount of federal reimbursement identified pursuant to subdivision
(c) is hereby reappropriated to the Health Care Deposit Fund to be
used for the purposes set forth in this article.
SEC. 613. The heading of Article 5.22 (commencing with Section
14167.35) is added to Chapter 7 of Part 3 of Division 9 of the
Welfare and Institutions Code, to read:
Article 5.22. Quality Assurance Fee Act
SEC. 614. Section 15151 of the Welfare and Institutions Code is
amended to read:
15151. During such the times
as that grants-in-aid are provided or
made available by the United States government for the purpose of
defraying any portion of the costs of administration incurred for
public assistance, the State Treasurer shall pay to each county an
amount equal to such the county's
proportionate share of the sum so granted for the cost of
administration, which amount shall be used exclusively for paying
such the administrative costs. Except
as provided in Section 15151.5 , the department shall
determine the portion of the amount so granted or made available for
administrative costs to be paid to the counties, which portion shall
be determined pursuant to rules and regulations of the department and
shall be not less than one-half of the amount so granted or made
available. The department shall adopt rules and regulations
which that shall be of uniform application for
determining the proportionate shares of the respective counties of
the portion so determined to be paid to such
those counties.
This section shall become operative and shall supersede
subdivision provision (2) of Section 15150
during such the times as
that grants by the United States government,
provided or made available to defray any portion of administrative
costs incurred for public assistance, are not computed as a
proportion of such those costs of
administration. Whenever this section is in effect, all other
sections referring to Section 15150 shall also be deemed to refer to
this section.
SEC. 615. Section 15862 of the Welfare and Institutions Code is
amended to read:
15862. (a) The provisions of this chapter shall be implemented
only if all of the following conditions are met:
(1) Federal financial participation is available for this purpose.
(2) Federal participation is approved.
(3) The department determines that federal funds under Title XXI
of the Social Security Act remain available after providing funds for
all current enrollees and eligible children that are likely to
enroll in the optional targeted low-income children group and, to the
extent funded through the federal Children's Health Insurance
Program (Subchapter 21 (commencing with Section 1397aa) of Chapter 7
of Title 42 of the United States Code), the Medi-Cal Access program
and Medi-Cal program, as determined by a Department of Finance
estimate.
(4) Funds are appropriated specifically for this purpose.
(b) The department may accept funding necessary for the
preparation of the federal waiver applications or state plan
amendments described in Section 15861 from a not-for-profit group or
foundation , but only to the extent that such
the funding may be eligible for federal
financial participation.
SEC. 616. Section 15885.5 of the Welfare and Institutions Code is
amended to read:
15885.5. Where If more than one
participating health plan is offered, the department shall make
available to applicants eligible to enroll in the program sufficient
information to make an informed choice among the various types of
participating health plans. Each applicant shall be issued an
appropriate document setting forth or summarizing the services to
which an enrollee is entitled, procedures for obtaining major risk
medical coverage, a list of contracting health plans and providers,
and a summary of grievance procedures.
SEC. 617. Section 15894.5 of the Welfare and Institutions Code is
amended to read:
15894.5. From (a)
From money appropriated by the Legislature to the fund, the
department may expend sufficient funds to carry out the purposes of
this chapter and of Section 10127.16 of the Insurance Code, and
Section 1373.622 of the Health and Safety Code.
However,
(b) However, the state
shall is not be liable beyond
the assets of the fund for any obligations incurred, or liabilities
sustained, in the operation of the California Major Risk Medical
Insurance Program or for the expenditures described in Section
10127.16 of the Insurance Code, Code
and Section 1373.622 of the Health and Safety Code.
SEC. 618. Section 16120 of the Welfare and Institutions Code is
amended to read:
16120. A child shall be is eligible
for Adoption Assistance Program benefits if all of the conditions
specified in subdivisions (a) to (l), inclusive, are met or if the
conditions specified in subdivision (m) are met.
(a) It has been determined that the child cannot or should not be
returned to the home of his or her parents as evidenced by a petition
for termination of parental rights, a court order terminating
parental rights, or a signed relinquishment, or, in the case of a
tribal customary adoption, if the court has given full faith and
credit to a tribal customary adoption order as provided for pursuant
to paragraph (2) of subdivision (e) of Section 366.26, or, in the
case of a nonminor dependent the court has dismissed dependency or
transitional jurisdiction subsequent to the approval of the nonminor
dependent, adoption petition pursuant to subdivision (f) of Section
366.31.
(b) The child has at least one of the following characteristics
that are barriers to his or her adoption:
(1) Adoptive placement without financial assistance is unlikely
because of membership in a sibling group that should remain intact or
by virtue of race, ethnicity, color, language, age of three years
or older, or parental
background of a medical or behavioral nature that can be determined
to adversely affect the development of the child.
(2) Adoptive placement without financial assistance is unlikely
because the child has a mental, physical, emotional, or medical
disability that has been certified by a licensed professional
competent to make an assessment and operating within the scope of his
or her profession. This paragraph shall also apply to children with
a developmental disability, as defined in subdivision (a) of Section
4512, including those determined to require out-of-home nonmedical
care, as described in Section 11464.
(c) The need for an adoption subsidy is evidenced by an
unsuccessful search for an adoptive home to take the child without
financial assistance, as documented in the case file of the
prospective adoptive child. The requirement for this search shall be
waived when it would be against the best interest of the child
because of the existence of significant emotional ties with
prospective adoptive parents while in the care of these persons as a
foster child.
(d) The child satisfies any of the following criteria:
(1) He or she is under 18 years of age.
(2) He or she is under 21 years of age and has a mental or
physical handicap that warrants the continuation of assistance.
(3) Effective January 1, 2012, he or she is under 19 years of age,
effective January 1, 2013, he or she is under 20 years of age, and
effective January 1, 2014, he or she is under 21 years of age and as
described in Section 10103.5, and has attained 16 years of age before
the adoption assistance agreement became effective, and one or more
of the conditions specified in paragraphs (1) to (5), inclusive, of
subdivision (b) of Section 11403 applies.
(e) The adoptive family is responsible for the child pursuant to
the terms of an adoptive placement agreement or a final decree of
adoption and has signed an adoption assistance agreement.
(f) The adoptive family is legally responsible for the support of
the child and the child is receiving support from the adoptive
parent.
(g) The department or the county responsible for determining the
child's Adoption Assistance Program eligibility status and for
providing financial aid, and the prospective adoptive parent, prior
to or at the time the adoption decree is issued by the court, have
signed an adoption assistance agreement that stipulates the need for,
and the amount of, Adoption Assistance Program benefits.
(h) The prospective adoptive parent or any adult living in the
prospective adoptive home has completed the criminal background check
requirements pursuant to Section 671(a)(20)(A) and (C) of Title 42
of the United States Code.
(i) To be eligible for state funding, the child is the subject of
an agency adoption, as defined in Section 8506 of the Family Code,
and was any of the following:
(1) Under the supervision of a county welfare department as the
subject of a legal guardianship or juvenile court dependency.
(2) Relinquished for adoption to a licensed California private or
public adoption agency, or another public agency operating a Title
IV-E program on behalf of the state, and would have otherwise been at
risk of dependency as certified by the responsible public child
welfare agency.
(3) Committed to the care of the department pursuant to Section
8805 or 8918 of the Family Code.
(4) The child is an Indian child and the subject of an order of
adoption based on tribal customary adoption of an Indian child, as
described in Section 366.24. Notwithstanding Section 8600.5 of the
Family Code, for purposes of this subdivision a tribal customary
adoption shall be considered an agency adoption.
(j) To be eligible for federal funding, in the case of a child who
is not an applicable child for the federal fiscal year as defined in
subdivision (n), the child satisfies any of the following criteria:
(1) Prior to the finalization of an agency adoption, as defined in
Section 8506 of the Family Code, or an independent adoption, as
defined in Section 8524 of the Family Code, is filed, the child has
met the requirements to receive federal supplemental security income
benefits pursuant to Subchapter 16 (commencing with Section 1381) of
Chapter 7 of Title 42 of the United States Code, as determined and
documented by the federal Social Security Administration.
(2) The child was removed from the home of a specified relative
and the child would have been AFDC eligible in the home of removal
according to Section 606(a) or 607 of Title 42 of the United States
Code, as those sections were in effect on July 16, 1996, in the month
of the voluntary placement agreement or in the month court
proceedings are initiated to remove the child, resulting in a
judicial determination that continuation in the home would be
contrary to the child's welfare. The child must have been living with
the specified relative from whom he or she was removed within six
months of the month the voluntary placement agreement was signed or
the petition to remove was filed.
(3) The child was voluntarily relinquished to a licensed public or
private adoption agency, or another public agency operating a Title
IV-E program on behalf of the state, and there is a petition to the
court to remove the child from the home within six months of the time
the child lived with a specified relative and a subsequent judicial
determination that remaining in the home would be contrary to the
child's welfare.
(4) Title IV-E foster care maintenance was paid on behalf of the
child's minor parent and covered the cost of the minor parent's child
while the child was in the foster family home or child care
institution with the minor parent.
(5) The child is an Indian child and the subject of an order of
adoption based on tribal customary adoption of an Indian child, as
described in Section 366.24.
(k) To be eligible for federal funding, in the case of a child who
is an applicable child for the federal fiscal year, as defined in
subdivision (n), the child meets any of the following criteria:
(1) At the time of initiation of adoptive proceedings was in the
care of a public or licensed private child placement agency or Indian
tribal organization pursuant to either of the following:
(A) An involuntary removal of the child from the home in
accordance with a judicial determination to the effect that
continuation in the home would be contrary to the welfare of the
child.
(B) A voluntary placement agreement or a voluntary relinquishment.
(2) He or she meets all medical or disability requirements of
Title XVI with respect to eligibility for supplemental security
income benefits.
(3) He or she was residing in a foster family home or a child care
institution with the child's minor parent, and the child's minor
parent was in the foster family home or child care institution
pursuant to either of the following:
(A) An involuntary removal of the child from the home in
accordance with a judicial determination to the effect that
continuation in the home would be contrary to the welfare of the
child.
(B) A voluntary placement agreement or voluntary relinquishment.
(4) The child is an Indian child and the subject of an order of
adoption based on tribal customary adoption of an Indian child, as
described in Section 366.24.
(5) The nonminor dependent, as described in subdivision (v) of
Section 11400, is the subject of an adoption pursuant to subdivision
(f) of Section 366.31.
(l) The child is a citizen of the United States or a qualified
alien as defined in Section 1641 of Title 8 of the United States
Code. If the child is a qualified alien who entered the United States
on or after August 22, 1996, and is placed with an unqualified
alien, the child must meet the five-year residency requirement
pursuant to Section 673(a)(2)(B) of Title 42 of the United States
Code, unless the child is a member of one of the excepted groups
pursuant to Section 1612(b) of Title 8 of the United States Code.
(m) A child or nonminor shall be eligible for Adoption Assistance
Program benefits if the following conditions are met:
(1) The child or nonminor received Adoption Assistance Program
benefits with respect to a prior adoption and the child or nonminor
is again available for adoption because the prior adoption was
dissolved and the parental rights of the adoptive parents were
terminated or because the child's or nonminor's adoptive parents died
and the child or nonminor meets the special needs criteria described
in subdivisions (a) to (c), inclusive. When a nonminor is receiving
Adoption Assistance Program benefits after 18 years of age and the
nonminor's adoptive parents die, the juvenile court may resume
dependency jurisdiction over the nonminor pursuant to
subdivision (e) of Section 388.
388.1
(2) To receive federal funding, the citizenship requirements in
subdivision (l).
(n) (1) Except as provided in this subdivision, "applicable child"
means a child for whom an adoption assistance agreement is entered
into under this section during any federal fiscal year described in
this subdivision if the child attained the applicable age for that
federal fiscal year before the end of that federal fiscal year.
(A) For federal fiscal year 2010, the applicable age is 16 years.
(B) For federal fiscal year 2011, the applicable age is 14 years.
(C) For federal fiscal year 2012, the applicable age is 12 years.
(D) For federal fiscal year 2013, the applicable age is 10 years.
(E) For federal fiscal year 2014, the applicable age is eight
years.
(F) For federal fiscal year 2015, the applicable age is six years.
(G) For federal fiscal year 2016, the applicable age is four
years.
(H) For federal fiscal year 2017, the applicable age is two years.
(I) For federal fiscal year 2018 and thereafter, any age.
(2) Beginning with the 2010 federal fiscal year, the term
"applicable child" shall include a child of any age on the date on
which an adoption assistance agreement is entered into on behalf of
the child under this section if the child meets both of the following
criteria:
(A) He or she has been in foster care under the responsibility of
the state for at least 60 consecutive months.
(B) He or she meets the requirements of subdivision (k).
(3) Beginning with the 2010 federal fiscal year, an applicable
child shall include a child of any age on the date that an adoption
assistance agreement is entered into on behalf of the child under
this section, without regard to whether the child is described in
paragraph (2), if the child meets all of the following criteria:
(A) He or she is a sibling of a child who is an applicable child
for the federal fiscal year, under subdivision (n) or paragraph (2).
(B) He or she is to be placed in the same adoption placement as an
"applicable child" for the federal fiscal year who is their sibling.
(C) He or she meets the requirements of subdivision (k).
SEC. 619. Section 16500.5 of the Welfare and Institutions Code is
amended to read:
16500.5. (a) (1) The Legislature hereby declares its intent to
encourage the continuity of the family unit by:
(A) (i) Providing family preservation services.
(ii) For purposes of this subdivision, "family preservation
services" means intensive services for families whose children,
without these services, would be subject to any of the following:
(I) Be at imminent risk of out-of-home placement.
(II) Remain in existing out-of-home placement for longer periods
of time.
(III) Be placed in a more restrictive out-of-home placement.
(B) Providing supportive services for those children within the
meaning of Sections 360, 361, and 364 when they are returned to the
family unit or when a minor will probably soon be within the
jurisdiction of the juvenile court pursuant to Section 301.
(C) Providing counseling and family support services designed to
eradicate the situation that necessitated intervention.
(2) The Legislature finds that maintaining abused and neglected
children in foster care grows increasingly costly each year, and that
adequate funding for family services that might enable these
children to remain in their homes is not as readily available as
funding for foster care placement.
(3) The Legislature further finds that other state bodies have
addressed this problem through various systems of flexible
reimbursement in child welfare programs that provide for more
intensive and appropriate services to prevent foster care placement
or significantly reduce the length of stay in foster care.
(b) It is the intent of the Legislature that family preservation
and support services in California conform to the federal definitions
contained in Section 431 of the Social Security Act as contained in
Public Law 103-66, the Omnibus Budget Reconciliation Act of 1987. The
Legislature finds and declares that California's existing family
preservation programs meet the intent of the federal Promoting Safe
and Stable Families program.
(c) (1) Services that may be provided under this program may
include, but are not limited to, counseling, mental health treatment
and substance abuse treatment services, including treatment at a
residential substance abuse treatment facility that accepts families,
parenting, respite, day treatment, transportation, homemaking, and
family support services. Each county that chooses to provide mental
health treatment and substance abuse treatment shall identify and
develop these services in consultation with county mental health
treatment and substance abuse treatment agencies. Additional services
may include those enumerated in Sections 16506 and 16507. The
services to be provided pursuant to this section may be determined by
each participating county. Each county may contract with individuals
and organizations for services to be provided pursuant to this
section. Each county shall utilize available private nonprofit
resources in the county prior to developing new county-operated
resources when these private nonprofit resources are of at least
equal quality and costs as county-operated resources and shall
utilize available county resources of at least equal quality and cost
prior to new private nonprofit resources.
(2) Participating counties authorized by this subdivision shall
provide specific programs of direct services based on individual
family needs as reflected in the service plans to families of the
following:
(A) Children who are dependent children not taken from physical
custody of their parents or guardians pursuant to Section 364.
(B) Children who are dependent children removed from the physical
custody of their parents or guardian pursuant to Section 361.
(C) Children who it is determined will probably soon be within the
jurisdiction of the juvenile court pursuant to Section 301.
(D) Upon approval of the department, children who have been
adjudged wards of the court pursuant to Sections 601 and 602.
(E) Upon approval of the department, families of children subject
to Sections 726 and 727.
(F) Upon approval of the department, children who are determined
to require out-of-home placement pursuant to Section 7572.5 of the
Government Code.
(3) The services shall only be provided to families whose children
will be placed in out-of-home care without the provision of services
or to children who can be returned to their families with the
provision of services.
(4) The services selected by any a
participating county shall be reasonable and meritorious and shall
demonstrate cost-effectiveness and success at avoiding out-of-home
placement, or reducing the length of stay in out-of-home placement. A
county shall not expend more funds for services under this
subdivision than that amount which would be expended for placement in
out-of-home care.
(5) The program in each county shall be deemed successful if it
meets the following standards:
(A) Enables families to resolve their own problems, effectively
utilize service systems, and advocate for their children in
educational and social agencies.
(B) Enhancing family functioning by building on family strengths.
(C) At least 75 percent of the children receiving services remain
in their own home for six months after termination of services.
(D) During the first year after services are terminated:
(i) At least 60 percent of the children receiving services remain
at home one year after services are terminated.
(ii) The average length of stay in out-of-home care of children
selected to receive services who have already been removed from their
home and placed in out-of-home care is 50 percent less than the
average length of stay in out-of-home care of children who do not
receive program services.
(E) Two years after the termination of family preservation
services:
(i) The average length of out-of-home stay of children selected to
receive services under this section who, at the time of selection,
are in out-of-home care, is 50 percent less than the average length
of stay in out-of-home care for children in out-of-home care who do
not receive services pursuant to this section.
(ii) At least 60 percent of the children who were returned home
pursuant to this section remain at home.
(6) Funds used for services provided under this section shall
supplement, not supplant, child welfare services funds available for
services pursuant to Sections 16506 and 16507.
(7) Programs authorized after the original pilot projects shall
submit data to the department upon the department's request.
(d) (1) A county welfare department social worker or probation
officer may, pursuant to an appropriate court order, return a
dependent minor or ward of the court removed from the home pursuant
to Section 361 to his or her home, with appropriate interagency
family preservation program services.
(2) The county probation department may, with the approval of the
State Department of Social Services, through an interagency agreement
with the county welfare department, refer cases to the county
welfare department for the direct provision of services under this
subdivision.
(e) Foster care funds shall remain within the administrative
authority of the county welfare department and shall be used only for
placement services or placement prevention services or county
welfare department administrative cost related to the interagency
family preservation program.
(f) To the extent permitted by federal law, any federal funds
provided for services to families and children may be utilized for
the purposes of this section.
(g) A county may establish family preservation programs that serve
one or more geographic areas of the county, subject to the approval
of the State Department of Social Services.
(1) All funds expended by a county for activities under this
section shall be expended by the county in a manner that will
maximize eligibility for federal financial participation.
(2) Any A county, subject to the
approval of the State Department of Social Services, may claim
federal financial participation, if allowable and available, as
provided by the State Department of Social Services in the federal
Promoting Safe and Stable Families program in accordance with the
federal guidelines and regulations for that county's AFDC-FC
expenditures pursuant to subdivision (d) of Section 11450, for
children subject to Sections 300, 301, 360, and 364, in advance,
provided that the county conducts a program of family reunification
and family maintenance services for families receiving these services
pursuant to Sections 300, 301, 360, and 364, and as permitted by the
department, children subject to Sections 601, 602, 726, and
727, 727 of this code, and Section 7572.5 of
the Government Code.
(h) In order to maintain federal funding and meet federal
requirements, the State Department of Social Services and the Office
of Child Abuse Prevention shall provide administrative oversight,
monitoring, and consultation to ensure both of the following:
(1) Each county includes in its county plan information that
details what services are to be funded under this section and who
will be served, and how the services are coordinated with the array
of services available in the county. In order to maintain federal
funding to meet federal requirements, the State Department of Social
Services shall review these plans and provide technical assistance as
needed, as provided in Section 10601.2. In order to meet federal
requirements, the Office of Child Abuse Prevention shall require
counties to submit annual reports, as part of the current reporting
process, on program services and children and families served. The
annual reporting process shall be developed jointly by the department
and county agencies for the purpose of meeting federal reporting
requirements.
(2) In order to maximize federal financial participation for the
federal Promoting Safe and Stable Families grant, funds expended from
this program are in compliance with data-reporting requirements in
order to meet federal nonsupplantation requirements in accordance
with Section 1357.32(f) of Title 45 of the Code of Federal
Regulations, and the 25 percent state match requirement in accordance
with Section 1357.32(d) of Title 45 of the Code of Federal
Regulations.
(i) Beginning in the 2011-12 fiscal year, and for each fiscal year
thereafter, funding and expenditures for programs and activities
under this section shall be made with moneys allocated pursuant to
Sections Section 30025 and
30029.2 of the Government Code.
SEC. 620. Section 16513 of the Welfare and Institutions Code, as
added by Chapter 1235 of the Statutes of 1978, is amended and
renumbered to read:
16513. 16513.2. Funding of this
chapter is subject to the provisions of Part 1.5 (commencing with
Section 10100) of this division .
SEC. 621. Section 16517 of the Welfare and Institutions Code, as
added by Section 2 of Chapter 497 of the Statutes of 1992, is amended
and renumbered to read:
16517. 16517.5. (a) No
A social worker or probation officer acting as an
officer of the court shall not make an out-of-home
placement of a dependent or ward of the court pursuant to this
chapter with any of the following:
(1) Any A relative of the
social worker or probation officer responsible for the placement of
the child.
(2) The spouse of any a relative
described in paragraph (1).
(b) No A social worker or probation
officer acting as an officer of the court shall not receive
compensation for the out-of-home placement of a dependent or ward of
the court other than the compensation received as an employee of the
county or the state.
SEC. 622. Section 16524.7 of the Welfare and Institutions Code is
amended to read:
16524.7. (a) (1) There is hereby established the Commercially
Sexually Exploited Children Program. This program shall be
administered by the State Department of Social Services.
(2) The department, in consultation with the County Welfare
Directors Association of California, shall develop an allocation
methodology to distribute funding for the program. Funds allocated
pursuant to this section shall be utilized to cover expenditures
related to the costs of implementing the program, prevention and
intervention services, and training related to children who are
victims of commercial sexual exploitation.
(3) (A) Funds shall be provided to counties that elect to
participate in the program for the provision of training to county
children's services workers to identify, intervene, and provide case
management services to children who are victims of commercial sexual
exploitation and trafficking, and to foster caregivers for the
prevention and identification of potential victims.
(B) The department shall contract to provide training for county
workers and foster caregivers. Training shall be selected and
contracted for in consultation with the County Welfare Directors
Association, county children's services representatives, and other
stakeholders. The department shall consult and collaborate with the
California Community Colleges Chancellor's Office to provide training
for foster parents of licensed foster family homes.
(4) Funds provided to the counties electing to participate in the
program shall be used for prevention activities, intervention
activities, and services to children who are victims, or at risk of
becoming victims, of commercial sexual exploitation. These activities
and services may include, but are not limited to, all of the
following:
(A) Training foster children to help recognize and help avoid
commercial sexual exploitation. Counties may target training
activities to foster children who are at higher risk of sexual
exploitation.
(B) Engaging survivors of commercial sexual exploitation
to: (i) provide to do all of the following:
(i) Provide support to county
staff who serve children who are victims of commercial sexual
exploitation; (ii) for exploitation.
(ii) For activities that may
include training and technical assistance; and (iii) to
assistance.
(iii) To serve as advocates for
and perform outreach and support to children who are victims of
commercial sexual exploitation.
(C) Consulting and coordinating with homeless youth shelters and
other service providers who work with children who are
disproportionately at risk of, or involved in, commercial sexual
exploitation, including, but not limited to, lesbian, gay, bisexual,
and transgender youth organizations, regarding outreach and support
to children who are victims of commercial sexual exploitation.
(D) Hiring county staff trained and specialized to work with
children who are victims of commercial sexual exploitation to support
victims and their caregivers, and to provide case management to
support interagency and cross-departmental response.
(E) Providing supplemental foster care rates for placement of
child victims of commercial sexual exploitation adjudged to be within
the definition of Section 300 to be paid to
foster homes, relatives, foster family agency certified homes, or
other specialized placements to provide for the
increased care and supervision needs of the victim in accordance with
Section 11460.
(b) Funds allocated for the program shall not supplant funds for
existing programs.
(c) (1) In order to ensure timely access to services to which
commercially sexually exploited children are entitled to
as dependents in foster care, in participating counties,
county agency representatives from mental health, probation, public
health, and substance abuse disorders shall
participate in the case planning and assist in
linking commercially sexually exploited children to services that
serve children who are in the child welfare system and that are
identified in the child's case plan and may include other
stakeholders as determined by the county.
(2) The entities described in paragraph (1) shall provide input to
the child welfare services agency regarding the services and
supports needed for these children to support treatment
needs and aid in their recovery and may assist in linking these
children to services that are consistent with their county plans
submitted to the department pursuant to subdivision (d).
(d) (1) A county electing to receive funding from the Commercially
Sexually Exploited Children Program pursuant to this chapter shall
submit a plan describing how the county intends to utilize the funds
allocated pursuant to paragraph (4) of subdivision (a).
(2) The county shall submit a plan to the department pursuant to a
process developed by the department, in consultation with the County
Welfare Directors Association. The plan shall include documentation
indicating the county's collaboration with county partner agencies
and children-focused entities, which shall include the formation of a
multidisciplinary team to serve children pursuant to this chapter.
A multidisciplinary team serving a child pursuant to this chapter
shall include, but is not limited to, appropriate staff from the
county child welfare, probation, mental health, substance abuse
disorder, and public health departments. Staff from a local provider
of services to this population, local education agencies, and local
law enforcement, and survivors of commercial sexual exploitation and
trafficking may be included on the team.
SEC. 623. Section 16524.8 of the Welfare and Institutions Code is
amended to read:
16524.8. (a) Each county electing to receive funds from the
Commercially Sexually Exploited Children Program pursuant to this
chapter shall develop an interagency protocol to be utilized in
serving sexually exploited children. The county protocol shall be
developed by a team led by a representative of the county human
services department and shall include representatives from each of
the following agencies:
(1) The county probation department.
(2) The county mental health department.
(3) The county public health department.
(4) The juvenile court in the county.
The team may include, but shall not be limited to, representatives
from local education agencies, local law enforcement, survivors of
sexual exploitation and trafficking, and other providers as
necessary.
(b) At a minimum , the interagency protocol shall
address the provision of services to children who have been sexually
exploited and are within the definition of Section 300, including,
but not limited to, the use of a multidisciplinary team approach to
provide coordinated case management, service planning, and services
to these children.
SEC. 624. Section 16524.9 of the Welfare and Institutions Code is
amended to read:
16524.9. The State Department of Social Services, in consultation
with the County Welfare Directors Association, shall ensure that the
Child Welfare Services/Case Management System is capable of
collecting data concerning children who are commercially sexually
exploited, including children who are referred to the child abuse
hotline, hotline and children currently
served by county child welfare and probation departments who are
subsequently identified as victims of commercial sexual exploitation.
(a) The department shall disseminate any necessary instructions on
data entry to the county child welfare and probation department
staff.
(b) The department shall implement this section no later than June
1, 2015.
SEC. 625. The heading of Chapter 7 (commencing with Section
16997.1) of Part 4.7 of Division 9 of the Welfare and Institutions
Code is repealed.
CHAPTER 7. OPERATION OF PART
SEC. 626. The heading of Chapter 6 (commencing with Section 17500)
of Part 5 of Division 9 of the Welfare and Institutions Code, as
added by Section 1 of Chapter 90 of the Statutes of 1988, is amended
and renumbered to read:
CHAPTER 6. 5.5. UNEMPLOYED OR
DISPLACED WORKERS
SEC. 627. Section 17603 of the Welfare and Institutions Code is
amended to read:
17603. (a) This subdivision shall only
apply applies until the end of the
2012-13 fiscal year. On or before the 27th day of each month, the
Controller shall allocate to the local health and welfare trust fund
health accounts the amounts deposited and remaining unexpended and
unreserved on the 15th day of the month in the Health Subaccount of
the Sales Tax Account of the Local Revenue Fund, in accordance with
paragraphs (1) and (2):
(1) For the 1991-92 fiscal year, allocations shall be made in
accordance with the following schedule:
Allocation
Jurisdiction Percentage
Alameda .................... 4.5046
Alpine ..................... 0.0137
Amador ..................... 0.1512
Butte ...................... 0.8131
Calaveras .................. 0.1367
Colusa...................... 0.1195
Contra Costa ............... 2.2386
Del Norte .................. 0.1340
El Dorado .................. 0.5228
Fresno ..................... 2.3531
Glenn ...................... 0.1391
Humboldt ................... 0.8929
Imperial ................... 0.8237
Inyo ....................... 0.1869
Kern ....................... 1.6362
Kings ...................... 0.4084
Lake ....................... 0.1752
Lassen ..................... 0.1525
Los Angeles .......... 37.2606
Madera ..................... 0.3656
Marin....................... 1.0785
Mariposa ................... 0.0815
Mendocino .................. 0.2586
Merced ..................... 0.4094
Modoc ...................... 0.0923
Mono ....................... 0.1342
Monterey ................... 0.8975
Napa ....................... 0.4466
Nevada ..................... 0.2734
Orange ..................... 5.4304
Placer ..................... 0.2806
Plumas ..................... 0.1145
Riverside .................. 2.7867
Sacramento ................. 2.7497
San Benito ................. 0.1701
San Bernardino.............. 2.4709
San Diego .................. 4.7771
San Francisco .............. 7.1450
San Joaquin ................ 1.0810
San Luis Obispo ............ 0.4811
San Mateo .................. 1.5937
Santa Barbara .............. 0.9418
Santa Clara ................ 3.6238
Santa Cruz ................. 0.6714
Shasta ..................... 0.6732
Sierra ..................... 0.0340
Siskiyou.................... 0.2246
Solano ..................... 0.9377
Sonoma ..................... 1.6687
Stanislaus ................. 1.0509
Sutter ..................... 0.4460
Tehama ..................... 0.2986
Trinity .................... 0.1388
Tulare ..................... 0.7485
Tuolumne ................... 0.2357
Ventura .................... 1.3658
Yolo ....................... 0.3522
Yuba ....................... 0.3076
Berkeley ................... 0.0692
Long Beach ........... 0.2918
Pasadena ................... 0.1385
(2) For the 1992-93 fiscal year and fiscal years thereafter until
the commencement of the 2013-14 fiscal year, the allocations to each
county and city and county shall equal the amounts received in the
prior fiscal year by each county, city, and city and county from the
Sales Tax Account and the Sales Tax Growth Account of the Local
Revenue Fund into the health and welfare trust fund.
(b) (1) For the 2013-14 fiscal year, on the 27th day of each
month, the Controller shall allocate, in the same proportion as funds
in paragraph (2) of subdivision (a) were allocated, to each county's
and city and county's local health and welfare trust fund health
accounts, the amounts deposited and remaining unexpended and
unreserved on the 15th day of the month in the Health Subaccount of
the Sales Tax Account of the Local Revenue Fund.
(2) (A) Beginning January 2014 and for the remainder of the
2013-14 fiscal year, on or before the 27th of each month, the
Controller shall transfer to the Family Support Subaccount from the
Health Subaccount amounts determined pursuant to a schedule prepared
by the Department of Finance in consultation with the California
State Association of Counties. Cumulatively, no more than three
hundred million dollars ($300,000,000) shall be transferred.
(B) Every month, after the transfers in subparagraph (A) have
occurred, the remainder shall be allocated to the counties and cities
and counties in the same proportions as funds in paragraph (2) of
subdivision (a) were allocated.
(C) For counties participating in the County Medical Services
Program, transfers from each county shall not be greater than the
monthly amount the county would otherwise pay pursuant to paragraph
(2) of subdivision (j) of Section 16809 for participation in the
County Medical Services Program. Any difference between the amount
paid by these counties and the proportional share of the three
hundred million dollars ($300,000,000) calculated as payable by these
counties and the County Medical Services Program shall be paid from
the funds available for allocation to the County Medical Services
Program in accordance with the Welfare and Institutions Code.
(3) For the 2013-14 fiscal year, the Controller, using the same
timing and criteria used in paragraph (1), shall allocate to each
city, not to include a city and county, funds that shall equal the
amounts received in the prior fiscal year by each city from the Sales
Tax Account and the Sales Tax Growth Account of the Local Revenue
Fund into the health and welfare trust fund.
(c) (1) (A) For the 2014-15
fiscal year and for every fiscal year thereafter, the Department of
Finance, in consultation with the California State Association of
Counties, shall calculate the amount each county or city and county
shall contribute to the Family Support Subaccount in accordance with
Section 17600.50.
(B)
(2) On or before the 27th of each month, the Controller
shall transfer, based on a schedule prepared by the Department of
Finance in consultation with the California State Association of
Counties, from the funds deposited and remaining unexpended and
unreserved on the 15th day of the month in the Health Subaccount of
the Sales Tax Account of the Local Revenue Fund to the Family Support
Subaccount, funds that equal, over the course of the year, the
amount determined in subparagraph (A)
paragraph (1) pursuant to a schedule provided by the Department
of Finance.
(C)
(3) After the transfer in subparagraph (B)
paragraph (2) has occurred, the Controller shall
allocate on or before the 27th of each month to health account in
the local health and welfare trust fund of every county and city and
county from a schedule prepared by the Department of Finance, in
consultation with the California State Association of Counties, any
funds remaining in the Health Account from the funds deposited and
remaining unexpended and unreserved on the 15th day of the month in
the Health Subaccount of the Sales Tax Account of the Local Revenue
Fund. The schedule shall be prepared as the allocations would have
been distributed pursuant to paragraph (2) of subdivision (a).
(D)
(4) For the 2014-15 fiscal year and for every fiscal
year thereafter, the Controller, using the same timing and criteria
as had been used in paragraph (2) of subdivision (a), shall allocate
to each city, not to include a city and county, funds that equal the
amounts received in the prior fiscal year by each city from the Sales
Tax Account and the Sales Tax Growth Account of the Local Revenue
Fund into the health and welfare trust fund.
SEC. 628. The heading of Chapter 4.5 (commencing with Section
18260) of Part 6 of Division 9 of the Welfare and Institutions Code,
as added by Chapter 75 of the Statutes of 2006, is amended and
renumbered to read:
CHAPTER 4.5. 4.45. CHILD WELFARE
WAIVER DEMONSTRATION PROJECT
SEC. 629. Section 18901.2 of the Welfare and Institutions Code is
amended to read:
18901.2. (a) There is hereby created the State Utility Assistance
Subsidy (SUAS), a state-funded energy assistance program that shall
provide energy assistance benefits to eligible CalFresh households so
that the households may receive a standard utility allowance to be
used to help meet its their energy
costs, receive information about energy efficiency, and so that some
households may experience an increase in federal Supplemental
Nutrition Assistance Program benefits, as well as benefit from
paperwork reduction.
(b) To the extent required by federal law, the Department of
Community Services and Development shall delegate authority to the
State Department of Social Services to design, implement, and
maintain SUAS as a program created exclusively for purposes of this
section, similar to the federal Low-Income Home Energy Assistance
Program (LIHEAP) (42 U.S.C. Sec. 8621 et seq.).
(c) In designing, implementing, and maintaining the SUAS program,
the State Department of Social Services shall do all of the
following:
(1) Provide households that do not currently qualify for, nor
receive, a standard utility allowance, with a SUAS benefit in an
amount and frequency sufficient to meet federal requirements
specified in Section 2014(e)(6)(C)(iv) of Title 7 of the United
States Code if the household meets either of the following
requirements:
(A) The household would become eligible for CalFresh benefits if
the standard utility allowance was provided.
(B) The household would receive increased benefits if the standard
utility allowance was provided.
(2) Provide the SUAS benefit without requiring the applicant or
recipient to provide additional paperwork or verification.
(3) Deliver the SUAS benefit using the Electronic Benefit Transfer
(EBT) system.
(4) Notwithstanding any other law, notification of a recipient's
impending EBT dormant account status shall not be required when the
remaining balance in a recipient's account at the time the account
becomes inactive is equal to or less than the value of one year of
SUAS benefits.
(5) Ensure that receipt of the SUAS benefit pursuant to this
section does not adversely affect a CalFresh recipient household's
eligibility, reduce a household's CalFresh benefits, or disqualify
the applicant or recipient of CalFresh benefits from receiving other
public benefits, including other utility benefits, for which it may
qualify.
(d) (1) To the extent permitted by federal law, a CalFresh
household that receives SUAS benefits in the month of application for
new cases or in the previous 12 months for existing cases is
entitled to use the full standard utility allowance for the purposes
of calculating CalFresh benefits. A CalFresh household shall be
entitled to use the full standard utility allowance regardless of
whether the SUAS benefit actually is expended by the household.
(2) If use of the full standard utility allowance, instead of the
homeless shelter deduction, results in a lower amount of CalFresh
benefits for a homeless household, the homeless household shall be
entitled to use the homeless shelter deduction instead of the full
standard utility allowance.
(e) This section shall not be implemented until funds are
appropriated for that purpose by the Legislature in the annual Budget
Act or related legislation.
(f) This section shall become operative on July 1, 2014.
SEC. 630. Section 18901.11 of the Welfare and Institutions Code is
amended to read:
18901.11. (a) For the purposes of Section 273.5(b)(11)(ii) of
Title 7 of the Code of Federal Regulations, an educational program
that could be a component of a CalFresh E&T program described in
Section 18926.5, as identified by the department, shall be considered
an employment and training program under Section 273.7 of Title 7 of
the Code of Federal Regulations, unless prohibited by federal law.
(b) The department shall, in consultation with representatives of
the office of the Chancellor of the California Community Colleges,
offices of the Chancellor of the California State University,
University of California Chancellors' offices, the California
Workforce Investment Board, county human services agencies, and
advocates for students and clients, establish a protocol to identify
and verify all potential exemptions to the eligibility rule described
in Section 273.5(a) of Title 7 of the Code of Federal Regulations,
and to identify and verify participation in educational programs,
including, but not limited to, self-initiated placements, that would
exempt a student from the eligibility rule described in Section 273.5
(a) of Title 7 of the Code of Federal Regulations. To the extent
possible, this consultation shall take place through existing
workgroups convened by the department.
(c) If the United States Department of Agriculture requires
federal approval of the exemption designation established pursuant to
subdivision (a) and the protocol established pursuant to subdivision
(b), the department shall seek and obtain that approval before
publishing the guidance or regulation required by subdivision (e).
(d) (1) This section does not require a county human services
agency to offer a particular component, support services, or
worker's workers ' compensation to a
student found eligible for an exemption pursuant to this section.
(2) This section does not restrict or require the use of federal
funds for the financing of CalFresh E&T programs.
(3) This section does not require a college or university to
provide a student with information necessary to verify eligibility
for CalFresh.
(e) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
the department shall implement this section by all-county letters or
similar instructions beginning no later than October 1, 2015, until
regulations are adopted. The department shall adopt regulations
implementing this section on or before October 1, 2017.
SEC. 631. Section 25 of Chapter 279 of the Statutes of 2005 is
amended to read:
Sec. 25. Any section of any act, except Senate Bill 1107,
1108, enacted by the Legislature during the
2005 calendar year that takes effect on or before January 1, 2006,
and that amends, amends and renumbers, adds, repeals and adds, or
repeals any one or more of the sections affected by this act, shall
prevail over this act, whether this act is enacted prior to, or
subsequent to, the enactment of this act. The repeal, or repeal and
addition, of any article, chapter, part, title, or division of any
code by this act shall not become operative if any section of any
other act that is enacted by the Legislature during the 2005 calendar
year and takes effect on or before January 1, 2006, amends, amends
and renumbers, adds, repeals and adds, or repeals any section
contained in that article, chapter, part, title, or division.
SEC. 632. Section 1 of Chapter 15 of the Statutes of 2014 is
amended to read:
Section 1. It is the intent of the Legislature that the
Administrative Director of the Division of Workers' Compensation
collect data pursuant to subdivision (a) of Section 3702.2 of
the Labor Code for the purpose of determining whether the
extended statute of limitations established by this act provides an
adequate timeline for the families of fallen firefighters and peace
officers to commence proceedings for the collection of death benefits
as provided for in this act, such that the Legislature and the
Governor, when considering any extension of the date of repeal of
Section 5406.7 of the Labor Code, be informed of the facts
surrounding the mortality rate of public safety officers who succumb
to these job-related diseases.
SEC. 633. Section 1 of Chapter 243 of the Statutes of 2014 is
amended to read:
Section 1. The California Law Revision Commission shall, within
existing resources, conduct a study of the standards for recognition
of a tribal court or a foreign court judgment, under the Tribal Court
Civil Money Judgment Act (Title 11.5 (commencing with Section
1730)of 1730) of Part 3 of the Code of
Civil Procedure) and the Uniform Foreign-Country Money Judgments
Recognition Act (Chapter 2 (commencing with Section 1713)of
1713) of Title 11 of Part 3 of the Code of Civil
Procedure). On or before January 1, 2017, the California Law
Revision Commission shall report its findings, along with any
recommendations for improvement of those standards, to the
Legislature and the Governor.
SEC. 634. Any section of any act enacted by the Legislature during
the 2015 calendar year that takes effect on or before January 1,
2016, and that amends, amends and renumbers, adds, repeals and adds,
or repeals a section that is amended, amended and renumbered, added,
repealed and added, or repealed by this act, shall prevail over this
act, whether that act is enacted prior to, or subsequent to, the
enactment of this act. The repeal, or repeal and addition, of any
article, chapter, part, title, or division of any code by this act
shall not become operative if any section of any other act that is
enacted by the Legislature during the 2015 calendar year and takes
effect on or before January 1, 2016, amends, amends and renumbers,
adds, repeals and adds, or repeals any section contained in that
article, chapter, part, title, or division.